Stubley v Western Australia

Stubley v Western Australia - [2011] HCA 7 - HCA 2010 case summary — Zoe

[10]

Background facts

The appellant was a medical practitioner with a specialist qualification in psychiatry. Between 1965 and 2000, he had engaged in private practice as a psychiatrist and from about 1966 until about 1976 he also consulted as a psychiatrist at Royal Perth Hospital.
Between 1975 and 1978, the appellant was alleged to have engaged in sexual activity with two women, JG and CL, without their consent. Each was his patient at the time and the offences were alleged to have occurred in his consulting rooms during appointments scheduled for psychotherapy.
JG was the appellant's patient from 1974 to 1996. The sexual encounters commenced between December 1975 and January 1976 and ended some time before December 1980. In 1983, JG was questioned by a person from the Medical Board regarding an unspecified complaint. She did not speak about sexual intercourse on that occasion as she said she feared the appellant and that she would "end up in an institution". She made complaints, through her lawyers, to the Medical Board of Western Australia in 1996, and to the police in 2006.
CL was a patient of the appellant between 1976 and 1981 and the sexual encounters extended over four years, commencing in 1977. CL made complaints to the Medical Board of Western Australia in 1981.
The appellant was charged under the Criminal Code (WA) ("the Code") with 14 offences relating to sexual activity with JG and CL: seven counts of rape; one count of attempting to commit rape; and six counts of unlawful and indecent assault. The offences against JG were alleged to have been committed on unknown dates between 8 December 1975 and 31 August 1978. The offences against CL were alleged to have been committed on unknown dates between 1 January 1977 and 30 June 1978[2].
Prior to the trial the prosecution notified the appellant that it intended to call LB, MM and AW to give evidence of indecent touching by him or sexual intercourse with him in his consulting rooms when they were his patients. No offences involving these three women were charged in the indictment. The admissibility of the evidence was determined under s 31A of the Evidence Act 1906 (WA).

[20]

The pre-trial application

Before his trial commenced, the appellant applied for an order for separate trials and to exclude the evidence of LB, MM and AW[9]. On the hearing of the application, the appellant's counsel conceded that the counts charging offences against JG and CL were properly joined in the indictment and the application for separate trials was withdrawn[10]. No issue with respect to joinder, or the evidence of JG and CL of sexual acts committed against them by the appellant that were not the subject of charges, or of the evidence of JG in the trial of the counts involving CL and vice versa, was raised on the appeal.
The application to exclude the evidence of LB, MM and AW was maintained. Senior counsel for the appellant informed the trial judge that the appellant would admit at the trial that during the period identified in the indictment "some or all of the acts of a sexual nature occurred" but would assert that the acts were consensual[11]. Counsel conceded that the evidence of LB, MM and AW was "propensity evidence". The evidence of LB, MM and AW appears to have been tendered to prove the appellant's tendency to act in a particular way. The prosecutor submitted that the relevance of the evidence was its capacity to prove the applicant's conduct in "bringing about a situation where sexual activity occurs, without consent in its legal sense, but without opposition or resistance from the particular complainant"[12].
Johnson J was conscious of this Court's decision in Phillips v The Queen. In that case it was said that the question of whether one complainant consents to sexual activity with an accused does not relevantly bear on the assessment of the evidence of another complainant that she did not consent to sexual activity with that accused[13]. On the authority of State of Western Australia v Osborne her Honour held that "where there is an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addresses lack of consent does not make it inadmissible"[14]. In this respect she identified two issues to which the evidence was directed[15]. The first issue was "the conduct of the accused both before and after engaging in sexual activity with the witnesses". The second issue was "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". Her Honour concluded that the evidence of the three witnesses had significant probative value and that fair-minded people would think that the public interest in adducing it must have priority over the risk of an unfair trial[16]. She did not explain how, in light of the indication that JG's and CL's evidence that the appellant engaged in sexual intercourse with them in the course of consultations was not disputed, evidence of his conduct before or after intercourse was probative of any issue in the trial. There was no identification of the asserted tendency or feature of the conduct of the appellant which the evidence of LB, MM and AW was admitted to prove. There was no further explanation of what her Honour described as the "second issue". No matters personal to LB, MM and AW having the capacity to explain the absence of complaint were identified.

