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[2011] VSCA 328
Court of Appeal (Vic)
2011-10-27
Redlich JA, Maxwell P
Original judgment source is linked above.
R v Wilson (Unreported, County Court of Victoria, Judge Gaynor, 2 May 2008 (verdict))
CRIMINAL LAW - Appeal - Conviction - Rape - Indecent assault - Multiple counts -Offences occurred in course of applicant's practice as naturopath - Complainants were applicant's patients - Whether applicant aware of absence of consent - Reasonableness of applicant's belief in consent - Awareness that complainants were or might have been mistaken about whether the acts were sexual acts or were for medical purposes - Whether impugned acts were performed for purposes of providing legitimate medical treatment - Whether touching accidental - Jury directions deficient - Appeal allowed in part - Retrial ordered - Resentenced on remaining counts - Neal v The Queen [2011] VSCA 172, Getachew v The Queen [2011] VSCA 164, Roberts v The Queen [2011] VSCA 162, followed - Crimes Act 1958, ss 35, 36(f), (g), 37, 37AAA(d), (e)(i), (e)(ii) and 37AA(b)(i).
CRIMINAL LAW - Appeal - Conviction - Rape - Indecent assault - Uncharged acts - Trial judge failed to direct jury that complainant's evidence of uncharged acts must be proved beyond reasonable doubt - Consideration of circumstances in which trial judge required to direct jury that circumstantial facts should be proved to a particular standard - R v Sadler [2008] VSCA 198; (2008) 20 VR 69 considered, Roach v The Queen [2011] HCA 12 (4 May 2011), HML v The Queen [2008] HCA 16; (2008) 235 CLR 334, referred to.
EVIDENCE - Criminal law - Rape - Indecent assault - Cross-admissibility of evidence - Multiple counts of rape and indecent assault involving four complainants - Whether sexual acts performed in the course of a sexual relationship - High degree of similarity, common theme - Application for severance properly rejected by trial judge - Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303, applied, R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, followed.
LAW REFORM - Sexual offences - Complexity of trial directions required to be given - Legislative intervention required to simplify required directions.
1 I have had the considerable advantage of reading in draft the reasons of Redlich JA and Kyrou AJA. I agree with the disposition of the appeal which their Honours propose, for the reasons which they give.
2 The issues raised by this appeal serve as a salutary reminder of the urgent need for legislative simplification of jury directions. As their Honours' detailed exposition reveals, the law governing the trial of sexual offences is now so extraordinarily complex as to throw into doubt the expectations on which the system of trial by jury is founded. Those expectations are, first, that a judge can reasonably be expected to explain the relevant law to the jury, in all its permutations and combinations, without falling into error; and, secondly, that the jury can reasonably be expected not only to comprehend the law as so explained, but to apply it, in all its permutations and combinations, to the evidence which they have heard.
3 This point is well illustrated by what their Honours have said in relation to grounds 11 and 17, concerning the applicant's alleged awareness of the respective complainants' absence of consent.[1] It follows from their Honours' analysis, with which I respectfully agree, that in a future case such as this the jury would be expected to understand the distinction between:
(a) being satisfied that the accused was aware that a complainant was (or might be) mistaken about the sexual nature of the act or about whether it was performed for a medical or hygienic purpose; and
(b) being satisfied that the prosecution had excluded, beyond reasonable doubt, the possibility that the accused, even with that awareness, might not have been aware of the absence, or possible absence, of consent.
4 Reference should also be made to the state of the law on uncharged acts, in
particular as it relates to the standard of proof of such acts. As this Court (Vincent and Weinberg JJA and Mandie AJA) said in R v DWB,[2] the law in this area is 'in a state of considerable uncertainty'. That uncertainty is productive of a high degree of difficulty for trial judges and also - as the inevitable consequence - of a considerable amount of work for this Court.[3]
5 As the Victorian Law Reform Commission said in its May 2009 report on Jury Directions, if the Victorian community is to continue to have confidence in the operation of jury trials, there needs to be legislative intervention to simplify the directions which judges are required to give.[4] I do not mean to suggest that the task of simplification will be an easy one, but it is an essential one.
6 Following a 27-day trial in the County Court at Melbourne, on 2 May 2008, the applicant was convicted of 22 counts of indecent assault, 11 counts of rape, one count of sexual penetration of a child under 16 years of age and one count of indecent acts in the presence of a child under 16 years of age. The counts related to 13 female complainants, two of whom were children, and were committed during the period from 1 January 1987 until 24 August 2006 when the applicant was aged between 31 and 51 years. All of the alleged offences, with one exception, occurred in the course of the applicant's practice as a naturopath and all of the complainants were his patients.
7 Following a plea in mitigation of penalty, on 28 October 2008, the applicant was sentenced to a total effective sentence of 16 years' imprisonment with a non-
parole period of 12 years. He was sentenced as a serious sexual offender in respect of all counts other than counts 1 and 3.
8 The applicant now seeks leave to appeal against his convictions and sentence.
9 For the reasons that follow, we have concluded that the applications for leave to appeal against conviction and sentence should be allowed and the convictions on 17 counts[5] be quashed and that the applicant be re-sentenced on the remaining counts on which he was convicted.
10 The applicant was presented on a total of 50 counts, comprising 30 counts of indecent assault, 17 counts of rape, one count of sexual penetration of a child under 16 years of age, one count of indecent acts in the presence of a child under 16 years of age and one count of stalking. One of the counts of indecent assault (count 4) involved digital vaginal penetration that occurred prior to the amendment of the Crimes Act 1958 that classified such conduct as rape.[6]
11 The counts on which the applicant was convicted are summarised in Table 1 below:
Palpation of SH's breasts and touching her pubic bone and pubic area
Digital penetration of JH's vagina and touching her clitoris
Massaging RS's breast area, openmouth kiss, rubbing applicant's groin against RS's groin
Placing RS's hand on applicant's penis over his clothing
Touching the top of KG's vagina and applying pressure
12 The applicant was acquitted of seven counts of indecent assault, four counts of rape and one count of stalking. The jury was discharged without a verdict in respect of one count of indecent assault and two counts of rape. The counts in respect of which the applicant was not convicted are summarised in Table 2 below.
Placing KB's hands outside applicant's pants on his erect penis
Rubbing applicant's erect penis beneath his trousers alongside LK's body
Pushing applicant's erect penis beneath his trousers into VK's back
Pushing applicant's pelvis area against BK's hip area
13 Initially, the applicant relied on 19 grounds of appeal in relation to his convictions. On the appeal, grounds 2, 5, 6, 8, 10, 12, 15, 16 and 19 and part of ground 14 were abandoned. The extant grounds deal with the following issues:
(b) jury directions on medical procedure (grounds 3 and 7);
(c) jury directions on absence of consent (grounds 4 and 17);
(d) jury directions on awareness of absence of consent (grounds 11 and 17);
(e) jury directions on reasonableness of belief in consent (ground 13);
(f) jury directions on pretext conversations (ground 9);
(g) jury directions on uncharged acts (ground 14 (in part)); and
Evidence and submissions at trial on counts of which the applicant was convicted
14 The grounds of appeal raise issues concerning the nature and purpose of the applicant's acts. They include the questions whether they were for a medical purpose or were unrelated sexual acts, whether the complainant understood the purpose of those acts and whether the applicant believed that the complainant was consenting. For a proper understanding of these issues it is necessary for us to recite in some detail the evidence given at the trial in relation to those counts to which the grounds of appeal relate.
The applicant's practice as a naturopath and his treatment techniques
15 The applicant practised as a naturopath for more than 20 years. He was qualified to perform various massage techniques, including Swedish massage and Bowen therapy.
16 Over the period of the alleged offending, the applicant practised at Blackburn, Surrey Hills and Prahran. His practice at Prahran was conducted in one of two semi-detached houses. He lived in the other house. All the conduct in respect of which he was convicted occurred in his consulting rooms or in his adjoining residence.
17 The applicant gave evidence that oral, digital and penile penetration of a vagina and the massaging of a vagina cannot form part of any treatment provided by a naturopath.
18 SH gave the following evidence. In 1987, she consulted the applicant for endometriosis and polycystic ovaries. At the applicant's request, she undressed to her underpants and got on the massage table. The applicant palpated her breasts as though he was performing a breast examination, put his hands on her underwear to palpate over her pubic bone, and then put his hands under her underpants and on to her pubic bone and pubic hair (count 1). There was no towel over her. The applicant did not tell her what he was going to do before he did it. She did not regard what he had done as forming part of the medical treatment and she did not consent to those acts. She did not return after her first appointment with the applicant.
19 The applicant gave the following evidence. The condition of endometriosis was a medical condition that could only be treated through surgery, but polycystic ovaries was a hormonal condition with which he could help. He explained to SH what he was going to do before he did it and told her that if she was uncomfortable with his working on any area, she should tell him and he would stop. He massaged across the top of her chest and down through the sides of her breasts, but he did not massage her breasts. He discussed how the abdominal muscles were attached to the top of the pubic bone. He would have explained to SH that he was checking for pain, and that he would press and hold for a few seconds in that area to release any trigger points that were exacerbating her pain. SH was towelled.
20 In his closing address to the jury, defence counsel reminded the jury of the expert evidence of Mr Rentsch that pressing on the pubic bone can be part of Bowen therapy, and told the jury that it could not be satisfied beyond reasonable doubt that the impugned acts relating to SH were not part of genuine medical treatment.
21 JH gave the following evidence. In September 1990, she saw the applicant for candida. The applicant said he could cure her and that she was beautiful, intelligent and sensitive. He said that her back was out and asked her to undress to her underwear and to get on the massage table. She undressed to her underpants. She was not wearing a bra and was not towelled. As she lay on her stomach, the applicant massaged her and said that she had a great body. He then asked her to roll onto her back and continued a full body massage, which included massaging her thighs, arms, legs, chest and around her breasts. He honed in on the groin area and his finger touched her vagina and clitoris (count 3). He took her underpants off, saying it would make the massage easier. He did not explain what he would do in the massage and did not seek permission to touch her in the groin. She did not consent to his actions. He kissed her on the forehead twice. He said that she was beautiful and that he wanted to go out with her. She declined. He gave her some tablets and some liquid for which he charged her, but he did not charge her for the massage.
22 JH said that, although she realised that she had been violated and what the applicant had done to her was not part of the treatment, she made an appointment to see the applicant again about a week later because the nutrients he had given to her provided her with some relief. At the second appointment, the applicant asked her for a hug, which she refused. He asked her whether the massage made her feel better and she said that she had felt better. After asking her to undress down to her underpants, he massaged her while she lay on her stomach. He then massaged her while she lay on her back. He put his hand under her underwear, inserted his finger in her vagina and stroked her clitoris (count 4). He got undressed, took off her underpants and pulled her body around so that she faced him while lying across the table. He spread her legs and inserted his penis in her vagina.[7] She lay there passively without moving. The applicant did not explain what he was going to do and never asked for her permission. She did not consent to the applicant penetrating her vagina or touching her around that area. A week later, she had dinner with the applicant and they commenced a sexual relationship, which lasted until about February 1991.
23 The applicant gave the following evidence in relation to counts 3 and 4. When he first saw JH about candida, she was tired, and had gut and bowel problems. They discussed her situation in life. He did not compliment her on her appearance. She asked him out for dinner, but he declined. She was towelled. He did not penetrate her vagina with his finger. During the second appointment, he massaged JH's back and up to her neck and shoulder, and then asked her to lie on her back. He massaged her legs and across the top of her pubic bone. She sat up and kissed him. They then became passionate. She sat up on the table, helped him to take off his clothes, wrapped her legs around him and they had sex. There was penile penetration. From that time, they commenced a sexual relationship, which lasted for five to six months.
