Criminal law - Appeal against conviction - Appellant a medical practitioner - Appellant charged with multiple sex offences against numerous patients ­ Whether the trial judge erred in failing to direct the jury that an acquittal on one count would undermine the likelihood of the appellant having a tendency to offend against that or another complainant - Whether the trial judge told the jury, in effect, that a finding of guilt on one count could be used to find another count proved

Criminal law - Appeal against sentence - Manifest excess - Totality principle - Whether the trial judge erred in characterising the appellant's offending as involving a 'serious breach of trust'

Evidence Act 1906 (WA), s 31A

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61

Director of Public Prosecutions v Joseph [2001] VSCA 151

Free v The State of Western Australia [2006] WASCA 259

GGM v The State of Western Australia [2011] WASCA 248

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

Mahmood v The State of Western Australia [2009] WASCA 220

Narkle v Hamilton [2008] WASCA 31

R v BAS [2005] QCA 97

R v Davies (1985) 3 NSWLR 276

R v Kilic [2016] HCA 48; (2016) 91 ALJR 131

R v Moodley [2013] QCA 253

R v Smith [2004] WASCA 44

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236

Tapper v The State of Western Australia [2016] WASCA 140

Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234

Williams v The State of Western Australia [2015] WASCA 110

1 BUSS P: The appellant has applied for leave to appeal against conviction and sentence.

2 He was a medical practitioner. The complainants were his female patients.

3 Initially, the appellant was tried before Bowden DCJ and a jury on an indictment containing 25 counts of alleged sexual offending against 10 of his female patients. The jury was discharged after it returned verdicts of not guilty on some counts and was unable to agree on others.

4 Later, the appellant was retried before Davis DCJ (the primary judge) and a jury on an indictment containing 13 counts of alleged sexual offending against eight of his female patients. The 13 counts were those counts in the initial indictment on which the jury was unable to agree.

5 At the retrial the appellant was found guilty on eight counts of unlawful and indecent assault, contrary to s 323 of the Criminal Code (WA) (the Code), against five patients and not guilty on the other five counts. The counts on which he was acquitted alleged sexual penetration without consent, contrary to s 325(1) of the Code, and unlawful and indecent assault, contrary to s 323 of the Code.

6 I would refuse leave to appeal against conviction and sentence. My reasons are as follows.

The counts on which the appellant was convicted

7 The counts on which the appellant was convicted were as follows.

8 Count 1 alleged that, on 19 January 2012, the appellant unlawfully and indecently assaulted M by touching her breasts.

9 Count 2 alleged that, on the same date as in count 1, the appellant unlawfully and indecently assaulted M by touching her vagina.

10 Count 3 alleged that, on 19 January 2012, the appellant unlawfully and indecently assaulted C by touching her breasts.

11 Count 4 alleged that, on the same date as in count 3, the appellant unlawfully and indecently assaulted C by touching her vagina.

12 Count 5 alleged that, on 6 July 2012, the appellant unlawfully and indecently assaulted T by touching her breast.

13 Count 11 alleged that, on 2 August 2012, the appellant unlawfully and indecently assaulted N by touching her breast.

14 Count 12 alleged that, on 7 August 2012, the appellant unlawfully and indecently assaulted A by kissing her face.

15 Count 13 alleged that, on the same date as in count 12, the appellant unlawfully and indecently assaulted A by again kissing her face.

16 The primary judge imposed sentences of immediate imprisonment as follows:

(b) count 2: 2 years 6 months (reduced to 21 months in the application of the totality principle);

(d) count 4: 2 years 6 months (reduced to 21 months in the application of the totality principle);

(e) count 5: 12 months (reduced to 9 months in the application of the totality principle);

(f) count 11: 12 months (reduced to 9 months in the application of the totality principle);

17 Her Honour ordered that the sentences for each of counts 4, 5 and 11 be served cumulatively upon count 2 and upon each other. The sentences for the other counts were ordered to be served concurrently with count 2 and with each other. The total effective sentence was therefore 5 years' immediate imprisonment. A parole eligibility order was made. The total effective sentence was backdated to 24 September 2015, being the date on which the appellant was taken into custody for the offences.

Appeal against conviction: the State's case at the retrial

18 The State's case at the retrial was that the appellant engaged repeatedly in intimate physical contact with the complainants, who were his young female patients, at the medical practice where he worked, for his own sexual gratification, while falsely pretending that the physical contact was done for legitimate medical reasons in the course of examining, diagnosing or treating their medical complaints (ts 1354, 2018).

Appeal against conviction: the appellant's case at the retrial

19 The appellant gave sworn evidence at the retrial. He denied having offended as alleged by the State. The appellant said, in essence, that any and all physical contact by him with the complainants was done for legitimate medical reasons in the course of examining, diagnosing or treating their medical complaints.

20 Defence counsel also called other witnesses who gave evidence as to the appellant's good character.

Appeal against conviction: grounds of appeal

21 The appellant relies on two grounds in his appeal against conviction.

22 Ground 1 alleges that there was a miscarriage of justice when, over objection, the primary judge failed to direct the jury that an acquittal on one count would undermine the likelihood of the appellant having a tendency to offend against that or another complainant.

