Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

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

Criminal law - Appeal against conviction - Charges of rape, attempted rape and indecent assault by psychiatrist on two patients - Whether the appellant admitted the acts alleged - Whether the two patients consented or not - Whether the appellant had an honest and reasonable but mistaken belief that they consented - Whether evidence of three other patients was of significant probative value to the issue of consent or the issue of whether the appellant had an honest and reasonable but mistaken belief as to consent - Whether the evidence of the three other patients was admissible

Criminal law - Appeal against sentence - Whether 10 years' net effective head sentence was crushing - Appellant 80 years old - Offences occurred 30 years ago

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 30(5), s 30(6)

Criminal Procedure Act 2004 (WA), s 98

Evidence Act 1906 (WA), s 31A, s 32

Sentencing Act 1995 (WA), s 10

Braham v The Queen (1994) 116 FLR 38

Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362

Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1

Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Connor v Kent [1891] 2 QB 545

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413

Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343

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

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Farah Constructions Pty Ltd v Say-dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Fermanis v Western Australia [2007] WASCA 84; (2007) 33 WAR 434

Fox v Walker [2004] WASCA 246

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024

Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

HML v The Queen [2008] HCA 16; (2008) 235 CLR 334

Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292

Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jarvis v The Queen (1993) 20 WAR 201

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Judge v Bennett (1887) 52 JP 247

KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221

Maric v The Queen (1978) 52 ALJR 631

Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108

Martino v The State of Western Australia [2006] WASCA 78

Munday v Gill [1930] HCA 20; (1930) 44 CLR 38

Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Osborne v The State of Western Australia [2007] WASCA 183

Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580

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

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

PIM v The State of Western Australia [2009] WASCA 131

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Best [1998] 4 VR 603

R v Hunter (1984) 36 SASR 101

R v I A Shaw [1996] 1 Qd R 641

R v Iles [2009] VSCA 197

R v Lee Kun [1916] 1 KB 337

R v Longford (1970) 17 FLR 37

R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249

R v Mathews [1993] 2 Qd R 316

R v Mitchell [1971] VicRp 5; [1971] VR 46

R v ML [2009] VSCA 106

R v O'Sullivan and Mackie (1975) 13 SASR 68

R v Pryor [2001] QCA 341

R v Raabe [1985] 1 Qd R 115

R v Sadler [2008] VSCA 198; (2008) 20 VR 69

R v Sims [1946] 1 KB 531

R v Smith (1987) 44 SASR 587

R v Smith [1980] 1 NSWLR 193; (1980) 2 A Crim R 245

R v Whyte [2004] VSCA 5; (2004) 7 VR 397

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Rattray v Roach [1890] VicLawRp 36; (1890) 16 VLR 165

Rowan v The State of Western Australia [2009] WASCA 185

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

Stubley v The State of Western Australia [2009] WASC 57

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

The State of Western Australia v Akizuki [2008] WASCA 267

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129

The State of Western Australia v Osborne [2007] WASCA 183

The State of Western Australia v Wood [2008] WASCA 81

Thorn v The State of Western Australia [2008] WASCA 36

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Upton v The State of Western Australia [2008] WASCA 54

Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)

Warburton v The State of Western Australia [2009] WASCA 113

WCW v The State of Western Australia [2008] WASCA 232

Wood v The State of Western Australia [2005] WASCA 179

1 OWEN JA: I am grateful to Pullin JA and to Buss JA for their thorough analyses of the factual circumstances and legal principles relevant to the disposition of these appeals. I have come to the same view as has Buss JA; namely, that the appeal against conviction should be dismissed and that the appeal against sentence should be allowed. I agree also with Buss JA's reasons in relation to both appeals. I wish only to make a short comment on a couple of aspects of the appeals.

2 It is trite to say that the evidence of the three propensity witnesses had to be relevant to a matter in issue before it became admissible. In the circumstances of this case it was not enough simply to say that the evidence was relevant. It was of fundamental importance to identify precisely the issues to which the evidence was relevant. As Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 demonstrates, nowhere is this more so than in cases involving sexual offences in which consent is in issue. But I do not read anything said in Phillips as meaning that where consent is in issue propensity evidence that might bear on the presence or absence of consent must necessarily be inadmissible. In Phillips the Court said [46]:

Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But 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 his. The trial judge kept referring to 'the improbability of similar lies' on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen ...; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.

3 At [361] to [364] Buss JA has summarised the particular issues to which the propensity evidence was relevant. Importantly, from my perspective, they include whether the particular acts alleged in the indictment actually occurred and whether (if complainants were not actually consenting) the appellant had an honest and reasonable, though mistaken, belief that consent had been given. This latter issue brings into play the words in the passage from Phillips that I have quoted: 'Did the accused do a particular thing? Or did the accused do it with a particular mental state?' In my view the fact that the propensity evidence might also, and incidentally, go to the complainants' state of mind does not automatically render it inadmissible. The next question is whether the evidence had significant probative value in relation to the issues to which it was relevant. In that respect there is nothing I can usefully add to what Buss JA has said.

4 The full ramifications of the High Court's decision in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 have yet to be worked out. It seems to me that in cases of the type represented by HML there is much to be said for the approach recommended by Nettle, Redlich and Dodds-Streeton JJA in R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [65]:

Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.

5 However, as Buss JA has pointed out, at [393] to [394], this is a different case and HML and Sadler are distinguishable. In those cases there was a dispute whether there had been sexual activity between the accused and the complainant. Here, the appellant admitted having had sexual relations with the complainants and with two of the three propensity witnesses. The State had to prove, not that sexual activity occurred, but that the particular sexual acts alleged in the indictment occurred and that they happened without the complainants' consent and that the appellant did not have an honest and reasonable, though mistaken, belief as to consent.

6 The evidence of the propensity witnesses was not at large. It was admitted for a limited purpose. The jury could not have convicted the appellant unless they were satisfied beyond reasonable doubt of the version of events testified to by the complainants. In the circumstances of this case the propensity evidence was not an 'indispensable link in a chain of reasoning towards an inference of guilt': Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579. Accordingly, it was not necessary that it be established beyond reasonable doubt and the direction of the trial judge to that effect was not erroneous. There is, to my mind, no tension between the statement that the propensity evidence is not an indispensable link leading to an inference of guilt and the view expressed in the previous

section that the evidence had significant probative value. The two things involve different considerations.

7 The appellant had been granted leave to appeal by a single judge. However, in my view the appeal against conviction should be dismissed. In the 'Orders Wanted' in the appeal book the appellant sought orders that the convictions be quashed and that a retrial be ordered. The question whether, assuming the appeal to have been successful, there should be a retrial was not addressed either in the written or oral submissions. In those circumstances I do not propose to comment on the question.

8 For me, the critical feature in the sentencing process is the appellant's age and infirmity. In this respect, the principles on which the sentencing discretion falls to be exercised are set out in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 and in Rowan v The State of Western Australia [2009] WASCA 185.

9 For the reasons given by Buss JA I think the appeal against sentence should be allowed, the sentence quashed and, in lieu, the appellant be required to serve a term of immediate imprisonment of 6 years to commence on 21 November 2008. There should also be an order that the appellant be eligible for parole.

10 PULLIN JA: This is an appeal against various convictions for rape, attempted rape and indecent assault and an appeal against sentence.

Summary of my conclusion on the conviction appeal

11 The case involves a psychiatrist who engaged in sexual encounters with two women patients in his consulting room. The sexual encounters with the first woman extended over a period of about two and a half years starting in about 1976 and the sexual encounters with the second woman occurred over four years commencing in 1977. The two women made appointments to see him in his room and after the first sexual activity, returned regularly to the appellant's room one of them expressly anticipating that there would be sexual encounters with the appellant. One complainant said that she found one of her early encounters 'erotically stimulating'. There was no evidence that either of the complainant women had any psychiatric illness which deprived them of the capacity to give consent to sexual intercourse or sexual touching.

12 Many years after the last of the sexual encounters, the complainants went to the Medical Board and the police became involved. The appellant was then charged with rape, attempted rape and indecent assault on the two women, and more than 30 years after the commencement of the first of the sexual encounters, he was tried and convicted of some of the charges. The complainants both gave evidence at trial of the events in the appellant's rooms, which had occurred decades before, and their evidence was either that they did not consent to any of the sexual encounters or that they were induced to consent. The appellant gave evidence that they did consent and that there was no threat or intimidation. There was no evidence that force was ever used, and there was no evidence that the two women ever had any fear of bodily harm being done to them if they did not consent.

13 The length of the relationships, the fact that the complainants returned time and time again anticipating that they would engage in the sexual encounters, the fact that force was never used and the long period of time which had passed, raised the distinct possibility that the jury would not be satisfied beyond reasonable doubt that the two complainants did not consent. However, something occurred at the trial which made conviction much more likely. The trial judge decided to allow the prosecution to lead evidence (described as propensity evidence) that the appellant had sexual encounters not only with the two complainants, but with three other women patients who were not referred to in the indictment. In my opinion this was a wrong decision on a question of law.

14 In my opinion, all that the evidence of the three other women could have shown was the appellant's propensity to have sexual encounters with women patients in his rooms in order to prove that the sexual encounters with the two complainants occurred. However, this was not in issue at the trial because of admissions made by the appellant. Evidence of his propensity was therefore irrelevant to any live issue at trial.

15 Some evidence was also led about whether or not the three other women consented (and one positively said that she did consent and that she instigated sexual encounters). The High Court decision in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 makes it clear that whether one person consents or not, is not relevant to whether another person consents or not.

16 The evidence from these three other women, which in my opinion was irrelevant to any live issue in the case, took up a large part of the time at trial and doubtless impressed the jury that the appellant was immoral and unprofessional. However, he was charged with the serious crimes of rape and assault and not with immorality or unprofessional conduct.

17 I would allow the appeal against convictions. My detailed reasons for decision follow.

18 The appellant was charged with seven counts of rape, one count of attempting to commit rape and six counts of unlawful and indecent assault committed between 1975 and 1978 upon two women patients, JG and CL.

19 Section 325 of the Criminal Code (WA) as it stood at the time stated that a person who had carnal knowledge of a woman, not his wife, 'without her consent, or with consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm or by means of false and fraudulent representations as to the nature of the act, is guilty of the crime of rape'. The meaning of the word 'intimidation' is discussed later in these reasons. As to assault, it was defined in s 222 of the Code. It was defined as including touching a person without their consent.

20 The jury convicted the appellant of six counts of rape, one count of attempting to commit rape and three counts of unlawful and indecent assault. The 10 counts in the indictment on which the jury found him guilty and on which convictions were recorded read as follows:

(1) On a date unknown between 8 December 1975 and 31 January 1976 at West Perth Alan John Stubley unlawfully and indecently assaulted [JG] by touching her between her legs.

(2) On a date unknown between 15 December 1975 and 7 February 1976 at the same place as in Count (1) Alan John Stubley committed rape upon [JG].

(3) [Not Guilty]

(4) On a date unknown between 8 December 1976 and 12 June 1978 at Leederville Alan John Stubley committed rape upon [JG].

(5) On a date unknown between 22 December 1976 and 12 June 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].

(6) [Not Guilty]

(7) [Not Guilty]

(8) On a date unknown between 8 December 1976 and 12 July 1978 at the same place as in Count (4) Alan John Stubley unlawfully and indecently assaulted [JG] by introducing his penis into her mouth.

(9) [Not Guilty]

(10) On or about 12 June 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].

(11) On a date unknown between 12 July 1978 and 31 August 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].

(12) On a date unknown between 1 January 1977 and 31 December 1977 at West Perth Alan John Stubley unlawfully and indecently assaulted [CL] by touching her breasts.

(13) On a date unknown between 1 January 1977 and 31 December 1977 at the same place as in count (12) Alan John Stubley attempted to commit rape upon [CL].

(14) On a date unknown between 1 July 1977 and 30 June 1978 at the same place as in count (12) Alan John Stubley committed rape upon [CL].

The appellant's pre-trial application concerning the proposed evidence of AW, LB and MM

21 Before the trial the prosecution advised the appellant that it proposed calling three other women AW, LB and MM to give evidence that when they were the appellant's patients the appellant also indecently touched them or had sexual intercourse with them in his rooms. The appellant objected to this evidence because he foreshadowed that at trial he would admit that acts of touching, carnal knowledge and attempted carnal knowledge of JG and CL occurred and that as a result the only issue in the case would concern consent. The appellant made a pre-trial application for an order to 'exclude' the evidence of AW, LB and MM. The application was heard on 5 November 2008 by the trial judge who, under s 98 of the Criminal Procedure Act 2004 (WA), had the power to make a pre-trial ruling about any question of law. This power authorised her Honour to make a ruling about whether the evidence of the three witnesses as revealed in witness statements was relevant and admissible under s 31A of the Evidence Act 1906 (WA). The appellant's application was dismissed (Stubley v The State of Western Australia [2009] WASC 57). The trial judge dismissed the appellant's objection and concluded that the evidence of the three other women was admissible as propensity evidence. At the trial the two complainants and the three other women were called and gave evidence.

The witness statements of JG, CL, AW, LB and MM

22 The witness statements of the complainants JG and CL and of AW, LB and MM were before the trial judge when she made her decision. The statements were not provided to this court, but counsel for both parties agree that the evidence-in-chief of the witnesses given at trial corresponded with the witness statements which were before Johnson J (see appeal ts 4 - 5 and 39). The parties to this appeal agreed that in consequence it was in order to refer to the transcripts of evidence of those witnesses at the trial rather than to the witness statements. It is the evidence-in-chief which will reflect the witness statements and save where there is a reason to refer to the cross-examination it is the evidence-in-chief to which I will refer later in these reasons.

23 The appellant appeals on the ground that the trial judge's decision overruling the objection to the evidence of AW, LB and MM was an error of law, meaning that it was a wrong decision on a question of law: s 30(3)(b) Criminal Appeals Act 2004 (WA). In the alternative, the appellant appeals on the basis that the trial judge misdirected the jury concerning the evidence of the three women. Leave to appeal on both grounds has been granted.

24 The appellant was sentenced to a total of 10 years' imprisonment and was made eligible for parole. The appellant has been granted leave to appeal against that sentence.

25 The complainant JG gave evidence in accordance with her pre-trial witness statement concerning the counts on which the appellant was convicted in relation to her. Her evidence-in-chief was that in 1975 she was admitted into hospital suffering from depression when her first child was about nine months old (ts 80 - 81). She remained in hospital for several months and then, in December 1975, returned to her home and began seeing the appellant in his rooms in Kings Park Road, West Perth. The acts involved in counts 1 and 2 occurred in the those rooms. The acts involved in the fourth, fifth, eighth, tenth and eleventh counts occurred in the appellant's new rooms at West Leederville. The incident the subject of count 10 occurred when JG was about eight months pregnant with her second child. The incident the subject of count 11 occurred three or four weeks after the baby was born. There were other occasions, not the subject of any charge, when sexual activity occurred. The sexual activity between the appellant and JG then continued for about two and a half years. Unfortunately, due to the issue raised by ground 1, it will be necessary to set out verbatim parts of JG's evidence and, later, parts of the evidence of CL, AW, LB and MM.

26 On JG's first appointment to see the appellant, she went to his rooms with her daughter in a pram. The pram and the baby were left with the receptionist and she went into the appellant's consulting room on her own. She then gave evidence as follows concerning count 1:

What happened when you got into Dr Stubley's consulting room?---Well, I walked in and he put his arms around me and gave me a big hug and said how well I looked et cetera.

Had you ever had any physical contact with him before that time?---No.

What then happened after that?---Well, there were two chairs in the room so I sat on one of them and he sat on the other one.

Yes?---And there was sort of silence and I felt very nervous and he asked me how I'd been coping and what have you with my child and being at home so we discussed that and, yes, that was it, and then he said would I come and sit on his knee.

Do you remember now the precise words he used or not?---'Come and sit on my knee.'

How did you react to that?---Well, I was shocked and I sat in my chair. I was very shocked.

What then happened?---Well, there was just silence in the room. It was just terrible. It was just a terrible silence, and then he repeated it.

Can you help us at all as to the tone which he - - -?---Well, it was very authoritarian, quite demanding.

When he made that request or demand of you on the second occasion what then happened?---Well, I sat in my chair for quite some time and then I went and sat on his knee.

And when you sat on his knee can you tell us what then happened?---Yes. He put his hand on my leg and he rubbed his hand up my leg, in between my legs, and then, you know, out of - down my leg again.

Can you remember what you were wearing at the time?---Yes. I was wearing like a shirtmaker-style dress with buttons down to, you know, probably mid - below my waist, and stockings and shoes.

Can you tell us precisely where he put his hand?---On my legs and up in between my legs on my crotch.

And can you tell us, when he did that, when he put his hand between your legs and on your crotch, what was going through your mind?---Well, I just froze. I was just so afraid I just was frozen.

What were you afraid of?---Well, I was afraid of him and what he might do to me.

When you say you were afraid of what he might do to you, what particularly did you have in mind at that time?---I didn't have anything in mind at that time at all other than, you know, what on earth was this person doing, who was supposed to be my doctor?

Did you say anything to him?---I said I didn't want to do this.

Did he respond?---No.

And how long did this go on for?---Probably five minutes.

And how did it come to an end?---I got up and walked towards the door to leave the room.

And was anything said to you by Dr Stubley at that time?---Yes. He said he'd need to see me again in a week or two.

At that stage had there been any further appointment formally been made or not?---No.

Did you have to do anything before you left in that regard?---Yes. I had to wait at the desk and Rita made me an appointment as he requested. (ts 88 - 89)

27 In relation to that next occasion, JG testified as follows concerning count 2:

I'm moving on. I'm moving now onto the second time that you went to see Dr Stubley. On that occasion were you on your own or did you have anybody with you?---I was on my own because I was told to find a babysitter for my daughter.

What happened when you arrived at Dr Stubley's rooms on that occasion?---I went into the rooms and I waited in the waiting room and I was then invited into the surgery, or his consulting rooms, and I went in and I sat down in my chair.

So was this the same room that you had been to the previous session?---Yes.

What did Dr Stubley do when you sat down in your chair?---He sat down in his.

What then happened, [JG]?---It was just very quiet, silence.

Were you saying anything in particular?---I was feeling very, very nervous and I just said, you know, tried to say what was going on in my life, like things were going okay with my daughter and everything and, you know, that was it. That's all I said.

Did anything happen then during the course of that session that you were having with Dr Stubley?---Yes, he threw the cushion, a cushion on the floor, and he went and lay on the floor and then he said to me, 'Come lie with me.'

What did you do when he said that?---Nothing. I sat in my chair. I felt afraid.

What then happened, [JG]?---He repeated his request in a very authoritarian way, so eventually I did go and lie on the floor.

When you went and laid down on the floor approximately how long had Dr Stubley been on the floor for?---10 minutes.

Was he lying on his front or on his back?---On his back.

Did you lie on your front or on your back?---Can't remember.

Do you remember where you lay in relation to Dr Stubley?---Well, in between the two chairs. Not close to him but a reasonable distance away from him.

Having made your way to the floor what then happened?---Then he undid his trousers, he pulled down my stockings and my - pantihose and my knickers and proceeded to get on top of me.

Before he took his trousers off but whilst you were on the floor, were you saying anything to him?---I said, 'I don't want you to do this.'

At what point did you say that?---Well, when he was undoing his trousers.

When you said that to Dr Stubley, did he respond?---No, he ignored me.

You described the removal of your clothes and the undoing of his trousers and then him getting on top of you. What happened when he was on top of you?---He proceeded to have sexual intercourse.

What was going through your mind at the time that he proceeded to have sexual intercourse with you?---Terror.

Were you saying anything to him at that particular time?---I was crying.

Other than having sexual intercourse with you at that particular time, was there anything else that Dr Stubley did?---Yes, he undid the top of my dress, pulled out my breast and bit my nipple hard and it hurt.

Approximately how long did the intercourse last for?---Probably 10 or 15 minutes.

Was Dr Stubley using any protection?---No.

What happened at the end of that 10 to 15 minutes?---Well, he got up and did up his trousers and I lay crying on the floor. Eventually I gathered myself together and pulled up my pantyhose et cetera and sat in my chair sobbing.

So did the session then continue or did it come to an end?---It came to an end. I wanted to run out of there and I did. There were two doors and one went to the waiting room and one was an exit, fire exit, and I went out that door. He opened it and I ran down the steps, metal steps.

Having left his consulting room by that means, was there any contact after that between you and either Dr Stubley or any member of his staff?---Rita rang me with another appointment, his receptionist.

When was that further appointment to be?---It was in a couple of weeks' time.

Did you make that appointment?---I went to it. (ts 91 - 93)

28 At the third appointment there was no sexual contact, but the following evidence is relevant to JG's evidence concerning the subsequent charges:

Can you tell us what the purpose in your mind at the time was in respect of attending his rooms on that third occasion?---Well, I was angry and I wanted to know what this was all about and he said, 'It's a part of your therapy and you need to continue to come.'

When did he say that?---At my third appointment and, furthermore, he said, 'If you don't come, you'll have to go to an institution and you would be separated from your daughter and your husband.'

Did he say which institution?---From memory, it was Graylands or Heathcote or somewhere like that. I can't remember exactly.

Other than that conversation that you have described as occurring during the third appointment at his rooms, did anything else happen on that particular occasion?---I questioned him about the therapy and the need for coming, et cetera. I felt I was well enough and I didn't want to come any more but he said I must continue my therapy.

What happened during the course of that particular session that you had with him?---We had a conversation about how I was coping and what have you and, you know, he liked the nurses at the hospital and the matron and everyone else and suggested I continue my therapy.

In addition to any conversation that occurred on this occasion between yourself and Dr Stubley did anything else happen?---Of a sexual nature, do you mean?

Well, I just want you to indicate what if anything occurred during the course of that third appointment. You have told us about one occasion when the first time you went to Dr Stubley he touched you between your legs as you have described. On the next occasion you say he had sexual intercourse with you. Did anything happen on the third occasion that you went to see him?---From memory, no, not on the third occasion. I was very distressed. I was very fragile and I felt very vulnerable and I didn't feel safe with him. I was terrified of venereal disease and I simply didn't want to have sex with anyone else except my husband.

Did you continue to see Dr Stubley at those rooms in the weeks and months that followed?---Yes. (ts 94 - 95)

29 JG said that she continued to see the appellant at the West Perth rooms on a fortnightly or three-weekly basis (ts 95) and that sometimes sexual intercourse would occur. JG said she saw the appellant at his rooms on Kings Park Road in West Perth for 'up to a year' and that at some stage his consulting rooms moved to West Leederville. In relation to the first occasion she consulted him at West Leederville, JG gave the following evidence concerning count 4:

Can you tell us what, if anything, happened once you went into the consulting room?---Well, he closed the door behind me and it was quite a thick door and it had padding on it, like padding about so thick, and he locked it and I went in, and I sat down in a chair.

I will just pause you there a second. You told us that he locked the door?---Yes.

Had the door ever been locked previously at the other location?---No.

All right. You then sat down in the chair, I think?---Yes.

What then happened?---Well, I just, you know, said what was happening in my life and how things were going, and what have you, and he said now at these new rooms he had longer time to see me and so I just sat there, and he got up and he pulled the cord off the curtains and put it down and then he threw a cushion on the floor and said, 'Come lie with me,' and I sat in my chair. I felt nervous. I was crying and he just lay on the floor. Eventually, I got up from my chair and I went and lay on the floor.

Where did you lay in relation to Dr Stubley?---Near to him; not right close to him but on the floor next to him.

What then happened?---He took his trousers off, he pulled down my pantyhose, my knickers and proceeded to have intercourse with me quite harshly.

When you say 'quite harshly', what do you mean by that?---Well, he thrust inside me very harshly and it hurt my back. It hurt my back. It abraded my back. When I went home my back was like it was grazed and I got under the shower and I sat in the bath and my back was grazed and sore, as was my vagina, et cetera.

The intercourse on that occasion, was that protected or not?---No.

When the intercourse was occurring were you saying anything, to your recollection, to Dr Stubley?---I was crying.

Can you remember what happened when he finished having intercourse with you on this occasion?---He got up and he went over to a basin in his room and he proceeded to wash himself.

When you say 'wash himself', what part of his body are you referring to?---Well, below his waist. His penis I guess you'd have to say.

After that, what did he then do?---Handed me some tissues. I was crying and I got myself - my pantyhose and my knickers in place and I sat in the chair and continued to cry. I wanted to run out of the room and I couldn't stop crying and eventually he opened the door and I ran out of the room. I ran into the car and I sobbed all the way and halfway home I stopped in the park, Shenton Park, and I pulled up in the park and I started to scream in the car and sob and I felt out of control and I couldn't understand why he was doing this to me and why I had to do it, and I sat in the car for about three-quarters of an hour sobbing and screaming and I felt very distressed. Eventually, I drove home.

Can I just go back a little so far as this episode is concerned?---Mm.

You were telling us that after the episode of intercourse you resumed your seat and you were sobbing. At that time do you remember if Dr Stubley was saying anything to you?---He didn't say anything. He just looked at me. He just looked at me with a smirk on his face; quite sickening.

Did you see him again?---I didn't make an appointment, no, but Rita rang me some time later and said that he wanted to see me again. (ts 97 - 98)

30 JG did not then see the appellant for about three to four weeks, but saw him again because she was getting depressed again. Then there was a further lengthy time where she did not see the appellant. She resumed seeing him when she was pregnant with her second child. This child was born on 5 July 1978.

31 As to count 5, JG was vague as to details. Her evidence-in-chief was:

Relating it to the first two visits that you told us about, that is the time when you had sexual intercourse and had a carpet burn, the second occasion when nothing happened, can you relate the incident where he put a cushion down on the floor and said, 'Let me comfort you,' to those two occasions?---No, I can't really.

Was the occasion where he put the cushion on the floor and said 'Let me comfort you' on the same occasion as any of those two occasions or a different occasion?---Different.

Was it before or after the time when you - was it before or after the period when you took a break from seeing Dr Stubley?---After.

Can I then ask the question again? In respect of any times that you visited Dr Stubley before you took a break from seeing him at his West Leederville rooms in addition to the one occasion that you have mentioned was there any other sexual activity between you and Dr Stubley?---Yes, there was.

Do you have a recollection of any such activity?---Yes, but not specifically.

What do you remember?---I just remember that he took all his clothes off.

Yes?---And lay down on the floor.

And what else do you remember about that episode?---And then he said, 'Come lie with me.'

Do you remember anything else happening on that occasion?---I remember sexual intercourse took place and that he ejaculated inside me.

At the time that that episode of sexual intercourse occurred were you saying or doing anything?---I was crying. (ts 101)

32 JG testified that on another date the appellant pushed his penis into her mouth without ejaculating. This was count 8 (ts 101 - 102).