[25]

About one or two weeks after this incident, JG attended for a further appointment with the appellant. In the course of the consultation the appellant threw a cushion on the floor and he lay down, saying "come lie with me". JG remained seated. The appellant repeated his request in "a very authoritarian way". After a time she complied. The appellant undid his trousers, removed JG's stockings and underwear, and had sexual intercourse with her. Before removing his trousers, JG said "I don't want you to do this". The appellant ignored her. JG was crying during the intercourse, which lasted for 10 or 15 minutes. Afterwards the appellant stood up and dressed. JG remained on the floor, crying. After a time she pulled up her clothing and sat on a chair. She was sobbing. There were two doors leading from the consulting room. One gave out to the waiting area and the other to the fire exit. The appellant opened the door to the fire exit and JG ran out of the room and down the fire stairs. Later, the appellant's receptionist telephoned JG and fixed a further appointment for her.
JG attended the third appointment. She was angry and she told the appellant that she wanted to know "what this was all about". He replied that "it's part of your therapy and you need to continue to come". He also 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". There was no sexual contact during this consultation.
JG continued to see the appellant following the third consultation. On occasions the appellant had sexual intercourse with her during the consultations. JG had no recollection of particular instances. She attended consultations at the West Perth rooms for perhaps a year. Counts one and two were the only offences alleged to have occurred at the West Perth rooms. The pattern of the uncharged sexual conduct described by JG was similar to her account of the incident charged in count two. On each occasion the appellant had thrown a cushion on the floor and invited JG to lie down with him and he had proceeded to have intercourse with her. On one occasion JG said to the appellant "I don't understand why I have to be doing this". He replied "it's part of your therapy and if you don't do it then, you know, you get your depression back, you'll have to go back to hospital and you'll be apart from your child and your husband".

[53]

Buss JA's reasons for concluding that the evidence of LB, MM and AW had been correctly admitted did not depend upon the capacity of the evidence to prove (by itself or with other evidence) that the appellant engaged in sexual relations with JG and/or CL during consultations. The probative value of the evidence that his Honour identified was its capacity to rationally affect, directly or indirectly, to a significant degree, four matters[23]. First, "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". Second, "the probability of whether the complainant actually consented to the activity". Third, "the probability of whether the appellant had an honest and reasonable (but mistaken) belief that there was consent". Fourth, "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".
Buss JA considered that Phillips did not preclude the admission of the evidence of the propensity witnesses for purposes unrelated to consent, even though the evidence may have borne indirectly on this issue[24]. Owen JA added some further observations on the point observing that nothing said in Phillips rendered the propensity evidence inadmissible[25].
Pullin JA would have allowed the appeal against the convictions. His Honour considered that the evidence of AW, LB and MM could only have demonstrated the propensity of the appellant to have sexual encounters with women patients in his consulting rooms for the purpose of proving that the sexual encounters with JG and CL took place[26]. As this was not in issue at the trial, due to the admissions made by the appellant, his Honour found that evidence of his propensity was irrelevant to any live issue at trial.
Pullin JA perceived that the only live issue was "whether the [respondent] 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"[27]. His Honour noted that JG gave evidence of a threat made by the appellant (which was denied by the appellant) and that CL gave evidence of conduct which may have amounted to intimidation (which was also denied by the appellant)[28]. However, his Honour found that "none of [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 account of JG as to a threat or CL as to intimidation[29]. Pullin JA noted that there was some evidence as to whether or not AW, LB and MM consented. However, his Honour held that, in accordance with Phillips, given that whether one person consents or not is not relevant to whether another person consents or not[30], the evidence of AW, LB and MM was of no probative value for any purpose and therefore inadmissible under s 31A[31].