24 In her closing address to the jury, the prosecutor said that the jury should accept JH's evidence that she kept going back to the applicant, notwithstanding that he had indecently assaulted her, because she believed that he could cure her. Defence counsel told the jury that JH's allegations must be seen in the context of the fact that she ended up having a five-month sexual relationship with him and made complaints against him only after that relationship ended.
25 JS gave the following evidence. She saw the applicant in 1991 on the recommendation of her dance teacher, who had told her that she was not in touch with her emotions. He diagnosed her with hypoglycaemia and gave her a list of recommended foods. On the second appointment, the applicant asked her to take off her clothes and to lie on the massage table, without explaining why he required her to do so. She was wearing a G-string and was not towelled. The applicant moved the G-string to one side and started massaging her vagina, saying that there were points in the vagina that could help her (count 6). He did not touch any other part of her body. She did not understand what was happening and did not consent to it. At the end of the session, the applicant took her to the door and hugged her. She did not pay for the treatment.
26 JS said that, when she saw the applicant on a later occasion, he repeated the conduct in which he had engaged during the second appointment, including massaging her vagina (count 7). She was confused about whether what he was doing to her was part of her treatment. She would not have allowed him to do what he did if it was not. She did not push his hand away because she could not move or speak. After her last appointment with the applicant in July 1991, she saw a doctor who conducted some tests and advised her that she had never had hypoglycaemia.
27 The applicant gave the following evidence in relation to counts 6 and 7. When he first saw JS, she was exhausted with pain through the back and neck. She told him that she only had coffee for breakfast, then went off to dancing school and did not eat until 1.00pm. He told her that she could be suffering from low blood sugar. His treatment comprised checking all structures and massaging. He told JS that he would massage her lower back, shoulders and neck, and then her legs, hip, groin and chest. He asked her whether this was okay and she said that it was. She was in her underwear and was towelled. He massaged through the top of the chest and the pectoral muscles. He did not massage her vagina and had no contact with it. He massaged across the top of the pubic bone and through the muscles in the front of the legs, stopping at the tops of the adductor muscles. He explained why he was working those areas and told her to speak up if it was painful. He did not recall hugging her. He saw her about half a dozen times and massaged her in the same way each time.
28 RS gave the following evidence. In April 1992, when she was 15 years of age, she accompanied her mother on a visit to the applicant. Her mother was being treated by the applicant in respect of limited mobility in her arm following the removal of a cancerous lump. After the applicant spoke to her mother for about 10 minutes, he instructed both of them to strip down to their underwear. He did not explain why he asked her to strip. The applicant massaged her mother and then he massaged her.
29 RS said that, at the second visit the following week, the applicant separately saw her mother and then her. He instructed her to strip down to her underwear and she did so. She lay face down on the massage table and he massaged her back area. He told her to turn over. After she did so, he massaged her shoulders and the top of her breasts, commenting that she was beautiful and had a nice body. He massaged the breast areas that were not covered by her bra. He then leaned over and gave her an open-mouthed kiss, during which his tongue entered her mouth (count 8). She did not consent to the open-mouthed kiss. She did not say anything because she was very scared and did not know what was going on. The applicant told her mother that no payment was required in respect of RS's treatment.
30 RS said that, at the next appointment, the applicant asked her to undress. After he massaged her back, he flipped her over, massaged her breast area and kissed her in the same way as he had done previously. He then got on top of her while he was fully clothed, rested on his elbows and rubbed his groin against her (count 9). She could feel his erect penis through his pants. She did not consent and was too timid to say anything.
31 RS said that she went to see the applicant again and the same thing happened, except that on this occasion he also removed her bra. He massaged her breast area, kissed her, got on top of her and rubbed his groin against hers (count 10). When he got off, he pointed to his erect penis and said, 'See what you do to me.' He then told her to touch his penis. She froze and did nothing. He got her hand and put it on his groin, and she felt his erect penis over his clothes (count 11). She let her hand drop. The applicant then put his hand down her underpants and felt the outside of her vagina. He said that she was wet, and put his finger into her vagina and moved it in and out (count 12). She did not consent and did not do anything to encourage the applicant. She was too scared to say anything. She did not see the applicant again.
32 The applicant gave the following evidence in relation to counts 8 to 12. When he first saw RS and her mother, they both had huge stresses in their lives. After the mother explained her problems, he recommended nutrients and massages. After the mother said that RS was stressed, he suggested that he massage RS as well. When he massaged RS and her mother, he worked up through their backs to their shoulders and necks; he then turned them over and worked the tops of their chests - checking their lymphatic and pectoral muscles - and down from their stomachs to their pubic bones. On the second occasion that he massaged RS, she was in her underwear and was towelled. He did not kiss her. On the third and fourth occasions, he gave the same massage to RS. She was wearing her underwear and was towelled. He explained what he was doing as he did it. He never kissed RS, got on top of her on the massage table, asked her to touch his penis or inserted a finger in her vagina.
33 JK gave the following evidence. She spoke to the applicant in 1993 at his Prahran consulting rooms about ingrown hairs on her legs. She showed him her legs and he said that he could help her. She said that she could not afford to pay. He said she could pay what she could afford because he liked her and wanted to help her. After she made an appointment to see him, he escorted her outside the front door and kissed her lightly on the lips (count 15).
34 JK said that, when she went into the treatment room during her first appointment, the applicant asked her to 'get [her] gear off'. She undressed to her underwear and got on the massage table. He started massaging her legs, beginning at the bottom and slowly moving up. He slid his hands inside her underpants and massaged the outside parts of her vagina (count 16).[8] He did not explain that he was going to massage there. She was afraid and said nothing. He said, 'You're so wet.' She remained silent because she had never before been touched by a man in that way. She did not consent to being touched on the vagina. He finished the massage and told her that she needed to make another appointment after hours because he needed more time. He said massage would increase the circulation and assist the problem. JK was very upset. When she returned home, she had many showers.
35 JK said that her next appointment with the applicant was on a Saturday at 6.00pm when the consulting rooms were closed. The applicant told her to take off all her clothes and to lie on the massage table. She was not towelled. As she lay on her back, the applicant gave her a full body massage, starting at the bottom of her legs. After giving her a massage, he put two fingers in her vagina (count 17) and then penetrated her orally (count 18). He did not say that he was going to perform these acts and she did not consent to them. She did not say anything because she was shocked. She had not previously experienced oral penetration.
36 JK said that, after the applicant penetrated her orally, he kissed her on the left thigh. She then sat on the edge of the massage table. He was standing in front of her. He pulled his pants down and started rubbing his penis against her vagina and said, 'Just feel what it's like.' Without first telling her what he was going to do, he inserted his penis into her vagina.[9] She told him that this was the first time that this had ever happened to her. He told her to have a shower and led her to his adjoining residence. He followed her into the shower and penetrated her vagina with his penis without her consent.[10] She continued to see the applicant regularly between January and May 1993 and they had consensual sex at least once.
37 The applicant gave the following evidence in relation to counts 15 to 18. JK suffered from lethargy and ingrown hairs. He recommended that she shave her legs downwards rather than upwards and that she take nutrients to soften the skin. He also explained that massage would assist the circulation in her legs and she agreed to be massaged. She said that she had little money for treatment and he told her that it was his practice to help people like her. At the end of their first meeting, he kissed her on the side of the face between the cheek and the mouth. He did not kiss her on the lips.
38 The applicant said that, at his second meeting with JK, he massaged her. She wore underwear and was well towelled. When he massaged her through her legs, she became aroused. She was moaning, moving gently in a sexualised way and was saying that it was nice. They became intimate. He massaged her clitoris and vagina, and JK became more involved in what was happening. She kissed him on the lips when she left. The next appointment was similar to the previous one. JK kissed him passionately and they made love in the treatment room. He penetrated her vagina digitally and orally. They had penile vaginal intercourse on the massage table and then had a shower. In the shower, they kissed passionately and made love. He saw her on a few more occasions and they had consensual sex at least three more times. He knew that she was consenting because she kissed him, and actively made love to him in the shower and during subsequent visits.
39 In her closing address to the jury, the prosecutor said that the applicant had taken advantage of JK's vulnerability and urged the jury to accept that his initial sexual acts were performed without JK's consent, notwithstanding that there was a later consensual relationship between them. Defence counsel told the jury that the massaging outside the vagina on the first occasion could be accepted as part of Bowen therapy and therefore as legitimate medical treatment. He said that all of the sexual acts that followed were consensual and that JK's evidence should be understood as accepting this proposition.
40 CG gave the following evidence. She first saw the applicant on a Saturday when he was alone. At his request, she got undressed, got on the massage table and pulled a towel over herself. The applicant asked her what was her problem and she told him that she had a sore neck and a bad headache. He took the towel off her. She asked why she needed to be undressed and what this had to do with a sore neck and shoulder. He said that the massage treatment would relax every muscle in the body. He put one of her ankles on the knee of the other leg and began massaging. His fingers went to her clitoris.[11] She did not say anything, as she thought that his hand had accidentally slipped.
41 CG said that, on the second appointment, the same thing happened. The applicant took the towel off and rubbed the groin area, touching her clitoris (count 22). He rubbed her clitoris up and down a couple of times and massaged her pubic bone. She did not think that the rubbing of her clitoris was accidental. She jumped up and said, 'No, stop this' and he said, 'Oh, this is the way we do it.' She continued to see the applicant for 11 years for her neck, shoulders, back and hips, which were always adjusted by him without any massage.[12]
42 The applicant gave the following evidence in relation to count 22. He first saw CG for neck and back pain. He told her that he would adjust her middle back and neck, and then massage her. She wore underwear and was towelled. He massaged her through the back, neck and legs. He denied ever brushing her clitoris and said that, if he had done so, he did not know of it and CG did not say anything to him about it. The massage on the second appointment was similar to the first massage. He did not touch her clitoris and she said nothing about it.
43 LC gave the following evidence. She suffered from scoliosis, which involved a curvature of the spine. The applicant was a family friend. She saw him in 1994 and again in 1996 prior to surgery on her spine. The applicant used hypnosis to relax her and also may have given her light massages while she was clothed. The applicant made flirtatious comments, such as that she was a very attractive young girl and should be a model. In 1996, before the second operation, the applicant took her shopping in Prahran. He entered the change room while she was partly undressed and in the course of trying on clothes. He told the shop assistant that he was buying clothes for his future wife. Afterward, while they were in the applicant's car, he touched her thigh. On a separate occasion, at the applicant's house in Prahran, he gave her four pairs of bathers and suggested that she go into the bathroom, try them on and choose the pairs that she liked. While she was in the bathroom dressed only in her briefs, he walked in, shut the door, placed his arms around her and kissed her in a sexualised manner along her neck and down the side of her arms (count 25). After her second operation in January 1997, the applicant gave her a semi-transparent satin negligee as a gift.