23 Ground 2 alleges that her Honour erred when, contrary to the decision of this court in GGM v The State of Western Australia [2011] WASCA 248, she told the jury, in effect, that a finding of guilt on one count could be used to find another count proved.

Appeal against conviction: ground 1: propensity evidence

24 At the retrial, the prosecutor contended that if the jury found the appellant guilty on one or more counts, and if the jury concluded that the evidence relating to those counts established that the appellant had a sexual interest in some of his young female patients and a willingness to act on that sexual interest when circumstances permitted, then the jury could use that conclusion to support a finding that it was more likely that the appellant had committed the offences charged in the other counts (ts 1939).

25 Prior to the closing addresses at the retrial, defence counsel submitted to the primary judge that her Honour should make 'a comment' to the jury in her summing up that 'if [the jury] find [the appellant not guilty] of any count, that may diminish the force of the State's contention that [the appellant] had a sexual interest in his [young female patients or some of them]' (ts 1903 - 1904).

26 Her Honour did not make a comment to that effect in her summing up.

27 The primary judge gave the jury, relevantly, these directions:

I'm going to now give you the directions of law applicable to the second category of non-direct evidence. And that is the use that may or may not be made of the evidence of one or more of those 13 counts when you're considering the evidence in relation to any other count.

I've directed you before that you have to look at the evidence on each of those counts you're considering and to decide whether the specific act in each count has been proved beyond reasonable doubt. If you find [the appellant] not guilty of a count - that is, you acquit him - you could not use the evidence you have heard about that count when you are considering any other count. If you have found him not guilty, you must proceed on the basis that he is innocent of that charge. So evidence on a matter on which you have acquitted [the appellant] cannot be used by you when you are considering any other count.

On the other hand, if you are satisfied beyond reasonable doubt that [the appellant] is guilty of one or more of the counts, the evidence in relation to those counts may be relevant to the other counts. You are permitted to consider the evidence of any count on which you find [the appellant] guilty, along with all the other relevant evidence to decide whether the State has proved another count in the indictment beyond reasonable doubt.

It would be open to you to conclude that the occurrence of one or more of the counts increases the likelihood that [the appellant] committed the specific act, the subject of another count. And this is what the State has submitted to you. [The prosecutor] submitted to you, in essence, that a finding of guilty on one or more of the counts would establish a propensity or tendency of [the appellant] to touch his female patients in an indecent or sexual way. And also that it establishes that he had a sexual interest in his young female patients.

I need to direct you that you cannot conclude that [the appellant] had such an interest unless you're satisfied beyond reasonable doubt of the existence of that sexual interest. So a finding that [the appellant] is guilty on one or more of the counts may well establish a propensity or tendency, but that is a matter for you.

The same thing applies in relation to whether, if you find [the appellant] guilty on one or more of the counts, that establishes the sexual interest in the patients as the State has admitted to you. It's a matter for you but I need to stress that you must be satisfied beyond reasonable doubt that [the appellant] did have that sexual interest.

Also, you cannot use the evidence about any count where you are satisfied beyond reasonable doubt of [the appellant's] guilt in substitution for evidence of the events relating to any other count. In other words, proof to your satisfaction of guilt on one count must not lead you automatically to a guilty verdict on other counts. You can't say, 'Well, we found he did this. He therefore must be guilty of this other one'.

Ultimately for each count what you have to decide on the whole of the evidence is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in each count. You cannot convict [the appellant] on any count unless the State has satisfied you beyond reasonable doubt that he committed that specific act as alleged (ts 2054 - 2055).

28 After her Honour's summing up, defence counsel requested her Honour to redirect the jury to the effect that if the jury found the appellant not guilty on one or more counts, then that would 'detract from [the] force' of the State's contention that the appellant had a sexual interest in some of his young female patients and a willingness to act on that sexual interest when circumstances permitted (ts 2087). Defence counsel said that a 'balancing direction' to that effect was necessary (ts 2088). According to defence counsel, the jury should be told that a verdict of not guilty on one or more of the counts would '[detract] from the strength of the submission put forward by the State that there's a tendency' (ts 2088).

29 The primary judge refused to redirect the jury in the manner sought by defence counsel. Her Honour said:

[A] finding of not guilty doesn't diminish the force [of the State's contention]. If [the jury] find him guilty of one [count], they may be satisfied beyond reasonable doubt of a sexual interest (ts 2090).

Appeal against conviction: ground 1: the appellant's submissions

30 Counsel for the appellant (who was defence counsel at the retrial) argued before this court that the primary judge was bound to give the jury a 'counterbalancing direction' to the effect that 'a finding of not guilty [could] be used by [the jury] to diminish or dilute the power of that tendency argument the State [relied] upon' (appeal ts 5).

31 Counsel admitted, in response to questions from the court, that he had '[never] heard of a judge giving the direction [counsel said] should have been given' (appeal ts 2). Counsel was unable to cite any authority in support of the proposition embodied in ground 1.

32 Counsel argued, however, that although a 'section 31A balancing direction', like a 'Crofts direction' (Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427), need not always be given, it should be given 'if the facts dictate'.