[54]

The appellant's admission

Section 32 of the Evidence Act provides that "[a]n 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 that such admission shall be sufficient proof of the fact without other evidence". The provision does not require that any particular formality attend the making of an admission. Nonetheless, counsel's statement made in the course of opening the appellant's case, that the appellant had been sexually intimate with JG and CL, was not an admission for the purposes of the provision. The appellant did not admit any fact sought to be proved against him. It remained incumbent upon the prosecution to prove each act of sexual conduct that it alleged in the 14 counts in the indictment. It follows that Pullin JA's discussion of the capacity of the prosecution to adduce evidence in proof of an admitted fact does not arise for consideration in this appeal[32].
The evidence of LB, MM and AW was capable of proving that the appellant had a tendency to engage in sexual relations with his patients during consultations. Proof of such a tendency was rationally capable of affecting the assessment of JG's and CL's evidence that the appellant had engaged in sexual relations with them during consultations. Owen JA considered the evidence of LB, MM and AW was relevant to proof that the acts alleged in the indictment occurred[33]. This was not the basis upon which the trial judge admitted the evidence. Her assessment of the probative value of the evidence of LB, MM and AW assumed the fact that sexual activity between the appellant and the two complainants was not in issue. The evidence was admitted as tending to establish the circumstances in which the sexual conduct occurred, this being relevant to the assessment of JG's and CL's evidence that they had not consented to the various acts charged in the indictment. Buss JA's analysis of the probative value of the evidence of the three witnesses also assumed that the fact of sexual relations between the appellant and JG and CL was not disputed[34].
The respondent acknowledged that the question of whether the appellant had engaged in the sexual activity alleged by JG and CL was not a live issue at the trial. The circumstance that the trial was conducted from the outset on the basis that JG's and CL's account that the appellant had sexual relations with them in the course of consultations was not disputed was material to the consideration of admissibility of the evidence of LB, MM and AW under sub-ss (2)(a) and (2)(b). The probative value of the evidence to prove that the sexual acts charged in the indictment occurred (by demonstrating the appellant's tendency to have sexual relations with his patients) ceased to be significant once it was known that JG's and CL's evidence that the appellant had sexual relations with them during consultations was not challenged. Furthermore, evidence of sexual misconduct not charged in the indictment committed against other women led in order to prove an issue that was not live in the trial, would not meet the test in sub-s (2)(b).
As noted earlier in these reasons, before the trial judge the evidence of LB, MM and AW was conceded to be "propensity evidence", with the result that no attention was directed to the identification of the particular tendency (or other feature of the conduct of the appellant) which it was tendered to prove. In the Court of Appeal and in this Court, the parties were agreed that the evidence had been admitted either as "propensity evidence," being the appellant's tendency to act in a particular way, or as "relationship evidence". Only one aspect of the six features of the "propensity evidence" identified by Buss JA was an attribute of the appellant. The remaining features might be thought to describe a class of persons: younger, vulnerable female patients. Perhaps for this reason his Honour considered the evidence of LB, MM and AW was "relationship evidence"[35]. That characterisation was not in issue on the appeal. Whether the evidence was admitted as propensity evidence or as relationship evidence its significant probative value is said by the respondent to have been its capacity to demonstrate the appellant's position of power and psychological ascendency over JG and CL.
Buss JA summarised the prosecution's submission as to the probative value of the evidence in this way[36]:

[58]

The provision drew a distinction between the absence of consent and "consent" that is vitiated by the presence of one or more of the stated circumstances. One vitiating circumstance was the making of false and fraudulent representations as to the nature of the act. There was no suggestion of that kind in the case of JG or CL. The Code did not define consent and the word bore its ordinary meaning[39]. Proof of absence of consent was directed to the subjective state of mind of the complainant at the time of penetration. It was not necessary that the complainant manifest dissent but it was necessary to prove either that she did not in fact consent or that her consent was vitiated in one of the ways contemplated by the section[40]. The law recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it, and her permission was not obtained by any of the means stated in s 325, the act was not rape[41].
The prosecution was also required to prove the complainant's absence of consent to the acts of unlawful and indecent assault. The Code distinguished absence of consent from consent that is obtained by fraud[42]. Nothing was said to turn on the difference between proof of absence of consent for the offence of rape and for the offence of unlawful and indecent assault. It was the prosecution's case that JG and CL did not consent to any of the sexual conduct charged in the indictment or that their consent was obtained by threats or intimidation. JG and CL each gave evidence that she had not consented. Each also gave evidence of the appellant's conduct that was capable of being viewed as threats or intimidation designed to induce consent.
Neither LB, MM nor AW gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity. The respondent conceded that the evidence of these witnesses could not rationally affect the assessment of the likelihood that JG's or CL's consent had been obtained by threats or intimidation.
The probative value of the evidence of LB, MM and AW was confined to the case that JG and CL did not consent to the acts charged. In this Court the respondent submitted:

[61]

The assessment of JG's and CL's reasons for continuing treatment

The majority in the Court of Appeal considered that the evidence of LB, MM and AW was capable of rationally bearing on the assessment of the plausibility of the reasons given by JG and CL for not complaining and for continuing to attend on the appellant for treatment. This was the fourth way in which the evidence of the three witnesses was said to have significant probative value[43]. It was the second respect in which the trial judge assessed the evidence to have significant probative value.
The absence of timely complaint was relevant to the credibility of JG's and CL's evidence that neither had consented to the sexual conduct[44]. It may be doubted that evidence was admissible in order to support acceptance of the plausibility of JG's or CL's account in either of these respects[45]. The evidence of LB, MM or AW in any event did not have the capacity to bear rationally on the determination of any collateral issue involving the reasons for JG's late complaint and the continuation of her treatment by the appellant, nor for CL's continuation of treatment.
In examination in chief JG was asked why she had continued to see the appellant for so many years given his conduct towards her. The question, which went only to JG's credibility, was not the subject of objection. JG said that she had wanted to see another psychiatrist but that she had been dissuaded from this course because she was part-way through her therapy. She also said that she was suffering from depression, that she had undergone a traumatic divorce and that she had developed a degree of dependency on the appellant. JG was cross‑examined to suggest that it was unlikely that she would continue to seek treatment from the appellant had he been sexually abusing her. JG responded that she had "dissociated" and that she feared being committed to an institution.
CL stopped seeing the appellant in 1981 and she complained to the Medical Board about his conduct in that year. The prosecution did not seek to lead evidence of CL's reasons for not making a prompt complaint. The challenge to CL's evidence of non-consent was not directed to any claimed delay in making a complaint or in continuing to attend the appellant for treatment.
LB moved interstate, as she had planned to do, shortly after the incidents of sexual abuse occurred. MM confronted the appellant a week after sexual intercourse telling him that there was to be no further sexual contact. He agreed. MM's reasons for not complaining included that she did not want to lose her job. AW was infatuated with the appellant and engaged in sexual relations with him to get his attention. After a period of hospitalisation during which AW came to appreciate the wrongfulness of the appellant's conduct, she confronted him in the presence of a group of his patients.
The differing accounts of the sexual abuse experienced by LB, MM and AW were not capable of bearing rationally on the assessment of the reasons given by JG for continuing to undergo treatment and for not complaining about the appellant's conduct. It was equally incapable of bearing rationally on the assessment of CL's reasons for continuing to attend consultations with the appellant over the four year period that the sexual conduct took place.

[62]