44 The applicant gave the following evidence in relation to count 25. LC's mother was a very good friend and he was like a surrogate father to LC. He assisted LC with relaxation, hypnosis, Bowen therapy and trigger-point therapy. At the clothing store, he did not enter the change room in which LC was trying on clothes without first being asked to do so, and he did not describe her as his future wife. While they were in his car, he put his hand on her knee when they were discussing the upcoming surgery. While they were at his house, he walked into the bathroom accidentally as she was changing. He almost ran into her and held her shoulders to prevent himself from falling on her. He said, 'You look great' and kissed her on the top of her shoulder. He did not kiss her down the neck. He told her that she was a good-looking young girl and that she would be fine after surgery. He gave her lots of reassurance and she was always affectionate with him. After the surgery, he gave her some summer pyjamas as a gift.
45 RLS gave the following evidence. In 1998, she saw the applicant for massages every two to three weeks for about 12 months. During her last visit, after massaging her normally, the applicant placed his fingers under her underwear and around the outside of her vagina (count 26). She sat up and faced the wall without saying anything. The applicant faced her, undid his jeans, pulled out his penis and masturbated in front of her until he ejaculated into his hand. He wanted her to touch his penis, but she refused to do so. He refused payment on that last occasion.
46 The applicant gave the following evidence in relation to count 26. RLS saw him a few times for back and shoulder problems, and he treated her with massage. During the massage, RLS was dressed in her underwear and towelled, and he explained what he was doing. He did not brush her vagina. If he did, it was accidental. He did not pull out his penis, ask RLS to touch his penis or masturbate in front of her.
47 KG gave the following evidence. She saw the applicant in May 2003 and told him that she had low energy levels. He complimented her on the colour of her hair. After manipulating her back and neck, he asked her to lie on her back on the massage table. He held his hand on her neck as if feeling for something. He asked her whether she was okay with that and she said, 'Yes.' He put his hands down her underpants and on to her vagina for approximately 20 seconds, and applied a little bit of pressure to her pubic bone (count 27). He then removed his hand and told her that she needed protein. She was shocked, but said nothing. She had not consented to being touched on the vagina, but was confused as to whether he had understood her reply of 'Yes' to constitute permission for such touching. She did not see the applicant again.
48 The applicant gave the following evidence in relation to count 27. He gave KG a massage with manipulation. During the course of that massage, he told her about the areas upon which he was working and asked her whether she was comfortable. He would have pushed on the top of the pelvic area. He may have shifted her clothing and his hand may have touched the top of her pubic area, but he did not touch her vagina.
49 EP gave the following evidence. In 2003, she was five feet, three inches tall and weighed 43 kilograms. She was suffering from nausea and dizzy spells, and had back pain due to horse riding. When she first saw the applicant, he cracked her legs, neck and back, and this relieved her back pain. She was subsequently diagnosed with endometriosis, and a non-cancerous lump was found in her right breast. She also suffered from muscle wastage. When she saw the applicant again, he did Bowen movements on her muscles around her legs, back and along her right breast. He explained that there were lymph nodes around her breast and that the movements would drain the nodes and help the lump to go down.
50 EP said that she saw the applicant on 20 July 2003 after she had undergone an operation for her endometriosis. She explained that she was in more pain than previously and could hardly drive. He suggested that she had bad back problems and that she should see him three times a week to correct her back. He said that a lot of the pain was caused by scar tissue from the operation, that the pain was causing muscles to tighten and that she could be helped by massage. He also suggested vitamins and nutrients. When she asked him about the cost, he told her not to worry about it and that he would rather see her get well. She had paid for her first appointment, but she did not pay for any subsequent appointments.
51 EP said that, after the appointment on 20 July 2003, she saw the applicant three times per week until November 2003. At an appointment at 6.30pm approximately two weeks after 20 July 2003, she got undressed, got on the massage table and put a towel over herself. The applicant did Bowen therapy down her legs and back, and cracked her back. He then removed her underwear and massaged around her vagina (count 28).
52 EP said that, on 10 October 2003, she saw the applicant in the evening and he told her to get undressed. She undressed to her underpants and he performed Bowen movements down her back and legs. As she lay on her stomach, the applicant removed the towel and took her underpants off, saying they got in the way. He massaged her buttocks and thighs. He then put his finger inside her vagina and pressed on the vaginal wall (count 29). He asked, 'Does this hurt?' and she replied, 'Yes.' She asked what he was doing and he said that having his finger in her vagina and massaging the scar tissue away was the only way that he could loosen the muscles through her pelvic area. He took his finger out and told her to roll onto her back. He then massaged the front of her legs, put his finger in her vagina and pushed against the vaginal wall (count 30). He said that she should not be in so much pain and that his actions would loosen the ligaments. He behaved like his actions were in accordance with normal therapeutic practice. After she got dressed, he hugged her and tried to kiss her on the lips. As she turned her head away, he bit her lip. He said that her hug was insincere, that he was doing a good job and that she should be more appreciative and give him a genuine hug.
53 EP said that, after 10 October 2003, she saw the applicant sometime between 11 October 2003 and 30 November 2003. On that occasion, at the applicant's behest, she undressed to her underpants and lay on her stomach on the massage table. The applicant removed her underwear and the towel, saying that they got in the way. He told her to relax and to close her eyes. Without seeking her permission, he massaged down her legs and licked her on the clitoris (count 33). He then left the room to attend to another patient. When he returned, she questioned him about what he had done and said, 'You can't do that. ... It's something that only a boyfriend ... does to you.' He laughed it off, saying that she was silly. She called him a sleazy old man and said that he was disgusting. She challenged him because she knew that oral penetration was not part of her treatment. He said that she should get over it and relax more. As she lay on her back, he massaged her. He put his finger in her vagina and asked if it hurt (count 31).[13] She told him that it hurt, but he continued pushing, saying that it would loosen the ligaments and that he had to do it. He then cracked her back. He tried to hug her but she left after saying, 'Thank you.' Although she was confused about what had happened, she understood that the penetration was therapeutic and that its purpose was to loosen ligaments and to massage away scar tissue.
54 EP said that she saw the applicant at the beginning of November 2003 at 5.30pm. As she lay on her stomach on the massage table, the applicant brushed past her hand. She thought that he had brushed his penis against her, and she pulled her hand away. He grabbed her hand and put it on his penis saying, 'My penis is up here. If ... I hurt you, you can hurt me back' (count 34). Her hand was on his penis over his jeans. She pulled her hand away and lay there, not knowing what to do. He laughed at her. He then started to massage her on the legs. He took off her underpants and the towel, and then put his finger in her anus, pushing up to her coccyx bone (count 35). It was very painful. She pulled forward and said, 'Please don't do that.' He said that 'the ligaments tie up through there', that the penetration of her anus helped to loosen the ligaments and that there was a trigger-point in that area. He said that she would not enjoy sex while her back was out, that he would make her feel better and would fix her.
55 EP said that, between November 2003 and January 2004, she lived in Ballarat. She travelled by car when she had an appointment with the applicant. He offered her money to pay for petrol, but she took $20 from him on only one occasion. At one of the appointments during this period, the applicant massaged her legs and back, and pressed around the outside of her vagina. He asked her whether this hurt. She flinched and he said, 'I can feel that it's bad again, you know. You've undone all the good work that I've done. ... [Y]ou do need me.' He then put his finger in her vagina (count 36). He also asked her how her 'girlie bits' were, and repeated this expression frequently.
56 EP said that, after January 2004, she saw the applicant infrequently because she moved interstate and later lived in Geelong. She saw the applicant between 24 and 28 July 2006. He took off her underpants and the towel without asking for permission. He then pressed on the outside of her vagina and inserted his finger in her vagina (count 37). She said, 'I don't like to be touched.' He then went to see another patient. When he returned, he said, 'I know you don't like to be touched. ... But you need to do this to get better.' He said, 'I promise I won't look. I look at vaginas all day. I'm not interested in you that way.' He continued the massage and said that he needed to find different ways of towelling her to make her feel better. He tweaked both nipples on her breasts and told her that she had great breasts. She said, 'Don't do that. It hurts.' He laughed. When she got dressed, he tried to hug her and said, 'I know you just tolerate me. You ... should be more genuine. ... I'm just a good friend and ... look after you very well.'
57 EP said that she saw the applicant at 10.00am on Saturday, 9 September 2006 because he had suggested that she have a massage to loosen her muscles. The applicant warmed a towel, put it over her, massaged her and pushed on the outside of her vagina. He then put his fingers inside her vagina and pushed internally to the front and top of her stomach (count 38). He said that he was loosening the ligaments and massaging away the scar tissue. She said that he was hurting her and he replied that he 'needed to massage it to stop it from being painful'.
58 EP said that she continued to see the applicant for treatment until 16 September 2006 because she believed his advice that there was no other way to get rid of the pain. He told her that what he was doing was therapeutic and that he was treating her as a patient. His treatment provided some relief from her leg pain and lower back pain. He was the only person that could make her feel better. She thought that the treatment was necessary to relieve her endometriosis pain, to enable her to retain full-time work and to return to a normal life. She did not consent to any acts of penetration as sexual acts. She had some meals with the applicant and his girlfriend - who was a friend of EP's mother - but she did not have a sexual relationship with the applicant. Each time she left the treatment room, the applicant would hug her and try to kiss her on the lips. She would turn her head from side to side and he would bite her on the lip. She found this conduct very intimidating and did not encourage it.
59 In September 2006, EP complained to the police about the applicant's conduct. On 12 October 2006, she telephoned the applicant from the Prahran police station and recorded their conversation. At the trial, an audio tape recording of the conversation was played to the jury and the transcript of the conversation became an exhibit. In the course of the recorded conversation, EP asserted on several occasions that the applicant had inserted his fingers inside her and that she did not know how that helped her. The applicant consistently responded that he had massaged her 'through the top', 'on the top' or 'across the top'.
60 The applicant gave the following evidence in relation to counts 28 to 31 and 33 to 38. He had known EP for a long time through his girlfriend. He never treated her for endometriosis because such treatment could only be provided by a member of the medical profession. He first saw her for back pain and associated problems with tiredness and stress. She mentioned a lump in her breast and he drained the lymph node in the side of the breast and across the pectoral muscles, causing the lump to disappear. Her back pain was associated with huge stress and horse riding. At different times, as required, he treated her using Bowen therapy, with massage or by adjusting her back. EP was out of work for most of the time and he did not charge her. He gave her multivitamins.
61 The applicant said that, on one occasion, after he cracked EP's back, she gave him a hug and a kiss, and said, 'Thanks.' Apart from occasions when she had her period, she took off all her clothes and was naked under a towel. He massaged her with coconut and olive-based oils because her skin was sensitive. She had psoriasis. He would perform Swedish massage on her back, the front of her legs, her stomach, the top of her chest and her neck. He asked her how she felt and ensured that she was okay when he was close to sensitive areas. On occasions, he massaged around the pelvic area. He massaged in the vaginal area, which started as a result of work on the abductors and across the pubic bone. He discussed what he was going to do and did not penetrate her vagina.
62 The applicant said that, on 10 October 2003, he gave EP a full-body massage. She was undressed under a towel. During the course of the massage, they became intimate; it changed from a professional massage to an intimate massage. She told him that it was nice and started moving so that he was in contact with her genitalia. He massaged her clitoris and vagina. When she told him that she liked oral sex, he performed oral sex on her. From that time, their relationship became intimate. He thought that EP consented because she was involved in the sexual activity - sometimes reaching orgasm - and told him how great she felt and kissed him afterwards. He knew of no reason why EP might think that their sexual activities were part of her treatment.
63 The applicant said that, shortly after his relationship with EP became intimate, she sometimes massaged his penis and performed oral sex on him. He penetrated her vagina as part of their intimate relationship; he did not do so in order to treat her endometriosis condition. He never told her that he could treat her for endometriosis.