33 As to count 10, JG said that she was about eight months pregnant with her second child when she went to see the appellant, and her evidence-in chief was as follows:

Can we then go to the occasion when you went to see Dr Stubley when you were about eight months pregnant with [your daughter]?---Mm.

Was that still at the West Leederville rooms?---Yes.

Can you tell us what happened when you arrived on that occasion?---Well, he took me into the front room which was just near the stained glass windows on the left hand side as you walk in, and we sat down and he said I looked very beautiful and I said I was feeling very well and I was very excited about my new baby. Anyway, we talked for a while and then he threw the cushion on the floor and he lay on the floor and he said, 'Come and relax with me here,' you know. Anyway

So what did you do when he said that?---Well, I went and lay here and

Can I just ask you this: when you went down and lay down at that time, did you have any particular concerns?---No, I just thought - no, I didn't.

All right, so you lay down on the floor. What then happened?---Well, he took his trousers off and he raped me.

When he took his trousers off, did you say anything?---Yes. I said, 'What are you doing? What are you doing? I don't want this. My baby's due in four weeks' time. I'm not having intercourse with my husband. I don't want to have intercourse.'

Did Dr Stubley say anything in response to that?---He did respond. He said, 'It will be okay. It will be quite okay,' and proceeded to have intercourse with me.

Do you remember any details about the intercourse that he had with you on that particular occasion?---Well, it wasn't very long-lasting and he wasn't as rough as usual. I was terrified. I was absolutely terrified.

What were you terrified of in particular?---Well, I was terrified that it might bring on the birth of my baby prematurely.

Do you remember how that episode of sexual intercourse came to an end?---Yes. Well, he got himself dressed and I pulled up my clothes and he helped me up from the floor and I left.

The next day, [JG], did anything particular happen?---Yes, I started to haemorrhage.

What did you do as a result of that?---I rang my doctor.

Then what happened?---My doctor arranged for me to go and have an ultrasound.

Did you have an ultrasound?---Yes.

After that did you speak to anybody?---Yes, I rang Dr Stubley's rooms.

Were you able to speak to Dr Stubley?---Yes.

What happened in that conversation?---I said I was extremely angry that I had actually had a haemorrhage and he said, 'That can happen.' It was a burst blood vessel. I told him it was a burst blood vessel and he said, 'Yes, that can happen.' I said, 'It shouldn't have happened.' (ts 104 - 105)

34 JG testified that after her second daughter was born she again attended upon the appellant. Her evidence concerning count 11 was as follows:

Once you left hospital did you make any contact with either Dr Stubley or with his receptionist?---Not for a while. Eventually I did ring Rita and made an appointment. It might have been a couple of weeks after the birth.

Why did you make a further appointment with Dr Stubley?---Because I was afraid I was going to get postnatal depression again and that my GP had suggested I did.

So you then went to see Dr Stubley on some occasion?---Yes.

Approximately how long after [your daughter's] birth was it that you went to see Dr Stubley?---It might have been three or four weeks.

When you went to see him did you go on your own or with anybody else?---I took my baby.

And again was it at the rooms at West Leederville?---Yes.

What happened when you got there?---Well, he took me into the other room on the right-hand side of the passage as you come in and I took my baby in there and I put her down on the floor next to me and I sat in the chair and he sat in the other chair and he asked me how I was coping. I said I was coping very well.

What then happened?---Then he threw a cushion on the floor and he said, 'Come and lie down with me.'

What did you say to him?---I didn't lie down with him initially and he just lay there and then again he repeated, 'Come and lie with me,' so I did. I also said, 'I've got my baby in this room and my baby is asleep and I don't want to lie with you.'

Did he respond to that?---No.

What was the next thing that happened?---I lay down on the floor with a cushion and the next thing he was rubbing his hands all over my body and removed his trousers and pulled mine down and proceeded to have intercourse with me.

Can you tell us, at the time that he was running his hands over your body as you have described and then pulled your clothes off, what was running through your mind at that particular juncture?---Well, I was terrified because I was still haemorrhaging and I said, 'Look, I can't do this. I can't do this' - and he took no notice of me and he proceeded to have sexual intercourse and I cried.

At what stage were you crying?---I was crying when he started to do that, take his trousers off and take my trousers off or my skirt, whatever.

Do you remember what happened at the end of that episode of intercourse?---Yes. I looked up and his penis was covered with blood and he went over to the basin and washed himself and left me lying on the floor, sobbing.

How long did you remain on the floor for?---I pulled up my knickers and pad and pantyhose and went and sat on my seat.

Did anything happen once you resumed your seat?---I cried. (ts 106 - 107)

35 The sexual activity between the appellant and JG continued for about two and a half years before it ceased sometime before the birth of JG's third daughter in December 1980 (ts 107). JG continued attending on the appellant at his rooms from time to time over a further 16 years, until she saw him for the last time in 1996.

36 In 1983 JG was questioned by a person from the Medical Board in relation to an unspecified complaint that had been made against the appellant. She did not tell that person about the sexual intercourse with the appellant. She failed to do so, she testified, because of her fears of the appellant and of ending 'up in an institution'. She eventually instructed lawyers in 1996 to complain to the Medical Board and initiated a claim for civil compensation. She made a statement to the police in 2007.

37 The second complainant, CL, gave evidence in accordance with her pre-trial witness statement concerning the counts on which the appellant was convicted in relation to her. CL testified that she attended upon the appellant for treatment in November 1976 and then in February 1977, following which she saw him once a month. She testified she went for 'counsel rather than treatment' (ts 180) because she had a broken marriage, a dying mother and family issues (ts 180). She said that she 'needed somewhere safe to explore those issues to establish [her] life ... in Perth' (ts 180). She was asked whether she thought that she was suffering from any mental health issue and she said that she was not (ts 180). She had been trained as a psychiatric nurse in New Zealand (ts 180) and she was familiar with a theory of psychiatry that there could be sexual relations between doctors and patients (ts 180). She testified that she told the appellant that she did not want 'bed therapy'. However, eventually sexual activity commenced between them and it continued over four or five years.

38 There was no physical contact between CL and the appellant until February 1977. CL was suffering from a neck injury and she suffered pain from it. Her evidence regarding count 12 was as follows:

Prior to moving into your own accommodation in Claremont, was there any physical contact between you and Dr Stubley during your meetings?---Not that I recall.

Did that ever change?

JOHNSON J: I'm sorry. Could you keep your voice up?---Sorry, not that I recall.

TROY, MR: After you moved into your own accommodation in Claremont, did that change?---Yes. At one meeting I was clearly in pain from my neck and it was bad pain. He stood behind and rubbed my neck and moved his hands around and it seemed to me that he was rubbing his hands over my - the front of my chest, the breasts. Sorry? Sorry, go on.

If you just want to take a moment, [CL]? I wanted, if I could, just to ask you in a little bit more detail about that episode that you have just described. You told us about the neck condition that you had. Can I ask you this: at the time that this episode occurred that you have just described were you receiving any other medical treatment at that particular time?---Not that I can immediately recall, no.

...

Do you remember what was said between you and Dr Stubley immediately before any physical contact?---There were, as I recall, two occasions on which he touched me about my neck, as I recall, but on one occasion he said, 'Here, let me have a look.'

What I would like to do, [CL], is look at those separately?---Okay.

So can we start with the first occasion when you say that there was any physical contact between you and him so far as your neck was concerned?---At that first time I don't actually remember saying anything very much at all.

Do you remember anything that Dr Stubley said?---Not really.

Do you remember on that first occasion what it was that Dr Stubley did?---He touched my [neck].

He touched you?---He touched my neck but I think that's all I can remember, I think.

Do you remember whether he touched the front of your neck or the back of your neck?---Yeah, he rubbed his hands down my front.

How far down did he rub his hands? You're indicating to your chest or breast region. Is that correct?---Yes.

When he did that was he standing, to your recollection, on front of you or behind you?---Behind the chair.

And were you sitting or standing?---Sitting in a chair.

For how long was it that he touched you in that way that you have described?---Not very long.

And do you remember now if anything was being said by him at the time he that he was doing that?---No.

What happened when he stopped touching you in that way?---As far as I remember, I just sat back and he moved away, as far as I remember without reference to my diaries.

Prior to that occasion had there been any physical contact between Dr Stubley and you?---On one occasion, and I can't remember where it actually fits into that, he ended the session by saying, 'Oh, are you going to give' - he put his arms out, 'Are you going to give me a hug?' I had always been sort of ticked off for being very cold and unresponsive to people, that I would not accept hugging and kissing from people - still won't - and I thought, 'I suppose I should; this is possibly something to do with therapy,' but I think that was all that happened that time.

Are you able to say whether that occasion, when there was an invitation to you to hug him, occurred before the time that he massaged you from behind over your breasts as you have described?---Yes. I'm pretty sure that that was the case.

JOHNSON J: I'm sorry, was that before, did you say, or after?---Before.

Before, okay?---I'm sorry, I'm muttering.

TROY, MR: Now, on the occasion when you say that Dr Stubley was behind you and massaging you ultimately over your breasts as you have described, do you remember what was going through your mind at the time that was happening?---Not a lot. I was just frozen. I mean when you're with a doctor the rules are you do what the doctor says and I just sort of sat there and there, 'Maybe this is a mistake.'

Is that a thought that was going through your mind at the time or subsequently?---Subsequently. At the time I was just frozen.

Now, at the time that this happened, that is, the massaging of your breasts as you have described or the touching of your breasts more accurately, did you say or do anything to Dr Stubley?---I don't think so, no.

Can I ask you this: on that particular occasion, that is, when Dr Stubley from behind touched you to your breasts, was there any other form of physical contact between him and you on that particular occasion?---I don't think so.

Did you see him again?---Yes. (ts 166 - 169)

39 On the next occasion that CL saw the appellant, her neck was still painful and the appellant once again asked if he could have a look and he motioned to the appellant to remove her top. He then invited CL to 'come and lie down here', referring to the floor. She removed her bra. CL said that she was not sure whether it was on that occasion or another occasion where the appellant asked 'will you give me a hug?' (ts 170). She then testified that the appellant's hands were around her and that:

At first around my back and he stroked my back quite a lot, which was - I'm ashamed to say it was erotically stimulating. My body might have been erotically beginning to be aroused but my mind was screaming, 'No, no, no,' I did not want that. He kept handling me and gradually slid his hands down and lifted up my skirt. (ts 171)

40 She testified that he attempted to insert his penis between her legs (ts 171), but that he failed to get his penis into her body (ts 172). That was the evidence in relation to count 13.

41 She then saw the appellant at a subsequent appointment a month or two weeks later (ts 172). The appellant stayed in his chair. CL 'sort of ran out of things to say' and there was a pause and the appellant then said 'I feel rejected'. He said it 'in a very, very menacing tone'. CL described him as seeming to be 'angry' (ts 173) and that he almost 'snarled out' the comment that 'I feel rejected' (ts 174). She was then escorted out to the receptionist to make an appointment.

42 Subsequently, and CL did not know whether it was a few appointments later or not (ts 174), she then said in relation to count 14 (ts 175):

He somehow got to - I think it might have been that as soon as I got in there he sort of started to open his arms and - and have an invitation to some sort of cuddling or something; and it led to him undressing me, undressing himself and lying on the floor and engaging in sexual intercourse.

So did you undress yourself or did Dr Stubley undress you?---Dr Stubley.

When he was undressing you was he saying anything that you can recollect?---I don't think so.

Were you saying anything to him?---I don't think so.

Did you do anything at the time that sexual intercourse commenced?---I was very much aroused and I did respond.

How did you respond?---The way you do. Sort of moving hips and things.

...

What happened once the sexual intercourse ceased?---He spoke. He said things like - no, not even like. He said specifically, 'Now, there will be a complete metamorphosis for you. A whole beautiful new butterfly - like a whole beautiful new butterfly you are - a whole new person will emerge.' The last phrase was something like, but it was the butterfly and the metamorphosis and - I think he also, no, it was at a subsequent occasion he put his fingers into mine like that and he said, 'We have got - this is' - no, he also said, 'This is the most important relationship you will ever have.'

Can you remember details of any other occasions that occurred?---Yes, it became a bit of a pattern. I went to meetings with him anticipating that sexual intercourse might happen but hoping to God it would not.

When you say hoping to God it would not, did you ever communicate that to Dr Stubley in any way?---No, I don't believe so. No, he was a very, very scary man and I was afraid of him.

JOHNSON J: And you were?---Afraid of him.

TROY, MR: How did that scariness manifest itself?---He was a person who just seemed to regard the rules as being for other people, like for example having sex with somebody on the consulting room floor. I mean that's just not on. He just seemed to me to be someone who just would stop at nothing to get his own way.

Was that an assessment that you made of him at the time or is that something that you have subsequently concluded?---That's my assessment of him from the time of the first

Is it possible to put it into either a period of - either weeks, months or years, as to how long it was that sexual relations were occurring between you and Dr Stubley?---Sorry, could you repeat that?

Yes. In terms of the period over which you were having - that sexual relations occurred between you and Dr Stubley, that is, sexual intercourse, was that a period that lasted for weeks or for months or for years approximately?---The period of which sexual intercourse took place?

Yes?---About four years.

Was there ever a time during that period of four years when you were not afraid of Dr Stubley?---I think it waned a bit.

45 CL confided to a cousin that she had had the experiences and this information reached JG who then made contact with CL. In 1981, CL made complaint to the College of Psychiatrists and the Medical Board about the appellant.

46 JG and CL were not cross-examined in a way which disputed any of their evidence about the touching, carnal knowledge or attempted carnal knowledge that they testified to. After JG and CL had completed their evidence, AW, LB and MM were called to give evidence.

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

How did he come across to you when you first met him?---I was scared of him He was an angry - I thought an angry type of person. Yeah, not a person I, sort of, could feel at ease with and that's what I needed. Yeah.

After that first appointment did you ever see Dr Stubley again?---I saw him about every two weeks.

That impression that you got the first time of him; namely that he was someone that scared you, that he was an angry type of person and that you didn't feel at ease with; did that remain? Did that remain the way you looked at him or did that change as you started to see him more regularly?---No. He was always - he seemed always distant, not really concentrating on me as a person. I just felt his distance.

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

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

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

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

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

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

50 AW gave evidence that after intercourse occurred, she dressed herself, he washed himself in the basin in his room and dressed. She made an appointment to see him a couple of weeks later (ts 224).

Did some form of sexual contact occur on other occasions other than the one that you've just described?---Yes. There was - there was oral sex. He would sit in a chair and I would, you know. I got it into my head that, you know, I wanted - I didn't get his attention any other way. He started it off.

All right. So you said that there was oral sex on occasions and that occurred when he was sitting in his chair. Is that correct?---Yes, yes.

So you mean that that you performed oral sex on him?---Yes.

Did you notice in that period in which you were seeing Dr Stubley and that sexual relations were occurring was there any particular change in the way Dr Stubley dealt with you?---No. No, he was still distant. He never seemed to be - he never seemed to be really - no. He was shut off. No.

52 She agreed that in her statement to the police when speaking of one of the occasions of intercourse that occurred, she said:

I think that I may have instigated it because I wanted to please him. I don't remember exactly but I may have encouraged him by pulling down his fly while I was sitting on his knee. (ts 233)

53 She was asked questions about her statement describing the occasion when fellatio occurred as follows:

The next occasion that I recall in any detail is me going to visit him and going and sitting on his lap and thinking how I could please him because he sat back in his chair with no expression on his face.

And I asked you: is that what it says?---Yes.

Thank you. The next paragraph is the one that I want to focus on. Does it say this:

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

Is that what it says?---Yes. (ts 235)

54 Some time later, AW fell pregnant and was not sure whether her husband or the appellant was responsible. She confronted the appellant by walking into a therapy session he was conducting and saying, 'Look, you made me pregnant' (ts 226). That was the last she saw of the appellant.

55 It is also relevant to refer to one passage of cross-examination which drew from the witness part of a statement that she made to the police, and which was in the 'brief' that the trial judge had (ts 228) and would therefore have been before her Honour when the pre-trial decision was made. A passage was read from the statement by counsel for the appellant (ts 233) which AW agreed was correct (ts 234). It read:

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

He didn't force me to have intercourse with him. (ts 233)

57 The evidence of LB was that she had been admitted to hospital in 1972 because she had cut her wrists; that upon leaving hospital she saw the appellant at his rooms in West Perth on a fairly regular basis; and that she was very depressed following a breakdown of her marriage (ts 242). She said that initially the appellant held hands with her and cuddled her and he was 'comforting' (ts 243). LB did not make any objection to this. Later he told her that he wanted to 'connect with how [she] felt' (ts 245). LB saw the appellant for about two years and towards the end of that time he began to be 'more sexual' and he touched and played with her breasts. She said that she told the appellant that she was self conscious because she had a fear of her sexuality (ts 243) and had a skin problem (ts 245). She then said that she saw the appellant in a 'small hospital' (ts 246) and that the appellant had said that 'if I didn't confront my fears, I'd be running away from them for the rest of my life. The way we would confront my fears would be by being naked together and he would show that he would not lose control in that circumstance' (ts 246). She then gave evidence as follows:

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

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

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

So did you do that?---Yes.

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

On that bed?---Yes.

What happened?---Dr Stubley lay on top of me. (ts 247)

LB did not testify that the appellant had intercourse with her. She saw him again subsequently. They did not have any further physical contact (ts 248). LB obtained a scholarship and then went to Sydney. She remained there for 30 years.

58 LB gave evidence that when she was consulting the appellant he became 'an anchor' in her life for about two years and that he made her feel good (ts 246).

59 In cross-examination, LB was asked about her diary for 1974 which the appellant's counsel had been provided with. It recorded an entry by LB that she had 'a desire to sleep with [the appellant] because '[she] loved him' (ts 249). LB agreed that she 'may have' recalled making the entry.

60 MM gave evidence that when she was 18 years old she commenced seeing the appellant as a patient and also working as his part time receptionist, and that their relationship was very formal. When she turned 21 in 1977, the appellant kissed her on the lips, which startled her because it was not typical of her relationship with him (ts 262). She used to address the appellant as 'Dr Stubley' (ts 262).

61 She saw the appellant as a patient because 'I regarded myself as still a very anxious person, prone to depression, and I felt he had some mysterious answers' (ts 262).

All right. So with that in mind, you had a consultation. I think you said it was the first consultation after the time when he kissed you on your 21st birthday?---That's right.

What happened during that consultation?---It started off as usual, in mutual silence was the pattern, and at one time he looked across at me and he said, 'You look like you need a big hug,' and held his arms out from his chair.

In any previous consultation that you had had with Dr Stubley had such a thing occurred?---No. It was usually just I sat in a chair and he sat in a chair and quite often nothing was said.

All right. So when Dr Stubley said that to you and extended his arms towards you what did you do?---I accepted the hug. I went to his chair and accepted the hug.

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

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

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

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

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

In what sense?---He used to wear shirts with buttons missing. I think the shirt - I mean, he had a long, grey beard. I think the shirt was undone and I think the shorts were down. That's as clear as I remember.

Were you undressed partially or completely?---I think I was undressed completely; maybe partially. I think completely.

Thank you. When you were undressed do you remember if Dr Stubley said anything?---He said something that stayed in my mind because he said, 'I knew you would be beautiful' and that seemed to say to me that it was something planned.

Did you respond to him when he said that?---No, not - no, I didn't.

So you were naked; Dr Stubley was partially unclothed; said to you, 'I knew you would be beautiful.' What then happened?---To be quite accurate, I next remember myself being on the carpet underneath him. I don't remember the steps of getting there.

JOHNSON J: I'm sorry, I didn't hear you. Could you repeat that, please?---I next remember myself on the carpet with him on top of me. I don't remember the steps of getting there.

TROY, MR: When you were underneath him on the carpet what, if anything, was happening?---He was having sex with me.

Do you remember if he was wearing any form of protection?---I'm pretty sure he wasn't.

How long, very approximately, did the sexual intercourse continue for?---A few minutes.

How did it come to an end?---He ejaculated and got up and went over and washed himself.

Where did he wash himself?---He had a basin in the rooms.

During the time, [MM], that intercourse was occurring were you saying anything to Dr Stubley that you can remember?---I don't think I said anything. I think I was in shock.

Do you remember what was going through your mind at the time that this episode of intercourse was occurring?---Well, I knew - I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn't be happening because I didn't know how to tell him that I felt revolting and he was my boss and I didn't think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just 'How do I get out of this? How do I get out of this?'

When you say these thoughts were swirling through your mind, do you mean at the time the intercourse was occurring or afterwards?---Well, both.

Did you want to have intercourse with Dr Stubley?---No, no.

MM remained working for the appellant for about three months. Nearly 30 years later, in 2006, she met JG.

The decision of Johnson J in [2009] WASC 57

63 The trial judge in her reasons acknowledged that the objection to the evidence of AW, LB and MM required consideration of s 31A(2) of the Evidence Act. Her Honour recorded a concession by counsel for the appellant that the evidence sought to be adduced met the definition of 'propensity evidence' in s 31A of the Evidence Act.

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

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

TROY, MR: Yes.

65 (An admission was in fact made by counsel for the appellant at the commencement of the trial. The precise terms of that admission are set out below.)

66 Counsel for the State advised the trial judge, and her Honour recorded in her reasons, 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'.

67 The trial judge in her reasons set out the legal principles which governed the decision she had to make and no complaint is made about the statement of those legal principles. At [35] and [40] her Honour referred to Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 and observed that the High Court there concluded that the evidence about whether one complainant consented was not relevant to whether another complainant did not consent. Her Honour added at [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.

68 The trial judge also observed by reference to The State of Western Australia v Osborne [2007] WASCA 183 (Wheeler JA, Miller JA agreeing) that where there was an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addressed lack of consent did not make it inadmissible.

69 The trial judge concluded that the evidence of AW, LB and MM was of 'significant probative value'. The reasons for this decision which the appellant submits reveal error are set out further on in these reasons. The conclusion, and those reasons, are the subject of the first ground of appeal.

Ground 1: The Learned Trial Judge erred in law in ... failing to exclude the evidence of the Appellant's propensity to be adduced from [LB, MM and AW].

Ground 2: The Learned Trial Judge erred in her directions to the jury about the standard of proof of the propensity evidence given by the witnesses [LB, MM and AW], who were not complainants in respect of the counts on the Indictment.

71 Before s 31A of the Evidence Act was enacted, the position at common law was that a prosecutor was not permitted to lead evidence of criminal offences on other occasions if the evidence of those offences was not relevant to any issue other than the accused's general propensity to commit criminal offences. If there was an issue about whether the acts constituting the charge occurred, the reason the prosecutor was not permitted to lead this evidence was not because the evidence was not relevant to that issue. The reason for not permitting such evidence to be led was because of an exclusionary rule which had developed at least by the early 1800s. See the reference to the 1810 case R v Cole, unreported, but referred to in R v Sims [1946] 1 KB 531, 541. The reason for the exclusionary rule was given by Gibbs CJ in Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 when he said:

Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it.

See also Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 607 (Toohey J). The statement that the propensity evidence was ordinarily regarded as relevant was clearly a reference to cases where there was an issue about whether the acts the subject of the charge had been committed. However, there is not in every case any such issue and so in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 Toohey J explained at 501 that the 'first enquiry' must be whether the evidence is relevant. That requires an identification of the issues in the case.

72 Before 1995, the formulation of the exclusionary rule was the subject of considerable amount of case law throughout the common law world, which was all given detailed consideration in Pfennig v The Queen. After that decision, s 31A of the Evidence Act was enacted.

73 Section 31A reads:

(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.

74 The definition of 'relationship evidence' is to some degree confined, but the definition of 'propensity evidence' is extremely wide. However, it is not necessary to consider those definitions further because both parties submitted, and in my opinion properly so, that it does not matter for the purposes of this case whether the conduct is defined as 'propensity evidence' or 'relationship evidence'. What the parties correctly went straight to, and what ground 1 is concerned with, is whether the evidence given by the three witnesses, AW, LB and MM, was evidence of 'significant probative value', having regard to other evidence adduced or to be adduced.

75 In Wood v The State of Western Australia [2005] WASCA 179, I noted at [41] that s 31A(2) of the Evidence Act was a statutory adoption of what was said by McHugh J in Pfennig's case at 528. However, I should further particularise that observation by saying that it refers to s 31A(2)(b). The preceding paragraph, s 32(2)(a), requires relevance to be considered. That is, there is no question of the judge having to engage in the balancing act required by s 32(2)(b) unless the court first determines that the evidence is relevant. Indeed, the statute now says that the evidence must not only have probative value, that is, be relevant, but it must also be of 'significant' probative value, ie 'significantly' relevant.

76 In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P, in analysing s 31A, made the obvious point (and which his Honour said was obvious) that the evidence in question must be relevant before it can be admitted into evidence under s 31A. His Honour said that unless such evidence is relevant, it could otherwise have no probative value, let alone 'significant' probative value. Furthermore, if the evidence does not have significant probative value, then s 31A(2)(b) does not have to be considered.

[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non-existence of the other.

78 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [55] (McHugh J); Goldsmith v Sandilands [2002] HCA 31; [2002] HCA 31; (2002) 76 ALJR 1024 [31] (McHugh J). Expressed in another but not materially different way, evidence is relevant if (assuming it to be accepted) it could rationally affect (directly or indirectly) the assessment by the tribunal of fact of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands at [2], Gleeson CJ; Phillips v The Queen [50].

79 Wigmore, using Latin phrases, referred to the two facts as the 'factum probandum', the fact or proposition to be established, and the 'factum probans', or material evidencing the proposition. Wigmore said that on each occasion the questions must be asked, '[j]ust what is the proposition desired to be proved?' and '[j]ust what is the evidentiary fact offered to prove?' See Harriman v The Queen at 606, Toohey J.

80 Although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not: Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [6], Gleeson CJ, Gaudron, Gummow and Hayne JJ. In determining relevance it is 'fundamentally important' to identify what are the issues at the trial: Smith v The Queen [7].

81 The result is that if evidence is objected to, then the first step to be taken by a judge when determining whether evidence is relevant or not is to identify the fact in issue or the factum probandum. The second step is to decide whether the evidence of the fact objected to, either alone or in conjunction with other facts, proves, according to the common course of events, the existence or non-existence of the fact in issue; or, expressed in the alternative way, whether the evidence objected to could rationally affect the assessment by the jury of the probability of the existence of the fact in issue.

How are issues identified in a criminal trial?

82 Speaking generally, in a criminal trial an accused is entitled to plead the general issue by entering a plea of not guilty. If so, the issues in the case will include the ultimate facts in issue expressed in terms of the elements of the offence of which the accused stands charged, along with other issues about facts relevant to those ultimate facts in issue. See Smith v The Queen at [7]. However, just as a pleading in a civil case will narrow the issues, so the issues in a criminal trial may be narrowed or reduced in number.