The defence of honest and reasonable but mistaken belief in consent

In the event that the jury were satisfied beyond reasonable doubt that JG or CL did not consent to any act charged in the indictment, it was necessary to consider whether the prosecution had established beyond reasonable doubt that the appellant did not have an honest and reasonable but mistaken belief that either JG or CL had consented[46]. It was open to the prosecution to lead evidence to negative the "defence" of honest and reasonable belief in its case. It was incumbent on it to establish the absence of such a belief regardless of whether the appellant gave evidence that he held that belief. However, nothing in the evidence of the LB, MM or AW, when taken with that of JG and CL, was capable of relevantly bearing on the exclusion of the defence. The evidence of JG, CL, LB, MM and AW was capable of proving a pattern of sexual misconduct between the appellant, a psychiatrist, and younger, vulnerable, female patients. It was open to reject the appellant's account that his motives were altruistic and to conclude that he knowingly took advantage of the dynamics of the therapeutic relationship to manipulate his patients into having sexual relations with him.
LB removed her clothes to make the appellant feel better because she felt embarrassed on his behalf. MM said she did not want to have sexual intercourse with the appellant but she had not known how to convey her revulsion. AW initiated sexual contact with the appellant in an endeavour to get his attention on occasions. She fellated him while he sat in his chair somewhat impassively. It may have been open to conclude that the appellant well understood the dynamics which led AW to act in this way and that he appreciated his gross professional misconduct in fostering the situation. However, manipulating a person into sexual intercourse by exploiting that person's known psychological vulnerability would not, without more, vitiate their consent. The cynical exploitation of the appellant's position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.
The jury were not directed that it was open to have regard to the evidence of LB, MM or AW in assessing whether the prosecution had negatived the appellant's honest and reasonable but mistaken belief in consent. The respondent acknowledged that there were "difficulties" with the directions given as to the use the jury might make of the evidence of the propensity witnesses. In this Court the respondent did not advance any basis upon which the evidence of LB, MM or AW might have tended towards negativing the defence of honest and reasonable mistake save by recourse to the contention that the evidence of these witnesses demonstrated the appellant's psychological ascendency over his patients. Absent any feature of the evidence tending to demonstrate the appellant's awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by the "defence".
The evidence of LB, MM and AW did not have significant probative value under s 31A(2)(a) of the Evidence Act. It should not have been admitted into evidence at the appellant's trial.

[63]

The disposition of the appeal

The appellant submitted that taking into account his age and poor health, the proper order was to allow his appeal, set aside his convictions and enter a verdict and judgment of acquittal on each count. In the Court of Appeal the appellant was less ambitious. In the event that his appeal to that Court was upheld, he had sought an order for a new trial.
The respondent did not submit that, in the event that the appellant's challenge to the admission of the evidence succeeded, it was a proper case for the application of the proviso. However, the respondent submitted that the appropriate order was to direct a new trial. This was the order made. The charges in the indictment allege the commission of serious offences. The evidence of JG and CL was in each case capable of establishing the prosecution case. The matters on which the appellant relied in support of the order he proposed were properly matters for the Director of Public Prosecutions to take into account in the exercise of his discretion.
HEYDON J. This appeal should have been dismissed. That is because the similar fact evidence showing the commission by the accused of acts of sexual intimacy was admissible, though on different grounds from those assigned by the trial judge and the majority in the Court of Appeal. Below the expression "similar fact evidence" is used to mean the evidence of LB, MM and AW about alleged conduct not the subject of any charges. The expression "the complainants" is used to mean JG and CL, whose evidence went to the alleged conduct which was the subject of charges. The expression "acts of sexual intimacy" is used to mean the intentional commission of the various rapes, attempted rapes and acts of gross indecency alleged against the accused in the testimony of the complainants and in the similar fact evidence. The expression "the consent issues" is used to mean the issue of whether JG and CL did not consent to acts of sexual intimacy, the issue of whether they were induced to consent to acts of sexual intimacy by force, threat, intimidation or fear of bodily harm, and the issue of whether the accused had an honest and reasonable mistaken belief that JG and CL consented to acts of sexual intimacy.

[95]