33 According to counsel, the absence of a 'balancing direction' in the present case 'unnecessarily favoured the State's position in the sense that the prosecution effectively sought to utilise the finding of guilt on one charge to establish, pursuant to section 31A of the Evidence Act 1906 (WA), a tendency of [the appellant] to touch his female patients in an indecent or sexual way'.

34 The facts of the present case which, in counsel for the appellant's submission, required a 'balancing direction' were these:

(a) The jury at the initial trial had been unable to reach a verdict on any of the counts on which the appellant was convicted at the retrial.

(c) The nature of the medical examinations which the appellant performed on the complainants were different from each other.

(d) The complainants were of different ages and backgrounds.

(e) The appellant 'strongly [denied]' in his sworn evidence at the retrial that he had committed any of the offences.

35 It was argued that, in those circumstances, the giving of a 'balancing direction' was essential to ensure that the appellant received a fair trial.

Appeal against conviction: ground 1: its merits

36 Section 31A of the Evidence Act provides, relevantly:

(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.

37 In s 31A(1), 'propensity evidence' is defined by reference to the conduct, character or reputation of the accused or a tendency that the accused has or had. It includes similar fact evidence. Section 31A(1) defines 'relationship evidence' in more specific terms, by reference to the accused's attitude or conduct towards another person, or a class of persons, over a period of time.

38 The test for admissibility in s 31A(2)(a) and s 31A(2)(b) applies to both 'propensity evidence' and 'relationship evidence', as defined. Neither 'propensity evidence' nor 'relationship evidence' will be admissible under s 31A unless 'the court considers' that:

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

(b) 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.

39 In Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [49], I made the following observations (Martin CJ & Mazza JA agreeing) about s 31A:

(a) Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

(b) The test in s 31A(2)(a) will be satisfied if the court 'considers' (that is, thinks) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue.

(c) The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence'.

(d) If propensity evidence has 'probative value' then whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact.

40 'Propensity evidence' and 'relationship evidence' (as defined in s 31A(1)) will be admissible as part of the State's case if the conditions in pars (a) and (b) of s 31A(2) are satisfied.

41 A judge in a criminal trial is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. See Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 - 325 (Brennan J); Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 86 (Brennan, Dawson & Toohey JJ); Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234 [123] (Callinan J), [158] (Crennan J). This is an incident of the judge's duty to ensure a fair trial for the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).

42 Crofts concerned an accused charged with thirteen counts of committing sexual offences against a child aged between 10 and 16 years. The complainant had delayed in making complaints about the alleged offending for periods of between six months and six years from the dates on which the acts were alleged to have occurred. Section 61 of the Crimes Act 1958 (Vic) provided, relevantly, that on the trial of a person for certain sexual offences, the judge must not warn, or suggest in any way to, the jury, that the law regards complainants in sexual cases as an unreliable class of witness. Section 61 also contained provisions substantially similar to s 36BD of the Western Australian Evidence Act. Toohey, Gaudron, Gummow and Kirby JJ referred to the statement of Barwick CJ (with whom McTiernan, Stephen and Mason JJ concurred) in Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 472, in relation to the significance of a want of timely complaint, where his Honour said:

In my opinion, quite apart from the fact that there may be many reasons why a complaint is not made, the want of a complaint does not found an inference of consent. It does tell against the consistency of the woman's account and accordingly is clearly relevant to her credibility in that respect (448).

43 Their Honours recorded that after the decision in Kilby:

In appropriate cases juries were told that the absence of timely complaint (if that be their conclusion) was relevant to the credibility of the complainant and a fact to be considered in evaluating the consistency of the complainant's evidence. There might be 'many reasons' to explain why the complaint was not made promptly. It was for the jury to weigh up those possible reasons. But it was also for the jury to weigh up the significance of the delay in complaining (448).

44 In Crofts, Toohey, Gaudron, Gummow and Kirby JJ approved, at 449 - 450, the following observations of Hunt J (Slattery CJ at CL & Carruthers J agreeing) in R v Davies (1985) 3 NSWLR 276, in relation to s 405B of the Crimes Act 1900 (NSW), which is comparable to s 36BD of the Western Australian Evidence Act:

I am unable to see from the statute generally any legislative intention ... to preclude the trial judge - as a matter of common fairness - giving directions on the other side of the coin to those required by that section. Making obligatory the giving of directions that there may be good reasons for the absence of a complaint or for the delay in making it, whether or not such reasons were suggested in the evidence, is certainly to be seen as tilting the balance in favour of the complainant - no doubt because of the difficulty she may often have in articulating those reasons herself - but it should not be seen as standing the law on its head to exclude what in common fairness and common experience should be taken into account in favour of the accused (278).