83 In Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517, Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) said of a criminal trial, that it is 'a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue'. In Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343 [1], Gleeson CJ said that in our system of criminal justice, a trial is conducted as a contest between the prosecutor and the accused and that the prosecution and the defence, by the form in which the indictment is framed and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration.

The manner in which a trial is conducted, and in which the issues are shaped, especially where ... an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary.

85 An accused, for forensic reasons, will sometimes choose to make an admission or not lead favourable evidence which may have been relevant, in order to prevent the creation of an issue on which damaging evidence would have then become relevant. So for example, in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [82], McHugh J gave the example of counsel for an accused deciding not to adduce character evidence because of the possibility that it might lead to the introduction of evidence of the accused's 'bad character'. Another example appears in Harriman v The Queen, where Toohey J said at 608 that the admissibility of evidence depends upon its relevance to issues raised by the indictment including defences available to the accused, so that if the accused is concerned that evidence sought to be adduced is relevant only to a defence upon which he does not intend to rely and that it is prejudicial to him, his counsel may so inform the court. Toohey J added that the evidence would not then be pressed or, 'if pressed, it is likely to be rejected because it is not probative of any disputed fact'.

86 In Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [81], Roberts-Smith JA said (Wheeler and Pullin JJA agreeing) that there could be little doubt that when Toohey J spoke in Harriman v The Queen of an accused's counsel informing the court that the accused did not intend to rely upon a particular defence open to him, his Honour had in mind 'the making of a formal admission (or a formal undertaking by counsel not to rely upon a particular defence) such as would dispense with any requirement for the prosecution to lead further evidence on the point'.

87 Of course an issue cannot be eliminated by an accused for some 'forensic advantage' (TKWJ v The Queen [82]), by giving an ambiguous impression that an element of the charge might not be in issue but without actually making an admission which eliminates the issue. Thus, in The State of Western Australia v Osborne [2007] WASCA 183 [47] in reaching my conclusion that the trial judge erred in that case, I said that his Honour seemed to have concluded by assuming in effect, that there was no issue that the accused had sexual contact with two complainants when it was not possible to reach that conclusion at the time the trial judge made his decision.

88 The result of this discussion is that unless an admission is made at trial to eliminate any issue about an element of the charge, then the prosecution is entitled, and indeed obliged, to lead evidence on all of the issues raised by the elements of the counts in the indictment and their denial by the plea of not guilty.

89 The question then arises as to whether the prosecution may lead evidence of a fact which is admitted. The point arises in sharp focus in this case, because as will appear below, AW, LB and MM could not give any relevant evidence on the issue of whether JG and CL consented to the sexual acts against them or on the issue of whether the appellant threatened or intimidated either JG or CL to induce consent.

90 The only other issue on which AW, LB and MM could potentially give evidence was whether the acts of touching, carnal knowledge or attempted carnal knowledge of JG or CL occurred. I would accept that if the appellant had denied that those acts occurred, then his unusual propensity as a doctor to have sexual relations with other patients in his consulting rooms (AW, LB and MM) could rationally affect the assessment by the jury of the probability that he had sexual relations with JG and CL.

91 However, as foreshadowed at the pre-trial hearing, the appellant admitted that he indecently touched JG and CL, had carnal knowledge of JG and CL and had attempted carnal knowledge of CL, as alleged in the charges in the indictment on which he was convicted. That then raises the question as to whether the State could call AW, LB and MM in further proof of what was admitted. That question and its answer requires a consideration of s 32 of the Evidence Act as to why it was necessary to have such a statutory provision and to consider the cases bearing on the question. All of those matters are dealt with under the next heading.

Can the prosecutor call evidence in proof of a fact admitted by the accused?

92 At common law it was held to be irregular in criminal proceedings to dispense with evidence and act upon an admission made by counsel. See Rattray v Roach [1890] VicLawRp 36; (1890) 16 VLR 165; Munday v Gill [1930] HCA 20; (1930) 44 CLR 38 at 68 per Isaacs CJ and at 80, per Gavan Duffy and Starke JJ. The justification for this approach was provided by Lord Reading CJ in R v Lee Kun [1916] 1 KB 337 at 341. His Lordship said that the prosecution of criminals in the and administration of the criminal law were matters which concerned the State and that 'Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty, except when tried under the safeguard so carefully provided by the law'.

93 However, statutes have been passed in all Australian States and Territories allowing an accused to admit facts. The language of those provisions varies from jurisdiction to jurisdiction, but they are all to similar effect. See the list provided in Cross on Evidence, 7th Aust ed [3180] fn 249. Section 32 of the Evidence Act 1906 (WA) reads:

An accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and such admission shall be sufficient proof of the fact without other evidence.

94 The section contains no prohibition on the calling of evidence if an admission is made, but if the admission is made and the admission is sufficient proof of the fact in issue, then the question arises as to how evidence to prove what is admitted would be relevant. I put aside cases where the evidence would be relevant for a purpose other than proving what had been admitted. Thus, in R v Raabe [1985] 1 Qd R 115, evidence of the nature and effect of injury on a victim in relation to a person charged with assault occasioning bodily harm was admitted, notwithstanding that the accused had made an admission as a fact that the injuries interfered with the victim's health or comfort. The evidence was relevant not in proof of the admitted fact, but in relation to the issue of whether the force used exceeded any consent given by the complainant to the application of force to his person.

95 In R v Longford (1970) 17 FLR 37, Gibbs J was dealing with the trial of an accused person in respect of the death of a passenger in a car driven by the accused. An admission was made under s 404 of the Crimes Act 1900 (NSW) which authorised an accused to make admissions. Gibbs J said at 38 that in light of the admission that was made in that case, the 'next question that arises is whether, if these admissions are made, certain of the evidence that has been given in the court below will be admissible in these proceedings, or at least, if admissible, ought not to be led by the Crown'. His Honour then continued:

It seems to me that there are three propositions that may be laid down as to the effect of s 404. The first is that admissions made under that section render it unnecessary for the Crown to call evidence to prove the matter admitted. In other words, an admission under s. 404 dispenses with the necessity of proof of the matter admitted.

Secondly, it follows that the Crown ought not call evidence to prove a matter which has been the subject of an admission, at least if the calling of such evidence would be likely to have any prejudicial effect on the accused.

Thirdly, however, if the evidence in question not only goes to prove a matter admitted, but also has probative value on another issue, the admission of one fact does not prevent the evidence as to that fact being given when it is relevant to another issue.

96 Those reasons were considered and approved by the Full Court of the South Australian Supreme Court in R v O'Sullivan and Mackie (1975) 13 SASR 68. In that case the accused was charged with murder by placing an explosive in the murdered man's motor vehicle. When the victim turned on the ignition, there was an explosion and the man was killed. The Crown proposed tendering photographs showing the badly mutilated and partly disintegrated body of the murdered man. Before the photographs were tendered, counsel objected to the photographs being admitted on the basis that they had no probative value because of a foreshadowed admission that the victim had died in consequence of the explosion, and that the admission would be under the South Australian statutory provision, s 34 of the Evidence Act 1929 (SA). This objection was dismissed by the trial judge and the photographs were tendered. Bray CJ and Mitchell J held that the trial judge erred in law in admitting the photographs into evidence because they had no probative value except in relation to proof of identity, and that had counsel for the accused made the admissions which they stated they were prepared to make the photographs should not have been admitted in evidence. Bray CJ thoroughly reviewed the law beginning with the position at common law and the position in civil cases, referred to Gibbs J's judgment in R v Longford, and then said at [74]:

It follows that if counsel had made the formal admissions in question before the jury, as they intimated their intention of doing if the point of law were decided in their favour, the learned Judge should not, in my view, have admitted the photographs for the purpose of proving anything covered by the admissions.

97 Bray CJ added that if the photographs had some probative value in respect of a matter not covered by the admission, they could have been admitted subject to the discretion to exclude them because of their prejudicial effect. His Honour concluded that there was no other live issue to which they were relevant and that they should not have been admitted into evidence at all.

98 Mitchell J reached a similar conclusion. He referred to a submission which had been made by the Crown in that case that s 34 of the Evidence Act left it open for the admission to be supplemented by other evidence. His Honour said at 79:

I do not think that this argument is sound. If there is sufficient proof of a fact then the jury should find such fact proved. Any further evidence is superfluous. I would respectfully adopt the reasoning of Gibbs J in The Queen v Longford as appropriate to s 34 of the Evidence Act.

99 Despite the error by the trial judge, the conviction was not set aside because the proviso was applied. The court held that, notwithstanding the wrongful admission of the photographs, there was no substantial miscarriage of justice.

100 It is also necessary to note that in R v Raabe referred to above, Gibbs J's judgment in R v Longford was referred to with approval by one of the judges, Derrington J, at 123 - 124, who said:

It is true that upon an admission of a fact by an accused at his trial in accordance with s 644 of The Criminal Code, the Crown should not be permitted to lead evidence of the admitted fact unless the evidence is probative of some further fact beyond that which was admitted: R v Longford.

101 The position therefore seemed clear until the New South Wales Court of Criminal Appeal in R v Smith [1980] 1 NSWLR 193; (1980) 2 A Crim R 245 in some obiter dicta expressed a different view. That case concerned a charge of assault occasioning actual bodily harm. An admission was made by the accused that the victim was injured on the date specified and that the injury constituted actual bodily harm. The prosecutor opened the case and referred to details of the injuries sustained by the victim. Counsel for the appellant moved to discharge the jury on the ground that an admission having been made, it was no longer open to the Crown to canvass before the jury the details of the injury. Street CJ in his reasons noted that reliance was placed upon Longford's case, and the three propositions made by Gibbs J in that case were set out in full. Street CJ noted that the trial judge in the case before him took the view that within those three propositions it was not necessarily impermissible for the Crown to open the details of the injuries, and in due course, to call evidence of their nature. Street CJ then said at 246 - 247:

The significance of an admission is essentially to constitute material before the jury on which the jury can place reliance when performing its final function of reaching a verdict. It is not correct to assert, as has been argued, that once a matter becomes the subject of a specific admission under s 404 it ceases to be relevant for further investigation. In the present case, for example, the issue of whether actual bodily harm had been occasioned remained a critical factual issue for the jury's deliberation from the commencement until the conclusion of the trial. No doubt a persuasive, indeed strongly persuasive, basis for the jury reaching a finding adverse to the appellant on that issue was the formal admission. But this does not in principle preclude the Crown from adducing further evidence on the matter.

With great respect, the propositions enunciated in the Supreme Court of the Australian Capital Territory do not reflect what I apprehend to be the law and the course of practice followed in this State. They appear, in my view, to involve an undue restriction upon the Crown's freedom to adduce all proper and relevant material for the jury's consideration in connection with the charge which a jury is currently hearing.

There is a general principle of evidence which applies in all criminal trials, namely, that the trial judge has a discretion to reject evidence which has prejudicial significance unfairly disproportionate to its probative value. This general principle is, in my view, adequate to protect an accused person from unfairly prejudicial consequences which might flow from the Crown embellishing the factual material by unnecessarily calling prejudicial evidence on a matter which is the subject of an admission. The propositions enunciated in Longford ... do not, I repeat, reflect the law and the course of practice to be followed in this State.

102 His Honour then said that even if the propositions in Longford's case were correct, the evidence was properly called because it was directly relevant to the defence of self-defence. Samuels JA and Slattery J agreed with Street CJ's reasons. No reference was made in the reasons to the South Australian Full Court's decision in R v O'Sullivan & Mackie (referred to above), which had been decided nearly five years earlier.

103 The reasoning of Street CJ is obiter because the court held that the evidence was admissible on another issue and quite clearly if evidence is admissible on some issue other than in relation to the fact the subject of the admission, then the evidence was relevant and admissible on that other issue. As stated in Cross on Evidence, 7th Aust ed [1520], if evidence is admissible for one purpose, it cannot be rejected on the ground that it is inadmissible for another purpose.

104 The comments of the New South Court of Criminal Appeal declining to follow R v Longford will give rise to confusion about the correct approach. It has already done so in this State. See Fox v Walker [2004] WASCA 246 where Jenkins J, faced with the conflicting authorities, chose to follow R v Smith. If the New South Wales Court had been made aware of the South Australian decision, then their reasons would have been different. The legislation under consideration here, although differently worded from jurisdiction to jurisdiction, is nevertheless uniform in its intent. In Farah Constructions Pty Ltd v Say-dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135] the High Court said that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of uniform national legislation, unless they are convinced that the interpretation is plainly wrong. The New South Wales court did not consider that the South Australian case of R v O'Sullivan & Mackie was plainly wrong because they were obviously unaware of it.

105 In any event, and with respect, the observations by Street CJ that the making of an admission will unduly restrict the Crown's 'freedom' to adduce 'all proper and relevant material' reveals erroneous thinking. 'Material' (meaning evidence) is only 'relevant' if there is a fact in issue which has to be proved. Thus, as I have said, in a rape case, if the acts of carnal knowledge are committed in some distinctive way are denied, then the propensity to commit similar acts in a similarly distinctive way on other occasions with other persons may be relevant. However, if the acts of carnal knowledge are admitted, then there is no issue, there is no fact requiring any further proof and therefore there is no need and no right to call evidence to prove what is admitted. If the prosecution is permitted to lead evidence in relation to a fact which is admitted, then one of the objectives of s 32 of the Evidence Act, which is to bring about the shortening of trials by accused persons admitting facts, will not be achieved. The use of admissions has been recommended as a contribution by responsible practitioners to shorten trials by admitting non-controversial facts. See R v Mitchell [1971] VicRp 5; [1971] VR 46 at 64 - 65.

106 In my opinion, the obiter in R v Smith should not be followed in this State and the decision of R v O'Sullivan & Mackie should be followed.

107 In consequence, if at trial in this case an admission was made that the acts of touching, carnal knowledge and attempted carnal knowledge against JG and CL were admitted and that the only issue related to consent, then, applying R v O'Sullivan & Mackie, the prosecution was not entitled to lead evidence of the propensity of the appellant to commit sexual acts against patients in his rooms in proof of the acts which the appellant admitted committing.

In this case an admission was made at trial as foreshadowed at the pre-trial hearing before Johnson J

108 I have already mentioned that her Honour's decision ruling that the evidence of AW, LB and MM was of 'significant probative value' was made with knowledge of the appellant's foreshadowed admissions to narrow the issues at trial to that of consent.

109 The admissions foreshadowed at the pre-trial hearing were made at trial. At the commencement of the trial, senior counsel for the appellant, taking advantage of s 143 of the Criminal Procedure Act, immediately after the prosecutor's opening address and, in the presence of the appellant, informed the judge and jury that:

I told you I would be making some admissions. Can I say this: I do so not because of any obligation to do so but because simply to focus these issues. Dr Stubley will admit that he was sexually intimate with four of these women. That includes [JG, CL, MM and AW], but he says that his sexual intimacy on each occasion was consensual; that is, with the consent of each one of those females, that there was no force or coercion or intimidation or manipulation of any one of those females, and maybe he accepts that he may be morally and ethically wrong for what he did; he's not guilty of the criminal allegations that have been brought against him and will explain the circumstances in which the sexual intimacy took place.

Can I say this: after 30 to 35 years he's not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after 30 to 35 years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let's see about that. (ts 78)

110 As Steytler P (Pullin and Miller JJA agreeing) said in The State of Western Australia v Wood [2008] WASCA 81 [25], s 32 of the Evidence Act does not prescribe 'procedure for making statutory admissions but the cases reveal that [it] is desirable that the admissions be made in specific terms' and cited authority that such admissions should not be made 'casually'. It is necessary to say that senior counsel adopted an off-hand and casual approach to making the admissions in this case. There seems to be an unfortunate tendency for some counsel appearing in criminal trials to adopt this cavalier approach. For another example see counsel's opening statement, which is quoted in Wood's case. In my opinion, trial judges should demand greater formality, deliberation and precision when admissions are made.

111 Nevertheless, the statement by senior counsel in relation to the complainants JG and CL, amounted to this; if the two complainants, JG and CL, gave evidence that the appellant engaged in 'sexual intimacy' (meaning indecent touching or sexual penetration or attempted sexual penetration amounting to carnal knowledge or attempted carnal knowledge) then the appellant would not dispute that evidence, and there would then be an admission that the acts constituting each alleged offence occurred. As will be seen below, the whole of the appellant's case was conducted in accordance with the admission.

112 That being so, the only live issue for the jury to consider was the issue of whether the State proved that JG and CL did not consent or were induced to consent by force, threat, intimidation or fear of bodily harm to touching, carnal knowledge or attempted carnal knowledge, or whether the appellant had an honest and reasonable mistaken belief that they did consent. When during these reasons I refer to the issue of consent, it is shorthand for the issue described in the previous sentence.

113 After the admission was made, the complainants JG and CL then gave evidence of the indecent touching, carnal knowledge and attempted carnal knowledge in relation to those charges on which the appellant was convicted. They were not cross-examined in a way which, in any respect, challenged what they said about the acts of touching, carnal knowledge and attempted carnal knowledge. Thus, at the end of their evidence there was no longer any issue about the acts of indecent touching, carnal knowledge or attempted carnal knowledge of JG or CL described by the two women in their evidence.

114 The admission by senior counsel and the fact that there was no cross-examination of JG or CL about the sexual acts made it clear that consent was the only issue.

115 What happened in cross-examination or what the appellant said in evidence is not strictly material, but it may be noted that, consistent with the admission and consistent with the absence of any cross-examination of JG and CL concerning the sexual conduct, when the appellant gave evidence he was asked by counsel (ts 302):

You've heard [JG] describe that during this period of time sexual things had happened to her. Do you remember her testimony?---I think so.

Yes, alright, and do you recall having sex with her?---Yes, I recall something of having sex with her.

Now, with [CL], do you agree that you had sex with her?---Yes.

117 Also consistent with the admission at the beginning of the hearing, consistent with the absence of any challenge in cross-examination of JG's and CL's account of sexual incidents and consistent with the appellant's evidence-in-chief, which did not deny any of the acts referred to in the counts in the indictment which remained for consideration of the jury, senior counsel for the appellant in his address to the jury said (ts 30 - 31 of the closing addresses):

Well, Dr Stubley admits sexual conduct with both complainants, [CL] and [JG] ...

Dr Stubley admits having sexual intercourse with both complainants.

118 The trial was therefore conducted from beginning to end in accordance with counsel's pre-trial foreshadowed announcement that consent was the only issue, and in accordance with the admission made at the beginning of the trial.

119 I mention merely for completeness that even though the admissions had been made, the appellant was cross-examined by the prosecutor about the sexual acts in relation to counts 10 and 11. As will appear below, the prosecutor should not have been permitted to do so and counsel for the appellant should have objected. This was cross-examination regarding a fact not in issue. The appellant answered this cross-examination by saying that he could not recall that those acts occurred, but added that it was not the sort of thing 'in my believe [sic belief]' (ts 350) that he would do. This did not amount to a denial that he committed the acts. Thus, even in this impermissible line of cross-examination, he did not resile from the admission which had been made on his behalf, namely that he would not dispute the evidence JG and CL gave as to the acts constituting the charges.

120 I repeat that the only issue that remained in the case once JG and CL had given evidence about the acts constituting the charges on which convictions were recorded, was the issue of whether the prosecution had proved that JG and CL did not consent or were induced to consent by force, threat, intimidation or fear of bodily harm to the touching, sexual penetration or attempted sexual penetration, or whether the prosecution had proved that the appellant did not have an honest and reasonable but mistaken belief that they did consent.

The only issue being consent, then was the evidence of AW, LB and MM of their state of mind relevant to that issue?

121 Whether AW, LB or MM consented or did not consent to the appellant indecently touching or having carnal knowledge of them (and not all of them gave such evidence) had no probative value in relation to the issue about whether JG and CL did not consent. That is clear beyond debate as a result of Phillips' case when in joint reasons the High Court said:

It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her [47].

Evidence by other complainants that they had not consented to the sexual acts allegedly performed on them by the appellant had no more probative value than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant. Like the evidence of the other complainants in this case, evidence of that kind may demonstrate some 'propensity' in particular complainants, but it demonstrates nothing about the appellant.

In short, as counsel for the appellant submitted, the evidence, tendered as it was on the issue of the consent of each complainant, was irrelevant to that issue. ... Evidence that five complainants did not consent could not rationally affect the assessment of the probability that the sixth complainant did not consent.

124 This court acknowledged the point in The State of Western Australia v Osborne, where Wheeler JA (Miller JA agreeing) said at [28]:

[I]t may logically be accepted, in relation to the issue of consent, that the fact that one complainant denies that he or she consented does not assist a jury in establishing whether another complainant consented.

Consent - relevance of conduct of the appellant

125 However, that is not the end of the potential relevance of propensity witnesses in a case involving sexual penetration or indecent touching when the issue of consent is live. Wheeler JA in Osborne at [27] put it this way:

[I]t 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. To take the example of one of the counts in Phillips, there was evidence that the accused had menaced one of the complainants with a thick chain. If, by way of example, six complainants had said that the accused had menaced each of them with a particular type of chain, using similar words, in similar circumstances, that would be similar fact evidence.

126 R v I A Shaw [1996] 1 Qd R 641 is an example of consent induced by threat in a rape case. The complainant in a lonely area of bush was confronted by the appellant who wielded a knife and then had sexual intercourse. The appellant claimed it was consensual.

127 Wheeler JA in Osborne said that she did not understand the High Court to be saying that simply because evidence of conduct of the accused would bear upon the mental state of the complainant, the evidence was incapable of being admissible similar fact evidence [27]. Wheeler JA was making the clear distinction between the (a) complainant's state of mind (whether the complainant consented or not); and (b) whether the accused person conducted himself in a particular way to induce unwilling consent. That is important in the case of rape because, as stated at the beginning of these reasons, s 325 of the Criminal Code, as it stood at the time, stated that rape was committed by a person who had carnal knowledge of a person either without her consent or 'with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm'.

128 Thus, if there was evidence about a particular kind of conduct of the accused in the form of force, threats or intimidation or conduct inducing fear of bodily harm (see s 325 of the Criminal Code as it then was) to induce consent in JG and CL and it was similarly engaged in to gain the consent of AW, LB or MM, then the evidence of AW, LB or MM of such conduct would have been relevant. That makes it necessary to consider whether JG or CL gave evidence of force, threat or intimidation or that the appellant induced in them a fear of bodily harm and, if so, to consider whether AW, LB or MM gave similar evidence.

What conduct did the appellant engage in before carrying out the acts the subject of the charges?

129 JG did not allege the use of any force or conduct inducing a fear of bodily harm. However, JG gave evidence of a threat (which the appellant denied). JG gave evidence in relation to count 3 that the appellant threatened her with institutionalisation and removal from her child and her husband when she asked 'what this was all about'. This threat would then have been relevant to whether consent was given by JG when engaging in subsequent sexual acts. It may be accepted that such conduct also amounted to intimidation.

130 In the case of CL, there was no evidence of any force, threat, or conduct inducing fear of bodily harm. Before the first incident (count 12), the appellant asked CL if he could massage her neck and then did so and touched her breasts. In relation to count 13, CL said the appellant initiated the sexual contact leading to the attempted act of intercourse by asking for a hug. However, a month later at a meeting where the appellant said he felt rejected, he appeared to CL as angry and he spoke in a menacing tone. I will assume that this amounted to intimidation (see below) which might have influenced CL in relation to count 14, even though in relation to that first act of intercourse (count 14) CL said that he 'started to open his arms and - and have an invitation to some sort of cuddling or something; and it led to him undressing me, undressing himself and lying on the floor and engaging in sexual intercourse' (ts 175) and that when they were on the floor he engaged in 'stimulatory foreplay' (ts 175).

131 The word 'intimidation' is not a term of art. It is a word of common speech in everyday use and it must therefore receive a reasonable and sensible interpretation according to the circumstance of the particular case. See Connor v Kent [1891] 2 QB 545, 559 (Lord Coleridge CJ). In Judge v Bennett (1887) 52 JP 247, 248, Stephen J said in another statutory context that the word 'intimidation' may mean any kind of threat, provided it made the person against whom it was used reasonably afraid. More recently in R v Mathews [1993] 2 Qd R 316, McPherson JA also noted that the word 'intimidate' where used in s 36A of the Crimes Act is not a technical term, or a term of art, but a word in common use employed in its popular sense. He said '[o]rdinarily, intimidation would involve some threatening words or conduct tending to coerce the other person' (318). Whether there has been intimidation is a question for the jury to decide on the evidence and it is a matter of considering the evidence to determine whether the appellant engaged in any conduct which was intimidating in a way which would explain any apparent consent which was given by the complainants. A person who is merely angry may intimidate a person (R v Mathews at 320 per Derrington J) but importantly it must be an anger in a context which induces some action (or inaction) by the person intimidated: see R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249 [6] (Mason P).

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

132 The answer is that none of AW, LB or MM gave evidence of being threatened with institutionalisation as JG said she was.

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

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

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

134 The appellant did not threaten, force or induce fear of bodily harm to induce LB to engage in the sexual touching they embarked upon. The evidence of LB was of a progressive process first of non-sexual touching, then sexual touching leading up to the appellant persuading LB that if she took her clothes off it would help her overcome her self consciousness regarding her skin complaint.

135 LB gave no evidence suggesting that the appellant was angry or intimidating and no evidence that he issued any threat. She said that she allowed the sexual touching which occurred in her case because she felt embarrassed when the appellant undressed himself in front of her and that she took her clothes off to make the appellant 'feel better' (ts 247). LB therefore gave no evidence of intimidation relevant to the charges concerning CL.

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

136 The appellant did not force or threaten MM or induce fear of bodily harm. The appellant invited MM to him so he could give her a hug and she then found him undressing her and engaging in sexual intercourse. Apart from MM testifying that he said when she undressed that he 'knew [she] would be beautiful' (ts 264) he never said anything to MM and MM said nothing to him.

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

I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn't be happening because I didn't know how to tell him that I felt revolting and he was my boss and I didn't think I would get another job and he was like a guru or a figure I was greatly intimidated by. (ts 265)

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

The conclusion about the evidence of AW, LB and MM

138 The result is that none of the of the three witnesses, AW, LB or MM gave evidence of conduct which went to show a propensity to engage in a particular kind of conduct in order to gain his patient's consent and which provided evidence probative of the threat made to JG or the intimidation of CL.

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

140 In my opinion, the entirety of the evidence of AW, LB and MM was irrelevant to any issue in the case. It was of no probative value for any purpose and it was therefore inadmissible under s 31A of the Evidence Act. That then raises the question about why the trial judge dismissed the objection to that evidence.

141 The trial judge's conclusion at [62] was that the evidence of AW, LB and MM went to issues other than consent. Her Honour said:

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.

142 It is this paragraph to which the appellant points as revealing error. It may be observed that the trial judge offered several reasons for her conclusion. I will deal with each in turn.