Further, Wigmore spoke of "the added dramatic force which might sometimes be gained from the examination of a witness to the fact (a force, indeed, which the admission is often designed especially to obviate)" as not being "a thing which the party [calling the witness] can be said to be always entitled to." On the other hand, he thought there were limits to the capacity of one party to use an admission to neuter testimony, for he said: "a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases), so as to be technically but not practically a waiver of proof."[79] These issues do not arise here for the reasons just given.
It may be very difficult to make admissions under s 32 except in relation to particular discrete factual matters. Thus it may be difficult to make an admission about a major issue in proceedings. In particular it may be very difficult to make an admission under s 32 - usefully or at all - where the accused does not deny sexual intercourse but does contend that it took place by consent. That is because it is very difficult to fillet out the details of the relevant events which go only to sexual intercourse from those which are relevant to consent as well.
It may be thought harsh in the case of offences which allegedly took place as long ago as the offences charged in this case that the desire of an accused to make an admission should be thwarted because he is unable to be specific in consequence of the lapse of time. In some ways it is harsh; in other ways not. The lapse of time brought advantages and disadvantages to the accused. One of the advantages was that it would be easier for the jury to have a reasonable doubt about the evidence of the complainants. One of the disadvantages was that it made it harder for him to make an admission conforming to s 32.
Was an "admission" made otherwise than under s 32? Pullin JA, however, does not seem to have treated the statement as a s 32 admission. He appears to have acted in accordance with the following proposition he stated in The State of Western Australia v Wood[80]: "It is plain that in criminal trials parties can limit issues sometimes by formal admission and sometimes by the way the case is conducted." By "formal admission" Pullin JA meant an admission pursuant to s 32.
Now it is true that issues on which the prosecution bears the legal and evidential burdens of proof can be limited by the way the prosecution conducts a case, and it may be assumed that those issues can be limited by the way the accused conducts a case.
But it is not possible to treat the opening address of counsel for the accused as containing admissions, if they were not "admissions" made pursuant to s 32. The common law forbad the making of admissions except in the witness box. When the accused entered the witness box, in his evidence in chief he was noticeably chary about making distinct admissions concerning acts of sexual intimacy on the specific occasions charged as distinct from generalised admissions. While the precise periods stated in the charges may not have been material, he declined to pin his concessions about acts of sexual intimacy to the periods or occasions identified by the complainants, and he denied the acts of sexual intimacy relevant to count 10 completely. If the only relevant exception to the common law ban on non-testimonial admissions is to be found in s 32, the non-satisfaction of s 32 meant that what was said by counsel for the accused could not count as an admission. In particular, it could not prevent the prosecution calling the similar fact evidence if it was intrinsically admissible. Despite what counsel for the accused said, it was not correct for him to call his statements "admissions", and he was not making admissions. Rather he was adopting a well-intentioned course of indicating what the accused would not be contesting and what he would be positively contending. But for the accused, through his counsel, to "admit" that he was "sexually intimate with four of these women" - and thus to say that he was not contesting that proposition - was not necessarily to admit the acts of sexual intimacy relevant to the charges, for he said in chief that there were acts of sexual intimacy with at least JG and CL on occasions other than those relevant to the charges. And in cross-examination he went much further in denying or seeking to cast doubt on the testimony of JG and CL about the acts of sexual intimacy relevant to the charges[81].
Pullin JA stated that the similar fact evidence was inadmissible because "once JG and CL had given evidence about the acts constituting the charges on which convictions were recorded", only the consent issues remained[82]. As noted above, in effect he saw the giving of that evidence as the fulfilment of a bargain offered in the opening of counsel for the accused and accepted by the testimony of JG and CL. But the acceptance of the offer did not relieve the prosecution of its burden of proving beyond reasonable doubt the commission by the accused of the acts of sexual intimacy on the occasions relevant to the charges. Indeed, even if it could be inferred that the accused did not dispute them - from the terms of counsel's opening, from counsel's supposed failure to cross-examine about them, from the accused's supposed failure to deny them in testimony - the prosecution still had to seek to establish them. It was open to the jury, depending on the impression which the complainants made in the witness box, to reject their evidence on the issue of acts of sexual intimacy as much as on the more hotly contested consent issues.
The acquittal of the accused on count 6 is instructive. That acquittal may have been based on doubts about JG's evidence of the relevant act of sexual intimacy. It may have been based on doubts about her evidence on the consent issues. It may have been based on both. There is no way of choosing between or stating a likelihood for these possibilities, but each is a possibility. The possibility that the accused was acquitted on count 6 because of doubts about JG's evidence of the relevant act of sexual intimacy points to the risk that the jury could have experienced similar doubts on any of the other counts involving JG - or any of the counts involving CL. It was a risk which the prosecution was entitled to seek to reduce as much as possible.
In any event, Pullin JA's bargain theory is, with respect, unsound. Counsel for the accused was not making any offer capable of acceptance by the prosecution calling particular evidence in chief. What counsel for the accused said was unconditional. He "admitted" acts of sexual intimacy; he did not say that he admitted whatever acts of sexual intimacy JG, CL, MM and AW testified to. Apart from anything else, that would have been a very dangerous course, for their testimony could have gone beyond what counsel might have been expecting.
Apart from relying on Pullin JA's reasoning, in this Court counsel for the accused pointed to two concessions by counsel for the prosecution. One concession was made by counsel for the prosecution in the Court of Appeal (who also appeared at the trial, but not in this Court). Pullin JA asked counsel for the prosecution whether he accepted that the trial judge proceeded on the basis of what she was told on 5 November 2008, namely, "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". Counsel answered in the affirmative[83]. The other concession was made by counsel for the prosecution in this Court (who did not appear at the trial). The written submissions on behalf of the prosecution filed for use in this appeal stated: "Given the admissions and the conduct of the trial it is accepted that it was not a live issue as to whether the appellant did engage in the sexual activity alleged by JG and CL." With respect, each concession was irrationally generous. Each was plainly erroneous. Neither can alter the actual position at the trial.