The purpose [of s 61] was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 86 - 87). It was simply to correct what had previously been standard practice by which, based on supposed 'human experience' and the 'experience of courts', judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to 'sterilise' complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration (Longman at 86, citing R v Pahuja (1987) 49 SASR 191 at 199, per King CJ; R v Miletic (unreported; Supreme Court of Victoria (Court of Appeal); 9 August 1996) at 20). The overriding duty of the trial judge remains to ensure that the accused secures a fair trial (cf M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 515, per Gaudron J). It would require much clearer language than appears in s 61 of the Act to oblige a judge, in a case otherwise calling for comment, to refrain from drawing to the notice of the jury aspects of the facts of the case which, on ordinary human experience, would be material to the evaluation of those facts (Longman at 86).

...

Two qualifications to the duty to provide the warning suggested by Kilby may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness (R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 514 - 515). The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant's evidence is false (451).

46 In the present case, the appellant does not allege that the propensity evidence sought to be relied on by the State was inadmissible. Also, the appellant does not complain about the directions which the primary judge actually gave in relation to the evidence of the appellant's alleged propensity. The appellant's complaint is confined to the assertion that her Honour was bound to give the jury a 'balancing direction' in or to the effect of the direction posited by his counsel.

47 In my opinion, her Honour was correct in refusing to give the jury a 'balancing direction' of the kind contended for on behalf of the appellant. The balancing direction was not necessary or appropriate. No such direction was required to ensure that the appellant received a fair trial. My reasons are as follows.

48 First, the primary judge directed the jury that it could not use the evidence sought to be relied on by the State as to the appellant's alleged propensity unless the jury was satisfied beyond reasonable doubt that:

(a) the appellant was guilty of at least one of the counts in the indictment; and

(b) the evidence on a count of which the jury convicted the appellant established that he had a sexual interest in his young female patients and he would touch them in an indecent or sexual way.

49 Secondly, her Honour directed the jury that it could not use the evidence of the appellant's alleged propensity 'in substitution for' evidence of the alleged events relating to an offence charged in the indictment (ts 2055). In particular, her Honour told the jury that it could not convict the appellant 'on any count unless the State has satisfied you beyond reasonable doubt that he committed that specific act as alleged' (ts 2055).

50 Thirdly, a verdict of acquittal on a count in the indictment would indicate that the jury was not satisfied that the State had proved beyond reasonable doubt each of the elements of the charged offence. However, it would not follow, as a matter of fact or logic, that if the jury acquitted the appellant of a count, the acquittal would necessarily detract from the force of the State's case that the appellant had a sexual interest in some of his young female patients and a willingness to act on that sexual interest when circumstances permitted.

51 Fourthly, in any event, the State's contention was that the appellant had a sexual interest in some (not all) of his young female patients. Also, the State's contention was that the appellant had a willingness to act on that sexual interest when circumstances permitted (not in any and all circumstances). The absence of a sexual interest by the appellant in one or more of the complainants or the appellant's failure to act on any such sexual interest in relation to one of the complainants, would not, of itself, detract from the force of the State's contentions in relation to another complainant.

52 Fifthly, the effect of the primary judge's direction, as to the use the jury could make of the evidence of the appellant's alleged propensity, would have conveyed unequivocally to the jury that it could only use the evidence, in the manner in which her Honour explained, if it was affirmatively satisfied to the criminal standard of proof that, relevantly, the evidence on a count of which the jury convicted the appellant established that he had the alleged propensity.

53 Sixthly, the rationale for the giving of a Crofts 'balancing direction', in some circumstances, in relation to a jury's use of any delay by a complainant in making complaint as to alleged sexual offending, does not apply, by analogy, in the circumstances of the present case. None of the facts identified by counsel for the appellant, either alone or in combination, required her Honour to give a 'balancing direction' of the kind contended for on behalf of the appellant. Those facts were known to the jury. Ultimately, it was a question of fact for the jury whether, upon the whole of the relevant evidence, it was satisfied to the criminal standard of proof that the appellant had the alleged propensity. It was not suggested, and it could not reasonably have been suggested, that it was not open to the jury to find that the appellant in fact had the propensity in question.

Appeal against conviction: ground 2: the appellant's submissions

55 Counsel for the appellant referred to the observation of McLure P (Buss JA and Mazza J agreeing) in GGM, in the context of alleged propensity evidence, that, as with uncharged acts, 'it is the evidence of what in fact occurred of which the jury [must be] satisfied to the requisite standard that is the relevant evidence, not the finding of guilt' [11].

57 First, in the present case the primary judge directed the jury, contrary to the observation of McLure P in GGM, that '[i]t would be open to [the jury] to conclude that the occurrence of one or more of the counts increases the likelihood that [the appellant] committed the specific act, the subject of another count' (ts 2055).

58 Secondly, although her Honour gave the jury 'an adequate separate verdict direction' (ts 2016 - 2017), and referred 'at one stage' to the jury considering 'the evidence on any count' (ts 2055), her Honour impermissibly made the statement referred to in the first proposition. According to counsel, her Honour's reference to 'counts' would have been understood by the jury to be 'a reference to [the jury] being permitted to use a finding of guilt on one count (and not merely the evidence in support of that count) to bolster the State case on another count, which direction contravened the separate verdicts direction otherwise given'.

59 Thirdly, as McLure P 'effectively noted' in GGM, 'an impermissible "bootstraps" argument would arise if the jury was told the relevant propensity evidence was the appellant's "guilt" on another count' [11].