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

144 Further, the reference to the conduct of the accused 'after engaging in sexual activity' (emphasis added) is a reference to the evidence referred to by the judge at [54], that the appellant washed himself in the basin after having intercourse. Evidence that the appellant washed himself after intercourse with AB or MM was irrelevant to the issue of consent or whether the appellant threatened or intimidated JG or intimidated CL.

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

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

With respect, why AW, LB and MM might not have complained and why JG did not tell anyone for 18 years (ts 113) and CL for many years (ts 179) are not related to each other. JG continued to see the appellant for 16 years after the last act of intercourse. It is not clear what her Honour had in mind by saying that something of the evidence of AW, LB or MM went to explain why no complaint was made by JG or CL for many years. Whether a person complains depends on matters personal to them.

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.

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

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

148 In my opinion, the difficulty her Honour had in articulating what evidence of AW, LB and MM proved was because her Honour failed to remind herself that the only issue was that of consent and to then ask herself what it was about the evidence of AW, LB and MM which, in the common course of events, rendered probable the fact that JG or CL did not consent or were induced to consent to what happened to them by threat or intimidation.

149 In my view, the trial judge erred in concluding that the evidence of AW, LB and MM was of significant probative value. I would uphold ground 1.

What was the effect of the evidence of AW, LB and MM

150 In my opinion, not only was the evidence of AW, LB and MM irrelevant and therefore of no significant probative value in relation to any issue, but it was also seriously prejudicial. The case must have been difficult enough for the jury because it would be surprising if they were not, as ordinary members of the community, deeply disapproving of a doctor who would have sex with patients in his rooms even if the patients consented. Whether the sexual conduct was consensual or not, any reasonable person would hold the view that the appellant had engaged in unprofessional, unethical and immoral conduct. The task that faced the court was to ensure that the jury, which would have held strong feelings of moral condemnation, did not convict him of criminal conduct because of that moral condemnation. However, instead of suppressing any urge of the jury to convict him on the basis of this natural prejudice, the trial judge made a ruling which permitted the prosecution to call three other women ex-patients, one of whom was the instigator of the sexual conduct, to say that they had all had some form of sexual activity with the appellant in his rooms. The appellant's unethical and unprofessional conduct with three other women was not relevant to whether or not the appellant was guilty of the serious criminal charges he faced. The fact that the trial judge gave a direction that they should not take account of any disapproval they felt about his unethical conduct was counteracted by the very calling of AW, LB and MM to give a mass of prejudicial and irrelevant evidence. The jury could only have thought (and, as will appear below, were directed) that the evidence of AW, LB and MM was relevant for some purpose. The evidence from these three irrelevant witnesses made up a very substantial part of the prosecution case.

151 Sometimes in cases when irrelevant evidence is admitted no miscarriage of justice occurs or, alternatively, no substantial miscarriage of justice occurs. The respondent argued before this court that even if ground 1 might be decided in favour of the appellant, then the appeal should be dismissed because there was no substantial miscarriage of justice (see s 30(4) Criminal Appeals Act).

152 More than 25% of the transcript of the prosecution witnesses is taken up with the evidence of the three witnesses who should not have been called. Her Honour did give a direction as follows:

The accused has admitted having a sexual relationship with a number of witnesses - I can't even think how many there were now, at least four. That may well make you draw an adverse view of his morals, his ethics, his character. According to his evidence, even he had drawn an adverse view of himself during that time. But you are not here to make findings about his morals, his ethics or his character; you are here to determine whether the state has proved beyond a reasonable doubt the charges on the indictment. (ts 399)

I particularly need to tell you about the evidence of [LB], [MM] and [AW] of their experiences with the accused 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. (ts 404)

154 Unfortunately, the directions quoted below about the use the trial judge said could be made of the evidence reveals the same generalised and, with respect, meaningless language which appears in the reasons given for admitting the evidence in the first place. At ts 405 her Honour said to the jury concerning the evidence of AW, LB and MM:

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

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

It is unclear what the jury was to make of that part of the direction. In my opinion, the collection of different evidence given by AW, LB and MM about the 'general behaviour' or 'surrounding circumstances' was not relevant to any live issue in the trial. It is unclear to what category of conduct, or 'type of matter', the trial judge was referring through references to the fact that 'they are undressed', 'conduct happens', 'with no discussion' and 'washing in the basin'. The reference to 'washing in the basin' is particularly puzzling, given that not all of the witnesses gave evidence that this occurred.

155 Finally, her Honour erroneously directed the jury towards the end of her address about what use the jury could make of the evidence of AW, LB and MM where she said:

The last thing I want to mention to you is this issue of there being no objection or [no] complaint, is of course something that you need to consider. It arises squarely on the evidence. The witnesses have all been cross-examined on it and it's obviously relevant, highly relevant, to the issue of consent and also generally to the credibility of the witnesses. I have mentioned the reasons given by [JG] and [CL] but I just briefly wanted to mention the evidence of [MM] which, as I said, is only relevant to this issue of whether or not it supports the account of the other women as to why they did not object. That is, it indicates the nature of the relationships between Dr Stubley and his patients and how he behaved in that context. (ts 447)

156 It is difficult to know what the jury would have made of that direction other than that the trial judge was telling them, contrary to Phillips' case, that the irrelevant evidence of 'witnesses' including MM was 'highly relevant' to the issue of whether JG or CL consented. This erroneous direction and the mass of irrelevant evidence, which only served the purpose of prejudicing the appellant in the eyes of the jury by showing that the appellant was unethical, unprofessional and immoral in his dealings with his patients, mean that it is impossible to conclude that there was no substantial miscarriage of justice. In my opinion, there was a substantial miscarriage of justice.

157 It is strictly unnecessary for me to deal with ground 2 because of my decision in relation to ground 1. Because I consider that the evidence of AW, LB and MM was irrelevant, it is difficult for me to deal with this ground on a provisional basis. However, if the evidence given by LB, MM and AW was somehow relevant, then I do not agree with the appellant's submission which is that the trial judge should have directed the jury they were not to accept the evidence of AW, LB and MM unless they were satisfied beyond reasonable doubt about their evidence.

158 JG and CL gave evidence that they did not consent to the acts committed against them and JG gave evidence from which it could be inferred that she was threatened and that this induced consent in relation to some of the incidents. If the jury rejected the evidence of JG and CL, then the appellant could not have been convicted on the evidence of AW, LB and MM. Therefore, if the evidence of the latter three women was somehow relevant, it could only have been as circumstantial evidence in support of the direct evidence given by JG and CL.

159 The evidence of AW, LB and MM was not evidence of an intermediate fact indispensible to guilt. It did not constitute an indispensible link in a chain of reasoning towards guilt. See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, Dawson J at 579.

160 As I explained in the case of PIM v The State of Western Australia [2009] WASCA 131 [157], in those circumstances a direction did not have to be given that such circumstantial evidence had to be proved beyond reasonable doubt. I would therefore dismiss ground 2.

161 Having upheld ground 1, I would set aside the conviction.

162 Section 30(5) of the Criminal Appeals Act directs the Court of Appeal, if it allows an appeal, to either order a new trial or enter a judgment of acquittal.

163 In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, the High Court said at 630:

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

164 As Steytler P said in Fermanis v Western Australia [2007] WASCA 84; (2007) 33 WAR 434, in a case where a re-trial was not ordered, the cogency of the case has to be taken into account as well as whether there was admissible evidence.

165 Both JG and CL gave evidence at trial decades after the event that they did not consent to the acts against them. That was admissible evidence. See R v I A Shaw. However, to be set against that evidence is the evidence that the acts of intercourse or sexual conduct continued over many years with both JG and CL, who time after time made appointments to see the appellant knowing that they would engage in sexual intercourse with the appellant. No complaint was made by either complainant for many years; unspecified in the case of CL and in the case of JG for a period well over a decade, perhaps closer to two decades. In addition, JG denied that she had sex when she was first interviewed. CL testified that she was very much aroused in her encounters. The combined effect of this evidence provides substantial objective evidence that they did consent, which countered the subjective evidence of JG and CL at trial 30 years after the events occurred that they did not consent. It is also significant that the complaints were made first to the Medical Board and not to the police. This signifies that what the complainants may have come to realise was the unethical, unprofessional and immoral nature of the appellant's conduct rather than the criminality of his conduct. Although there was evidence to support the charges, in my opinion they were not strong cases to go to a jury.

166 The next factor to consider is the personal circumstances of the appellant. He is now over 80 years of age. The material put before the court reveals that the appellant is suffering from a 'major depressive disorder' (report of Dr Sam Febbo, 6 January 2009, page 5). He is suffering from 'heart valve incompetence', osteoarthritis in both hips, pain and reduced neck movement due to cervical spondylosis, acute arthropothy in his left ankle and bilateral carpel tunnel syndrome requiring release (pre-sentence report, 31 December 2008, page 5).

167 In addition, there is difficulty accommodating him within the prison system because of his age. This court was informed that the only accommodation he could be provided with within the prison system was in the infirmary. Finally, it is necessary to take into account the interests of the administration of justice and the concerns of JG and CL. Taking into account all of those factors, I conclude that the factors militating against a retrial are overwhelming. I would enter a judgment of acquittal in relation to all counts of which the appellant was convicted.

Ground 1 - The total effective sentence imposed infringed the totality principle of sentencing.

Ground 2 - The learned sentencing judge erred in law in finding and treating as an aggravating factor, that the appellant had committed offences against the propensity witnesses.

169 In view of the fact that I would allow the conviction appeal, it is not strictly necessary for me to deal with the sentence appeal. Nevertheless, I will deal with it in case other minds differ in relation to the conviction appeal.

170 There is no complaint about any of the individual sentences. The complaint is about the total sentence of 10 years. The principles governing a total sentence to be served in circumstances where an offender is sentenced for more than one offence are as follows. First, the total sentence must bear a proper relationship to the overall criminality involved in all of the offences having regard to all relevant circumstances. Secondly, the total sentence imposed should not constitute a 'crushing' sentence, that is, it should not destroy any reasonable expectation of useful life after release from custody: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 308; Martino v The State of Western Australia [2006] WASCA 78 [16]. Usually, where an offender is being sentenced for more than one offence, the sentencing judge determines an appropriate sentence for each offence and then considers questions of totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 624, but flexibility is permitted in the application of that usual course. See Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26].

171 Important factors in sentencing the appellant were the seriousness of the offences and the effect on the complainants. There was no need for personal deterrence because the appellant reached over 80 years of age without any criminal record and was no longer practising as a doctor. The appellant's state of health was relevant. General deterrence was a relevant factor, although that factor was less significant in this type of case than in other types of crime because it is not a prevalent set of circumstances.

172 There is no doubt that a 10 year sentence is, in effect, a life sentence for this appellant. A 10 year sentence imposed on an 80-year-old man destroys any reasonable expectation of useful life after release from custody. The sentence was, in my opinion, a crushing sentence and, although her Honour said she was taking account of age, the total sentence was manifestly excessive. I would uphold ground 1.

173 I would also uphold ground 2. The sentencing judge did take into account the fact that she regarded what happened to the other three women as relevant and that the appellant had committed offences against them. This reveals error. It had not been proved beyond reasonable doubt that any offences had been committed against AW, LB or MM. In the case of AW, she was the instigator of the sexual activity. There could not have been a finding that a criminal offence had been committed against her.

174 I would set aside the part of the order that made the 5 year sentence on count 5 cumulative on the 5 year sentence on count 14.

175 It is therefore necessary to say what I would do if the appellant had been resentenced. As Steytler P said in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539, after observing in that case that deterrence and denunciation were important even in the case of an offender of advanced age:

However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served [54].

See also R v Iles [2009] VSCA 197. The age and health of the appellant justify a lenient sentence.

176 Taking into account all of the factors required by the Sentencing Act 1995 (WA) and, in particular: some need for general deterrence; the lack of any need for personal deterrence; the appellant's advanced years and health; the effect the offences had on JG and CL as revealed by the victim impact statements; and totality principles, I consider that a sentence of 6 years was appropriate. I would therefore order that all sentences be served concurrently. The same commencement date would apply and the appellant would remain eligible for parole, which means he would be eligible for release after serving 4 years of imprisonment.

177 BUSS JA: On 21 November 2008, the appellant was convicted, after a trial in the Supreme Court before Johnson J and a jury, of six counts of rape, one count of attempted rape and three counts of unlawful and indecent assault.

178 The indictment contained 14 counts. The offences were alleged to have been committed between 8 December 1975 and 31 August 1978 upon two complainants, JG (counts 1 - 11) and CL (counts 12 - 14).

180 The trial judge directed the jury to return verdicts of not guilty on counts 3, 7 and 9 because JG did not refer to the alleged offences in her evidence.

181 The appellant was born on 18 June 1928. At the time of the offences he was aged between 47 - 50 years. When the trial occurred he was 80.

182 At all material times, the appellant was a medical practitioner with a specialist qualification in psychiatry. He engaged in private practice as a psychiatrist between 1965 and 2000. He was also a consulting psychiatrist at Royal Perth Hospital from about 1966 to about 1976.

183 When the counts in the indictment were alleged to have been committed, JG and CL were patients of the appellant. The offending allegedly occurred in the appellant's consulting room during sessions arranged for psychotherapy.

184 On 12 March 2009, the trial judge sentenced the appellant to a net effective head sentence of 10 years' imprisonment. A parole eligibility order was made.

185 The individual sentences were structured as follows:

186 The sentence on count 14 was ordered to be served cumulatively on the sentence for count 5. The other sentences were made concurrent with count 5. All of the sentences (except the sentence on count 14) were back-dated to commence on 21 November 2008, being the date on which the appellant was taken into custody.

187 The appellant has appealed against conviction and sentence. On 19 June 2009, Miller JA granted leave to appeal.

188 I will deal first with the appeal against conviction and then with the appeal against sentence.

The State's case as opened at the trial: JG and counts 1 - 11

189 The State's case as opened at the trial in relation to JG and counts 1 - 11 was as follows.

190 In 1974, JG was aged 27 years. She gave birth to her first child in that year. After the birth, JG developed post-natal depression. She was admitted by her general medical practitioner to the Niola Private Hospital where she remained for about three months. During that time, she was treated by the appellant. He told her that she was suffering from depression. She was released from the Niola Private Hospital on 8 December 1975. Before she was released, the appellant told her that after her release she would need to attend group psychotherapy sessions and also see him as a day patient in his private practice.

191 A week or two after she was released from the Niola Private Hospital, JG commenced attending the appellant's private consulting rooms in West Perth as a patient.

192 The State alleged that count 1 occurred in December 1975 or January 1976 in the appellant's consulting room in the course of a psychiatric consultation. The appellant unlawfully and indecently assaulted JG by touching her between her legs. As JG went into his consulting room, the appellant hugged her whole body and said, in substance, that it was 'nice to see you looking so well'. This was the first occasion of physical contact between JG and the appellant. During the session, the appellant told JG to sit on his lap. She was stunned by this request and was afraid of him. JG complied because the manner in which the appellant made the request appeared to her to be a demand. She thought that if she did not comply then he would cease treating her and that her depression would worsen. While JG was sitting on the appellant's lap, the appellant rubbed his hand on her stockings underneath her dress and in the area of her crotch. JG froze. He did not say anything while he was moving his hand in that area.

193 As to count 2, the State alleged that about a week after the occurrence of count 1, JG returned for another psychiatric consultation with the appellant. During this session, the appellant told JG to lie on the floor between two chairs that they had been sitting on. He told her to lie with him. JG endeavoured to ask the appellant why he wanted her to do this and whether it was part of the treatment. After a few minutes she did lie on the floor next to him. The appellant undid his trousers, got on top of her, pulled up her skirt, placed his penis into her vagina and had intercourse. JG did not want this to happen. She was crying. She asked the appellant to stop but he ignored her and continued. During the intercourse the appellant felt her breast and squeezed her nipples. Afterwards, the appellant sat in his chair while JG was still sobbing. She dressed and left the consulting room.

194 Despite what had happened, JG continued to attend the appellant's rooms on a weekly basis for psychiatric consultations. She did not discuss directly with the appellant what had occurred between them, although she did inquire how long she needed to continue to see him and whether there was a risk she might contract a disease or become pregnant. He responded merely by shaking his head and saying it was not possible. When JG endeavoured to speak to the appellant about the nature of the treatment, he would interrupt and tell her that she was halfway through therapy.

195 As to count 3, the State alleged that about a week after the occurrence of count 2, JG returned for another psychiatric consultation with the appellant. Although JG intended to confront the appellant about what he had done, she also felt a need for some psychiatric support. Once again, he lay on the floor and told her to come and lie with him. JG thought that if she did not comply then she might be admitted to hospital. Once again, the appellant had sexual intercourse with JG on the floor. She was distressed and tearful.

196 During the next 12 months, JG continued to attend at the appellant's rooms for psychiatric consultations. She could not, however, identify with precision when other episodes of sexual intercourse occurred and, as a result, they were not the subject of counts in the indictment. Significantly, the State contended that the episodes, the subject of counts 2 and 3, were not the only occasions on which the appellant had non-consensual intercourse with JG at his consulting rooms. The State accepted, however, that intercourse did not occur on every occasion on which JG consulted the appellant.

197 When count 4 occurred, the appellant had moved his consulting rooms from West Perth to West Leederville. After JG entered the consulting room on the occasion the subject of count 4, the appellant locked the door and hugged her. The session continued with each of them sitting in chairs until the appellant sat on a cushion on the floor. JG joined him. He undressed her and had sexual intercourse with her. She told him repeatedly to stop, but he ignored her. JG's recollection was that the acts of intercourse at the West Leederville location lasted longer than they did at the West Perth location. Also, her recollection was that at the West Leederville location he was more aggressive in the manner he had intercourse with her. After the intercourse the subject of count 4 occurred, the appellant handed JG some tissues to wipe herself. He washed his penis at a basin in the corner of the room and then dressed. JG returned to her chair. She was distressed and weeping. The appellant told her that unless she continued with psychotherapy her marriage would not work.

198 As to count 5, about two weeks after the occurrence of count 4, JG consulted the appellant again. As with count 4, the appellant penetrated her vagina with his penis while they were on the floor.

199 During the next few years, at the appellant's insistence, JG continued to attend at the appellant's rooms for psychiatric consultations and there were other occasions when non-consensual sexual intercourse occurred. However, JG was unable to recall these occasions with precision and, as a result, they were not the subject of counts in the indictment.

200 Counts 6 and 7 were related episodes and reflected an occasion at the West Leederville location when the appellant first inserted his finger into her anus and then his penis into her vagina. The anal penetration caused JG some pain. When she asked the appellant why he had done this he said it would help her achieve an orgasm.

201 Count 8 alleged that at the West Leederville location the appellant indecently assaulted JG by inserting his penis into her mouth. Count 9 alleged that he licked her vagina.

202 JG ceased consulting the appellant for about nine months. However, in about September 1977, JG became pregnant with her second child. She recommenced seeing the appellant for psychiatric consultations towards the end of that pregnancy because she was afraid that she might suffer post-natal depression, as she had after the birth of her first child.

203 Count 10 was alleged to have been committed when JG was about eight months pregnant. At about that time, she had several appointments with the appellant at his West Leederville rooms. On the occasion of count 10, the appellant locked his consulting room after JG had entered. He embraced her whole body and told her that she looked very beautiful. JG felt very safe because she was so heavily pregnant. At that time, she had ceased having intercourse with her husband because she was concerned that intercourse might induce premature labour. Accordingly, when the appellant grabbed a cushion and placed it on the floor, JG was not especially perturbed. He asked her to join him on the floor for the purposes of relaxation. She did so. As she lay on the floor, she talked about her excitement at the baby's imminent arrival but reiterated a fear about suffering from post-natal depression. The appellant removed his trousers. JG told him that she had ceased having intercourse with her husband and she would not have intercourse with him. Nevertheless, the appellant removed JG's clothes and got on top of her. She said she did not want him to touch her and that she was having a baby. He said he would be gentle. He then penetrated her vagina with his penis but did not thrust as hard as he normally did. The next day JG suffered some bleeding. She had an ultrasound examination. Afterwards she telephoned the appellant. She told him angrily what had happened. The appellant's response was that it was possible to burst a blood vessel towards the end of a pregnancy.

204 JG gave birth to her second child on 12 July 1978 at King Edward Memorial Hospital. Soon afterwards, the appellant arrived, unannounced, to see her. He told her that as soon as she returned home she should telephone and arrange to see him. JG did so, fearing the onset of post-natal depression.

205 Count 11 occurred when she saw the appellant for this appointment at his West Leederville rooms. After JG entered the consulting room, there was a discussion about how she was coping with her baby. The appellant then told her to come and lie with him on the floor. She asked him why she had to do that. He did not reply. She told him that she was still haemorrhaging because she had given birth only a month before. He did not reply. After the appellant removed some of his clothing, he removed JG's clothing, including a sanitary pad, and had intercourse with her. After completing intercourse, the appellant washed his penis, which was covered with blood, in the basin. JG was weeping. She was very distressed.

206 JG continued to see the appellant for psychiatric consultations for many years. Her sessions with him did not cease until 23 April 1996. She was afraid of a recurrence of her depression. She felt that her medical history was stressful and complicated and did not wish to recount it again to a different psychiatrist.

The State's case as opened at the trial: CL and counts 12 - 14

207 In about late 1976, CL's marriage broke down. Her estranged husband was intending to remarry. She had two young children. CL had recently returned to Perth after having lived overseas for several years. She did not have a social network in Perth. Her mother was dying and her father was severely incapacitated. She consulted the appellant. The sessions commenced in about late 1976.

208 As to count 12, the State alleged that in 1977 at his West Perth rooms, the appellant unlawfully and indecently assaulted CL by touching her breasts. At the time, CL was suffering from neck and shoulder pain. She mentioned this to the appellant. He told her to remove her top and lie on the floor. The appellant massaged her shoulder. He then undid her bra and manipulated her back and breasts. Although CL thought this behaviour was odd, she was prepared to continue to see the appellant because she had derived some comfort from previous sessions with him. CL did not resist or protest when the appellant touched her breasts, but it was the State's case that she did not consent to these actions.

209 As to count 13, the State alleged that the appellant attempted to rape CL. During a consultation at his West Perth rooms, CL told the appellant that she had some pain in her neck. The appellant cuddled her and pressed his penis against her. He attempted to remove her skirt and underwear while pushing her against his desk. He then attempted to insert his penis into her vagina, but she moved away from him while they were standing. This thwarted his efforts. At the time, nothing was said by either of them about the incident.

210 After the episode the subject of count 13, CL decided that at the next consultation she would proceed on the basis that the appellant had 'simply forgotten himself'.

211 On the occasion of the next consultation, the appellant sat on his chair in the consulting room and remained silent for a long time before saying, in what CL regarded as a very threatening manner, 'I feel rejected'. According to CL, there was an 'air of anger' in the manner he made this statement. Nothing unlawful happened during this session, but in subsequent sessions the appellant hugged her, kissed her and, eventually, sexual intercourse occurred. CL acquiesced but did not consent to the act of intercourse which was the subject of count 14. It commenced with the appellant inviting CL to hug him. She did so. He then undressed and invited her to join him on the floor, where the intercourse occurred. CL did not resist. She assumed at the time that this was an acceptable form of therapy between psychiatrist and patient. She recollected the appellant saying to her on the occasion of count 14 that her relationship with him was the most important relationship she would ever have in her life. The State's case was that the appellant often spoke of his relationship with CL as a 'love relationship' and that it was a 'rich relationship' for each of them.

212 During the next three or four years, CL continued to attend the appellant's rooms. Although sexual intercourse did not occur on every occasion, there were many other occasions when it did happen. However, CL was not able to recall the incidents in sufficient detail for them to be included in the indictment. CL recollected the appellant washing his genitals in the basin after episodes of intercourse. She understood, as a result of conversations with the appellant, that he had power under mental health legislation to admit a patient to a mental hospital without requiring a second opinion from another medical practitioner. CL was afraid of him. She recalled the appellant mentioning, in the course of her consultations with him, that she had a 'sickness'. He encouraged her to enter the Niola Private Hospital for two weeks in late 1979. CL eventually ceased consulting the appellant in August 1981 and severed all contact with him.

The State's case as opened at the trial: the 'propensity' witnesses

213 The State called evidence from three 'propensity' witnesses: LB, MM and AW.

214 LB was a patient of the appellant between about early 1973 and about 1975. Initially, she found the appellant to be helpful. LB was in a 'serious mental state' and felt that he lessened her disturbance. As the sessions progressed, there was some hand-holding and hugging, but she did not perceive this behaviour, at the time, to have sexual connotations.

215 In about early 1975, LB left Perth to live in another State. At a session before her departure, the appellant told her that she was sexually repressed and 'too nice'. She needed to be more natural and in touch with her true self and express her true senses. The appellant touched her breasts on at least three occasions and asked how she felt. At the time, LB was living alone. She regarded the appellant as her anchor. He explained that he wanted her to express her sexuality so she would know that when she did, the other person would not lose control. LB thought at the time that the appellant was in love with her. She found this flattering, but was not interested in him sexually. However, she felt protective towards him and did not want him to be embarrassed or feel rejected.

216 In January 1975, before LB left Perth, a particular incident occurred in the course of a consultation. LB recollected a sense of urgency engendered by the need to confront her fear about expressing her sexuality. The appellant suggested that, for the purpose of facilitating the overcoming of this fear, they remove their clothes and hug each other. Although she felt uncomfortable with this suggestion, LB trusted the appellant. She did not remove her clothes immediately, but when the appellant removed his, she did likewise. The appellant said that it would be easier if she lay on a temporary bed. She did so and the appellant lay on top of her. After that, 'everything went blank' for LB. She did not have a recollection of any other 'sexual act' occurring. After this session, LB saw the appellant again before leaving Perth but there was no further physical or sexual contact (ts 65).

217 MM was employed by the appellant as a receptionist at his West Perth rooms. At the material time, she was aged between 20 and 21 years.

218 MM also became the appellant's patient while she worked for him. She was admitted to the Niola Private Hospital for about two weeks. Upon being released, she continued to work for the appellant as his receptionist and recommenced seeing him as a patient a little while later.

219 The appellant gave MM firm instructions that she was never to interrupt any of his consultations, even in an emergency.

220 Before her 21st birthday, the relationship between MM and the appellant was very formal. However, on her 21st birthday, the appellant told her that she was now aged 21 years and could do whatever she wanted. He kissed her on the lips.

221 During a consultation after her 21st birthday, the appellant told MM that she appeared to need a hug. He hugged her before undressing her, laying her on the floor and having sexual intercourse with her. Although she was shocked, she did not tell anyone because of her youth. Also, she was intimidated by the appellant, and thought she would not be believed and would lose her job. The appellant told MM that he knew 'she would be beautiful' and, after intercourse, washed himself in the basin. MM did not want to have sex with the appellant. She said that during intercourse she had what she described as 'a frozen grin' on her face. She did not resist because she thought resistance would jeopardise her employment. She also thought, based on her having previously informed the appellant that she was in a relationship, that his actions were part of his treatment of her as a patient. However, MM confronted the appellant about a week later and told him that there was not going to be any further sexual contact between them. The appellant said 'yes, yes', but was otherwise impassive. In the event, no further sexual contact occurred between them.