[103]

Cross-examination of JG. In this Court, counsel for the accused (who did not appear at the trial) submitted that the cross-examination of JG and CL "revealed absolutely that there was no dispute that the sexual acts occurred." I disagree, with respect. Counsel for the accused at the trial conducted an occasionally aggressive cross-examination of JG, which, while it may have been directed to the consent issues to some degree, often moved beyond them. It would have had the effect of casting doubt on the accuracy of her memory and the reliability of her testimony about the acts of sexual intimacy. In part this cross-examination took the form of pointing to differences between, on the one hand, her evidence in chief, and, on the other hand, a statement made to her solicitor and delivered to the police and statements she made to a prosecutor before the trial. In part it took the form of asking her about discussions she had had with MM and CL before the trial about the accused's behaviour with her, about whether she exchanged notes with them, and about whether they had put their heads together "to bolster up your case".
Cross-examination of CL. Counsel for the accused cross-examined CL by reference to an earlier statement to suggest that in her testimony she had got the sequence of the three incidents to which counts 12-14 related wrong. She was asked about the quality of her memory. She was accused of making up evidence on the spot. She was also asked about her conversations with JG and MM about the accused's behaviour. This cross-examination did not seem to relate to consent, but was likely, like the cross-examination of JG, to have the effect of casting doubt on the accuracy of her memory and the reliability of her testimony about acts of sexual intimacy.
Examination in chief of accused. During his examination in chief of the accused, counsel for the accused elicited denials of, or evidence tending to contradict, aspects of the testimony of JG and CL about acts of sexual intimacy, as distinct from testimony about consent. Thus the accused said he found it "rather hard to believe" that he had had sexual intercourse while JG was pregnant because it was "not the sort of thing that I tend to do." He then added that he probably would not have had intercourse with her during pregnancy at all, "but certainly not at that point in pregnancy where there was such a risk to her and the baby." That evidence could have been regarded by the jury as raising a reasonable doubt entitling the accused to an acquittal on count 10. Contrary to what counsel for the accused had indicated in opening, the accused denied sexual intercourse with AW, and he appeared to deny the details of sexual intercourse with MM.
Conclusion. The cross-examination of JG and CL and the examination in chief of the accused by counsel for the accused contradict the suggestion that the question whether acts of sexual intimacy had occurred was not a live issue. Counsel for the accused was evidently of the view that the issue was sufficiently live to make it worthwhile to seek to enhance his client's position and damage the position of JG and CL in the manner he did. And counsel for the prosecution also evidently thought the issue to be live: he did not object to questions from his opponent along the lines just summarised. Nor did the judge think it right to intervene.
Counsel for the accused in this Court - who presented his client's case with considerable capacity - was asked why, if the occurrence of acts of sexual intimacy was not a live issue, evidence in chief about them was permitted. He gave two answers. The first was: "there ought to have been admissions formally made that obviated the need for that evidence to be given." That is true - but none were made. The second answer was: "There was simply no objection to that evidence being given." That, too, is true - and it indicates that the prosecution did not think the evidence was open to objection because it went to a live issue.