60 Counsel for the appellant acknowledged that at the trial he did not seek any redirection or further direction on the matters about which he now complains. As to the significance of that point, see Mahmood v The State of Western Australia [2009] WASCA 220 [65] (Owen JA, McLure P & Miller JA agreeing); Sayed v The Queen [2012] WASCA 17; (2012) 220 A Crim R 236 [76] (Buss JA, Martin CJ & Hall J agreeing). Counsel for the appellant is an experienced criminal defence lawyer.

Appeal against conviction: ground 2: its merits

61 It is trite that the impugned passage from the primary judge's summing up must be evaluated in the context of her summing up as a whole.

62 At the hearing of the appeal, counsel for the appellant said, in effect, that ground 2 'really turns on [her Honour's references to] count versus evidence' (appeal ts 12).

63 I am satisfied that, on a fair reading of the impugned passage in the context of the summing up as a whole, there is no merit in ground 2.

64 The impugned passage appears in the section of the primary judge's summing up which I have reproduced at [27] above. In that section, her Honour said:

(a) She was going to give the jury 'the directions of law applicable to the second category of non-direct evidence' (ts 2054) (emphasis added).

(b) The directions concerned 'the use that may or may not be made of the evidence of one or more of those 13 counts when you're considering the evidence in relation to any other count' (ts 2054) (emphasis added).

(c) If the jury were to find the appellant 'not guilty of a count ... you could not use the evidence that you have heard about that count when you are considering any other count' (ts 2054) (emphasis added).

(d) So 'evidence on a matter on which you have acquitted [the appellant] cannot be used by you when you are considering any other count' (ts 2054) (emphasis added).

(e) If the jury was satisfied beyond reasonable doubt that '[the appellant] is guilty of one or more of the counts, the evidence in relation to those counts may be relevant to the other counts' (ts 2054 - 2055) (emphasis added).

(f) The jury was permitted to consider 'the evidence on any count on which you find [the appellant] guilty, along with all the other relevant evidence to decide whether the State has proved another count in the indictment beyond reasonable doubt' (ts 2055) (emphasis added).

(g) The jury could not use 'the evidence about any count where you are satisfied beyond reasonable doubt of [the appellant's] guilt in substitution for evidence of the events relating to any other count' (ts 2055) (emphasis added).

(h) Ultimately, for each count, 'what you have to decide on the whole of the evidence is whether or not the State has established beyond reasonable doubt that [the appellant] committed the specific act as alleged in each count' (ts 2055) (emphasis added).

65 Elsewhere in her summing up, the primary judge reviewed the evidence that was relevant to each count and summarised the State's case and the appellant's case in relation to the counts.

66 I have no doubt that the jury would have understood that if it was satisfied beyond reasonable doubt that:

(a) the appellant was guilty of at least one of the counts in the indictment; and

(b) the evidence on a count of which the jury convicted the appellant established that he had a sexual interest in his young female patients and he would touch them in an indecent or sexual way,

then the jury could use the evidence (as distinct from the verdict of guilty), in the manner in which her Honour explained, in its consideration of another count or other counts.

67 In particular, the primary judge's reference in the impugned passage to 'the occurrence of one or more of the counts' (ts 2055) would have been understood, in the context of the relevant section of the summing up, as a reference to the evidence of the events relevant to that count or those counts rather than the verdict or verdicts of guilty.

68 The impugned passage did not, in context, '[contravene] the separate verdicts direction otherwise given'.

70 Neither ground 1 nor ground 2 of the appeal against conviction has a reasonable prospect of success. Leave to appeal should be refused on each ground. The appeal must be dismissed.

71 The appellant relies on three grounds in his appeal against sentence.

72 Ground 1 alleges that the term of 21 months' immediate imprisonment imposed for each of count 2 and count 4 was, in all the circumstances, manifestly excessive.

73 Ground 2 alleges that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.

74 Ground 3 alleges that the primary judge erred in characterising the appellant's offending as involving a 'serious breach of trust'. Her Honour should have found that, although there was a 'breach of trust', it was not a 'serious' breach.

Appeal against sentence: the facts and circumstances of the offending, the primary judge's findings of fact and the appellant's personal circumstances

75 The offending occurred on various dates between January 2012 and August 2012 while the appellant was working as a medical practitioner at a general practice in Bunbury.

76 As to count 1, on 19 January 2012, the appellant examined the complainant, M, in his consulting room. M had presented with symptoms of tonsillitis. The appellant examined M's throat and stomach, and used a stethoscope on her chest. He told M that he wanted to check her for skin cancers. While M sat on the examination table, the appellant pulled down her bra and 'jiggled' her breasts (ts 2134). He was not wearing gloves. The touching was brief.

77 As to count 2, during the consultation on 19 January 2012, the appellant told M to lie on the examination table so he could check her stomach. The appellant undid M's skirt and pulled it down. He said he also needed to check her legs. The appellant pulled down M's underwear. Next, he told M to open her legs. She complied in the belief that the appellant was checking for skin cancers. The appellant then 'grabbed the outer lips of [M's] vagina and held each of her vaginal lips between [his] thumb and forefinger, moving each from side to side, one after the other' (ts 2134). He was not wearing gloves.