64 The applicant said that he did not, at any time, insert his finger into EP's anus or tweak her nipples. The only time that he went near her anus was when he did a major adjustment across the base of her coccyx.
65 In relation to the allegation that he put EP's hand on his penis, the applicant said that, on one occasion, after he and EP were intimate in his treatment room, she gently and very playfully grabbed him by the groin and said, 'If you hurt me today, I'm going to hurt you.'
66 The applicant said that, on about three occasions, he gave money to EP when she said that she did not have any money and had not eaten. They went out to a few restaurants in Prahran and also went shopping together.
67 The applicant gave evidence-in-chief and was cross-examined about his recorded conversation with EP on 12 October 2006. In his evidence-in-chief, the applicant explained that his references to massaging 'on the top' were to work he did across the top of the pubic bone to relieve pain in the muscles that are attached to the bone. In cross-examination, he was asked whether, in response to EP's assertion that he had digitally penetrated her vagina, he had said, 'No, don't be silly. I haven't touched you inside. I've only worked across the top.' He said that, although he did not use these words, he had asked EP, 'What are you talking about?'[14] He did so because he had only worked across the top of EP's pubic bone, through her pelvic area and down the sides of her legs.
68 In her closing address to the jury, the prosecutor said that the jury should accept EP's evidence that she believed that all the sexual contact that had taken place with the applicant was part of the medical treatment and should reject the applicant's evidence that he and EP had a consensual sexual relationship. Defence counsel told the jury members that they should not accept EP's evidence that she did not have a consensual sexual relationship with the applicant and that she thought that the impugned acts were part of the medical treatment. He emphasised that EP had continued to visit the applicant after he had performed oral sex on her, despite knowing that oral sex was not part of the medical treatment. He said that the applicant believed that he was EP's boyfriend and that she consented to the sexual activity.
69 NA gave the following evidence. She first saw the applicant in August 2003 for an eating disorder and depression. He told her that she had neck problems and, on the first two appointments, he cracked her neck and back. At the third appointment, the applicant cracked her back while she lay fully clothed on the massage table. He started flicking her neck, and told her that flicking a tendon or duct was like performing Bowen therapy. He then flicked her armpits, around her breastbone and pelvic area, and in her groin area below her underwear line and pubic bone. He put his hand inside her underpants and started rubbing her clitoris without first telling her that he was going to do so (count 39). She was shocked, but she did not say anything because she thought it was part of the treatment. The applicant kept rubbing and said that this would be good for her hormones and her 'girlie bits'. They both started to become aroused. He said, 'Good girl, come on, good girl.' She had an orgasm. He said, 'That's really good ... getting [your] bits working again.' She did not say no, but did not know what to say. She felt shocked and did not understand what had happened. The applicant refused to accept payment.
70 NA said that her fourth appointment with the applicant took place about four weeks later. She went back to see the applicant because her neck was out and she needed more supplements. She removed her tracksuit pants and he adjusted her neck and back. As she lay on her back, he flicked her tendons. The applicant may have pulled her underwear down. He flicked down to her abdomen and then his hand went down to her groin and started rubbing her clitoris. He asked, 'How are your girlie bits?' and 'Are you getting switched on?' She said, 'Yes.' The applicant continued rubbing and put his fingers in her vagina (count 40). When she told him that what he was doing was hurting her, he slowed down, but he did not stop. He kept going until she had an orgasm. She felt uncomfortable and taken aback, and did not really want him to penetrate her vagina, but she did not expressly tell him to stop. She thought what he was doing was part of the treatment. The applicant left the treatment room to wash his hands. When he returned, he rubbed her clitoris again (count 41). She said, 'This doesn't feel right' and he said, 'It's getting your girlie bits going. It's switching on your hormones.' He massaged her to orgasm again and she told him that it was the first time that she had come to a multiple orgasm. The applicant refused to accept payment.
71 NA said that, in early October 2003, after the applicant adjusted her, he asked her to give him a massage because she had completed a massage course. She did so while he was naked. The applicant got her hand and put it on his penis. Subsequently, she engaged in consensual sexual activity with the applicant. Consensual sexual activity with the applicant ceased during a period when she had a relationship with one of the applicant's male colleagues. She socialised with the applicant, the applicant's girlfriend and the applicant's male colleague. After her relationship with the applicant's male colleague ended, she resumed her relationship with the applicant. In 2006, she began treatment with a chiropractor and stopped seeing the applicant.
72 In October 2006, NA complained to the police about the applicant's conduct. On 13 November 2006, she telephoned the applicant from the Prahran police station and recorded their conversation. At the trial, an audio tape recording of the conversation was played to the jury and the transcript of the conversation became an exhibit. During the recorded conversation, NA made a statement to the effect that the applicant had digitally penetrated her. The applicant responded, 'Well, you've played with me. Anyway, not on the phone.' Earlier, in response to NA's statement that she and the applicant had 'done some stuff', the applicant said, 'You and I have shared a massage. We massaged each other, that's about it.'
73 The applicant gave the following evidence in relation to counts 39 to 41. He saw NA over three years. She became a friend and they were intimate. If she was in pain, he would do an adjustment or a massage and she would do the same for him. They first became intimate during a massage. When he was massaging her across the stomach and pubic bone, she gently took his hand and guided it to her vagina. They both became aroused and he massaged her to orgasm. She said that it was wonderful because she had never before had multiple orgasms. She was totally involved and quite noisy. He agreed to be massaged by her after she said that she wanted to give him a massage to thank him for what he had done for her. It was at her suggestion that he took his underwear off. She returned on many occasions for intimate massages, during which he would bring her to orgasm. The intimate massages ceased during the period that NA had a relationship with his male colleague and resumed after that relationship ended.
74 In her closing address to the jury, the prosecutor said that NA believed that the sexual acts that the applicant performed on her were part of the medical treatment because the applicant gave an explanation about trigger points to justify what he was doing. She also said that the fact that a friendship developed between NA and the applicant that involved mutual massages did not mean that the impugned acts occurred with NA's consent. Defence counsel told the jury that the applicant and NA had a sexual relationship involving mutual erotic massages, that NA knew that the sexual activity was not part of the medical treatment and that the applicant believed that NA consented to that activity.
75 SB gave the following evidence. Prior to 27 February 2006, she saw the applicant on two occasions for treatment for her back and had a counselling session with him about her distress over her retrenchment. On 27 February 2006, as she lay on her stomach, he began massaging the muscles on her buttock cheeks. He said that he could not massage her properly and took off her underpants. He continued to massage along her inner thigh. His hands were positioned so that they briefly swept across her vulva and clitoris (count 46).[15] She excused herself and went to the toilet. On her return, she lay on her back and the applicant began to massage her stomach. He massaged her inner thigh and his hands rubbed over her clitoris. She thought that this was an accident, so she moved and he returned to normal massage. He then moved back up to her inner thigh and groin, and told her that he had discovered a lump that he could massage out. His hands touched her clitoris and vulva a couple of times, and he asked her to spread her legs wide (count 47). She told the applicant that she was uncomfortable and the massage ceased.[16] The applicant massaged her breasts, squeezing them, and then leaned over so that she felt his erect penis beneath his trousers on her arm (count 49).[17]
76 The applicant gave the following evidence in relation to counts 46, 47 and 49. On 27 February 2006, he did not pull SB's underwear down as alleged by her. He massaged close to SB's genitalia, but he did not rub her clitoris or vulva. SB rolled over on her back and he massaged across the front of her legs. At one stage, SB's legs were very close together and he asked her to open them so that he could towel her. The towelling exposed only the area of SB's leg upon which he was working. He did not touch SB's clitoris or vulva. He massaged across the top of her chest but not her breasts. He did not squeeze her nipples or rub his erection along SB's side. He did not have an erection, but he may have had a phone or a torch in his pocket. He had coffee with SB on a number of occasions.
77 SM gave the following evidence. She saw the applicant twice in August 2006 because she had pain at the back of her neck. On her second appointment, he told her to get onto the massage table. When she was face down on the massage table, he pulled down her jeans and massaged her buttocks over her underwear. He did not tell her he was going to do this. He told her that she looked like a supermodel and that she would be perfect if she was a little more toned. He told her that his bottom was toned and asked her to feel it. When she refused, he placed her hand on his buttocks (count 50). The applicant refused payment for the second consultation.
78 The applicant gave the following evidence in relation to count 50. SM told him that she had long-term back and neck problems. He explained that he needed to examine her lower back to ascertain whether this was causing the problems. She agreed to the examination. He felt the muscle tightness on her leg. He then pressed into her leg gently around the buttock area and told her that there was no resistance there. He got her to feel her own muscle and then she felt his muscle. She was quite happy to do so. He did not grab her hand and place it on his bottom. He told her that she reminded him of an ex-girlfriend who was a model.
79 We now turn to the grounds of appeal. Several provisions of the Crimes Act 1958 as in force at the trial are relevant to the grounds of appeal. For convenience, they are set out in the appendix to these reasons.
80 Under cover of ground 1, the applicant submitted that the trial judge had erred in refusing to sever the counts of rape and indecent assault where the complainants JH, JK, EP and NA allegedly had a subsequent relationship with the applicant.
81 At trial, defence counsel, who then appeared for the applicant, applied for an order that the presentment be severed and that three separate trials be conducted in respect of the following counts:
(a) the counts involving JH, JK, EP and NA who repeatedly returned to see the applicant, where the issue was whether the sexual acts were performed in the course of a sexual relationship or whether they constituted criminal conduct;
82 At trial, it was contended that the dissimilarities between the complainants' evidence meant that their evidence was not cross-admissible. If all the counts were heard together, the applicant's defence in which he denied any sexual act with some complainants would be prejudiced, it was said, by the evidence given by complainants with whom he was sexually intimate as part of a consensual relationship. It was also submitted that the stalking charge was prejudicial because it suggested that the applicant had engaged in predatory behaviour, which was not suggested by the other charges.
83 In rejecting the severance application the trial judge found that
all bar one of the complainants make allegations which contain an extremely strong underlying unity such that ... all of those complainants ... give evidence which is mutually admissible.'[19]
Her Honour described the 'mutual links between the complainants' as follows:
Essentially the accused used his place of work and the position he had in that environment over his clients to sexually assault them. Secondly, he required most of the complainants to be in a state of undress to conduct treatment; thirdly, he employed similar methods with the complainants to build a rapport and seduce clients, making inappropriate remarks regarding their appearance, kissing or hugging them under the pretext of support or comfort; fourthly, encouraging clients to reveal intimate details of sexual history and relationships.
Other mutual threads ... [are] that some were not required to pay any or all of the fees he would normally have charged for his services. Secondly, the accused did not inform clients of the detail of treatment he was about to perform. Most of the assaults took place in the context of supposed legitimate treatment. There was flattering of female clients with remarks regarding their appearance. Many of the female clients suffered from conditions making them particularly vulnerable such as depression, low energy or general malaise - in one case anxiety, in another case anorexia.
This makes for a remarkable number ... of linking factors such that I should find that the cross-admissibility capacity in this case is in fact unusually high.[20]
84 Her Honour held that the probative value of the similar fact evidence outweighed its prejudicial effect.[21] Her Honour acknowledged, however, that the two counts of rape involving AMS - namely, counts 43 and 44 - were 'quite distinct' because AMS was not a patient of the applicant and the alleged rapes occurred in his home. Although her Honour held that AMS's evidence was not cross-admissible, she refused to sever counts 43 and 44 because she concluded that any prejudice to the applicant could be overcome by suitable directions to the jury.