222 AW was referred to the appellant in 1975 for psychiatric treatment. She was very stressed and confused. When she first consulted the appellant, he did not seem to her to be a caring person. She was scared of him. She thought he had an angry personality. However, as the sessions progressed, she formed the view that he was 'fantastic'. AW wanted to get close to him. She thought of him as a father figure. This feeling intensified and culminated in AW sitting on the appellant's lap during a session and kissing him. Without saying anything, the appellant then removed her dress and took off his clothes. He lay on the floor and indicated that she should do likewise. The appellant then had sexual intercourse with AW. Afterwards, he gave her some tissues to wipe herself and he washed himself in the basin. Subsequently, there were further instances when the appellant had sexual intercourse with AW. Later, during a group therapy session that the appellant was conducting at the Niola Private Hospital with AW and other patients, AW confronted the appellant about his behaviour. The appellant responded by becoming very angry with AW about her interruption of the session. She did not see him again.

The appellant's case as opened at the trial

223 The appellant's trial counsel made some admissions on the appellant's behalf in the course of his opening address to the jury. Counsel said the appellant admitted that he had been 'sexually intimate' with the complainants, JG and CL, and also with the 'propensity' witnesses, MM and AW. However, this sexual intimacy was, on each occasion, consensual. There was no force, coercion, intimidation or manipulation of any of them. The appellant accepted that he may have been morally and ethically wrong in being sexually intimate with these patients, but he was not guilty of the offences alleged against him. Counsel said the appellant would explain, in evidence, the circumstances in which the sexual intimacy occurred.

Can I say this: after 30 to 35 years he's not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after 30 to 35 years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let's see about that. There is one other female patient who will be called to testify. That's [LB]. Dr Stubley has no recollection of her at all.

I think what that does - and it really mirrors what the prosecution have said because we have spoken before the trial and clearly told Mr Troy what the issues will be, and the issue will be one of consent, so that's a matter for you. I hope by making those admissions, I haven't done it in a formal way but certainly that's going to be the issue at this trial, so that's what you need to focus on ... (ts 78).

225 At the material time, s 325 of the Criminal Code (WA) defined the term 'rape', as follows:

Any person who has carnal knowledge of a woman or girl, not his wife, or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape.

Section 326 made provision for the punishment of rape.

226 The definition of rape in s 325 was, relevantly for present purposes, identical to the definition of rape in s 347 of the Criminal Code (Qld) as it stood before the commencement of the Criminal Law Amendment Act 2000 (Qld).

227 In R v I A Shaw [1996] 1 Qd R 641, Davies & McPherson JJA said in relation to the notion of 'consent' in the definition of rape in s 347 of the Criminal Code (Qld) (that is, the definition in the Queensland Criminal Code which was relevantly identical to the definition in s 325 of the Western Australian Criminal Code):

Under s 347 consent refers to a subjective state of mind on the part of the complainant at the time when penetration takes place. It is not in law necessary that the complainant should manifest her dissent, or strictly even that she should say in evidence at the trial that she did not consent to sexual intercourse. Whether or not oral evidence to that effect is needed to prove a charge of rape depends very much on the circumstances. An obvious case where it is not often given is that of a young or infant girl, or of a woman who is mentally incapacitated, and so is unable to appreciate the nature or significance of the act or later to give evidence about her state of mind at the time. A more mature and intellectually aware complainant would, on the other hand, ordinarily be expected to testify that she did not consent to the act of sexual intercourse that is charged. Whether or not her evidence to that effect is accepted depends on the impression formed by the jury of her credibility considered in the light primarily of the circumstances at the time of the act complained of as disclosed by all the evidence at the trial.

A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent; or it may furnish some ground for a reasonable belief on the part of the accused that the complainant was in fact consenting to sexual intercourse, and so provide a basis for exemption from criminal responsibility under s 24 of the Criminal Code (646).

See also R v Pryor [2001] QCA 341 [19] (Williams JA).

228 The second limb of the definition of rape in s 325 is not concerned with whether or not there is consent. Rather, it is concerned with whether consent is ineffective. See Pryor [71] (Dutney J).

229 A defence under s 24 of the Criminal Code, in the context of the offence of rape, will not arise for determination unless:

(b) there is some evidence, fit for the jury's consideration, that at the material time the accused had an honest and reasonable, but mistaken, belief that the complainant consented to the sexual penetration.

See WCW v The State of Western Australia [2008] WASCA 232 [7] (Buss JA) and the cases there cited.

230 The concept of honest and reasonable belief has subjective and objective elements. The subjective element is, ordinarily, peculiarly within the knowledge of the accused. The objective element must be capable of being measured against the evidence by the tribunal of fact. See CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8] (Gleeson CJ, Gummow, Crennan & Kiefel JJ).

231 There were three critical issues at the trial. First, whether the appellant had committed the particular acts alleged in each count in the indictment. Secondly, whether JG or CL, as the case may be, had consented to the sexual activity or attempted sexual activity alleged in each count. Thirdly, if JG or CL had not consented in relation to any count, whether the appellant nevertheless had an honest and reasonable (but mistaken) belief that there was consent.

232 As to the first critical issue, although the appellant through his trial counsel admitted that he had been 'sexually intimate' with JG and CL, he did not admit that the particular acts alleged in each count in the indictment had occurred. This was reflected in the appellant's evidence. He could not recall whether some of those acts occurred and he denied or doubted the occurrence of some of the others. This point was rightly appreciated by the trial judge who directed the jury, in relation to the counts of rape, in her summing up that:

In this case the accused admits that sexual intercourse took place which includes penetration. However, he was unable to identify specific events, so you still need to be satisfied in relation to each charge of rape that penetration took place in that incident or in relation to that incident (ts 414).

233 The appellant did not concede through his counsel that if either JG or CL gave evidence of having engaged in sexual intimacy with the appellant, then the appellant would not dispute their evidence. There was no admission that the particular acts alleged in each count in the indictment occurred.

234 As to the second and third critical issues, those issues raise separate and distinct issues of fact and law. They must not be conflated in examining the merits of the appellant's appeal against conviction.

JG's evidence-in-chief at the trial as to the circumstances in which she became the appellant's patient

235 JG said in evidence-in-chief at the trial that she was born on 2 September 1946. Her father died when she was 15 years old. He shot himself. Her mother also committed suicide: she was suffering from severe breast and throat cancer. JG was then aged about 26 years.

236 JG's first child was born on 12 June 1974. At about that time JG was unwell. She was depressed and sought assistance from her general medical practitioner. JG was admitted to the Niola Private Hospital. She was seen by medical and nursing staff including the appellant. JG remained as an inpatient at the hospital for about three months. During this period she saw the appellant from time to time. He attended group psychotherapy sessions in which JG participated with other patients. JG was discharged from the hospital on 8 December 1975. The appellant told her, about two weeks before her discharge, that she could leave provided she consulted him as a patient at his West Perth rooms. JG made an appointment to see the appellant about a week or two after her discharge.

JG's evidence-in-chief at the trial in relation to counts 1, 2, 4, 5, 6, 8, 10 and 11

237 JG's evidence-in-chief at the trial in relation to counts 1, 2, 4, 5, 6, 8, 10 and 11 was, relevantly and in substance, as follows.

238 As to count 1, about one or two weeks after JG was released from the Niola Private Hospital, JG attended the appellant's rooms in West Perth as a patient. There were two chairs in his consulting room. She sat on one and he sat on the other. There was silence and she felt very nervous. He asked how she was coping with her child and being at home. After discussing these issues, the appellant said, 'Come and sit on my knee'. She was shocked. Again, there was silence. The appellant then repeated his request in a very authoritarian and demanding tone. JG continued to sit on her chair for some time. Eventually, however, she got up and sat on the appellant's knee. He put his hand on her leg, rubbed his hand up her leg, in between her legs and down her leg. When his hand was between her legs, it was on her crotch. JG said she 'froze'. She added, 'I was afraid of him and what he might do to me'. JG told the appellant she did not want to engage in this conduct. He did not respond.

239 As to count 2, on JG's next psychiatric consultation with the appellant, he threw a cushion on the floor of his consulting room. He then lay on the floor and said, 'Come lie with me'. JG said nothing. She sat on her chair and felt afraid. The appellant repeated his request in a very authoritarian manner. Eventually, JG got up from her chair and lay on the floor. She lay between the two chairs, but not close to the appellant. He removed his trousers, pulled down her stockings and knickers and got on top of her. As he was undoing his trousers, JG said, 'I don't want you to do this'. The appellant ignored her. He proceeded to have sexual intercourse with her. She was terrified. He did not say anything while intercourse was occurring, even though she was crying. He undid the top of her dress, pulled out her breast and bit her nipple very hard. The episode lasted about 10 - 15 minutes.

240 As to count 4, JG said there was an incident at the appellant's West Leederville rooms which resulted in her suffering a bad carpet burn on her back. On the occasion in question, she had an appointment to see him for a psychiatric consultation. The appellant opened the door to his consulting room. After JG entered, he closed and locked it. He then closed the curtains and threw a cushion on the floor and said, 'Come lie with me'. The appellant lay on the floor but JG remained on her chair. She was nervous and crying, but eventually she got up and lay on the floor next to him. The appellant removed his trousers and pulled down her pantyhose and knickers. He had sexual intercourse with her. During the intercourse he thrust quite harshly. Her back was grazed and she was crying. After the appellant finished, he got up and washed his penis in a basin in the room. He handed her some tissues. She got up and sat on her chair and continued to cry. She wanted to run from the room, but she did not say anything. He looked at her with a smirk on his face. She found this to be sickening. Eventually, the appellant opened the door and she ran from the room. She got in her motor vehicle and drove away. A little later, she pulled over to the side of the road and screamed and sobbed.

241 As to count 5, JG referred in her evidence to a further occasion in the appellant's West Leederville rooms when she was crying and the appellant threw a cushion on the floor and said, 'Let me comfort you'. The appellant then had sexual intercourse with her. JG initially said that this occasion was after an interval when she did not see the appellant, but later in her evidence she said it occurred before this interval.

242 As to count 6, JG recounted an incident where the appellant inserted a finger into her anus. She said it was very painful and she asked him not to do it. He explained that he was trying to make her have an orgasm.

243 As to count 8, JG gave evidence that during a psychiatric consultation at the appellant's West Leederville rooms, she objected to having sexual intercourse with him on the ground that she was getting her period. She said she did not want to have sex. When they were lying on the floor of his consulting room, the appellant straddled JG, with his legs over her head and pushed his penis into her mouth. She was crying.

244 As to count 10, JG recounted an incident at the appellant's West Leederville rooms which occurred when she was about 8 months pregnant with her second child. After the psychiatric consultation commenced, they spoke for a while. The appellant then threw a cushion on the floor. He lay on the floor and said, 'Come and relax with me'. She went and lay next to him. The appellant removed his trousers and had sexual intercourse with her. As he was about to penetrate her, she said, 'What are you doing? I don't want this. My baby is due in four weeks. I am not having sex with my husband. I do not want to have intercourse'. Despite this objection, he proceeded to have intercourse with her. It did not last long and it was not as rough as usual. JG was terrified that the intercourse might induce premature labour. After the appellant finished, he got up and dressed himself. She pulled up her clothes and he helped her get up from the floor. She then left.

245 As to count 11, JG said that after the birth of her second child she was afraid that she might suffer post-natal depression. Her general practitioner suggested that she obtain treatment. JG went to see the appellant. She took her baby. JG sat on a chair in the consulting room with the baby on the floor next to her. The appellant asked how she was coping. She responded that she was coping very well. The appellant threw a cushion on the floor and said, 'Come and lie down with me'. She did not respond initially. The appellant lay on the floor and repeated, 'Come and lie with me'. JG said that her baby was in the room and asleep and she did not want to lie with him. After a time, she did, however, lie on the floor on the cushion, and the appellant then ran his hands over her body. He removed his trousers, pulled down some of her clothes and had sexual intercourse with her. JG said she was terrified because she was still haemorrhaging from the birth. She said, 'I can't do this'. He ignored her. She cried when he removed his trousers and pulled down some of her clothes. She was unsure whether on this occasion she was wearing a skirt or trousers. After the appellant finished, she noticed his penis was covered with blood. He went to the basin and washed himself. She was lying on the floor sobbing. She pulled up her clothes, sat on her chair and continued to weep. At a later consultation, a conversation occurred about this incident. JG told the appellant, 'I'm very distressed about it and the effect on my family, my husband and children'. The appellant advised that her children would grow up to be well-adjusted.

246 The appellant's trial counsel cross-examined JG on a variety of topics including her psychiatric history, her relationship with the appellant, whether she consented to the sexual activity that occurred, why she returned for further psychiatric consultations notwithstanding that on her account the appellant had sexually penetrated her without consent, and why she had failed to make a complaint about the appellant's offending behaviour until many years had elapsed.

247 JG said in cross-examination that when the offending behaviour occurred she was vulnerable, fragile and unable to stand up to the appellant (ts 114). He threatened to put her in an institution and take her away from her husband and children (ts 114). As JG perceived it, the appellant was 'in authority' and 'very demanding' (ts 115).

CL's evidence-in-chief at the trial as to the circumstances in which she became the appellant's patient

248 CL said in evidence-in-chief at the trial that she was born on 27 February 1946.

249 In late 1976, CL consulted her general medical practitioner about headaches from which she was suffering. At the time, CL's mother was concerned that she (the mother) was dying. CL's father had been totally and permanently incapacitated for a long time as a result of his war service.

250 CL gave evidence that her general practitioner was worried about CL's health. She referred her to a psychologist whom she saw once. The psychologist recommended that CL consult the appellant. She made an appointment to see the appellant at his West Perth rooms in about September or October 1976.

CL's evidence-in-chief at the trial in relation to counts 12, 13 and 14

251 CL's evidence-in-chief at the trial in relation to counts 12, 13 and 14 was, relevantly and in substance, as follows.

252 As to count 12, in the latter half of 1977 CL informed the appellant, in the course of a psychiatric consultation, that she had pain in her neck. He stood behind her. Initially, he rubbed her neck. He then rubbed his hands over the front of her breasts. She could not recall in evidence whether anything was said. She remained in her chair and the appellant moved away without referring to what had occurred.

253 As to count 13, when CL consulted the appellant again, he invited her to hug him. At first, his hands were around her back. He stroked her back. According to CL, 'her mind was screaming, "No, no, no"'. She had her arms in a 'frozen hug'. Her hands were not moving. The appellant gradually moved his hands down CL's body and lifted her skirt. He attempted to remove her underpants and succeeded in partially removing them. CL said she was stunned. The appellant opened his trousers and attempted to insert his penis between her legs. His penis made contact with her crotch and between her legs. She was gradually able to move away. When the appellant failed to insert his penis into her body, he laughed and not much else happened. The appellant escorted CL to the receptionist's room to ensure she made further appointments.

254 CL saw the appellant again about two weeks to a month later. CL had decided in relation to count 13 that the appellant had 'forgotten himself' and she would ignore the incident. On this next consultation, CL sat on her chair and spoke to the appellant about some matters. He told her in an angry voice that he felt rejected. She was frightened. He appeared to be very angry, menacing and bitter. When he spoke it was almost a snarl.

255 As to count 14, at a later psychiatric consultation the appellant initiated a cuddle in his consulting room by opening his arms. He then undressed CL and himself and lay on the floor. When he was undressing her, CL was stunned. She lay on the floor and he engaged in stimulating foreplay. He then lay on top of her and had sexual intercourse. CL said that she was very aroused and responded physically. She did not, however, want to have sex with the appellant. After the intercourse ceased, the appellant said, 'Now there will be a complete metamorphosis for you. A whole new person will emerge'. He also said, 'This is the most important relationship you will ever have'.

256 The appellant's trial counsel cross-examined CL in relation to, amongst other things, alleged prior inconsistent statements, her relationship with the appellant, whether she consented to the sexual activity that occurred between them, why she returned for further psychiatric consultations notwithstanding that on her account the appellant had sexually penetrated her without consent, and entries she had made in her diary about her sessions with him including the sexual activity.

257 The appellant's trial counsel elicited from CL that in 1980 she had invested $50,000 in the purchase of a property in Mundaring operated by the Biala Psychotherapeutic Community with which the appellant was involved (ts 215). CL said that she did not make the investment 'of [her] free will' (ts 215). This point was explored with CL in re-examination. She said that, before making the investment, she had told the appellant repeatedly that she did not want to invest. Ultimately, she made the investment because the appellant threatened her (ts 219). CL explained the threat, as follows:

How did he threaten you?---On one occasion I said I didn't want to lend the money and he deflected the conversation to talking about a woman he had had involuntarily incarcerated in hospital and I couldn't talk any more. He just - the conversation could not continue. At the next meeting, as I recall, he talked about having incarcerated that woman at length. At a third meeting I said I did not want to lend the money and he looked at me and paused and then said, 'You seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks.' His threat of psychiatric revenge was very, very clear and in the event when I went to the Medical Board he showed that very adequately (ts 219).

258 CL gave this evidence in cross-examination about her feelings for the appellant between 1976 and 1981:

So from the time that you first consulted him in 1976 until you ceased counselling in 1981 this was a man that you despised for what he was doing to you?---No, I was afraid of him.

You were afraid of him?---Yes.

What other feelings did you have about him?---I was encouraged and he would talk about how this was the greatest love I would ever have in my life, that it was deep love, and I'm afraid that I did get sucked into thinking this was love.

You were infatuated with him, [CL], weren't you?---Yes.

Yes?---I was encouraged every step of the way to do so.

And all through your diary is this expression of love for him?---Yes (ts 198).

259 CL ceased undergoing psychotherapy with the appellant in 1981. She complained about the appellant's behaviour to the College of Psychiatrists in 1981 and to the Medical Board in 1982.

The evidence of the 'propensity' witness, LB

260 LB gave evidence that in 1972 she was admitted to Royal Perth Hospital because she had deliberately cut her wrists. At the time she was aged 21 years and her marriage had recently broken down. She remained as an inpatient at the hospital for three weeks. After she was discharged she was referred to the appellant. She consulted him at his West Perth rooms frequently. LB was very depressed and was seeking psychiatric treatment from the appellant for this condition.

261 During LB's consultations with the appellant, there was physical contact between them. Initially, this involved 'holding hands and cuddles' (ts 242). He instigated this activity. She did not, however, object to the appellant holding her hand or cuddling her.

262 LB was the appellant's patient for about two years. In the course of her treatment, the appellant told LB that she would be better off if she was less polite and more in touch with her sexuality. At the beginning of 1975, she left Perth to study in another State. She informed the appellant that she would be leaving Perth. The appellant told her that she would not require any psychiatric assistance while she was away because she was 'cured' of her fear of her sexuality.

263 Towards the end of the two-year period in which LB saw the appellant, at about the time he knew she was leaving Perth, he commenced putting his hands inside her clothing and touching her breasts. He explained that he wanted her 'to connect with how [she] felt' (ts 245). LB was embarrassed and she told the appellant of her embarrassment. He responded that she should not be 'such a nice person' and that she should trust him (ts 245).

264 LB said in evidence that when the appellant first touched her breasts she was embarrassed and felt very shy, but she believed he knew what was best for her and that she needed to let him do this. She told the appellant of her feelings of embarrassment and shyness. LB gave evidence that during the two years she consulted the appellant 'he pretty much became an anchor in [her] life, someone who made [her] feel good' (ts 246). She added that he was 'very influential in [her] life' (ts 246).

265 LB recounted an incident which occurred when she saw the appellant in a 'small hospital' shortly before she left Perth in early 1975. He told her that if she did not confront her fears, she would be running away from them for the rest of her life. He told her that they should confront her fears by being naked together. He would show her that he would not lose control of himself. LB told the appellant she was too frightened to remove her clothes. She was concerned there was no lock on the door of the room. The appellant said that no one would dare to come in. He removed his clothes. LB said she felt 'embarrassed on his behalf' and she removed her clothes 'to make him feel better' (ts 247). She did not, however, want to remove her clothing. When they were both naked, the appellant hugged LB. He suggested they lie down on a bed in the room. LB lay on her back on the bed and the appellant lay on top of her. She then said:

At the time the prospect of him lying on top of me made me feel like I was going to die at the time I was so terrified so he did lie on top of me and I don't remember - I passed out. I blacked out (ts 247).

266 LB rejected the suggestion of the appellant's trial counsel in cross-examination that the sexual activity she engaged in with the appellant was consensual (ts 250). LB explained that she had conflicting emotions about the sexual activity. She felt both humiliated and excited. She described these conflicting feelings as excruciating and the elements of sexual abuse (ts 254).

The evidence of the 'propensity' witness, MM

267 MM was born on 29 February 1956. In 1974, when MM was aged about 18 years, she was a patient of the appellant. She saw him at his West Perth rooms. During her matriculation examinations, she had a nervous breakdown. The headmistress of her school suggested she see the appellant. She consulted him at about fortnightly intervals for a substantial period. At some stage during that period she also commenced working for the appellant as a part-time receptionist.

268 In about late February or early March 1977, at the time of MM's 21st birthday, she was still working for the appellant. She was also still his patient. On or about the date of her 21st birthday, the appellant kissed MM on the lips and said, 'in a strange sort of way', 'You're 21. You can do anything now'. MM was startled because this was not typical of her relationship with him. Their relationship was reasonably formal. She addressed him as 'Dr Stubley' in the employer/employee setting and also in the psychiatrist/patient setting.

269 During her next psychiatric consultation with the appellant, which occurred within a fortnight of her 21st birthday, sexual intercourse occurred between MM and the appellant in his West Perth rooms. At this time MM considered herself to be a very anxious person who was prone to depression. The consultation in question commenced, as usual, in mutual silence. After a while the appellant looked at MM and said, 'You look like you need a big hug', and held his arms out from his chair. This had not occurred in any previous consultation. The appellant usually just sat on a chair and quite often nothing was said. On this occasion, MM went to his chair and accepted the hug. The appellant then commenced undressing MM and himself. After the appellant undressed MM he said, 'I knew you would be beautiful'. MM did not respond. She was naked and the appellant was partly unclothed. Her next recollection is that she was on the carpet underneath him. He was having sex with her. This lasted for a few minutes. He then ejaculated and got up and washed himself in a basin in the room. MM did not recall saying anything. She was shocked. MM described her feelings during the sexual intercourse and the aftermath of this incident, as follows:

Do you remember what was going through your mind at the time that this episode of intercourse was occurring?---Well ... I had a boyfriend, a new relationship, and I had told him about it because [I] was a patient of his and also I just thought this couldn't be happening because I didn't know how to tell him that I felt revolting and he was my boss and I didn't think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just 'How do I get out of this? How do I get out of this?'

When you say these thoughts were swirling through your mind, do you mean at the time the intercourse was occurring or afterwards?---Well, both.

Did you want to have intercourse with Dr Stubley?---No, no.

How did the - once he, as you described, ejaculated, he washed himself, did the session or consultation that you were having with him continue or did it come to an end?---I think I just left because there wasn't anything said much normally so I don't remember there being any conversation about what had taken place; I just remember going.

Did you continue in your employment with Dr Stubley?---I did. I got steadily worse and worse but I didn't know what else to do, and I also felt I hadn't done anything wrong. The other doctor there was being very supportive of me and trying to find out what had happened.

All right. Did you ever speak to Dr Stubley about this matter?---I went to see him a few days later and said this couldn't happen again.

Where did you speak with him when you had that exchange?---That was in the office.

How did he respond when you told him that?---He didn't really respond at the time. He probably said something like, 'All right.' He just used to stroke his beard and nod, sort of; said something like, 'Okay' or, 'All right.'

I will just be a bit more specific, if I can. When you say that, are you talking about how he would generally deal with situations or are you talking about what he specifically said to you on the occasion that you talked to him about what had happened?---That's both. He was a man of few words in any situation.

All right. I will just stay if I can with the conversation that you had with him after this episode. When you spoke to him as you did, if you can can you say what he specifically said on that occasion?---The closest I could say would be, 'All right.'

How much longer did you stay in Dr Stubley's employment for?---It was some months. I think it was about three months.

Did you at the same time continue as a patient with him or not?---I'm not sure. I was intermittent in my attendance as a patient and I can't be sure. I think I did because I was trying to work it out (ts 265 - 266).

270 Some time before the episode of sexual intercourse, MM had been an inpatient at the Niola Private Hospital for about 10 days or two weeks.

271 The appellant's trial counsel cross-examined MM on several issues including alleged prior inconsistent statements and her contact with JG, CL, LB and AW (ts 268 - 272). He also cross-examined her as to her psychiatric history including the fact that until two years before the trial, she was receiving counselling from a psychiatrist (ts 275 - 277). She was also cross-examined about her sexual activity with the appellant and her delay in making any complaint about it (ts 276, 278 - 280).

The evidence of the 'propensity' witness, AW

272 AW suffered 'emotional illnesses' after the birth of her daughter in 1971.

273 In 1975 or 1976, AW was referred to the appellant. She saw him regularly at his West Perth rooms.

274 During one of these sessions, AW felt the need to be 'emotionally connected' with the appellant. She proceeded to sit on his lap and kiss him. The appellant got up abruptly and undressed. He then pulled down the zip of AW's dress and had sexual intercourse with her on the floor. Before this episode, there had not been any physical contact between AW and the appellant.

275 When AW kissed the appellant, he did not say anything. She explained:

[T]hat was his way. He didn't say much at all, no. That was his way (ts 224).

AW further explained her impulse to kiss the appellant, as follows:

When you walked across to him and kissed him do you remember what was going through your mind at that time?---As I said before, I think I needed to be emotionally, not sexually, connected, but I didn't know that - I didn't know that then, you know. It was so sudden. I didn't have time to think. I mean, I was a patient. I guess I was sort of under his spell.

What did you want to happen when you walked across to him on that occasion?---I wanted him to put his arms around me. That would have been nice, or - - -

All right?---Communicate - communicate something with a little bit of compassion or - but there was none of that, none.

Did you want to have sexual intercourse with Dr Stubley at that time?---No.

Do you remember if you said anything to Dr Stubley when he undressed you and when you ended up on the floor?---No. I was - I - as I said, I was confused.

What happened after the sexual intercourse between you and Dr Stubley came to an end?---He - I guess I got dressed. He washed himself. He had a basin in his rooms. He had padded doors. He washed himself and got dressed and said he would see me in a couple of weeks.

Was anything else said by him?---No.

Did you see him again in a couple of weeks?---Yes.