78 As to counts 1 and 2, the primary judge was satisfied that the appellant's action in 'jiggling and shaking' M's breasts and 'manipulating' her vaginal lips was not a legitimate medical procedure either for tonsillitis or skin cancer (ts 2134). Also, it was not proper practice for a medical practitioner to remove a patient's clothing.

80 As to count 3, on 19 January 2012, the appellant examined the complainant, C, who had attended the medical practice to obtain the results of a blood test. The appellant told C that he had been performing pap smears and asked whether she needed one. C said she had already had a pap smear done by her family doctor. The appellant also told C that he had been performing skin checks. C said she had a couple of moles and she wanted the appellant to check them. C lay face up on the examination table. The appellant put his hands down her top and into her bra. He touched her breasts and held them for one to two minutes. The appellant was not wearing gloves.

81 As to count 4, the appellant asked C, while she was lying on the examination table, to pull down her underpants. She refused. C told the appellant that the moles she wanted checked were on her leg and back. Nevertheless, the appellant spread C's legs, moved the crotch of her underpants to one side and 'put [his] fingers on either side of the inner parts of her vagina' (ts 2135). He touched her vagina for two to three minutes. The appellant was not wearing gloves. He did not check any other parts of her body.

82 As to counts 3 and 4, her Honour was satisfied that the appellant's actions in holding C's breasts, moving the crotch of her underpants to one side and touching the inner parts of her vagina were not part of a legitimate or proper medical examination.

84 On 25 January 2012, the Australian Health Practitioner Regulation Agency (AHPRA) informed the appellant that on 19 January 2012 it had received a complaint that he had engaged in 'sexual misconduct and made inappropriate comments' during a consultation with a female patient (ts 2136). AHPRA told the appellant that it intended to impose a condition on his registration as a medical practitioner that he must not consult with female patients unless a chaperone was present.

85 On 1 February 2012, AHPRA informed the appellant that it had imposed a condition on his registration requiring him to have a chaperone in attendance during any physical examination of a female patient.

86 The appellant committed the offences alleged in counts 5, 11, 12 and 13 without a chaperone being present.

87 As to count 5, on 6 July 2012, T attended the medical practice and complained of a sore chest, coughing and wheezing. At the appellant's request, she sat on the examination table and lifted her hoodie. The appellant then lifted the remainder of her outer clothes and removed one of her breasts from her bra. He slid his hand between her bra and her breast and cupped the base of the breast with his hand. The appellant used his other hand to place his stethoscope in the vicinity of her nipple. He asked T to breathe in and out. At the time the appellant did not have the earpieces of the stethoscope in his ears. Next, the appellant removed T's other breast from her bra. He put the earpieces of the stethoscope in his ears and placed the stethoscope on the other breast while holding it with his hand. The appellant asked T about a tattoo she had on her chest or torso. He stroked the tattoo. The appellant touched the first breast for at least two to three minutes and the second breast for about one minute. The appellant and T then sat at his desk. The appellant grabbed T's hand and stroked it. He said he liked her. The appellant asked T to return and see him on a Sunday. He told her to meet him in the car park at the medical practice and suggested they have sex. The appellant kept stroking T's hand as he spoke to her. He gave her a hug as she was leaving.

88 After the consultation the appellant telephoned T twice. She did not speak to him on either occasion.

89 At the retrial, the appellant gave evidence. He denied having examined T and he denied having done anything inappropriate. The appellant claimed that he had not spoken to T about meeting her in a car park or having sex with her. Instead, he claimed to have been talking to her about collecting seashells. The appellant suggested that T had misheard him because he speaks with an Indian accent. He admitted telephoning T but claimed he had done so to check on her welfare.

90 The primary judge rejected the appellant's explanations. Also, her Honour was satisfied that the appellant's actions in holding T's breasts were not part of a legitimate or proper medical examination.

92 As to count 11, on 2 August 2012, the complainant, N, visited the medical practice to obtain a prescription for her urinary tract infection. She consulted the appellant. Before the consultation the appellant had received a telephone call from the Bunbury Regional Hospital. A representative of the hospital informed the appellant that N had a urinary tract infection that was resistant to certain antibiotics. The representative told the appellant that there were two antibiotics which he should prescribe for her. N was, in essence, at the medical practice to collect the prescription. Early in the consultation, the appellant asked N about her work and working hours. He told her that if she wanted more work then he would employ her, seven days a week, as his personal assistant or chaperone. N said she would consider the offer. The appellant gestured to N to sit on the examination table. As she moved towards the table the appellant indicated to N, by a gesture, that she should hug him. She did so. Next, N sat on the examination table. The appellant asked her about her clothing, bra and underwear size. He told her that he could buy gifts for her when he went to Sydney. The appellant put his right hand down N's top. He told her he was doing a breast examination. The appellant fondled both of her breasts, one at a time. The breast examination was unnecessary. It was not a legitimate or proper procedure. The appellant saw N without a chaperone. That was in breach of the condition imposed by AHPRA.