85 During the charge her Honour identified the following areas of similarity in the complainants' evidence:[22]
(a) all the complainants, except for LC and AMS, were clients of the applicant;[23]
(b) the alleged sexual assaults on SH, JH, JS, RS, LK, JK, CG, RLS, NA, EP, SB, BK and SM occurred in the course of a therapeutic massage;
(c) in the cases of JH, RS, JK, EP and NA, the applicant allegedly placed his finger in the vagina of each woman in the course of a massage and, in the cases of EP, SB, SH, JH, AMS, RS, LK, JK, KG, CG and NA, no explanation was given by the applicant of what was going to take place in the course of the massage;
(d) in the cases of JH, SM and RS, words of flattery were used by the applicant;
(e) in the cases of JH and JK, penile penetration allegedly took place in the same way, that is, in the course of massage, the applicant sat up each woman on the edge of the massage table and penetrated her vagina with his penis;
(f) KB gave evidence that the applicant put her hand on his penis over his clothes and said, 'This is what you do to me'. RS gave evidence that the applicant placed her hand on his penis over her clothes and said, 'See what you do to me';
(g) in the cases of JK and RS, each complainant gave evidence that, on one occasion when the applicant placed his finger in her vagina, he said, 'You're so wet';
(h) in the cases of SB, JH and EP, each complainant gave evidence that the applicant took off her underwear during the massage; and
(i) in the cases of SH, JH, AMS, RS, JK and CG, each complainant gave evidence that she did not have a towel over her when the massage took place.
86 On appeal, the submission was repeated that the evidence of the complainants JH, JK, EP, NA and AMS where consent was in issue was not cross-admissible with the evidence of other complainants where the issue was whether conduct occurred which went beyond legitimate medical treatment. It was submitted that one could not employ probability reasoning between the counts where the actus reus of the offence was in dispute, and those counts where the issue was consent. While acknowledging that the absence of cross-admissibility was not determinative, it was said to be highly influential, particularly given 'the sheer size of the un-severed presentment and the consequent (highly prejudicial) prospect of complainant after complainant giving evidence before the jury'.
it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3) [of the Crimes Act], to determine whether the evidence of the several complainants is cross-admissible because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused.[24]
88 The approach set out above has been followed consistently in this Court.[25]
89 In our opinion, ground 1 must fail. The trial judge was right to conclude that the evidence of the complainants, other than AMS, had a high degree of similarity, which rendered it cross-admissible and justified the rejection of the applicant's application for severance.
90 Contrary to the submission made on appeal, the alleged offending against JH, JK and EP included counts where the issue was not consent but whether the impugned act had taken place.[26] The evidence of all complainants other than AMS was, in any event, cross-admissible because it involved numerous similarities and a common theme, namely, that the applicant used a particular technique to take advantage of his professional relationship with the complainants for the purposes of sexual gratification.
91 According to the complainants' evidence, the applicant's technique included the use of flattery and waiver of fees to ingratiate himself with the complainants, a gradual encroachment of his hand upon the complainants' vaginas while they were in a relaxed state and the use of vague language such as 'trigger points' to justify his actions when he was challenged. The dichotomy between physical contact that was part of medical treatment and physical contact of a sexual nature was an issue in relation to many of the impugned acts, and there was no clear demarcation between those counts involving disputed acts and those involving consent. This is because the issue of consent itself involved a factual dispute as to whether the consent was 'free' or whether the applicant had procured it by inducing the relevant complainant to believe mistakenly that the impugned acts were part of her medical treatment.
92 As the similar fact evidence demonstrated a method or system, it had special probative value on the question of whether the impugned acts that were disputed by the applicant had occurred in the manner alleged by the complainants, and whether any consent was procured by the applicant misleading the complainant that it was for a medical purpose. The similar fact evidence extended well beyond evidence of mere propensity.[27]
93 The circumstances of the alleged offending involving AMS were not, as the trial judge recognised, cross-admissible. The decision not to sever counts 43 and 44 inevitably resulted in some prejudice to the applicant but that prejudice was appropriately mitigated by her Honour's direction to the jury regarding the fact that AMS's evidence was not cross-admissible. The correctness of her Honour's decision is reinforced when one has regard to the interests not only of the applicant but also of the Crown, the witnesses and the public.[28] As set out in Table 2 at [12] above, the jury did not convict the applicant on counts 43 and 44.
Grounds 3 and 7: Accidental touching during medical procedure
94 Under cover of grounds 3 and 7, the applicant submitted that the trial judge erred in her directions to the jury concerning:
(a) the use to which the jury could put evidence of any procedure performed by the applicant upon the complainants that was carried out in good faith and for medical or hygienic purposes; and
(b) whether the Crown might fail to prove that the applicant had touched complainants otherwise than by accident.
95 With regard to rape, her Honour correctly instructed the jury that the Crown had to prove each of the following elements beyond reasonable doubt:
(a) the applicant sexually penetrated the complainant in the way alleged;
(b) the applicant intended to sexually penetrate the complainant;
(c) the complainant did not consent to the sexual penetration; and
(d) at the time of the sexual penetration, the applicant was either aware that the complainant was not consenting or aware that she might not be consenting.[29]
96 With regard to indecent assault, her Honour correctly instructed the jury that the Crown had to prove each of the following elements beyond reasonable doubt:
(a) the applicant touched the complainant in the way alleged;
(c) there was no lawful justification for the touching, such as the consent of the complainant;
(d) at the time of the touching, the applicant was either aware that the complainant was not consenting or aware that she might not be consenting; and
(e) the touching occurred in indecent circumstances.[30]
97 Unsurprisingly, the applicant did not cavil with the above summaries of the elements of the offences of rape and indecent assault. He did, however, impugn the following statement in the trial judge's directions to the jury:
In other cases ... Mr Wilson is claiming that he might have touched a vagina or gone close to ... the genital area ... as part of a legitimate massage that he was doing. If you were to find that was the case, then clearly your verdict would be one of not guilty in relation to those particular complainants and the charges in relation to each of those ...
Where there is a claim of legitimate medical treatment, essentially that something has occurred in the course of the massage, that is not so much a consent question, because clearly the various complainants were consenting to a massage. It would be a question then of you determining whether or not touching in the way claimed was accidental or not. I am simply making that distinction here, because on a number of cases ... the accused man has said, you know, if anything occurred, it was in the course of legitimate medical treatment where that claim is made. That was all under the heading of whether or not the Crown has established beyond reasonable doubt that whatever action was undertaken by the accused man of a sexual nature was done deliberately and not accidentally. ... [T]hat is where legitimate medical treatment would fit, well the defence of it when you are determining a particular element of either rape or indecent assault.[31]
98 The applicant submitted that the trial judge misdirected the jury by linking the statutory provisions dealing with legitimate medical treatment with the defence of accident. He contended that if the jury thought that an impugned act was performed for the purposes of providing legitimate medical treatment, then, independently of any defence of accident, the jury might fail to be satisfied that 'sexual penetration' had occurred in accordance with the definition of that term in s 35 of the Crimes Act; that there was a lack of consent under ss 36(f), (g) of the Crimes Act; or that the requisite mens rea was present. The applicant was prejudiced, it was said, by the fact that her Honour's direction to the jury had confined the issue of legitimate medical treatment to the defence of accident.
99 The Crown submitted that her Honour did not misdirect the jury because her Honour had given a clear direction that if it was satisfied that the applicant 'touched a vagina ... as part of a legitimate massage that he was doing ... then clearly [the jury's] verdict would be one of not guilty'. Counsel also noted that defence counsel had not taken any exception to the direction.
100 We accept the applicant's submission. While it is true that, at the commencement of the impugned direction, the trial judge told the jury that it must acquit the applicant if it found that he touched a vagina as part of a legitimate massage, that statement was overtaken and effectively negated by her Honour's subsequent statements that the question of whether there was legitimate medical treatment was a relevant consideration in relation to whether the impugned act was deliberate or accidental.
101 Her Honour's conflation of legitimate medical treatment and accident left the jury with the impression that legitimate medical treatment was only relevant to the second element of the offences of rape and indecent assault. This was erroneous, as the act of penetration may have been relevant in one or more of the ways suggested by the applicant.[32] It was also erroneous in relation to indecent assault because the touching of a patient for the purposes of providing legitimate medical treatment would not have occurred in indecent circumstances.
102 The misdirection, however, only affected the applicant's conviction on count 1 relating to SH. This is because, apart from that count, the defence did not include any claim, and the applicant did not give evidence that, the impugned acts were performed for the purposes of providing legitimate medical treatment. The applicant's evidence in relation to all the other counts of which he was convicted was that the impugned acts were either accidental touchings in the course of a strictly therapeutic relationship or deliberate and consensual acts performed in the course of a sexual relationship.
103 In relation to the indecent assault the subject of count 1, the applicant gave evidence that the palpation across the top of SH's chest and down the sides of her breasts and the touching of her pubic bone were part of the treatment to which she had given informed consent. In his closing address to the jury, defence counsel reminded the jury of the expert evidence of Mr Rentsch that pressing on a pubic bone can be part of Bowen therapy. The misdirection precluded the jury from reasoning that, while the applicant's impugned acts were deliberate and thus satisfied the second element of the offence of indecent assault, they were performed as part of SH's legitimate medical treatment and not in circumstances of indecency, as required by the fifth element of the offence.
104 It follows that, in relation to count 1, there was a substantial miscarriage of justice because the misdirection deprived the applicant of a fair opportunity of an acquittal. The fact that no exception was taken to the impugned direction cannot alter this conclusion.
105 For the above reasons, we would uphold grounds 3 and 7 in relation to count 1.
106 Under cover of grounds 4 and 17, the applicant submitted that the trial judge erred: first, in her direction to the jury on the issue of whether the complainants did not consent to the charged acts; and second, in failing to relate properly the law to the evidence in respect of the issue of the complainants' lack of consent.
107 The trial judge read out to the members of the jury s 36 of the Crimes Act and informed them that subsections (f) and (g) were relevant in the proceeding. The applicant did not cavil with the relevance of ss 36(f), (g) of the Crimes Act. He took issue, however, with two statements in her Honour's directions to the jury as required by ss 36, 37AAA and 37AA of the Act.
I said to you that the fact that a person did not protest at the time of the alleged sexual penetration, or did not suffer physical injury, does not mean you therefore find that consent was present.[33]
109 It was submitted that her Honour erred in telling the jury that a lack of protest or physical injury 'does not mean that consent was present' because this statement precluded the jury from reasoning that the absence of injury and protest, taken together with other matters, left a reasonable doubt about lack of consent.
110 There is no substance in that submission. The trial judge was required to direct the jury in accordance with ss 37AAA(d), (e)(i), (e)(ii) of the Crimes Act and did so. Her Honour told the jury:
The fact that a person did not say or do anything to indicate free agreement to a sexual act at a time [at] which the act took place is enough to show that the act took place without the person's free agreement. The prosecution says this has application to a number of complainants who, at the time the alleged sexual acts took place, said nothing. So, the fact that a person says nothing or does nothing to actually indicate free agreement to a sexual act at a time [when] the act takes place is enough to show that the act took place without the person's free agreement. You may not regard a person as having freely agreed to a sexual act just because she did not protest or physically resist or because she did not sustain physical injury. I will repeat that. You may not regard a person [as] having freely agreed to a sexual act just because she did not protest or physically resist or because she did not sustain physical injury.