And did you - - ?---Yes, with the idea that the only way I would get his attention would be through sex.

What do you mean by 'get his attention'?---Well, you know, I was very - I was very immature and very - I guess I thought that that was the way it was supposed to be. That was - that was the way the treatment went or he knew what he was doing. I mean, I - I trusted him (ts 224).

276 AW continued to consult the appellant at his West Perth rooms. Sexual contact occurred on other occasions. There were times when she performed oral sex on the appellant while he was sitting on his chair. AW did not, however, notice any change in the manner the appellant related to her during the period in which sexual relations were occurring between them. She said 'he was still distant' and 'shut off'.

277 AW gave evidence that she saw the appellant from time to time at the Niola Private Hospital. She was an inpatient at the hospital for some time. She did not have sexual relations with the appellant while she was an inpatient. She was at the hospital for one period of about two weeks and she may have been there on another occasion.

278 After these admissions to the Niola Private Hospital, AW realised that there was something wrong in her relationship with the appellant. She went to the hospital for the purpose of confronting him. At the time, AW was pregnant again and did not know whether her husband or the appellant was the father. She went into a group therapy session and said, 'Look, you made me pregnant'. The appellant told her to get out. She left and went home. That was the last occasion on which she saw the appellant.

279 AW denied in cross-examination that she had had an affair with the appellant. She said that at the time she was immature. She went to see the appellant for help and she had been 'through hell' (ts 231). She added that the appellant was not forceful, but she was 'under his spell' (ts 231). She trusted him to 'do the right thing' (ts 231). The appellant's trial counsel cross-examined AW on alleged prior inconsistent statements.

280 AW admitted that, on occasions, she initiated sex with the appellant. She explained:

You only realized that something wasn't right when you stopped seeing him. Isn't that so?---Yes, I think so. Mm.

Up until then you didn't have any objections to what had taken place. Isn't that true?

When I say up until then, I mean?---No, because I trusted him. I trusted him to do the right - to treat me in the right and proper way and it didn't happen. No, I didn't object. He was a trained psychiatrist.

And you fell in love with him. True?---Well, if you want to put it that way but it didn't

No, you put it that way in your statement. You put it that way?---Yes; yes, but I didn't really know him, did I? I mean - - -

And you initiated sex? On occasions you initiated sex?---No, I didn't, not the first time. No.

I said on occasions?---Well, that was to get his attention.

And wasn't it the - - -?---I didn't get it any other way (ts 236 - 237).

The appellant's evidence generally as to sexual relations with his patients

281 The appellant gave sworn evidence at the trial in his own defence. He confirmed that he was born on 18 June 1928 and that when the trial occurred he was aged 80 years. At all material times, he was a medical practitioner with a specialist qualification in psychiatry. Between 1965 and 2000 he was engaged in private practice as a psychiatrist. From about 1966 to 1976 he was a consulting psychiatrist at Royal Perth Hospital. Between about 1965 and 1979 he practised from rooms in Kings Park Road, West Perth. He also practised from 1967 to about 2000 in rooms at West Leederville near the Niola Private Hospital. Also, from about 1973 to about 2000 he practised at the Biala Psychotherapeutic Community in Mundaring.

282 During the 1970s he had sex with his patients. He regarded this as a 'helpful methodology' for counselling patients (ts 297). He no longer held that view. He explained:

Do you now have the same view?---No, not at all. I have totally changed that view and it really was that in the 70s there was very much a general sexual revolution going on in which the ethics and morality were very low and this was reflected amongst some of the psychiatrists and some of the various groups that you referred to, and I was one of those people who followed this. There was nothing at that time that had been conceptualised about post traumatic stress disorder of childhood, including sexual abuse.

What's the relevance of that?---Well, by the 1980s all of that changed. The sexual revolution ended and doctors, including psychiatrists, changed in their attitudes and with the knowledge of the post traumatic stress disorder and the importance of sexual and other forms of abuse that people had had, patients had had in their childhood, it was clearly recognised as being very important to the development of their disorders, and with that, in the late 70s, early 80s, there came a very considerable change in me too, that as I say, whereas previously there had been low moral and ethical values, but there was a great change, part of which within me was also contributed to by personal experiences, near-death experiences, loss of loved ones, and the like, and I had multiple spiritual conversion experiences that led to a very significant change in me and a sense of peace and trust in God which has been with me ever since and my ethical and moral values became high from that time (ts 297).

The appellant's evidence in relation to the complainant, JG

283 The appellant said that JG first consulted him as a psychiatrist in about 1975. He described her as being a 'very sick lady' at that time. She was suffering from 'quite severe depression'. In the last three months of her pregnancy in about 1975, she became very depressed and suicidal. There were some features which may have suggested the possibility of schizophrenia.

284 The appellant first saw JG when she was an inpatient at the Niola Private Hospital. At that time, she was prescribed medication 'to modify her depression and suicidal feelings ... to modify her psychotic state and to help her be more comfortable, more able to function' (ts 300).

285 After JG was discharged from the hospital, she consulted the appellant as a private patient. The appellant said she 'gradually moved into individual psychotherapy as she came out of her psychosis' (ts 300). She was the appellant's patient for about 21 years from 1975 to 1996. During this period there were a few occasions (one of about four months, one of about six months and one of about two years) when she did not see him.

286 The appellant gave this evidence about his sexual interaction with JG and whether the sexual relations were consensual:

Yes, all right, and do you recall having sex with her?---Yes, I recall something of having sex with her.

Yes. Are you able to recall how that first came about?---I think it was something that really gradually happened from the closeness that was developing in the psychotherapy. The - the

Are you able to recall when the first instance occurred?---I couldn't specifically say that, no.

I think she said in her testimony it was a few weeks after her release from hospital, an occasion when she brought her baby. The baby was left in the reception area, with your staff and the receptionist, I think?---I would say I don't know. It may have been. It may not have been, but I know that whatever did happen happened from a gradual development of the mutual relationship between her and myself in psychotherapy.

You've heard what she's had to say. She claims that she did not consent to any of these sexual acts happening to her. You heard what she had to say when she testified on Monday, I think it was, and Tuesday?---Yes, I have heard that, but I would say that in every instance that there was consent, that it was a mutual consent. The whole process of the psychotherapy was one that involved an increasing meeting between herself and myself and that this passed through the sharing of feelings or emotions, but there was in that atmosphere a sense of gentleness and softness and compassion in which she gradually became more and more relaxed and gradually able to share more and more with me.

That's not her version, is it?---No.

Because she says that she regarded you as being authoritarian, quite demanding, commanding in the sense of telling her what she should do. Do you recall her descriptions?---Yes, and that doesn't - doesn't really fit. For me, let me say that the usual doctor-patient relationship as such was - was put in the background, was minimised. It was much more in that situation that we were equal human beings as fully as we could do that.

Of course you minimised it, didn't you, this doctor patient relationship?---And she would gradually

Is that right? You minimised?---Yes, quite, and she gradually go used to that, too.

She claims to have told you that she didn't want to do these things, she didn't want to have sex with you. Can you ever recall an occasion where she said that?---No. Definitely not.

Was there anything that she said or did that indicated to you that she did not want to participate in the sexual activity?---No. Nothing at all.

Did you give her the chance to consent? Do you understand what I mean by that? Was it just you taking control or?---It was like that every moment in the early part - every moment in the relationship was one of ongoing mutuality, of ongoing consent, that nothing would happen unless we both went along with it at the - mostly at the feeling level. It wasn't something that would be discussed at a rational level but at a feeling level.

All right; but you understand what I was saying. Apart from all of this emotion the question is was there anything that she said that or did which made it clear to you that she did not want to participate in the sexual activity?---Nothing whatsoever. In fact, quite the contrary.

When you say 'quite the contrary', what did you mean by that?---That she was very much freely there and welcoming the sharing and caring that went with that.

Did you not feel that there was an imbalance in the relationship between yourselves, that is, you were the doctor and she was the patient?---No. That came into it as little as possible.

JOHNSON J: Could you repeat that, please?---That came into it as little as possibly, into the psychotherapy.

TROWELL, MR: Why is that? Wasn't it always present? Wasn't there a clear distinction? There are three questions there I suppose?---Yes.

Why was that?---Because it would get in the way. If it was a doctor patient relationship the question of power would come into things. If it was doctor patient relationship then the question of it being like the relationships that she'd had in her childhood family, especially with her parents but also with a brother. These things would come into it. If there was a difference like - in the doctor patient relationship ordinarily a difference of power and equality.

Is this you rationalising what actually took place at the time?---No. No.

It's very easy to push aside the doctor patient relationship to engage in sexual activity, isn't it?---It wasn't for that purpose. Minimising the doctor patient relationship was something that went on throughout the whole of her treatment.

Did that happen in every psychotherapy session you had with - I am not saying the sexual activity but in terms of the method, the way in which you counselled other patients?---Yes.

As you look back now I think you had a general view that sexual relations with patients was inappropriate, immoral and unethical?---I certainly came to that view very strongly around about the end of the 70s, early 80s, very, very strongly.

Are you able to specifically recall each of the sexual encounters of acts that you had with her?---No.

Was there sexual intercourse - that's the penis into the vagina?---I believe it's likely that that did happen on a few occasions.

All right. Did you ever threaten her with the prospect that she would be sent to a psychiatric institution if she did not comply with your sexual demands?---Absolutely, and definitely not. Nothing like that would have been done whatsoever. I would not have used any threats and I certainly would not have threatened her that she would be separated from her children and sent to a mental hospital if she didn't.

My notes say that when she told you she - she said that she wanted to stop her therapy with you but you told her that if she didn't continue her therapy she would be put in an institution, separated from her husband and daughter. Did you ever make that threat?---That would be - no, I did not make that threat and it would be the sort of thing that I would not do at all. Where that comes from is another matter.

She says that there was an occasion that she came to you when she was pregnant and that you told her that she looked beautiful and sexual intercourse took place while she was actually pregnant. Do you remember such an occasion?---No. I find that rather hard to believe.

Why is that?---It's not the sort of thing that I tend to do.

I think she said that shortly after that sexual intercourse that she telephoned you and told you that she was bleeding, that there had been a burst blood vessel, and that you said that was quite - 'It can happen' I think were the words she attributed to you. Do you ever recall such a conversation?---I don't recall such a conversation but it may have been that I did tell her that burst blood vessels could occur, but as I recollect what she said about that here was that that was something that happened right towards the end of her pregnancy and to me that would be - I totally refute that that happened. I would not have had intercourse with her probably - I believe not at all during pregnancy but certainly not at that point in pregnancy where there was such a risk to her and the baby.

All right. She says I think that sexual activity between the two of you ceased I think about 1979, 1980. Is that your recollection?---Yes. I think it was probably - it might even have been the end of 78 or very early 79. It did stop altogether then (ts 302 - 306). (emphasis added)

287 The appellant elaborated in cross-examination on the nature of his relationship with JG:

How did it come about that your patient moved to the position where she was having sexual intercourse with you?---It evolved out of the relationship that we were having as two human beings meeting with one another as fully as we could but she was a very willing participant in this as part of her psychotherapy. She was very much involved in the mutual relationship which to a large extent at that point was at a feeling level.

It was at a what?---A feeling level or the heart level. It was like the two of us meeting from our hearts with one another.

Although you were of course the psychiatrist who made a decision to admit her to a psychiatric hospital?---That is the other extreme of the total relationship but as I have indicated it was something that was put in the background whilst the psychotherapy was proceeding (ts 340). (emphasis added)

The appellant's evidence in relation to the complainant, CL

288 The appellant gave evidence that CL suffered from a depressive illness. He would have seen her about 10 times over six or nine months.

289 The appellant agreed that he had sex with CL. He was unable to recall the particular sexual acts. Also, he was unable to recall 'in great detail' the occasions on which the sexual acts occurred. He accepted, however, that there were occasions when he had sexual intercourse with CL.

290 The appellant gave evidence about the particular allegations against him in relation to CL and the issue of consent, as follows:

There was one occasion which she described where I think she claimed I think that she had a bad neck or sore neck. Do you recall that?---I don't really recall that in any detail at all.

I think how you asked her to lie on the floor and you asked her to remove her brassiere and you massaged her back and her breasts. Is that something you recall?---No, not specifically.

There was another instance that she described and that is when she says that you came up to her and I think removed her panties and attempted to put your penis into her vagina when you were both standing. Do you recall that?---No.

Then there was a third occasion when she said sexual intercourse took place. You agree that sexual intercourse took place during this period of time?---Probably. I'm not trying to say anything about dates or anything there at all.

But certainly during this period of time you had sexual intercourse with her?---During the time that she was my patient?

Yes?---Yes.

She said in her testimony that she was infatuated with you. Is that something you noticed?---The relationship between herself and myself steadily increased. It became - from her point of view it certainly became very positive, very strong. To call it infatuation is perhaps partly correct. It may have been more a sort of a strong sense of love, perhaps a romantic love. She certainly felt very positive in her relationship in me.

All right. Just so you're not confused, of course, she went on to say that she continued to have sex with you for a period I think of some four years during the time that she was counselled by you, so those instances I mentioned weren't the only instances she claimed occurred. She said that they were the only ones she could remember with any degree of specifics?---She certainly shared with me - came to share with me in a sexual way where she was very fully involved perhaps you might say from the infatuation or the ever-increasing love that she was experiencing towards me.

Did she ever say to you that she didn't want these things to happen?---Never, not at all; on the contrary.

Do you remember she described a situation where she was moving her hips. She claimed to have been sexually aroused but at the same time fearful of you and not wanting this to happen? Do you recall specific instances of?---She became very much involved and expressing herself by such movements and she was there fully in the situation.

...

Yes, she claimed that she told you when she first met you, when she first went for counselling, she said, 'I don't want bed therapy.' Do you recall that being said at some time?---No, I don't. It may have been that to have said that, if she did say it at that early time (ts 309 - 310). (emphasis added)

291 The prosecutor explored with the appellant in cross-examination the nature of his relationship with CL:

Do you remember a session, Dr Stubley, when she came to see you, she talked to you, there was a long silence and then you said to her, 'I feel rejected'?---I can't remember that, no.

You don't remember saying that in a particularly threatening way, Dr Stubley?---No.

In a way designed, I suggest, to intimidate her?---No.

...

You accept of course that you did have sexual intercourse with her?---Yes.

Did you say to her, 'This is the most important relationship you will ever have in your life'?---I may have done that and it is possible that it was.

...

From whose point of view?---From her point of view.

But not yours?---That it would have been the most important relationship I ever had? No, I wouldn't have said that.

The sexual intercourse that you had with [CL], did you derive any sexual gratification from that, Dr Stubley?---If I did it would not have been the important point or important matter of the whole interaction.

Did you tell her that she would, as a result of having sexual intercourse with you, have 'a complete metamorphosis'?---I don't think I would have said something like that. That again doesn't seem to me to be the sort of thing that I would say.

Did you ever say to her that 'A whole new person would emerge like a butterfly'?---I may have indicated to her that, as part of her ongoing therapy, a whole new person would or was emerging and that in imagination they may have some similarities to a butterfly.

Were you seeking to convey to her when you said that that what was happening between her and you was part of her therapy?---I don't think - I don't believe that is true, no. I don't believe that I would put any significance in that onto the sexual aspect.

Did you become aware that she was suffering from very high blood pressure?---I don't remember that.

You don't remember telling her that a couple of weeks at Niola Hospital would help cure her very high blood pressure?---It sounds a very strange thing for me to say.

So you deny saying it?---I don't remember saying it.

Do you remember [CL] going to the Niola Hospital for a couple of weeks?---No.

Did you ever at any time threaten [CL], Dr Stubley?---Absolutely not.

Did you ever threaten her in order to persuade her to loan some money to the community or commune at Biala?---Definitely not.

Did you ever talk to her at any stage about people being incarcerated?---People being incarcerated? I don't know what that - it doesn't ring any bells or what it would have anything to do with.

Did you ever say this, and in fairness to you it is in the context of the discussions between you and [CL] about lending money to Biala - did you ever say to her:

You seem to be very angry. Sometimes when people are very angry they need to be put in hospital for a couple of weeks?

---Heavens, I wouldn't have said anything like that, with its intimation of threat. No, not at all (ts 358 - 360).

The appellant's evidence as to consent in relation to both of the complainants, JG and CL

292 The appellant gave further evidence as to the issue of consent in relation to both of the complainants, JG and CL, as follows:

[B]oth in relation to [JG] and [CL] did you not think at the time that you were taking advantage of them?---That would have really meant that there was a one-sidedness to all this but there wasn't. They were very much involved in all that was happening and very much wanting to have happen all that happened. There was an ongoing constant sense of consent.

You knew of course that both of them were suffering from mental health problems, didn't you? You knew that because you were their consulting psychiatrist?---I knew that they had presented with that.

Did you think that their conditions, their mental health condition anyway, made it more difficult for them to consent to what actually took place?---With - no, I did not. With [JG], the initial aim of management was to get her to a point where she was at the maximum she had been before she ever became sick and that - and then it became a process of helping her to develop, to get better, to get stronger, to have more of herself and to be able to live her life and look after the children.

Okay, just stop there because I suppose I can be more blunt about it so that we get a more direct - not that you are being evasive but just so we get straight to the point of this. If someone said, 'Look, you knew' - for example, let's take [JG]. You knew that she was suffering from psychological problems. In your mind did that make her less likely to be able to consent; that she was a person who would just do exactly what you said that you would do? Do you understand the question?---I

Made her more vulnerable to any suggestion or direction that you would give her?---By the time there was any sexual activity happening between her and me any vulnerability that she might have had when she first came to the hospital had gone. She was really functioning again at the then maximum that she was capable of.

What about [CL]?

JOHNSON J: Sorry, did you say she was functioning again at her maximum?---The maximum she was then capable of.

TROWELL, MR: What do you mean by that? What do you mean by 'the maximum'?---That - equivalent to for instance how she was before she got sick.

I see. Why was there a need for ongoing counselling?---Because if that didn't happen I believed very strongly that she would again become psychotic and may well suicide and of course if not that at least be unable to manage the care of her children.

All right. [CL], did you think that she, because of her mental health problems, was a person that was capable of consenting to sex?---I believed that she was capable, yes; again that she made significant progress earlier on and that she became quite capable of consenting in regard to any sexual activity.

And if it was to be put to you, for example, 'Look, didn't you take advantage of them because their defences were down because of their mental health issues?' is that something that you would accept?---No, not at all. I would have no need whatsoever to take advantage, to use my power, use any power, over them. I would not do that.

What about for sexual gratification?---I would not be seeking that as such. I had no need to seek that as such (ts 311 - 312).

The appellant's evidence in relation to the 'propensity' witness, LB

293 The appellant gave evidence that he had 'no memory whatsoever' of LB as a patient. He had 'no memory of her name, no memory of her attending me and I can only go on what she says, but even seeing her here did not in any way touch on a memory of her' (ts 312).

The appellant's evidence in relation to the 'propensity' witness, MM

294 The appellant gave evidence that he recalled seeing MM as a patient in the 1970s. She was also employed by him as a receptionist - typist. He recalled having sex with her on one occasion.

295 The appellant's other evidence concerning MM was, relevantly, as follows:

She said that you said, 'You are 21. You can do anything now.' Do you recall that?---I don't remember saying those words but it's quite possible I gave her a kiss.

All right, but the description of the sex was that you had undressed her and without saying anything, you were on top of her and she was underneath you and you had sexual intercourse. Do you recall that?---Not like that at all.

How do you recall it?---I recall it was something that we mutually shared.

I'm talking mostly about the mechanics of the sex, I suppose, not in relation to the emotion of it. Do you understand what I'm saying? She's described how it happened. Is that how it happened?---I don't - I don't think so. I think she was as much involved in that as what I was.

All right. Do you remember much about what actually happened on that occasion other than the fact that you had sexual intercourse with her?---No.

All right?---But I do believe that that didn't happen in a therapy session or a session at all.

When do you think it happened?---I think it happened probably not long before she was going to stop working and was part of the work situation.

...

The sex you had with her, was it in your view consensual?---Very.

It was with her consent?---Yes.

Was there anything she said or did to indicate to you that she was not consenting?---No.

Was there anything she said or did which indicated to you that she was consenting?---She was fully in the experience (ts 314 - 316). (emphasis added)

The appellant's evidence in relation to the 'propensity' witness, AW

296 The appellant recalled AW. He described her in these terms:

[S]he was a very sort of limited personality, what I would call narcissistic. She was very empty and in herself had little or nothing to offer and she was extremely needy and sought to have her needs fulfilled all that she could (ts 313).

297 The appellant gave this evidence concerning sexual relations with AW:

Well, the fact was that you did have sex with her, didn't you?---I'm not sure about that. My memory is such that I would believe that sex as such did not fully happen.

...

TROWELL, MR: What does 'fully' mean? Why do you qualify it?---I don't think there was sexual intercourse, put it that way.

Do you remember she said that she once, after I think the completion of her counselling, stormed into a group therapy session claiming that you were the father, or might be the father, of her child. Do you recall that?---I don't recall her doing that but I recall her saying that and that is possible that that happened.

She said you became angry and threw her out of the therapy group?---I don't remember that.

Do you remember anything else about her in terms of - in any respect?---I remember really her instability. That's the personality of what stands out for me. I don't know.

If you had sex with her would it have been with her consent?---Whatever sexual activity happened between her and I was more than at a consent. It was something that she would have wanted very strongly (ts 313). (emphasis added)

The trial judge's ruling in relation to the admissibility of the evidence of the 'propensity' witnesses

298 Before the commencement of the trial, the appellant objected to the admissibility of the evidence proposed to be adduced by the State from the 'propensity' witnesses. Each of the parties filed and served written submissions on the appellant's objection and on 5 November 2008 there was a hearing before the trial judge at which counsel made oral submissions. The material before her Honour included the witness statements of JG, CL, LB, MM and AW. On 14 November 2008, her Honour dismissed the appellant's application to exclude the evidence in question. She published written reasons for her decision. See Stubley v The State of Western Australia [2009] WASC 57.

299 On 19 November 2008, the appellant was arraigned in the Supreme Court. A trial by jury ensued and, as I have mentioned, on 21 November 2008 he was convicted on 10 of the 14 counts in the indictment.

300 At the hearing of the appellant's application to exclude the evidence of the 'propensity' witnesses, his counsel informed the trial judge that at the trial the appellant would admit that during the period identified in the indictment 'some or all of the acts of a sexual nature occurred, both with the complainants and with three witnesses giving propensity evidence' [3], but the appellant would contend that the acts were consensual. As I have mentioned, the appellant's trial counsel, in the course of his opening address to the jury, admitted on behalf of the appellant that the appellant had been 'sexually intimate' with the complainants, JG and CL, and also with the 'propensity' witnesses, MM and AW, but asserted that the sexual intimacy was, on each occasion, consensual.

301 The trial judge held that the evidence of the 'propensity' witnesses was admissible under s 31A of the Evidence Act 1906 (WA). Her Honour referred to a number of authorities including Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 and Osborne v The State of Western Australia [2007] WASCA 183.

302 The reasoning on which the trial judge based her ruling that the evidence in question was admissible, was as follows:

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.

In my view, the evidence sought to be adduced does indeed address other relevant issues. Those issues include the conduct of the [appellant] 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.

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.

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 [61] - [64].

303 The appellant's application to exclude the evidence of the 'propensity' witnesses was dealt with under s 98 of the Criminal Procedure Act 2004 (WA). By s 98(2), relevantly, at any time before an accused's trial begins, the court may determine any question of law or procedure that is necessary or convenient in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable. Section 98(6) provides that any proceedings under s 98(2) 'are to be taken to be part of the accused's trial'.

304 As I have mentioned, the trial judge directed the jury, in relation to the counts of rape, that the appellant was unable to identify specific events and it was therefore necessary for the jury to be satisfied in relation to each count that 'penetration took place in that incident or in relation to that incident' (ts 414). Later, her Honour pointed out, in discussing the defence case:

Because of the passage of time the accused is unable to recall the details of the sexual activity, but he also says, and the defence case is, that what is described by the witnesses is not consistent in most respects with the mutual sexual relationship that developed over the time of the treatment, and he also says in relation to certain conduct that it's not the sort of behaviour that he would engage in (ts 428).

305 The trial judge instructed the jury that the appellant could not be convicted of a count in the indictment unless, relevantly, the State proved beyond reasonable doubt that the complainant did not consent and, further, the State proved beyond reasonable doubt that the appellant did not honestly or reasonably (but mistakenly) believe that she had consented. No challenge is made to her Honour's instructions on these issues.

306 The trial judge gave the jury detailed directions in relation to the evidence of the 'propensity' witnesses, LB, MM and AW.

307 Her Honour said, in essence, that the evidence of LB, MM and AW was adduced for the limited purpose of showing the context in which the appellant engaged in sexual conduct with his patients. Her Honour said:

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).

308 The trial judge emphasised that the evidence of LB, MM and AW was not relevant to the issue of whether JG or CL did or did not consent to sexual activity with the appellant. Her Honour said:

You must not in any circumstances use the evidence as tending to show, for example, that [JG] or [CL] did not consent to a sexual activity with the [appellant]. That's not what it's being led for and you are not entitled to use it for that purpose. Merely because one woman does not consent to a sexual encounter with an accused person, that does nothing to prove whether or not a different woman in different circumstances consented [to] sexual activity.

So if someone says, 'Yes, I had sex with him but I didn't consent,' that tells you nothing about whether someone else who had sex with the person did or didn't consent, so it can't be used for that purpose at all. So you can't use the evidence as tending to show that the [appellant] must therefore be guilty of the other offence. You can only use the evidence to assist you in determining whether or not you accept the complainants' evidence about certain circumstances or certain conduct in relation to the incidents that the complainant refers to.

Neither can you approach your decision on the charges by saying, 'If five women say he behaved that way then he must have.' It's not a numbers game in any way at all. It's not a matter of the number of witnesses being called, it wouldn't matter whether it was one or 20. It's always about whether the evidence, if you accept it, assists you in accepting some part of the evidence of the complainant (ts 408).

309 Next, the trial judge instructed the jury that they could not use the evidence of LB, MM or AW in the manner in which she had indicated unless they were satisfied that the evidence in question was truthful and accurate. Her Honour then addressed the standard of proof in relation to the evidence of the 'propensity' witnesses:

However, you don't have to be satisfied beyond a reasonable doubt; it's only the charges on the indictment that have to be established beyond a reasonable doubt, but you certainly do have to be satisfied that the evidence of the witnesses with respect to which there aren't any charges is truthful and accurate. So in other words, you make the same assessment of that evidence as you do of all other evidence. It's always for you to determine whether the witness has been truthful and whether they are accurate (ts 408).