94 As to counts 12 and 13, the complainant, A, had been consulting the appellant in relation to a knee injury. On 7 August 2012, A returned to the medical practice to ascertain from the appellant the results of a magnetic resonance imaging scan. Initially, the appellant told A that he did not have the results. She removed her pants and the appellant examined her knee. While she was sitting on the examination table, the appellant positioned himself between her legs and remained there. The appellant asked A why she kept returning to see him and why she liked him. He appeared to be 'fishing for compliments' (ts 2139). He then 'came in for a hug' (ts 2139). After hugging A, the appellant grabbed her hands and linked his fingers with hers. He attempted to kiss her but she kept turning her head. He connected with her cheek on several occasions. That kissing was the subject of count 12. Next, A moved from the examination table and put on her pants. The appellant spoke to her about a conference he was attending in Sydney. He asked whether he could buy her something. The appellant suggested lingerie. He asked her about her clothing and bra size. As A went to leave the consulting room, the appellant grabbed her and led her to the examination table. He attempted to kiss her again. He tried to kiss her on the mouth on several occasions. A turned her head and the kisses connected with the side of her mouth. That kissing was the subject of count 13.

96 Her Honour noted that there were 'some serious aggravating circumstances to all of [the appellant's] offending' (ts 2140).

97 First, the appellant was a medical practitioner and the complainants were his patients. All of the offences occurred in the appellant's consulting room, at the medical practice, when he was alone with them. The appellant was in 'a position of trust' and that elevated the seriousness of his offending (ts 2140). Except for counts 12 and 13, all of the offending occurred in the course of a physical examination which was neither warranted nor legitimate. Except for counts 12 and 13, the appellant touched the skin of intimate parts of each complainant's body with his ungloved hand or hands. The consent of M and C to the examinations which the appellant performed was obtained by fraud or deceit. The appellant did not seek the consent of N before purporting to perform the breast examination. The appellant's offending against T, N and A, in breach of the condition imposed by AHPRA, demonstrated the wilfulness of his offending against those complainants.

98 Secondly, the complainants were young and vulnerable. Three of them were suffering from mental illnesses when they consulted the appellant or had suffered from mental health difficulties previously. In June 2011, the appellant had noted that M had a history of poor sleep, low self-esteem and depressed mood. He created a mental health care plan for her. On 9 January 2012, shortly before the appellant saw C, another medical practitioner at the medical practice noted a diagnosis of adjustment disorder with anxious mood. T had a history of bipolar disorder. The appellant had previously prepared a mental health plan for her.

99 The primary judge said the appellant's offending was 'a serious breach of trust and [his] professional responsibilities' (ts 2141). Her Honour was satisfied beyond reasonable doubt that, in each case, the appellant was acting selfishly, and his actions were undertaken for his own sexual gratification.

100 Although the incidents in question were isolated in respect of each complainant, the appellant's offending occurred over a period of almost eight months and involved five different complainants. His offending was not an isolated lapse of judgment or an uncharacteristic aberration. His offending against each complainant ceased because the complainant made an immediate complaint. The whole of his offending ceased only because he was suspended from and left the medical practice.

101 The appellant demonstrated no remorse or victim empathy. His offending destroyed the trust of the complainants in medical practitioners. Each of them has suffered some anxiety or feels uncomfortable about consulting any medical practitioner, especially male practitioners. Her Honour noted the following details from the victim impact statements:

(a) M has feelings of shame, guilt and worthlessness. She has struggled with anxiety. The offending has affected her intimate relationships and her employment.

(b) C has feelings of shame. The offending has affected her self-esteem and her relationship with family members. She is wary of older men.

(c) T became depressed and began to self-harm. She moved from Bunbury to New Zealand with a view to starting her life afresh. She became pregnant. Her fear of medical practitioners caused her to delay in consulting a practitioner. That resulted in complications for her health. Her fear of consulting medical practitioners has also affected the ongoing management of her bipolar disorder.

(d) N has found it difficult to trust men including those with whom she works. That has resulted in some stress.

(e) A has suffered from stress and panic attacks. The offending has affected her confidence and her emotional functioning in some social situations.

102 The appellant was aged 57 at the time of the offending and was 59 when sentenced.

103 He was born in India and came to Australia in 1989. He is an Australian citizen. He has a wife and two children.

104 The appellant qualified as a medical practitioner in 1979 and has practised in a variety of capacities in India, Australia and New Zealand. Between 2006 and 2008 he established five medical practices in rural Queensland. In February 2010, he moved to Bunbury and worked as a general medical practitioner. In June 2010 he returned to Queensland to be with his family. However, he was unable to obtain work in that State and consequently returned to Bunbury where he worked from April 2011 to August 2012. On 24 August 2012, his licence to practice medicine was suspended as a result of the complaints made by the complainants. In 2014 the appellant moved to Sydney with his family. He has not practised medicine or been otherwise employed since August 2012. The appellant suffered from depression for about two years prior to sentencing. In October 2014, he attempted suicide by slitting his wrists. The appellant does not have any substance abuse issues. He has no prior criminal convictions.