In determining whether a complainant did not freely agree to be sexually penetrated, you must consider all of the relevant evidence, including what she is alleged to have said and done at the time of the alleged penetration, as well as the evidence she gave in court about her state of mind at the time. You also consider what she did not say or do at the time of the alleged penetration.[34]
111 The statement set out at [108] above, in the context of the jury directions as a whole, would have been understood by the jury in the manner intended by s 37AAA of the Crimes Act. The statement set out at [110] above clearly demonstrates that the jury was adequately directed that, in determining whether there existed a reasonable doubt about whether a complainant had consented to a sexual act, they were to have regard to all the matters that they considered relevant to the issue of consent.
112 The second impugned statement was made as part of her Honour's response to the following question from the jury: 'Is a state of sexual arousal a circumstance in which a person does not freely agree to give consent?'[35] Her Honour's statement was as follows:
where there is evidence that a person did not say or do anything to indicate consent or free agreement to a sexual act, normally that is enough to show consent has not occurred ... I can tell you that at law, where a person [does] not say or do anything to indicate consent, that is normally enough to show that consent has not occurred.[36]
113 It was submitted that the word 'normally' does not appear in the statement to the jury set out at [110] above and is inconsistent with[37] 37AAA(d).37 The inclusion of the word 'normally', it was said, presented the jury with a prima facie position that a lack of indication of free agreement will usually amount to a lack of consent.
114 Once again, there is no substance to the applicant's submission. The inclusion of the word 'normally' did not create any inconsistency in the directions to the jury or with s 37AAA(d).[38] In any event, as submitted by the Crown, the inclusion of the word 'normally' was favourable to the applicant.
115 Finally, as noted by the Crown, at trial, the applicant did not take any exception to the impugned directions.
Grounds 11 and 17: Awareness of absence of consent
117 Under cover of grounds 11 and 17, the applicant submitted that the trial judge erred:
(a) by directing the jury that the applicant's mens rea would be proved if he was aware that a complainant was or might have been in a state in which she was legislatively deemed not to have consented; and
(b) by failing properly to relate the law to the evidence in respect of the issue of the applicant's alleged appreciation of the complainants' lack of consent.
118 The applicant impugned the following statements in the trial judge's directions to the jury:
The fourth element [of the offence of rape] relates to the accused's state of mind about the complainant's consent. The prosecution must prove beyond reasonable doubt that at the time of the sexual penetration the accused was either aware the complainant was not consenting or aware that she might not be consenting. I have already directed you about some of the circumstances that the law deems to be circumstances in which the complainant did not freely agree or consent to the penetration. Applying those directions to this fourth element, this element will be satisfied if the prosecution can prove beyond reasonable doubt that the accused man was aware that each of the complainants were mistaken about the sexual nature of the act or aware that each of those complainants might be mistaken or he was aware of the mistaken belief that the act was for medical or hygienic purposes. Again, this element will therefore be satisfied if the prosecution can prove beyond reasonable doubt that the accused man was aware that the complainant in each case was mistaken about the sexual nature of the act or of the mistaken belief that the act was for medical or hygienic purposes. And that applies to [JH, JK, NA and EP].
...
Applying the directions contained in the seven paragraphs [of s 36 of the Crimes Act] to this fourth element [of the offence of indecent assault], this element will therefore be satisfied if the prosecution can prove beyond reasonable doubt that the accused ... was aware that the complainant was mistaken about the sexual nature of the act or was aware that the complainant might be mistaken but decided to touch her regardless of this possibility, or was aware of the mistaken belief that the act was for medical or hygienic purposes, or the accused was aware the complainant might be mistaken but decided to touch her regardless of this possibility.[39]
119 It is important to point out that the above statements were in accordance with the then current version of the Victorian Criminal Charge Book.[40] It may then have been considered that as a consequence of ss 36 and 38 of the Crimes Act, if the accused was aware of the facts giving rise to any one of the circumstances set out in s 36, the accused would by definition be aware that the complainant was not consenting. As will be seen, however, recent decisions of this Court have demonstrated that, when considered in conjunction with ss 37, 37AAA and 37AA, the statutory regime must be given a different construction.
120 The applicant submitted that the above statements were erroneous because they equated awareness by the applicant of the circumstances of deemed consent under ss 36(f) and (g) of the Crimes Act with awareness by the applicant of a lack of consent or of a possible lack of consent. It was contended that ss 36(f) and (g) was directed at establishing a complainant's lack of consent, and that the applicant's awareness of the circumstances there set out did not determine the question of whether he was aware that a complainant did not consent or might not have consented. The true position was said to be that the applicant's awareness of the circumstances set out in ss 36(f) and (g) was merely a relevant consideration in the determination of that question because, under s 37AA(b)(i), it informed the reasonableness of any belief that he claimed to have held in the complainant's consent. The trial judge, it was said, had erred in giving a direction to the jury that prevented it from finding that the Crown had failed to prove beyond reasonable doubt that the applicant was not aware that a complainant was not consenting or might not be consenting once it was satisfied that he was aware of the circumstances of deemed non-consent under ss 36(f) and (g).
121 Further, the applicant contended that the trial judge erred in instructing the jury that the mens rea element would be satisfied if the jury concluded that the applicant was aware that a complainant 'might be mistaken' about the sexual nature of the act or whether the act was for medical purposes.[41] Section 37AA does not, so it was said, permit a jury to consider a circumstance set out in s 36 that 'might' exist.
122 According to the applicant, the above errors resulted in a miscarriage of justice in relation to the counts involving the issue of consent, particularly the guilty verdicts on the counts involving JH, JK, EP and NA. In respect of those complainants, the applicant gave evidence that a consensual sexual relationship developed out of the initial professional relationship and that the sexual acts were performed consensually in the course of the sexual relationship and not in the course of the professional relationship. In those circumstances, so it was said, although the applicant may have been aware that JH, JK, EP and NA might have thought that the sexual acts were part of a therapeutic massage, such an awareness was not inconsistent with the applicant believing that those complainants were consenting to the sexual acts.
123 The Crown conceded that the trial judge would have misdirected the jury if she had instructed them that awareness by the applicant of the circumstances of a complainant's deemed non-consent would conclusively establish his awareness that the complainant was not consenting or might not be consenting. The Crown said that such an instruction would overstate the position because, while awareness of the circumstances of deemed non-consent was a relevant factor in relation to mens rea, it was not conclusive or determinative of mens rea.
124 The Crown contended that, as the trial judge did not use the word 'conclusive', she did not misdirect the jury. In any event, the Crown submitted, the applicant's complaints about the trial judge's directions were not raised by the applicant at trial and constituted an attempt to litigate on appeal an issue that was not litigated at trial. The complaints were without foundation, the Crown said, because it was never part of the applicant's case at trial that, notwithstanding that he may have been aware that JH, JK, EP and NA were or might have been mistaken about whether the impugned acts were for medical or hygienic purposes, he believed that they were consenting to those acts.
125 In Getachew v The Queen,[42] Roberts v The Queen[43] and Neal v The Queen,[44] this Court held that the instructions to the jury in those cases, which equated the accused's knowledge of the facts giving rise to deemed lack of consent under s 36 of the Crimes Act with knowledge that the complainant was not consenting or might not be consenting to an act of sexual penetration, were erroneous.
126 Getachew involved a single count of rape where the complainant alleged that she was asleep when the accused penetrated her anus with his penis. Buchanan JA stated:
I think that the trial judge erred in his instructions as to the element of mens rea in telling the jury that the requirement to prove mens rea was met if the jury concluded that the applicant was aware that the complainant might be asleep. The jury could be satisfied that the applicant was aware of this possibility but at the same time think that it was a reasonable possibility that the applicant believed the complainant was awake.
Counsel for the respondent submitted that as the applicant failed to advance a version of the facts in his record of interview disclosing a belief on his part that the complainant had consented and stood mute at his trial, the existence of a belief the complainant was consenting was merely speculative.
In my opinion, however, there were facts deposed to by the complainant that were capable of founding an inference that, at the moment when the penetration commenced, the applicant believed the complainant was consenting. The complainant said that she protested twice when the applicant touched her. The applicant then placed his body immediately behind the complainant, raised her skirt and pulled down her underwear and commenced to penetrate her. Critically, during these manoeuvres, which involved a degree of physical manipulation by the applicant, there was no demur on the part of the complainant. The jury may have concluded that there was no protest by the complainant because she was asleep. Equally, if they had been properly instructed, the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented.
Unfortunately the trial judge's charge apparently precluded the latter conclusion.[45]
127 Bongiorno JA delivered a short concurring judgment in which he stated that the Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to the act of sexual penetration and that the judge's direction to the jury effectively precluded its consideration of this issue according to law.[46] Lasry AJA agreed that the judge's direction was in error but dissented on the question of whether the error resulted in a miscarriage of justice.[47]
128 Bongiorno JA, with whom Buchanan JA and Lasry AJA agreed, made similar observations in Roberts, which also involved a single count of rape where the complainant alleged that she was asleep at the time of penetration.[48]
129 Neal involved multiple counts of anal penetration of male complainants by the accused. One of the complainants, PC, alleged that, on one occasion, the accused inserted crystal methylamphetamine into PC's anus and, due to its disinhibiting effects, he allowed the accused to have unprotected sex. Another complainant, PW, alleged that, after he engaged in sexual activity with the accused while he was under the influence of drugs, the accused informed him that he had inserted a golf ball into his anus and that he had not consented to this act. In a joint judgment, Nettle and Redlich JJA and Kyrou AJA stated:
Section 37AA was introduced to ensure that the directions to a jury were sufficiently focussed upon circumstances relevant to disproof by the prosecution of an accused's asserted belief that the complainant was consenting. This accords with the conventional approach that reasonableness of belief bears upon the question of whether the belief was held. The applicant's awareness of the relevant s 36 circumstance informs the reasonableness of any belief that the applicant claimed to have held as to the complainant's consent. Section 37AA thus contemplates the possibility of cases in which an accused was aware that a s 36 circumstance existed in relation to a complainant but, because of evidence that the accused believed the complainant was consenting, then notwithstanding that s 36 circumstance, the jury may not be satisfied beyond reasonable doubt that the accused knew that the complainant was not consenting or might not be consenting. Read in the context of s 37AA, s 37AAA(c) cannot be taken to mean that it will be enough to establish that an accused was aware that a complainant was not consenting or might not be consenting to show that the accused was aware that a circumstance specified in s 36 existed in relation to a complainant.
It follows, in our view, that the judge erred by directing the jury that, if they were satisfied that PC was so affected by crystal meth as to be incapable of freely agreeing and that the applicant was aware that PC was so affected, they should find that the Crown had established beyond reasonable doubt that the applicant knew that PC was not consenting or might not be consenting. Similarly, his Honour erred in directing the jury that if they were satisfied that PW was mistaken about the sexual nature of the act of penetration, and the applicant was aware of that, they should find that the Crown had established beyond reasonable doubt that the applicant was aware that PW was not consenting or might not be consenting. The directions were erroneous because they equated awareness by the applicant of the circumstances of deemed consent under s 36(f) and (g) with awareness by the applicant of a lack of consent or of a possible lack of consent. The trial judge's direction foreclosed a finding that the Crown had failed to prove beyond reasonable doubt that the applicant was not aware that a complainant was not consenting or might not be consenting once the jury was satisfied that he was aware of the circumstances of deemed non-consent under s 36(f) and (g). The question of whether the accused was aware that the complainant was not consenting or might not be consenting must be determined by the jury on the evidence as a whole.[49]
130 It must follow from Getachew, Roberts and Neal that ground 11 has been made out. Although the trial judge did not use the word 'conclusively' in her instructions to the jury, she said that the fourth element 'will be satisfied'. In doing so, her Honour erroneously equated awareness of the circumstances of deemed non-consent under s 36(f) and (g) with awareness of a lack of consent or a possible lack of consent.