310 The learned judge directed the jury in relation to the extent to which they could use the evidence of one complainant (that is, JG or CL) to support the evidence of the other complainant:

In the same way you can use the evidence of one complainant to support the evidence in relation to the sorts of matters of the other complainant; for example, if you are considering the charges where the complaints are made by [JG], you can look to the evidence of [CL] as to those circumstances and the way the events are alleged to have happened and you can use her evidence, if you accept it, to support the evidence of [JG] about those sorts of circumstances.

Again you cannot use the evidence of the other complainant as evidence of the lack of consent because exactly the same principles apply. When considering the evidence of a particular complainant you can only use the evidence of the other complainant in the same way that I have just told you about with respect to the other witnesses.

It is not evidence of lack of consent and cannot be used for that purpose and it is not evidence which shows that the [appellant] must have committed the offence on the complainant. So you can use the evidence of these witnesses and also of the other complainant in the limited way that I have described to assist you in determining whether you accept evidence of the circumstances in which the particular incidents are alleged to have occurred but not otherwise (ts 409).

311 The learned judge stressed that in relation to the counts involving each complainant (that is, JG or CL), the complainant in question was the only witness against the appellant. There was no corroboration of each complainant's evidence as to the commission of the offences. The jury could not convict on a count unless satisfied beyond reasonable doubt as to the truthfulness of the complainant's evidence (ts 409).

312 Towards the end of her summing up, the trial judge returned to the evidence of the complainants and the 'propensity' witnesses in the context of the failure of each of them to object or make a complaint about the sexual activity at or contemporaneously with its occurrence. Her Honour said:

The last thing I want to mention to you is this issue of there being no objection or not [sic] complaint, is of course something that you need to consider. It arises squarely on the evidence. The witnesses have all been cross examined on it and it's obviously relevant, highly relevant, to the issue of consent and also generally to the credibility of the witnesses. I have mentioned the reasons given by [JG] and [CL], but I just briefly wanted to mention the evidence of [MM] which, as I said, is only relevant to this issue of whether or not it supports the account of the other women as to why they did not object. That is, it indicates the nature of the relationships between [the appellant] and his patients and how he behaved in that context.

[MM] said she thought she was in shock. She said:

'I felt revolting and he was my boss and I didn't think I would get another job, and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just "How do I get out of this? How do I get out of this?"'

She also said she thought that this couldn't be happening because she didn't know how to tell him that she felt revolting.

She also said, 'How can I stand up to him? He's my doctor, he's my employer,' and so that was something else that she was talking about and she said that she was worried about her employment 'amongst other things'.

[AW] said that it was all really sudden and she didn't have time to think. When she kissed him she needed to be emotionally not sexually connected. 'I was his patient. I was under his spell.' She was confused. She was very immature. 'I guess I thought that this was the way it was supposed to be, how treatment went. I trusted him. I didn't question him until much later.' When she confronted him about being pregnant and not knowing the father she thought he was going to kill her and he told her to get out.

[LB] said she kept going back because she had no alternative. She wasn't sure what was going through her mind. She said she was confused. Yes, so that's just a reminder of the evidence in relation to that. I hope that has been of some assistance. Keeping in mind that I have only read to you their allegations, I haven't reminded you of the cross-examination. You must keep in mind all the matters that were put to them, such as the lack of complaint, the statements in diaries about being in love with [the appellant]; the fact in [CL's] case that she had been dreaming about him.

All those matters are factors that you must consider. I haven't referred you to every one of them because I have taken up more than enough time as it is, but just keep in mind that in reminding you of that evidence I have simply stated it rather than put it in the context of the criticisms, if you like, that are made of it. And similarly with [the appellant's] evidence, although I did mention some of the cross-examination simply because it allows him to explain what he was attempting to achieve with this type of therapy in the sense that sexual gratification wasn't the primary purpose of it (ts 447 - 449).

Appeal against conviction: the grounds of appeal

313 The appellant's grounds of appeal against conviction, as amended at the hearing of the appeal, read:

Ground 1: The Learned Trial Judge erred in law by failing to exclude the evidence of the Appellant's propensity to be adduced from [AW, LB and MM].

Ground 2: The Learned Trial Judge erred in her directions to the jury about the standard of proof of the propensity evidence given by the witnesses [AW, LB and MM] who were not the complainants in respect of the counts on the Indictment.

Appeal against conviction: the appellant's submissions

314 As to ground 1, counsel for the appellant submitted that:

(a) the evidence of the 'propensity' witnesses did not have significant probative value, for the purposes of s 31A(2)(a) of the Evidence Act; and

(b) further and in any event, the probative value of their evidence, compared to the degree of risk of an unfair trial, was such that fair-minded people would not think that the public interest in adducing the evidence must have priority over the risk of an unfair trial, for the purposes of s 31A(2)(b).

315 It was contended that although the State asserted before the trial judge that the evidence of the 'propensity' witnesses was not being adduced to establish a lack of consent on the part of the complainants, many of the factors relied upon by the State, as tending to establish striking similarity between the complainants and the 'propensity' witnesses, were closely entwined with the issue of why the complainants submitted to the sexual activity and returned to the appellant's rooms for further consultations in the course of which other alleged non-consensual activity occurred. Counsel said these factors included: they were the appellant's patients; they suffered from depression; they were frightened of the appellant; they could be characterised as vulnerable and isolated; and the sexual activity commenced with a hug and then moved swiftly to the appellant undressing them and having sexual intercourse. It was submitted that this pattern was integral to each complainant's account of submission to intercourse. According to counsel, it is illusory to suggest that those aspects of the appellant's alleged propensity could be used to establish some factor other than consent.

316 Counsel for the appellant argued, in reliance on the decision of the High Court in Phillips, that if the consent of a complainant is in issue at the trial of an accused for sexual penetration without consent, another complainant's evidence that the accused had non-consensual sex with her does not have any probative value in relation to whether the first-mentioned complainant consented or not. The other complainant's evidence is therefore inadmissible.

317 Further, it was submitted that the degree of risk of an unfair trial was such that fair-minded people would not think that the public interest in adducing the evidence of guilt must have priority over the risk of an unfair trial. This risk could not be allayed properly by a direction against propensity reasoning. It was contended that it should not have been permissible, in the circumstances of the present case, to allow the 'propensity' witnesses to give evidence, not the subject of any criminal charge, which could be used to demonstrate the appellant's propensity not only to engage in unethical sexual relations with his patients, but allegedly non-consensual relations.

318 Counsel complained about this excerpt from the trial judge's summing up in relation to the evidence of the 'propensity' witnesses:

It is not evidence of lack of consent and cannot be used for that purpose and it is not evidence which shows that the accused must have committed the offence on the complainant. So you can use the evidence of these witnesses and also of the other complainant in the limited way that I have described to assist you in determining whether you accept evidence of the circumstances in which the particular incidents are alleged to have occurred but not otherwise (ts 409).

According to counsel, there was 'no real articulation' in this passage 'of the division between the issue of consent and these other circumstances, whatever they may be' (appeal ts 22).

319 As to ground 2, counsel for the appellant submitted that the trial judge was in error in concluding her directions regarding the use to which the evidence of the 'propensity' witnesses could be put by instructing the jury that they did not need to be satisfied beyond reasonable doubt before acting on this evidence and that it was sufficient if the jury was satisfied that this evidence was truthful and accurate (ts 408).

320 After referring to R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [59] - [60] and R v ML [2009] VSCA 106 [12] - [18], counsel submitted that, in the present case, the jury was invited by the State to view the evidence of the 'propensity' witnesses in relation to uncharged acts as indicative of the appellant's pattern of conduct. According to counsel, this was an important step in reasoning towards guilt. The trial judge, so it was submitted, positively misstated the standard of proof and thereby occasioned an 'obvious potential' for a miscarriage of justice.

Appeal against conviction: the nature of relevance

321 In HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, Gleeson CJ explained the nature of relevance in the context of the admissibility of evidence in a criminal case:

The basic principle of admissibility of evidence is that, unless there is some good reason for not receiving it, evidence that is relevant is admissible (this principle is reflected in s 56 of the Evidence Act 1995 (Cth)). Evidence that is not relevant is inadmissible; there is then no occasion to consider any more particular rule of exclusion. Reasons for not receiving relevant evidence may relate to its content, or to the form or circumstances in which it is tendered. Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings (Washer v Western Australia [2007] HCA 48; (2007) 82 ALJR 33 at 35 - 36 [5]; Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at 1025 [2]; cf Evidence Act 1995 (Cth), s 55). That directs attention, in a criminal case, to the elements of the offence charged, the particulars of those elements, and any circumstances which bear upon the assessment of probability [5].

A little later in his reasons, his Honour observed:

Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative [6].

(the fact in question) in a criminal proceeding if the evidence and the fact in question are so related to each other that, according to the common course of events, the evidence, either taken by itself or in connection with other evidence, could rationally affect, directly or indirectly, the assessment of the probability of the existence or non-existence of the fact in question. See Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] - [3] (Gleeson CJ).

323 Relevance involves, of course, matters of degree.

Appeal against conviction: the common law principles relating to propensity evidence, relationship evidence and the doctrine of res gestae.

324 At common law, evidence that reveals the accused as a person of bad character is not admissible in criminal proceedings if it merely proves that he or she has a general disposition or propensity to commit crime or a particular kind of offence. See Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 116 (Gibbs AJC, Stephen, Jacobs & Aickin JJ agreeing); Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 (Gibbs CJ), 603 (Wilson J), 609 (Brennan J). The reasons for this exclusion were summarised by McHugh J in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 512 - 513:

One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence (Perry (1982), 150 CLR, at pp 593 - 594, per Murphy J; Reg v Boardman, [1975] AC 421, at p 451, per Lord Hailsham; Piragoff, Similar Fact Evidence, (1981), p 4). Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct (Cowen and Carter, Essays on the Law of Evidence (1956), pp 144 - 145; Imwinkelried, 'The Use Of Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea: The Doctrines which Threaten to Engulf the Character Evidence Prohibition', Ohio State Law Journal, vol 51 (1990) 575, at pp 581 - 582; Ligertwood, Australian Evidence, 2nd ed (1993), pp 81 - 82; Palmer, 'The Scope of the Similar Fact Rule', Adelaide Law Review, vol 16 (1994) 161, at p 169). Similarly, '[c]ommon assumptions about improbability of sequences are often wrong' (Perry (1982), 150 CLR at p 594, per Murphy J), and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association 'is unlikely to be innocent' (Perry (1982), 150 CLR at p 594, per Murphy J). Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused (R v Bond, [1906] 2 KB 389, at p 398, per Kennedy J; Piragoff, op cit, at pp 4 - 5; Cross on Evidence, 2nd Aust ed (1991), par 21145; Ligertwood, op cit p 81).

325 The exceptions to this exclusionary rule include what has been referred to as 'propensity evidence'. In Pfennig, Mason CJ, Deane and Dawson JJ said:

There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term 'similar fact' evidence is often used in a general but inaccurate sense (464 - 465).

326 The term 'propensity evidence' does not appear to have a precise meaning at common law. It includes 'similar fact evidence' and 'relationship evidence'.

327 The term 'similar fact evidence' usually describes evidence which reveals that the accused has, on previous occasions, engaged in conduct similar to that alleged against him or her in the pending criminal proceedings. The probative value of similar fact evidence lies in the improbability of witnesses giving accounts of happenings having the requisite degree of similarity unless the events occurred. In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P noted [48] - [50]:

The probative force of similar fact evidence 'lies in the fact that it discloses some feature which raises, as a matter of common sense and experience, the objective improbability of its bearing an explanation consistent with the accused's innocence of the offence charged': BRS (298) (Gaudron J). That may be because it discloses strikingly similar facts, some unusual feature common to the events in question or some underlying unity, system or pattern: Hoch (294 - 295) (Mason CJ, Wilson & Gaudron JJ); Pfennig (482) (Mason CJ, Deane & Dawson JJ) and BRS (299) (Gaudron J). However, these indicators are not exhaustive of the kinds of evidence that have special probative value: BRS (299) (Gaudron J); Pfennig (482, 484) (Mason CJ, Deane & Dawson JJ); Phillips [54].

Heydon's Cross on Evidence (7th Aust ed, 2004) suggests [21095] that the probative force of similar fact evidence depends upon three principal factors:

(1) the cogency of the evidence showing the accused's bad disposition;

(2) the extent to which such evidence supports the inference sought to be drawn from it; and

(3) the degree of relevance of that inference to some fact in issue in the proceedings.

He points out that these factors interact and that, to some extent, strength in one can compensate for weakness in another.

The real basis upon which the admission of similar fact evidence is permitted is that it must be strongly probative of a fact in issue: Heydon, [21120]. Heydon also points out (at [21120]) that it is the task of the judge not just to list similarities which appear striking, but to 'seek out and assess the logical nexus between the evidence in question and the facts in issue to determine whether as a matter of common sense and experience the evidence raises the objective improbability of some event occurring otherwise than as alleged by the Crown'. (See also A Ligertwood, Australian Evidence (4th ed 2004) [3.47].)

328 Where the similar fact evidence is disputed, it remains relevant to prove the commission of the acts charged. See Pfennig (482) (Mason CJ, Deane & Dawson JJ). See also Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528, 556 - 557 (Deane J).

329 The term 'relationship evidence' refers to evidence relating to the accused and the complainant which will often be admissible because it tends to prove how or why the conduct the subject of the pending criminal proceedings arose, or because it makes it more probable than not that the conduct charged against the accused occurred at the time or place or in the manner alleged. See Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 630 (McHugh J). Evidence of the relationship between the accused and the complainant may be admissible for the purpose of proving the accused's guilty passion, intention or propensity, or the accused's opportunity or motive to commit the offence alleged against him. See Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [182] (Callinan J).

330 In R v Best [1998] 4 VR 603, Callaway JA (Phillips CJ & Buchanan JA agreeing) said:

The two main divisions of propensity evidence are similar fact evidence and relationship evidence. There are subdivisions. For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true. It usually, but not always, involves an offence against a different victim. Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive. The foregoing is neither exhaustive nor intended to be definitive (606).

331 Propensity evidence may be directly relevant to a fact in issue (this is usually the case with similar fact evidence) or it may be indirectly relevant to a fact in issue (this is usually the case with relationship evidence).

332 At common law, propensity evidence is admissible only if it is sufficiently highly probative of a fact in issue as to outweigh the prejudice it might cause to the accused. It is inadmissible if there is a reasonable view of the evidence which, when the propensity evidence is considered with other relevant evidence, is inconsistent with the accused's guilt. See Pfennig (481 - 483) (Mason CJ, Deane & Dawson JJ); Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, 296 (Mason CJ, Wilson & Gaudron JJ); Phillips [9], [54] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

333 Also, at common law, evidence is admissible, even though it reveals other criminal conduct or non-criminal but discreditable behaviour by the accused, if it is part of the res gestae. Further, evidence of collateral facts which tends to prove the facts in issue (that is, circumstantial evidence) is often admitted in evidence even though it reveals other criminal conduct or non-criminal but discreditable behaviour by the accused. See Harriman (628) (McHugh J). In Harriman, McHugh J said (633):

If evidence which discloses other criminal conduct is characterized as part of the transaction which embraces the crime charged, it is not subject to any further condition of admissibility. Evidence which directly relates to the facts in issue is so fundamental to the proceedings that its admissibility as a matter of law cannot depend upon a condition that its probative force transcends its prejudicial effect. No doubt in a criminal trial a judge always has a general discretion to exclude prejudicial evidence. But it is difficult to see how evidence directly related to the very facts in issue can be excluded simply because it reveals other criminal conduct on the part of the accused. Consequently, it is a matter of great importance whether the evidence is classified as part of the res gestae or as circumstantial evidence tending to prove the facts in issue: cf Forbes, Similar Facts (1987), at p 19.

Appeal against conviction: s 31A of the Evidence Act

334 Section 31A of the Evidence Act provides:

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

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

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

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

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

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

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

335 Section 31A was introduced into the Evidence Act by s 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA). It was introduced in conjunction with amendments to the law of joinder to override the decision of the High Court in Hoch.

336 The Parliament's purpose in enacting s 31A was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4068. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig:

The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force 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 (529).

See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.

337 Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] - [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of s 31A(2)(a) and (b) have been satisfied.

338 In Dair, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value' within s 31A(2)(a), at [60] - [61]:

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

Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere ... relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd [1995] FCA 1739; (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].

339 The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] (Buss JA, Miller JA agreeing).

340 In Dair, Steytler P also examined the comparison which s 31A(2)(b) requires. The following points may be noted from his Honour's examination. First, s 31A(2)(b) requires the court to assess the degree of risk of unfairness at trial that will be occasioned by the admission of the evidence in question, the court having already found under s 31A(2)(a) that the evidence has significant probative value. Secondly, when assessing the risk of an unfair trial for this purpose, the court must take into account any directions that might be given to the jury in an attempt to overcome the prejudice, and their likely effect on the jury. Thirdly, after identifying the probative value of the evidence in question and the degree of risk of an unfair trial, the court must consider the conclusion that fair-minded people would draw from a comparison of these issues. Although fair-minded people are reasonable members of the general community who are not lawyers, it must be assumed that such people have informed themselves of 'at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances': Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [53] (Kirby J).

341 The observations of the President in Dair in relation to s 31A(2)(b) were approved in Horsman [23] and Buiks [46].

342 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. No doubt, the other person will usually be the complainant (especially in the case of allegations of sexual assault) or a class of persons of which the complainant is a member (again, especially in the case of allegations of sexual assault). The categories of 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are not mutually exclusive. There will, no doubt, often be cases where evidence which answers the description of 'relationship evidence' will also fall within the definition of 'propensity evidence'.

343 The tests for admissibility in s 31A(2)(a) and (b) apply 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:

(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) 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.

344 The court may decide, in a particular case, that the tests s 31A(2)(a) and (b) are satisfied in relation to the proposed evidence generally; that is, the evidence should be admitted generally at the trial, and not merely for a particular or limited purpose. Alternatively, the court may decide, in a particular case, that the test in s 31A(2)(a) is satisfied, but the test in s 31A(2)(b) is not satisfied unless the evidence in question is admitted:

(b) subject to the trial judge giving the jury a specific direction or directions in relation to the evidence.

The instances I have given are examples. They are not an exhaustive statement of the issues which may arise in considering the application of s 31A to the facts and circumstances of a particular case or how those issues should be resolved.

345 Where 'propensity evidence' or 'relationship evidence' is disputed by the accused it is, nevertheless, admissible as part of the State's case if the conditions in s 31A(2)(a) and (b) are satisfied.

346 Section 31A is concerned with admissibility. It does not deal with the terms of any directions which a trial judge may or must give to a jury in relation to 'propensity evidence' or 'relationship evidence', as defined.

347 This court has held that if evidence is admitted generally as propensity evidence under s 31A then a 'propensity warning' (that is, a warning of the kind described by McHugh J in KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [2] - [3]) is not required because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the offence or offences charged. See Noto [26] - [28] (McLure JA, Steytler P & Wheeler JA agreeing); Upton v The State of Western Australia [2008] WASCA 54 [65] (Steytler P, McLure & Pullin JJA agreeing); Dair [64] (Steytler P).

348 However, as Steytler P noted in Upton, it does not follow that if evidence is admitted generally as propensity evidence under s 31A, no warning of any kind is ever required in respect of the evidence [65]. His Honour explained:

Under the common law, if evidence is admitted generally as propensity evidence, a propensity warning is not required. That is because the very purpose of the evidence is to prove that the accused is the type of person who is likely to have committed the crime charged. A propensity direction would contradict the basis on which that evidence was admitted: KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [39] (McHugh J). The same is true of evidence admitted as propensity or relationship evidence under s 31A. If that evidence satisfies the test for admissibility (as it must do), no propensity direction is required: Noto [26] - [28]. That is not to say that no warning of any kind is required in respect of the evidence. What needs to be said will necessarily depend upon the individual circumstances [65].

349 A warning should be given if it is necessary, in the circumstances of the particular case, to avoid a perceptible risk of miscarriage of justice. However, as I have mentioned, a 'propensity warning' is not required in relation to propensity evidence or relationship evidence which is admitted generally under s 31A. See [347] above.

Appeal against conviction: the merits of ground 1

350 Ground 1 asserts, in essence, that the trial judge erred in law by failing to exclude the evidence of the 'propensity' witnesses, AW, LB and MM.

351 Where an accused is convicted and appeals against the conviction on the ground that the trial judge failed to exclude inadmissible evidence to which objection was taken, the appeal is not against the failure but against the conviction. Subject to the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA), the appeal will only succeed if the appellant can demonstrate that the trial judge's decision not to exclude the evidence was vitiated by an error of law (see s 30(3)(b) of the Criminal Appeals Act) or that a miscarriage of justice has occurred (see s 30(3)(c) of the Criminal Appeals Act). Compare Maric v The Queen (1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason & Jacobs JJ agreeing); Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161 [31] (Buss JA, Martin CJ & Wheeler JA agreeing).

352 I will examine first the admissibility of the evidence of each of AW, LB and MM under s 31A of the Evidence Act, and then consider whether the decision of the High Court in Phillips required that their evidence be excluded.

353 The evidence of each of AW, LB and MM was 'propensity evidence', as defined in s 31A(1), in that it was evidence of 'a tendency that [the appellant] ... had' at the material time (that is, at least between about December 1975 and about August 1978) in relation to at least some of his female patients. In particular, it was evidence of the appellant's proclivity at the material time to engage in sexual activity with at least some of his female patients in his consulting room, the dynamics of his relationship with those patients generally, and the manner in which he either initiated or participated in that activity. Also, the evidence of each of them was 'relationship evidence', as defined in s 31A(1), in that it was evidence of 'the ... conduct of [the appellant] towards ... a class of persons, over a period of time', namely, the appellant's conduct towards at least some of his female patients during a period proximate to the commission of the offences alleged in the indictment. In particular, it was evidence of the appellant's conduct in engaging in sexual activity with at least some of his female patients in his consulting room, the dynamics of his relationship with those patients generally, and the manner in which he either initiated or participated in that activity.

354 As I have mentioned, there were three critical issues at the trial, namely:

(a) whether the appellant had committed the particular acts alleged in each count in the indictment;

(b) whether JG or CL, as the case may be, had consented to the sexual activity or attempted sexual activity alleged in each count; and

(c) if JG or CL had not consented in relation to any count, whether the appellant nevertheless had an honest and reasonable (but mistaken) belief that there was consent.

355 As to the first issue, the trial judge directed the jury, as to the counts of rape, in her summing up that the jury had to be satisfied beyond reasonable doubt in relation to each count of rape in the indictment that the particular act of penetration took place (ts 414). As to the second and third issues, the trial judge directed the jury in her summing up as to the necessity for the jury to be satisfied beyond reasonable doubt that JG or CL, as the case may be, did not consent to the sexual activity or attempted sexual activity alleged in each count and, if they decided that JG or CL did not consent in relation to any count, then they must be satisfied beyond reasonable doubt that the appellant did not have an honest or reasonable (but mistaken) belief that there was consent (ts 414 - 417, 422 - 426). Her Honour gave conventional directions on the burden and standard of proof. No complaint is made about any of them.

356 The evidence of JG, CL, AW, LB and MM, as to the dynamics of the appellant's relationship with them generally and as to the manner and circumstances in which their sexual activity with the appellant occurred, is to be compared to and contrasted with the appellant's evidence on those matters.

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

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

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

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

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

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

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

358 On the State's case, the appellant was able to and did exploit his power and ascendancy by manipulating JG, CL, AW, LB and MM to acquiesce in sexual activity with him without consent. His manipulation of them, in the context of his position of dominance, enabled him to exploit them sexually without violence or express threats. In any event, a complainant who, at or before the time of sexual penetration, does not by word or action manifest her dissent is not in law thereby taken to have consented to the penetration. See [227] above.

359 In my opinion, the evidence of each of AW, LB and MM satisfied the test of admissibility under s 31A(2)(a) in that her evidence, having regard to the evidence adduced or to be adduced from the others of them and also from JG and CL, had significant probative value.

360 The evidence in question could rationally affect, directly or indirectly, the probability of the existence of a fact or facts in issue at the appellant's trial, and the degree to which the evidence could rationally have this effect is properly to be characterised as significant.

361 First, if the jury was satisfied beyond reasonable doubt that the sexual activity alleged in a count in the indictment actually occurred, the evidence of each of AW, LB and MM (having regard to the evidence adduced or to be adduced from the others of them and also from JG and CL) could rationally affect, to a significant extent, the assessment of the probability that the sexual activity occurred in the manner and circumstances (including the dynamics of the relationship) described by the complainant (JG or CL, as the case may be) and not in any different manner or circumstances asserted by the appellant.

362 Secondly, if the jury was satisfied beyond reasonable doubt that the sexual activity alleged in a count in the indictment actually occurred and the jury also accepted that the sexual activity occurred in the manner and circumstances (including the dynamics of the relationship) described by the complainant (JG or CL, as the case may be) and not in any different manner or circumstances asserted by the appellant, the manner and circumstances (including the dynamics of the relationship) in which the sexual activity occurred could rationally affect, to a significant extent, the assessment of the probability of whether the complainant actually consented to the activity.

363 Thirdly, if the jury was satisfied beyond reasonable doubt that the sexual activity alleged in a count in the indictment actually occurred, the jury also accepted that the sexual activity occurred in the manner and circumstances (including the dynamics of the relationship) described by the complainant (JG or CL, as the case may be) and not in any different manner or circumstances asserted by the appellant and, further, the jury was satisfied beyond reasonable doubt that the complainant did not actually consent to the activity, the manner and circumstances (including the dynamics of the relationship) in which the activity occurred could rationally affect, to a significant extent, the assessment of the probability of whether the appellant had an honest and reasonable (but mistaken) belief that there was consent.

364 Fourthly, if the jury was satisfied beyond reasonable doubt that the sexual activity alleged in a count in the indictment actually occurred and the jury also accepted that the sexual activity occurred in the manner and circumstances (including the dynamics of the relationship) described by the complainant (JG or CL, as the case may be) and not in any different manner or circumstances asserted by the appellant, the manner and circumstances (including the dynamics of the relationship) in which the activity occurred could rationally affect, to a significant extent, the jury's view as to why, and as to the significance (if any) to be attached to the fact that JG and CL continued to consult with the appellant as their psychiatrist notwithstanding his offending behaviour and, further, the fact that JG and CL did not make a contemporaneous complaint about his offending behaviour.

365 In my opinion, the evidence of each of AW, LB and MM also satisfied the test of admissibility under s 31A(2)(b) in that the probative value of the evidence in question, compared to the degree of risk of an unfair trial, was 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. I am of that opinion for the following reasons.