[105]

In the cross-examination of the accused, counsel for the prosecution explored the consent issues. But he also appeared to be concerned to obtain admissions from the accused about the detail of what the complainants and the similar fact evidence witnesses had said in their testimony in relation to acts of sexual intimacy. One example is whether the accused had removed his clothes, invited LB to remove her clothes, and then lain on top of her. Another is whether the accused had sexual intercourse with AW, which he denied, and whether she had fellated him, which he also denied. Another is whether, on the first occasion JG visited the accused's rooms at Kings Park Road, the occasion which relates to count 1, he hugged her, which he said could have happened. Another example relating to count 1 is whether the accused placed his hand up JG's skirt, which he said he did not remember. Another concerns an incident relevant to count 2 in which, allegedly, he invited JG to lie on the floor with him, she did so, he removed his trousers and got on top of her - an incident of which he said he had no "specific memory". He was asked about the details of JG's evidence in relation to count 4. He was asked about the details of JG's evidence in relation to count 6, which he said he did not remember and which "doesn't sound like the sort of thing that I would do." In relation to count 10, many details of JG's testimony about his having had sexual intercourse with her when she was eight months' pregnant were put to him. In relation to count 11, he was asked about many details of JG's account of having sexual intercourse with him a month after she had had a baby. He was asked about denials he made to the Medical Board of acts of sexual intimacy with JG, CL and MM, and his failure to admit them or to advance the excuses he put forward in his testimony to the jury. He admitted lying about them. He was asked about the details given in the testimony of MM and CL.
Pullin JA criticised counsel for the prosecution for cross-examining the accused about acts of sexual intimacy in relation to counts 10 and 11, on the ground that it "was cross-examination regarding a fact not in issue."[84] The accused repeatedly answered counsel's suggestions in cross-examination, in relation to count 11, by saying it was not the sort of thing that in his belief he would have done. Pullin JA said that this was not a denial of committing the acts, and thus that the accused 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."[85] With respect, that is not so, because the accused's answer invited the court not to accept JG's evidence - and there were quite a few answers of the same kind in relation to other counts. So the accused, too, seemed to regard the occurrence of acts of sexual intimacy as a live issue.
These aspects of the cross-examination reveal that counsel for the prosecution was endeavouring, with some limited success, to elicit evidence of sexual intimacy going beyond what the accused had been prepared to give in chief. That endeavour, the failure of counsel for the accused to object to it, and the failure of the trial judge to stop it, indicated that counsel on both sides and the judge thought that the occurrence of acts of sexual intimacy remained a live issue.

[128]

Pullin JA rightly accepted that the evidence of LB, MM and AW showed that the accused had an unusual propensity to engage in sexual relations with his patients during consultations, and that proof of this tendency was rationally capable of affecting the assessment by the jury of the probability that the accused had engaged in acts of sexual intimacy with JG and CL during consultations[88]. For those reasons it had "significant probative value" within the meaning of s 31A(2)(a) of the Act. And its probative value compared to the 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" within the meaning of s 31A(2)(b).
That is because to many people - perhaps not all, and perhaps not all jurors, but at least many people who have not been afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers - an allegation that a psychiatrist was engaging in sexual intercourse with a female patient suffering from a mental disturbance which it was his duty to treat would seem so serious and inherently unlikely as to be startling, outlandish and far-fetched to the point of being bizarre. It would seem so bizarre, in the absence of corroboration, that it would be extremely difficult for the prosecution, in a case of oath against oath about conduct taking place in secret, to exclude a reasonable doubt. Thus a prosecution which rested on a single allegation by JG might very easily founder, however truthful she was. A prosecution including all JG's allegations might also easily founder: it would be easy for the defence to rely on her mental illness, her delay in complaint, the long lapse of time and so forth. A prosecution in which CL's evidence was admissible on each count concerning JG and vice versa - a state of affairs the validity of which the accused at no stage, in no court, challenged - would be a prosecution supported by evidence of much greater probative value. And a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations would be a prosecution backed up by evidence of so high a degree of probative value that the public interest had priority over the risk of an unfair trial. Accordingly, the reception of the similar fact evidence was not erroneous.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (194 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (33)