131 Section 36 sets out circumstances that establish non-consent by a complainant. In accordance with s 37AAA(c), where those circumstances are found to exist, the third element of the offences of rape[50] and indecent assault[51] is satisfied. Under s 37AA(b)(i), an accused's awareness of the existence of those circumstances is relevant to the reasonableness of any belief claimed to have been held by the accused that the complainant was consenting. However, neither the existence of those circumstances nor the accused's awareness of them necessarily satisfies the fourth element, namely, that the accused was aware that the complainant was not consenting or might not be consenting. Proof of the third element by virtue of the existence of circumstances set out in s 36 combined with proof of the accused's awareness of those circumstances does not remove the Crown's obligation to prove the fourth element beyond reasonable doubt. Proof that the accused was aware of the facts that establish the circumstances set out in s 36 may, in a given case, be sufficient to satisfy the jury beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting, but it will not necessarily prove such awareness beyond reasonable doubt in all cases.
132 The question of whether the accused was aware that the complainant was not consenting or might not be consenting must be determined by the jury on the evidence as a whole. The question cannot be foreclosed solely because the jury is satisfied that the accused was aware of the facts that establish deemed non-consent in accordance with s 36. Depending on the facts as a whole, the possibility that an accused might believe that a complainant was consenting notwithstanding that the accused was aware of the circumstances set out in s 36 is not necessarily hypothetical.
133 In the present case, the applicant gave evidence that, soon after he commenced treating JH, JK, EP and NA, a consensual sexual relationship developed in the course of a therapeutic massage. In the case of JH, the applicant said that she initiated physical intimacy in the course of a massage during her second appointment.[52] In the case of JK, the applicant said that he believed that she was consenting to the digital penetration that occurred in the course of a massage during her second appointment because she became sexually aroused and moaned, moved gently and became involved in what was happening.[53] In the case of EP, the applicant said that he and EP became intimate on 10 October 2003 when, in the course of a massage, EP told him that it was nice and moved so that he was in contact with her genitalia.[54] In the case of NA, the applicant said that they became intimate and, when he digitally penetrated her for the first time, that act was part of their sexual relationship, which involved mutual massages and mutual arousal.[55]
134 The applicant said that all of the impugned sexual acts that took place with JH, JK, EP and NA after the commencement of a sexual relationship were performed as part of that relationship and not as part of any medical treatment. He said that, after that time, massages were part of the setting for consensual sexual activity, but that activity was not performed, and did not purport to be performed, for therapeutic purposes.
135 The jury must have rejected the applicant's evidence that he believed that JH, JK, EP and NA consented to the impugned acts. In the light of the trial judge's erroneous direction, the possibility cannot be excluded that the jury rejected his defence on the basis that the applicant was aware that JH, JK, EP and NA were mistaken about the sexual nature of the acts or about whether they were for medical or hygienic purposes, or on the basis that he was aware that those complainants might have been so mistaken. It cannot be assumed that the jury would have reached the same verdicts if it had been properly directed. The applicant's awareness that JH, JK, EP and NA were mistaken about the sexual nature of the acts or about whether they were for medical or hygienic purposes did not necessarily preclude the jury from entertaining a reasonable doubt about whether the applicant was aware that those complainants were not consenting or might not be consenting. The jury could have entertained a reasonable doubt about the applicant's mens rea by accepting other parts of his evidence about a particular complainant and certain parts of a complainant's evidence. Depending on what evidence the jury accepted, it would have been open to it to conclude that, notwithstanding that the applicant was aware that a complainant was mistaken about the sexual nature of an act or whether the act was for medical or hygienic purposes, nevertheless he interpreted her verbal and non-verbal responses to the impugned act as conveying consent.
136 It may be thought unlikely that an awareness by the applicant that a complainant was mistaken about the sexual nature of an act or about whether it was for medical or hygienic purposes could co-exist with a belief that the complainant was consenting to the act as a sexual act. However, this was a matter for the jury. The trial judge's directions precluded the jury from reasoning that, notwithstanding the applicant's awareness of the complainant's mistake, there was a reasonable possibility that he believed that the complainant was consenting.
137 The applicant's evidence in relation to JH, JK, EP and NA clearly raised the issue of whether he could have had a belief that those complainants were consenting to the impugned acts, even though he was aware that they were or might be mistaken about the sexual nature of the act or whether it was for medical or hygienic purposes. That this was a live issue at trial is borne out by the final addresses of the prosecutor and defence counsel,[56] and by the fact that, on 2 May 2008, the ninth day of the jury's deliberation, the jury asked the following question: 'Is a state of sexual arousal a circumstance in which a person does not freely agree to give consent?' In response to that question, after telling the members of the jury that this was essentially a matter of fact for them to assess, the trial judge said that a complainant's sexual arousal could be relevant to the question of whether she consented to the sexual act as well as to the question of whether the accused believed that the complainant was consenting. Her Honour said that a complainant's 'sexual arousal might lead an accused person to believe [that the complainant] is consenting or might be consenting'.[57] Apart from saying that 'evidence that a complainant is sexually aroused might be a fact you would take into account in determining whether the prosecution has proved beyond reasonable doubt that element relating to the accused person's state of mind and about whether or not there was consent', her Honour did not revisit s 36 of the Crimes Act or correct her earlier erroneous instructions.
138 Accordingly, we reject the Crown's contention that these grounds constitute an attempt to litigate on appeal an issue that was not litigated at trial. It is true that the applicant did not give evidence in terms that he was aware that JH, JK, EP and NA were, or might have been, mistaken about the nature of the sexual acts or whether they were for medical or hygienic purposes, but nevertheless believed that they were consenting. His evidence was, in substance, that the acts the subjects of the counts occurred in the course of a consensual sexual relationship. But each of the complainants and the applicant gave evidence that raised the likely hypothesis that each of the complainants believed that some of the conduct the subject of counts occurred during or immediately prior to the conclusion of medical or therapeutic treatment. Accordingly, the course of the trial necessarily gave rise to issues as to whether JH, JK, EP and NA were mistaken about the sexual nature of the impugned acts or whether they were for medical or hygienic purposes, and as to the applicant's awareness that JH, JK, EP or NA were or might be mistaken about those matters. This was so even though defence counsel did not articulate those issues in these terms.
139 Although the trial judge repeatedly told the jury that they must consider the issue of consent on the evidence as a whole, such exhortations were too general to negate the specific and unqualified statements that are set out at [117] above.
140 It follows that the jury may have been satisfied, through an impermissible path of reasoning, that the applicant was aware that JH, JK, EP and NA were not consenting or might not be consenting. Accordingly, there was a substantial miscarriage of justice in relation to counts 16, 17 and 18 involving JK, counts 28, 29, 30, 31, 36, 37 and 38 involving EP and counts 39, 40 and 41 involving NA.[58]
141 The erroneous directions did not, however, affect count 3 or 4 involving JH or count 33 involving EP because those complainants gave evidence that they were aware that the impugned acts falling within those counts were sexual acts and that they were not performed for medical purposes. Further, the erroneous directions did not affect count 15 involving JK or count 35 involving EP because the applicant's case in relation to those counts was not that the impugned acts were consensual, but that they did not take place.
142 The position is the same in relation to count 1 involving SH. The applicant admitted that he palpated across the top of SH's chest and down the sides of her breasts and touched her pubic bone. He said that this touching was part of the medical treatment and that SH gave informed consent to that treatment. SH gave evidence that she did not regard the impugned acts as forming part of the medical treatment and that she did not consent to them. Although the applicant relied on consent in relation to count 1, s 36 of the Crimes Act was not engaged and the erroneous directions did not affect that count.
143 Finally, the erroneous directions did not affect count 34 in relation to EP. The applicant gave evidence that EP playfully grabbed him by the groin, whereas EP gave evidence that the applicant placed her hands on his penis. On either version, s 36 of the Crimes Act was not engaged.
144 In the light of our conclusion on ground 11, it is not necessary for us to deal at any length with ground 17 which, relevantly, alleged that the trial judge erred by failing to relate properly the law to the evidence in respect of the issue of the complainants' lack of consent. Her Honour clearly identified the issue of lack of consent, instructed the jury on the law pertaining to that issue, and summarised fairly the evidence and counsel's addresses on that issue. This ground is not made out.
Ground 13: Reasonableness of belief in consent
145 Under cover of ground 13, the applicant submitted that the trial judge's directions to the jury pursuant to s 37AA of the Crimes Act failed to allow expressly for the possibility that the applicant may have believed that the complainants were consenting to the impugned acts notwithstanding that such a belief may have been unreasonable. He contended that her Honour failed to comply with s 37 of the Crimes Act because she did not relate her directions under s 37AA to the facts in issue in the proceeding and the elements of the offence being tried so as to aid the jury's comprehension of the directions.
146 The impugned statement in her Honour's directions to the jury was as follows:
In relation to those claims of consent by the accused man, I must direct you that in those cases, you must consider any evidence of that belief in consent, whether that belief was reasonable in all the relevant circumstances, having regard to the definition of consent that I have given and whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps.[59]
147 In cases where a direction in accordance with ss 37 and 37AA of the Crimes Act is required, this Court has emphasised that the direction must make it clear that the accused's belief that the complainant was consenting does not have to be reasonable as a matter of law and that the Crown must prove beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not be consenting.
148 In R v Munday,[60] Callaway JA, with whom Batt JA agreed, said:
It will often be desirable ... to balance the direction required by s 37(1)(c) with a clear statement that the accused's belief does not have to be reasonable as a matter of law and that the Crown must prove that, in fact, he was aware that the complainant was not consenting or might not be consenting. As Southwell AJA and I said in R v Ev Costa [(Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Callaway JA and Southwell AJA, 2 April 1996)]:
Thirdly, whilst the standard charge is perfectly correct in directing the jury that '[i]n determining whether the accused believed she was consenting, you must take into account whether that belief was reasonable in all the circumstances', it would often be desirable to explain to the jury in simple language that the reasonableness or otherwise of a belief is no more than a guide to whether it was in fact held. As the Full Court said in R v Lucin [(Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Southwell, Ormiston and Coldrey JJ, 25 March 1994)], 'It does not follow that the unreasonableness of [the accused's belief] renders the defence untenable. It is merely a factor for the jury to consider in determining the accused's state of mind' [Emphasis added].[61]
I am ... concerned that this was a case where it was essential for the jury to understand the point made by the Full Court in R v Lucin, by Southwell AJA and me in R v Ev Costa and again by Batt JA and me in R v Munday. The belief of an accused person that the complainant was consenting to a sexual act does not have to be reasonable as a matter of law. The Crown must prove that, in fact, the accused was aware that the complainant was not consenting or might not be consenting. The unreasonableness of his belief does not mean that he is guilty. The direction required by s 37(1)(c) of the Crimes Act, where it is relevant to the facts in issue, makes it more important than ever that the jury understand the true significance of the question whether the belief of the accused person was reasonable.