105 At the retrial, evidence was given as to the appellant's good character prior to his offending. The primary judge was also provided with a written reference. The author of the reference spoke well of the appellant. Her Honour expressly took into account the fact that the appellant had no prior criminal convictions and was otherwise of good character.

106 Her Honour accepted that imprisonment would have an adverse impact on the appellant's family (in particular, an adverse financial impact), but noted that this was not an uncommon aspect of an offender's imprisonment.

107 The primary judge expressly took into account that the regulatory authorities were unlikely to permit the appellant to return to medical practice and, to that extent, the need for personal deterrence was 'somewhat reduced' (ts 2147).

Appeal against sentence: ground 1: its merits

108 Ground 1 asserts that the term of 21 months' immediate imprisonment imposed for each of count 2 and count 4 was, in all the circumstances, manifestly excessive.

109 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

110 The maximum penalty for the offence of unlawful and indecent assault, contrary to s 323 of the Code, is, relevantly, 5 years' imprisonment.

111 Relevant general sentencing principles are set out in Tapper v The State of Western Australia [2016] WASCA 140 [49] - [50], [59] - [61]. It is unnecessary to repeat them. See also Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] - [55]; R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [22].

112 There is no tariff for sex offending (including, in particular, offending against s 323 of the Code) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty and all relevant sentencing factors.

113 Counsel for the appellant did not submit (and it could not reasonably have been submitted) that the individual sentences of imprisonment for count 2 and count 4 should have been suspended. His submission was, in essence, that the length of each of the individual sentences was manifestly excessive.

114 I have had regard to the sentencing outcomes in a number of cases including the individual sentences for offending against s 323 of the Code which are referred to in R v Smith [2004] WASCA 44; Free v The State of Western Australia [2006] WASCA 259 and Narkle v Hamilton [2008] WASCA 31. However, those cases give only limited general guidance. They are not truly comparable.

115 Counsel for the appellant did not cite any sentencing decisions of this court or the Court of Criminal Appeal. He referred to some decisions in other jurisdictions, namely Director of Public Prosecutions v Joseph [2001] VSCA 151; R v Moodley [2013] QCA 253 and R v BAS [2005] QCA 97. Each of those cases related to sex offending either by a medical practitioner or a person who practised natural or alternative medicine. However, the decisions are of very limited utility, in the present case, because they concern different offences with different maximum penalties and different sentencing regimes.

116 The appellant's offending on each of count 2 and count 4 was, no doubt, very serious. This is apparent from my summary of the facts and circumstances of the offending and the primary judge's unchallenged findings of fact and sentencing remarks generally. The appellant was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that pleas of guilty would have brought. He did not evince any remorse or victim empathy.

117 After considering separately the individual sentence of 21 months' imprisonment imposed for each of count 2 and count 4 in the context of all relevant facts and circumstances and all relevant sentencing factors, and after taking into account:

(a) the maximum penalty for each of count 2 and count 4;

(b) the objective facts and circumstances of the offending on each of count 2 and count 4;

(c) the vulnerability (including the medical history known to the appellant) of each of the complainants in count 2 and count 4;

(d) the aggravating factors referred to by her Honour in relation to each of count 2 and count 4;

I am satisfied that the individual sentence for each of count 2 and count 4 was within the range open to the primary judge on a proper exercise of her discretion.

118 I consider that the length of the individual term of imprisonment imposed for each of count 2 and count 4 was not unreasonable or plainly unjust.

Appeal against sentence: ground 2: its merits

120 Ground 2 asserts that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.

121 The nature and content of the first limb of the totality principle and other relevant sentencing principles are set out in Williams v The State of Western Australia [2015] WASCA 110 [47] - [51]. It is unnecessary to repeat them.

122 In my opinion, after taking into account the maximum penalty for each of the offences; the facts and circumstances of the offending viewed as a whole; the general sentencing patterns; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of the appellant; and all other sentencing factors (including mitigating factors), the total effective sentence of 5 years' immediate imprisonment was within the range open to the primary judge on a proper exercise of her discretion.

123 The total effective sentence bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors. Error should not be inferred from the sentencing outcome.

Appeal against sentence: ground 3: its merits

125 Ground 3 asserts that the primary judge erred in characterising the appellant's offending as involving a 'serious breach of trust'. Her Honour should have found that, although there was a 'breach of trust', it was not a 'serious' breach.

126 Ground 3 is without merit. The objective facts and circumstances of the offending, in the context of her Honour's unchallenged findings of fact, justified her Honour's characterisation of the offending as involving a 'serious breach of trust'. The seriousness of the 'breach of trust' was underscored by the vulnerability of the complainants and the predatory nature of the appellant's conduct. The complainants were entitled to expect from the appellant, as a person who practised a highly respected and honourable profession dedicated to the diagnosis, treatment and relief of physical and mental illness and associated suffering, a punctilious standard of personal behaviour. The appellant failed abjectly and

repeatedly in the observance of his fundamental ethical responsibilities. His moral compass was ignored or abandoned.

128 None of the grounds of the appeal against sentence has a reasonable prospect of success. Leave to appeal should be refused on each ground. The appeal must be dismissed.