I particularly need to tell you about the evidence of [LB], [MM] and [AW] of their experiences with the [appellant] and it's apparent to you all, I'm sure, that there are no charges on the indictment in relation to the events that those witnesses describe. Their evidence was offered for one purpose only and a very limited purpose. It doesn't mean that it's not a significant purpose but it does have a limited purpose that I must tell you about.
It bears upon the [appellant's] general behaviour or the surrounding circumstances of the conduct that the witnesses describe; that is, the circumstances which are said to surround the offences, not the sexual acts themselves.
What I mean by that is - you have heard the [appellant's] evidence. He talks about consensual, mutual sexual relationships between him and various patients. However, the evidence of the complainants, both of them, is of a situation where there is no discussion; there is no participation, with one exception, on their part. They are undressed; conduct happens, as I have said, with no discussion. There is the washing in the basin. That type of matter.
The surrounding circumstances are very different to what the [appellant] talks about in terms of what occurred; for example, you may listen to the evidence of the complainant and think, 'Who behaves like that? That can't be true,' but you can, if you accept it, use the evidence of the other witnesses to see if that assists you in reaching a conclusion about those sorts of circumstances; so in other words, you do not have just the witness saying, 'This is how it happened, in this way, no communication. He undressed me. He did this and I just lay there doing nothing,' or, 'I just stood there,' or whatever. There is other evidence to support those accounts of the surrounding circumstances of how the events occurred.
There is also the issue of the explanations given as to why the complainants have not objected at the time or complained, basically why they did not object to the [appellant's] advances verbally or physically and why they returned for the following appointments.
You may consider the evidence of the other witnesses as to the conduct of the complainant which led to them not to object verbally or physically and again, for example, if the complainant, and you accept this, says that she found the [appellant] threatening which is why she did not object, if one or more of the other witnesses said, 'Well, I found him threatening for these reasons and that's why I submitted without a complaint,' that evidence of the other witnesses may assist you in determining whether you accept the account, the explanation, of why there was no objection or why there was a return for consultation despite what is alleged to have occurred.
In that same context the account of the witnesses, if it is accepted by you, when considered together with the account of the complainant, the particular complainant that you are considering, might give you a better appreciation of the alleged imbalance of power in the relationship that is said to have existed. It is in relation to those sorts of factors to which the evidence may be used.
You can look at that evidence to see if - provided you accept it - it supports the evidence of the complainant in relation to the circumstances surrounding the offending, the way in which the [appellant] is alleged to have done certain things, to see whether there is some commonality in relation to those things. It may - it is always a matter for you of course - lead to you accepting that evidence when otherwise you may not.
That is the very limited way in which you can use the evidence of witnesses such as [LB], [MM] and [AW]; that is, if there are similarities or there is a commonality of circumstances between the evidence of the complainant and of the witness, you may consider the evidence of the witnesses and you may consider that the evidence of the complainant is thereby strengthened and as a result you may be prepared to rely on it.
What I will do I think is just refer to 'complainants' as being the two women who remained on the indictment and 'witnesses' as the others who are not named on the indictment as having any offences committed upon them. So that's the distinction I will make when speaking to you.
As I said, the [appellant] describes a mutual sexual relationship, a complainant describes a pillow being put on the floor, a direction to lie down, their clothes taken off, that sort of thing. In determining what evidence you accept you are entitled to look to the evidence of those witnesses to see whether it strengthens, in your view, the evidence that you have heard from the complainant on those matters.
The evidence can only be used to support the evidence of the complainant in relation to those sorts of matters and I must emphasise that very strongly. Some example of the sorts of similarities I am talking about is that you consider things - that the women were all patients. They all suffered from some form of mental illness. They consulted the [appellant] during the same period of time. They were of a similar age. They could well be characterised as vulnerable and isolated.
There's the evidence of the [appellant] washing himself in the basin, there's some support for that allegation, surrounding fact, in the evidence of one of those witnesses. The conduct of the pillow on the floor or the cushion or whatever it is.
There's also the case of the physical contact in some cases commencing with the hug, that being used, if you accept that evidence, as the precursor to the sexual conduct that comes after that: asking the patient to lie on the floor; undressing the patient without making a request, permission, if you like, without asking permission to do so or explaining why that's being done; the absence of conversation.
Also, as I have said, the issues of why there's no objection and the return. The suggestion that the sexual contact was sort of understood to be part of the treatment, or any statement by the [appellant] that it was supposed to be part of the treatment or beneficial to them in some way, whatever was happening, and I'm trying to think of the name of the witness who says something along the lines of the [appellant] told her that she was frightened of her own sexuality or something and she needed to confront that issue.
When you are considering the evidence given by one of the complainants and you are considering what facts you find, what you are prepared to accept, you may think, 'I'm not satisfied that the [appellant] would behave in that particular way, it's too unlikely or it's too implausible.' The same evidence given by one of the other witnesses may support the complainant's evidence, if you accept it, and lead you to review that sort of conclusion and conclude, 'Actually I do accept that that occurred.'
As I have said, you must be careful not to apply that evidence to any other purpose as you are not entitled to and I will make it clear that that is a direction of law. As I have already warned you, if you accept the evidence of any one of the witnesses who are not complainants in this trial and conclude that the [appellant] did indeed do what those witnesses allege, you cannot reason that the [appellant] must have done what is alleged against him by the complainants.
As I have said, that's impermissible reasoning. You can't say, 'I accept the evidence of [MM], he definitely did that, and because he did that to her he must have done it to the complainants as well.' You can't use the evidence in that way. All it does, if you accept the evidence, is support the complainants' evidence about any particular factor surrounding the allegations they make or involved in the allegations they make (ts 404 - 407).