366 First, the evidence of each of AW, LB and MM was not admitted generally at the trial. Rather, their evidence was admitted solely for particular or limited purposes. The evidence of each of AW, LB and MM (having regard to the evidence adduced or to be adduced from the others of them and also from JG and CL) was relevant only to the assessment of the probability that the sexual activity between the appellant and JG and CL occurred in the manner and circumstances (including the dynamics of the relationship) described by JG and CL and, also, to the assessment of why, and of the significance (if any) of the fact that, JG and CL continued to consult with the appellant as their psychiatrist notwithstanding his offending behaviour and, further, the fact that JG and CL did not make a contemporaneous complaint about his offending behaviour.

367 Secondly, the trial judge directed the jury in her summing up as to the particular or limited purposes for which they could use the evidence of each of AW, LB and MM, if they accepted her evidence as truthful and reliable. I have set out her Honour's directions at [307] - [309] and [312] above.

368 Thirdly, all 'propensity evidence' and 'relationship evidence' which has significant probative value will be prejudicial to the accused in that it will be evidence which tends (either in itself or with other relevant evidence) to establish guilt. However, in the present case, in the context of:

(a) the powerful and prejudicial evidence given by the complainants, JG and CL; and

(b) the particular or limited purposes for which the jury could use the evidence of AW, LB and MM combined with the trial judge's directions,

the admission of the evidence of AW, LB and MM did not create a material risk that the appellant would not receive a fair trial.

369 I am satisfied, for the reasons I have given, that the admission of the evidence of AW, LB and MM did not occasion or give rise to an unfair trial for the appellant. The directions as to the use that could be made of their evidence would have been comprehensible to the jury, and the directions properly confined the relevant and permissible prejudice occasioned to the appellant by their evidence.

370 I turn now to consider the decision of the High Court in Phillips and whether that decision required that the evidence of AW, LB and MM be excluded.

371 In Phillips, the appellant was tried before a judge and jury on six counts of rape and one count each of assault with intent to rape and indecent assault as a result of separate incidents involving six female teenagers. The trial judge rejected applications before arraignment for separate trials. The judge directed the jury that the evidence of one complainant could be used in relation to the counts involving the other complainants on the issue of the reliability of each complainant's evidence that she did not consent to the sexual activity. The judge instructed the jury that such evidence was relevant to the improbability of all complainants giving false or unreliable evidence about consent. The appellant was convicted on six of the eight counts. The High Court held that the evidence was inadmissible, the conviction should be quashed and there should be separate trials.

372 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said:

Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But 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 his. The trial judge kept referring to 'the improbability of similar lies' on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen ((1988) [1988] HCA 50; 165 CLR 292 at 295); however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.

Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants' evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.

...

Evidence by other complainants that they had not consented to the sexual acts allegedly performed on them by the appellant had no more probative value than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant. Like the evidence of the other complainants in this case, evidence of that kind may demonstrate some 'propensity' in particular complainants, but it demonstrates nothing about the appellant.

In short, as counsel for the appellant submitted, the evidence, tendered as it was on the issue of the consent of each complainant, was irrelevant to that issue. 'Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding' (Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at 1025 [2]; [2002] HCA 31; 190 ALR 370 at 371 per Gleeson CJ. See also Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at 653 - 654 [6] per Gleeson CJ, Gaudron, Gummow and Hayne JJ). Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent [46] - [47], [49] - [50].

373 In Osborne, Wheeler JA analysed the passage from the reasons in Phillips which I have reproduced. Her Honour (Miller JA agreeing) said:

Those observations, however, must be understood against the background of the way in which the issue arose in Phillips. Before I describe that background, 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. To take the example of one of the counts in Phillips, there was evidence that the accused had menaced one of the complainants with a thick chain. If, by way of example, six complainants had said that the accused had menaced each of them with a particular type of chain, using similar words, in similar circumstances, that would be similar fact evidence bearing upon the question of whether he behaved towards them as he said he did. Equally, evidence that a complainant submitted to a sexual encounter after being menaced with a thick chain would be evidence which was relevant to 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, on 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].

I respectfully agree with Wheeler JA's analysis and comments.

374 I accept that, as a matter of logic, the fact that one complainant denies that he or she consented to sexual penetration by an accused is not logically probative of whether another complainant consented to sexual penetration by the accused.

375 However, the decision of the High Court in Phillips does not preclude the admissibility of the evidence of AW, LB and MM for the particular or limited purposes I have mentioned at [359] - [364] above, even though the evidence in question may bear indirectly upon the issue of actual consent.

376 As Wheeler JA noted in Osborne [24], [31] - [36], Phillips was concerned with the common law test, as enunciated in Pfennig, for the admissibility of similar fact evidence in a criminal trial. Section 31A of the Evidence Act substantially amended the common law including in relation to the criterion of admissibility and the role of a trial judge in relation to propensity evidence and relationship evidence. It is unnecessary, in these reasons, to recount the basis on which Wheeler JA distinguished Phillips from the case with which her Honour and the other members of the court were concerned. It is sufficient, for present purposes, to note that I respectfully agree with her Honour's reasoning and conclusions.

377 I am satisfied that the trial judge adequately directed the jury in relation to the distinction between the impermissible use of the evidence of AW, LB and MM in relation to the issue of actual consent by the complainants, JG and CL, on the one hand, and the permissible use of that evidence for the particular or limited purposes I have mentioned, on the other.

Appeal against conviction: the merits of ground 2

379 Ground 2 asserts, in essence, that the trial judge erred in her directions to the jury about the standard of proof applicable to the 'propensity' evidence given by AW, LB and MM.

380 The trial judge directed the jury in relation to this evidence:

Obviously, and I have mentioned it a few times already, before using the evidence in the way that I have said you are entitled to and only in that way, first you must be satisfied that the evidence of the witnesses is truthful and accurate. In other words, you must be satisfied that the events they talk about actually occurred in the way the witnesses say.

However, you don't have to be satisfied beyond a reasonable doubt; it's only the charges on the indictment that have to be established beyond a reasonable doubt, but you certainly do have to be satisfied that the evidence of the witnesses with respect to which there aren't any charges is truthful and accurate. So in other words, you make the same assessment of that evidence as you do of all other evidence. It's always for you to determine whether the witness has been truthful and whether they are accurate (ts 408).

381 In HML, the High Court considered three criminal proceedings from South Australia involving sexual abuse against children. The proceedings were against three different accused, but raised common issues as to the treatment of the evidence by the child complainants of 'uncharged acts'. The absence of consent was not an element of any of the offences in question.

382 In the High Court there were, relevantly, three issues. First, in what circumstances is evidence of other sexual acts or general sexual abuse directed at a child complainant by an accused admissible? Secondly, if evidence of other sexual acts or general sexual abuse is admitted into evidence, what directions should the trial judge give to the jury in relation to the evidence? Thirdly, if evidence of other sexual acts or general sexual abuse is admitted into evidence, does the State have to prove beyond reasonable doubt that the 'uncharged acts' in question in fact occurred before the jury may take them into account in determining the guilt or innocence of the accused on the offences with which he or she has been charged?

383 The resolution of these issues involved, with one exception, the application of common law principles. The exception was a belated attempt, which was unsuccessful, made in oral argument by one of the appellants to rely on s 34I of the Evidence Act 1929 (SA). That section was subsequently repealed by s 17 of the Statutes Amendment (Evidence and Procedure) Act 2008 (SA). Section 34I related to, amongst other things, corroboration warnings in sexual cases. The same provisions are, in substance, now contained in s 34L of the Evidence Act 1929 (SA). In South Australia, the relevant common law principles have not been superseded or modified by statute. Compare, in Western Australia, s 31A of the Evidence Act; in Victoria, s 398A of the Crimes Act 1958 (Vic); in New South Wales, s 97, s 98 and s 101 of the Evidence Act 1995 (NSW); and in Tasmania, s 97, s 98 and s 101 of the Evidence Act 2001 (Tas).

384 HML was decided by seven judges of the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan & Kiefel JJ). Each of them, except Gummow J, published substantial reasons. Gummow J agreed primarily with Hayne J, but his Honour also agreed with Kirby J on one aspect. It is difficult to ascertain a majority view on each of the three issues except, probably, in relation to the standard of proof applicable to 'uncharged acts' before the jury may take them into account in determining the accused's guilt or innocence on the offences with which he or she has been charged. This is apparent from an examination of the reasons in HML and from numerous decisions of intermediate courts of appeal which have recently considered HML.

385 In Sadler, the Court of Appeal of Victoria (Nettle, Redlich & Dodds-Streeton JJA) considered whether HML applies in Victoria to the admissibility of evidence of uncharged acts. Their Honours, in joint reasons, referred to s 398A of the Crimes Act 1958 (Vic), which is concerned with the admissibility of propensity evidence, and provides:

(1) This section applies to proceedings for an indictable or summary offence.

(2) Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

(3) The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in subsection (2).

(4) Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.

(5) This section has effect despite any rule of law to the contrary.

Section 398A of the Crimes Act 1958 was enacted to overcome the High Court's decision in Pfennig v The Queen. It adopted as the test of admissibility of propensity evidence relevant to a fact in issue, whether the court considers that it is just to admit it despite its prejudicial effect; and it expressly provides in s 398A(3) that the possibility of a reasonable explanation consistent with the innocence of the person charged with the offence is not relevant to admissibility. Consequently, prior to HML, the admissibility of uncharged acts evidence in Victoria was taken to be governed by the pre-Hoch common law test of whether the probative value of the evidence sufficiently outweighs its prejudicial effect as to warrant its admission and, therefore, subject to that test, evidence of uncharged acts was admissible in Victoria not only in circumstances in which it amounted to an essential or important step in the process of reasoning to guilt (as would probably be the case if it were evidence of a prior sexual interest in a complainant or of strikingly similar conduct to the charged act), but also in circumstances in which it was not an essential step in the process of reasoning to guilt (such as where it was adduced to make intelligible a complainant's account of the charged acts, or to show that a complainant is not purporting to describe an isolated event or where a complainant's account might otherwise appear implausible) [48]. (footnotes omitted)

387 After examining the competing views expressed in HML, Nettle, Redlich and Dodds-Streeton JJA said they understood the ratio of HML to be confined as follows:

[W]here evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig, and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt [59]. (footnotes omitted)

388 Their Honours then made these observations which distinguish between evidence of uncharged sexual acts and evidence of other uncharged acts:

Despite the strength of the judgments of Kirby and Hayne JJ (and thus of Gummow J) and the observations of Heydon J, as to the need for uncharged sexual acts to be proved beyond reasonable doubt in jurisdictions where Pfennig provides the criteria for admissibility, the majority of judges in HML did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt.

We further observe that two members of the majority (Kirby and Heydon JJ) expressly limited the decision in HML to jurisdictions in which Pfennig is still the law and, on one view of Hayne J's reasoning, his Honour's conclusion was similarly limited. If we may say so with respect, it appears more likely that his Honour's reasoning was intended to apply to all Australian jurisdictions. But even if that is so, as a matter of stare decisis we consider that the ratio of the decision must still be understood as limited to Pfennig jurisdictions.

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.

If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML.

Prior to HML, the position under the pre-Hoch test which applies in Victoria was that:

1. The Crown was not to be permitted to rely on evidence of uncharged acts as establishing a propensity to commit acts of the kind charged unless the uncharged acts were strikingly similar to the charged acts or it was otherwise possible to discern such an underlying unity between the uncharged acts and the charged acts as to make coincidence an affront to common sense.
2. If the Crown satisfied that test and was thus permitted to rely upon evidence of uncharged acts as evidence of propensity to commit offences of the kind charged, the jury had to be directed that the uncharged acts as well as the charged acts must be proved beyond reasonable doubt.
3. The Crown was permitted to rely on evidence of uncharged acts for a purpose other than establishing propensity to commit offences of the kind charged (for example, to make intelligible a complainant's account of the charged acts, or to show that a complainant was not purporting to describe an isolated event or where a complainant's account might otherwise appear implausible) if the probative value of the evidence for that purpose so much outweighed its prejudicial effect as to make the receipt of the evidence just.
4. If the Crown satisfied that test, and was thus permitted to rely on evidence of uncharged acts for such a purpose only, but not for the purpose of establishing a propensity to commit offences of the kind charged or as making it more likely that the accused committed the crime (probability reasoning):
   1. the judge would ordinarily have directed the jury that they may only use the evidence for the purpose for which it has been admitted and for no other purpose; that the offences charged can only be proved by the evidence relating to those charges and not by evidence relating to the uncharged acts; and that they are not to reason from the evidence of the uncharged acts that the accused is the sort of man who is likely to have committed the offence charged; and
   2. in this circumstance, the judge was not required to give separate directions about the standard of proof applicable to that evidence.

Now because of the limited ratio of HML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference. Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.

We do not consider that the same applies to uncharged acts of a non-sexual nature. Apart from jurisdictions in which Pfennig still applies, nothing which was said in HML appears to us to question existing law as to the purposes for which evidence of uncharged acts of a non-sexual nature may be tendered, or as to the directions which a trial judge should give to the jury concerning the use which may be made of such evidence and the standard to which such uncharged acts must be proved.

It follows in our view that, until and unless the High Court says otherwise, in the case of uncharged non-sexual acts a judge is not required to give a separate direction about the standard of proof applicable to that evidence unless the judge perceives that there is a real risk of the jury using that evidence as an important step in their process of reasoning to guilt. In that event, the jury should be directed that they should not rely on the evidence for that purpose unless satisfied of its truth beyond reasonable doubt. Where no such risk is perceived, no such direction about the standard of proof of the uncharged non-sexual acts need be given [60] - [67]. (footnotes omitted)

See also my discussion in PIM v The State of Western Australia [2009] WASCA 131 [246] - [287] of various decisions of intermediate courts of appeal since HML.

389 Section 31A of the Evidence Act does not deal with the standard of proof in relation to evidence admissible under that provision.

390 Before the decision in HML, it was well-established that although the guilt of an accused on the charge against him or her must be proved beyond reasonable doubt, an 'uncharged act', which has been admitted generally, may be considered together with the other evidence and, for that purpose, does not have to be proved to a particular standard. It may be considered together with the other evidence which, as a whole, must prove the accused's guilt beyond reasonable doubt if he or she is to be convicted. But if the 'uncharged act' is an indispensible link in a chain of evidence necessary to prove the accused's guilt, then the 'uncharged act' must be proved beyond reasonable doubt before he or she may be convicted. See Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 626 - 627 (Deane J); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585 (Dawson J); Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson & Gaudron JJ); Best (618) (Callaway JA). Consistently with the principle established by these authorities, in Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1, the Court of Criminal Appeal of Western Australia (Murray, Templeman, Wheeler, Miller & McKechnie JJ) said:

Generally, there is no need to do more than to refer to the need, before the jury has regard to the extraneous conduct, to find the facts established by truthful and accurate evidence. Only if the evidence has the sort of direct relevance to the proof of facts constituting the offence charged that it might be regarded as providing links in a chain of proof of guilt, should the jury be specifically directed that they may not so use the evidence in question unless satisfied of the facts established by that evidence beyond reasonable doubt. In this case it is apparent that in this regard the trial Judge made no error of law [44].

391 In my opinion, the point raised by ground 2 of the appeal against conviction is to be resolved by the application of the principles in Shepherd and not by reference to HML or Sadler.

392 Sadler is authority for the proposition, relevantly, that until the High Court provides further guidance on the point, a trial judge should, ordinarily in a child sex case, direct the jury that they should not conclude, on the basis of evidence of uncharged sexual acts, that the accused had a sexual interest in the child complainant unless they are satisfied beyond reasonable doubt of the existence of the sexual interest. I agree, with respect, with the analysis of HML made by Nettle, Redlich & Dodds-Streeton JJA in Sadler [59] - [67]. See my observations in PIM [316] - [319].

393 HML and Sadler are distinguishable, however, from the present case and the proposition I have just stated does not apply, either directly or by analogy. That proposition was formulated in the context of child sex cases where the accused denied having sex with the child or children in question and also denied having a deviant sexual interest in children generally. By contrast, in the present case, the appellant acknowledged having had sexual relations at the material time with some of his female patients, including the complainants, JG and CL, and the 'propensity' witnesses, AW and MM.

394 In my opinion, it was unnecessary, on the authority of Shepherd, for the evidence of each of AW, LB and MM in relation to 'uncharged acts' to be proved beyond reasonable doubt before the jury could rely on it for the particular or limited purposes I have mentioned. Their evidence of uncharged acts was not an indispensible link in a chain of evidence necessary to prove the appellant's guilt in relation to the counts in the indictment. The only relevant indispensible links in the chain of evidence necessary to prove the appellant's guilt comprised the evidence of the complainants, JG and CL, as to the particular acts alleged in the counts in the indictment and the occurrence of those acts without their consent.

396 The orders sought by counsel for the appellant were that the appeal be allowed, the convictions be quashed and a re-trial be ordered. Counsel did not contend that this court should enter verdicts of acquittal. The possibility of verdicts of acquittal being entered was not raised by the court or counsel for either party.

397 Even if, contrary to my view, ground 1 or ground 2 had any merit and the appeal should have been allowed, I would have ordered a re-trial. Certainly, I would not have entered verdicts of acquittal without having heard from counsel for the parties (in particular, counsel for the State) on the issue. This accords with the usual procedures of this court which are based on the principles of procedural fairness.

Appeal against sentence: the grounds of appeal

399 The appellant relies on two grounds in his appeal against sentence. First, he asserts that the net effective head sentence imposed infringed the totality principle. Secondly, he contends that the trial judge erred in law in finding and treating as an aggravating factor that the appellant had committed offences against the 'propensity' witnesses.

Appeal against sentence: the trial judge's sentencing remarks

400 The trial judge made particular reference to the following aspects of the appellant's offending behaviour:

(a) The appellant was a psychiatrist and psychotherapist and the complainants were his patients (ts 497 - 498).

(b) The complainants were young mothers who were suffering from mental illnesses when they consulted the appellant (ts 498).

(c) The offences occurred in the appellant's consulting room and on many occasions the door was locked (ts 499).

(d) The appellant had sexual intercourse with JG when she was heavily pregnant. He acknowledged that having intercourse with her at that stage posed a risk to her and the baby (ts 500).

(e) The appellant abused his position of power in relation to JG and her fears of not being well enough to care for her children (ts 501).

(f) The appellant indicated to JG that he had the power to send her to a place where 'she no longer had her freedom or control of her life' (ts 501).

(g) The appellant applied pressure to JG repeatedly to retain her as a patient (ts 502 - 503).

(h) The appellant's actions could not have had any positive effect on JG's mental health (ts 506).

(i) CL told the appellant at the outset that she was not interested in 'bed therapy' (ts 503).

(j) CL was desperate to talk to someone as a result of her personal circumstances (ts 504).

(l) The appellant was aware that CL had been a victim of previous sexual abuse and, on his own evidence, 'bed therapy' was inappropriate for a victim of sexual abuse (ts 507).

(m) The offences committed against JG and CL were not out of character for the appellant (ts 504).

(n) The offending conduct occurred over an extended period (ts 504).

(o) JG and CL suffered terribly throughout the period of offending (ts 505).

(p) The appellant's evidence that his relationship with each of JG and CL was loving and mutually consensual increased the level of humiliation and pain experienced by them (ts 506).

(q) The appellant's assertion that his sexual interaction with JG and CL was a form of therapy was 'no more than a poor excuse for abusing [his] position by having sex with [his] patients' (ts 506).

(r) The appellant had demonstrated little, if any, remorse or empathy for his victims (ts 508).

(s) When JG and CL made complaints about the appellant to the Medical Board, he exaggerated their mental illnesses to protect himself (ts 508).

(t) The appellant's actions were entirely selfish (ts 508).

(u) JG and CL had experienced ongoing detriment as a result of the appellant's offending (ts 509 - 511).

(v) The appellant's offending behaviour involved a degree of coerciveness (ts 516).

401 The trial judge noted various mitigating factors, as follows:

(b) The appellant's parents were lacking in affection towards him, and he was sexualised at a very young age by witnessing them having sex (ts 509).

(c) The appellant alleged that he was sexually abused at the age of 7 by a 12-year-old boy (ts 509).

(d) The appellant was at a low risk of re-offending. This, combined with the appellant's advanced age and deteriorating health, indicated there was no need for an element of personal deterrence in the sentence (ts 509 - 510, 518).

(e) The appellant was suffering from the onset of early dementia and age-related heart problems. He did not currently suffer from dementia, but he would do so in the near future (ts 509, 511).

(f) The appellant suffered from a major depressive disorder and may have been suffering from significant depression at the time of the offences (ts 511).

(g) The trial judge had received numerous written references which spoke well of the appellant. However, most of these references displayed a profound lack of insight into the appellant's proven criminality (ts 511 - 512).

(h) The appellant had a good professional reputation, but his offending conduct indicated that this reputation was undeserved (ts 512).

(i) Many years had elapsed since the commission of the offences, but the appellant had contributed to the delay (ts 512).

Appeal against sentence: the State's submissions

402 Counsel for the State submitted that the most substantial mitigating factor was the appellant's advanced age and associated illnesses at the time of sentencing.

403 It was submitted that the trial judge rightly noted that 'the reason [he was] being dealt with at this age is a matter of [his] own doing' (ts 518). JG and CL had made complaints to the Medical Board at a time much closer to the period of offending. However, the appellant's actions in defending these complaints resulted in his avoiding repercussions when he was a much younger man. Further, the appellant's denial of the allegations exacerbated the complainants' distress.

404 It was submitted that, in the circumstances, the mitigating effect of the appellant's advanced age and associated illnesses was diminished by his own conduct after the period of the offending. A heavy discount on the term of imprisonment that would otherwise have been appropriate was not warranted.

405 According to counsel for the State, the net effective head sentence of 10 years' imprisonment did not infringe the totality principle.

Appeal against sentence: the merits of ground 1

406 The primary sentencing considerations for offences of the kind in question are punishment of the offender, and specific and general deterrence. See Thorn v The State of Western Australia [2008] WASCA 36 [49] (Buss JA, Wheeler & Miller JJA agreeing).

407 In The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P reviewed numerous authorities which reveal the range of sentences customarily imposed for offences involving sexual penetration without consent [4] - [67]. It is unnecessary to reproduce his Honour's review. It is sufficient to note his Honour's conclusions (McLure JA agreeing):

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA) [68].

See also Warburton v The State of Western Australia [2009] WASCA 113 [9] - [21] (Wheeler JA, Pullin & Miller JJA agreeing).

408 Although there is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances (after having regard to the maximum available penalty), it is nevertheless important, in deciding whether a particular sentence infringes the totality principle (or, indeed, is manifestly excessive), to appreciate what sentences are customarily imposed in cases involving similar offending. Otherwise, as Steytler P pointed out in Akizuki, there is a risk that sentencing will become idiosyncratic and arbitrary [3].

409 As Steytler P noted in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, whether sentences for multiple offences should be made cumulative, partly concurrent or wholly concurrent arises at two of the three stages in the sentencing process. The orthodox approach is to decide upon the appropriate sentence for each offence, then to decide whether the sentences should be made cumulative, partly concurrent or wholly concurrent in accordance with established principle and, finally, to decide upon the net effective or total head sentence by reference to the totality principle [54].

410 The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 - 309 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] - [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).

411 Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be 'crushing' for the purpose of the totality principle. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 - 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] - [35] (Redlich JA, Neave JA agreeing).

412 However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.

413 The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

414 In the present case, there was evidence before the trial judge as to the appellant's ill-health. In particular, there was evidence that he suffers from:

(a) heart valve incompetence and mild heart failure due to a pulmonary embolism in 1973;

(c) a long history of pain and reduced neck movement due to cervical spondylosis;

415 In my opinion, the net effective head sentence of 10 years' imprisonment imposed on the appellant was a 'crushing' sentence in that it destroyed any reasonable expectation of useful life after release from custody. My reasons for that opinion are these.

416 First, the appellant was aged 80 years at the time of sentencing. He will not complete his sentence until he is 90.

417 Secondly, the appellant will, in the near future, suffer from dementia and age-related heart problems.

418 Thirdly, there is a substantial likelihood that the appellant may die before he completes his sentence. Alternatively, if he survives to the age of 90 years, his dementia will have significantly diminished, if not entirely destroyed, the quality of his life.

419 Fourthly, in the circumstances I have described at [416] - [418] above, and having regard to the absence of any requirement for personal deterrence, and the apparent limited necessity for general deterrence in relation to psychiatrists and clinical psychologists as a class, a sentence of 10 years' imprisonment exceeded the range of sentences required by the applicable sentencing considerations or to ensure that the appellant's punishment was fairly proportionate to the offences he committed.

420 Fifthly, this court received in evidence on the appeal, without objection from the State, an affidavit of Alixandra McGregor sworn 11 November 2009. Ms McGregor is the appellant's solicitor. She annexed a letter dated 6 November 2009 from a medical practitioner, Joseph Diaz, which indicates that the appellant's state of health has deteriorated since his imprisonment. Dr Diaz refers to the appellant having been detained in the infirmary at Casuarina prison 'due to his limited mobility secondary to osteoarthritis and fatigue related to his anaemia'.

421 It is true that the trial judge referred in her sentencing remarks to the appellant's advanced age and his health. Nevertheless, on the basis of the matters I have set out at [415] - [419] above, I infer error in the sentencing process (that is, the imposition of a 'crushing' sentence). See House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).

Appeal against sentence: the merits of ground 2

423 It is unnecessary, in the circumstances, to deal with ground 2.

424 This court has the materials necessary to re-sentence the appellant.

425 The appellant's offences were, without doubt, very serious. His conduct towards JG and CL was disgraceful. It involved an appalling breach of trust and derogation from his professional responsibility. Each of the complainants was vulnerable and in need of psychiatric treatment for significant mental health issues. The appellant abused his position of power, to the detriment of the complainants, for his own selfish gratification. His offences were not, however, within the 'worst category' for the purposes of the majority's decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129.

426 I consider that a net effective head sentence of 6 years' imprisonment would be commensurate with the seriousness of the appellant's offences after taking into account the statutory penalties for the offences (see s 10 of the Sentencing Act 1995 (WA)), the circumstances of their commission (including the vulnerability of the complainants and the effect on them of the offending) and all aggravating and mitigating factors. I have not taken into account, as an aggravating factor, the appellant's sexual interaction with the 'propensity' witnesses. Otherwise, I have taken into account the aspects of the appellant's offending behaviour referred to by the trial judge, the various mitigating factors noted by her Honour, the absence of any requirement for personal deterrence, the apparent limited necessity for general deterrence, and the additional evidence adduced in the appeal.

427 No complaint is made about the individual sentences. They should not be disturbed. The net effective head sentence of 6 years' imprisonment should be achieved by making each individual sentence concurrent with the other sentences.

428 I would order the terms of imprisonment to commence on 21 November 2008 (being the date on which the appellant was taken into custody). The parole eligibility order should not be disturbed. The appellant will be eligible to be considered for release on parole after having served 4 years' imprisonment calculated from 21 November 2008.

429 I would allow the appeal against sentence, and re-sentence the appellant in the manner I have indicated.