In the present case, the judge said:
In determining whether the accused believed she was consenting you must take into account whether that belief was reasonable in all the circumstances. This is one of many guides which we may consider in determining the fundamental question: what was the state of mind of the accused at the time of the act of penetration. Did he intend to commit the crime of rape in the sense that at the time of the penetration he knew that the other person was not consenting, or being aware that this person might not be consenting, persisted in the penetration regardless of whether that person consented or not.
I have already criticised the third sentence in that passage. The first sentence reflected s 37(1)(c). The second sentence was not, in my respectful opinion, sufficient, in the circumstances of this case, to alert the jury to the point made in R v Lucin, R v Ev Costa and R v Munday. ...
The first and second sentences of the passage set out ... above illustrate the way in which a phrase that is unexceptionable in its context may change its meaning, or become unclear, when it is used in a different way or is abbreviated. Section 37(1)(c) requires the judge to direct the jury that, 'in considering the accused's alleged belief that the complainant was consenting', the jury must take into account whether that belief was reasonable. It is easy to see how reasonableness might be relevant to an alleged belief. There is a subtle change when the word 'alleged' is, understandably, omitted and the jury are told that, in determining whether the accused believed that the complainant was consenting, they must take into account whether that belief was reasonable. A step has been taken in the direction of suggesting that the belief has to be reasonable. Similarly, in R v Ev Costa, Southwell AJA and I said that the reasonableness or otherwise of a belief is 'no more than a guide to whether it was in fact held'. It is less informative simply to say that the reasonableness of an accused person's belief is 'one of many guides' to be considered in determining his state of mind. It is more specific than that. It is a guide to whether an alleged belief was in fact held or, more accurately, whether the Crown has excluded that alleged belief beyond reasonable doubt. The solution is not to restore the word 'alleged' in the charge but to give a direction of the kind suggested in R v Munday.[63]
150 In the same case, Eames JA, after referring to what Callaway JA said in Munday, stated:
In my opinion, the direction about treating reasonableness as merely a 'guide' did not sufficiently emphasise that, even if the jury concluded that the applicant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time. That was the additional direction suggested by Callaway JA in ... Munday ... The fact that particular care was required in directing on this topic is emphasised by the questions asked by the jury during their deliberations.
I am persuaded, therefore, that ... the jury ought to have been given a further direction, as suggested in Munday.[64]
151 In R v Gose,[65] the trial judge instructed the jury that 'the question of reasonableness is no more than a guide' and that '[t]he belief does not have to be reasonable but it is a matter which you should take into consideration on the question as to whether or not [the accused] really had the belief'. Vickery AJA, with whom Vincent and Nettle JJA agreed, referred to Munday and Zilm and then said:
In the present case, the direction given by the trial judge ... did not sufficiently emphasise the point stated by Eames JA in Zilm that 'even if the jury concluded that the appellant had held an unreasonable belief that the complainant was consenting to his sexual acts, he would still be entitled to acquittal if the Crown failed to disprove that his belief, although unreasonable, was genuinely held at the time'. Although the jury did not ask a question on the matter, I am not satisfied that the matter was expressed with appropriate clarity in the charge, as it should have been in conformity with the approach described by Eames JA in Zilm to which I have referred.[66]
152 In the present case, the trial judge's direction to the jury was consistent with s 37AA of the Crimes Act. The direction did not state that the jury must find that the applicant did not believe that the complainants were consenting if such a belief would have been unreasonable in the circumstances. In addition, her Honour said repeatedly that the issue of consent must be considered on the evidence as a whole and that the onus was on the Crown to prove beyond reasonable doubt that the applicant was aware that the complainants were not consenting or might not be consenting.
153 Nevertheless, the direction suffered from the same vice as the directions in Zilm and Gose because it could have left the jury with the impression that unreasonableness was determinative of the question of belief. The risk that such an impression may have been conveyed was greater in this case than in the cases of Munday, Zilm and Gose because here, her Honour did not state that the question of reasonableness is no more than a guide on the question of belief. Nor did her Honour say, as the trial judge did in Gose, that the belief in consent does not have to be reasonable. As in Gose, the fact that the jury did not ask any questions in relation to reasonableness does not indicate that the jury understood, with sufficient clarity, that even if it concluded that the applicant's belief in consent was unreasonable, he would still be entitled to be acquitted if the Crown failed to disprove that his belief, although unreasonable, was genuinely held.
154 The trial judge's failure to direct the jury in conformity with Munday and Zilm resulted in a substantial miscarriage of justice in relation to the counts where consent was in issue, particularly when viewed in conjunction with her Honour's misdirection on the effect of the applicant's awareness that a complainant might be mistaken about the sexual nature of the impugned acts or whether they were for medical or hygienic purposes. The counts that are affected are those set out at [140] above and also count 1 relating to SH, count 4 relating to JH, and count 33 relating to EP. Count 3 relating to SH and counts 34 and 35 relating to EP are not affected because the applicant's case in relation to those counts was not that the impugned acts were consensual, but that they did not take place.
155 In the circumstances, it is not necessary for us to consider separately the applicant's submission that the trial judge failed to relate her direction to the facts in issue in the proceeding and to the elements of the offences being tried so as to aid the jury's comprehension of the direction.[67]
156 Before leaving this and the previous two grounds, we should record our concurrence with the President in his observations that the statutory provisions have made this area of the law unnecessarily complex. These grounds are illustrative of the very challenging task faced by a trial judge who seeks to discharge his or her obligation of explaining the law to a jury and relating the facts to the law. The fact that there has been an increasing number of successful appeals against conviction in this area of the law, is due in no small measure to the fact that this area of the law is too complex and too difficult to explain to a jury.
157 Under cover of ground 9, the applicant submitted that the trial judge erred by failing to direct the jury properly on the evidence led by the Crown of the 'pretext' conversations that EP and NA had with the applicant, in circumstances where the Crown relied upon this evidence as constituting admissions by the applicant.[68]
158 It was contended that, in accordance with Edwards v The Queen,[69] her Honour should have directed the jury on the use that it could make of the applicant's statements in the pretext conversations. In particular, the applicant contended that her Honour should have directed the jury as to whether anything in the conversations could amount to an admission, whether any such admission was true and whether there were any reasons why the applicant might have desisted from making an outright denial of EP's allegation. He did not contend that the evidence of the pretext conversations should have been excluded.
159 The allegation of EP to which the applicant referred is the allegation that the applicant had digitally penetrated her. It will be recalled from [59] above that, in response to EP's allegation, the applicant said that he only massaged her 'through the top'. It will also be recalled from [67] above that, when the applicant was asked in cross-examination whether he had said, 'No, don't be silly. I haven't touched you inside. I've only worked across the top', he replied that, although he did not use these words, he had said, 'What are you talking about?'
160 In her final address to the jury, the prosecutor referred to the pretext conversations for the purpose of supporting the credit of EP and NA and undermining the applicant's credit. The members of the jury were not asked to treat as admissions the evidence of anything that the applicant said or did not say in response to assertions made by EP or NA during the pretext conversations. Defence counsel referred to the pretext conversation with EP and emphasised that the applicant had said that he had touched EP 'on top' rather than inside her vagina and that this was consistent with his evidence.
161 In our opinion, the trial judge's failure to give an Edwards direction cannot lead to a finding of error. The need for an Edwards direction does not arise whenever an accused person has engaged in conduct such as lying or failing to deny an accusation, but only when the Crown seeks to use that conduct as an admission against interest.[70] In the present case, as the prosecutor did not seek to use the applicant's statements as admissions, the rationale for an Edwards direction was absent. The fact that the prosecutor did not invite the jury to make any use of the pretext conversations - whether as constituting admissions by the applicant or in any other way that was adverse to him - meant that there was no potential for prejudice that needed to be addressed by an Edwards direction.
162 There would have been practical difficulties in the prosecutor seeking to use the applicant's responses to EP's and NA's assertions as constituting admissions. Neither EP nor NA specified the act of digital penetration to which they were referring and it would have been difficult to relate their assertions to any particular count.[71] In any event, the applicant's responses to EP's and NA's assertions were entirely consistent with his evidence. His response to EP was consistent with his evidence that, prior to the commencement of a sexual relationship with EP, with her consent, he massaged her in the vaginal area but did not penetrate her vagina. His response to NA's assertion that he had digitally penetrated her - namely, 'Well, you've played with me. Anyway, not on the phone'[72] - was consistent with his evidence that he had a consensual sexual relationship with NA, which included digital penetration of NA's vagina and mutual massages.
163 There was nothing in the evidence about the applicant's responses to EP's or NA's allegations that created a real danger that it might be misused by the jury. For example, there was no real danger that the jury would treat the evidence as constituting acceptance by the applicant of those allegations and therefore as constituting admissions of non-consensual sexual penetration.
164 At trial, not only did defence counsel not object to EP or NA giving evidence about the pretext conversations, but he also asked the applicant about those conversations during the applicant's evidence-in-chief. Further, he did not take exception to the trial judge's failure to provide an Edwards direction.
166 Under cover of ground 14, it was submitted that the trial judge made the following errors[73] in directing the jury about how evidence of uncharged acts could be used:
(a) her Honour failed to direct the jury in accordance with R v Sadler[74] that, in so far as it was open to the jury to use LC's evidence of uncharged acts in support of her evidence of charged acts, the former evidence needed to be proved beyond reasonable doubt because it was being used for the purpose of describing an inappropriate sexual interest in LC; and
(b) by necessary implication, her Honour's direction permitted the jury to use evidence of uncharged acts to support counts where the issue was consent, because it failed to discriminate between acts alleged to have been performed by the applicant that he denied having performed and acts that the applicant conceded he had performed, but which were said by him to have been performed consensually. On the basis of Phillips v The Queen,[75] the similar fact evidence could be probative of the commission of acts denied by the applicant, but it could not be probative of the alleged commission of crimes where the only issue was consent.
167 The trial judge's directions to the jury in relation to uncharged acts were as follows:
Now, the next matter I want to speak to you about is what is called use of evidence of other sexual activity between the parties, and there is, in some of the complainants' evidence they gave evidence of sexual activity between themselves and the accused other than that which was the subject of a particular charge. It is what is called uncharged acts.
[Her Honour summarised the evidence of uncharged acts in relation to JH, JS, JK, RLS, EP and NA, and continued:]
As a matter of law, even though that evidence is not the subject of any charge, it is admissible as an exception to the general rule, excluding such evidence. ... It is admissible in this case for two main reasons. The first is that you may, if you accept that evidence, use it to determine that there was a sexual relationship in existence between the accused and the complainant. If you are satisfied there was such a relationship in existence, you may use that to assist you in determining whether you accept the allegations of the complainant. The law recognises also what is sometimes termed as the guilty passion of an adult for a child. This has relevance in relation to the charges laid by [RS] and [LC].
[LC] gave evidence about on one occasion being in the car with Mr Wilson, him putting his hand on her thigh, about getting ... sexy lingerie in the form of a royal blue nightie that was probably inappropriate on her version for someone of her age; of telling people that he was going to marry her; of taking her to buy clothes and coming into the change-room unannounced. Now, you can look at all those pieces of evidence to determine whether or not there was evidence of guilty passion of Mr Wilson for [LC] who was then a child.
In relation to [RS], you in fact have evidence as well, although this is not evidence of uncharged acts, of kissing her in a particular way, of lying on top of her, those sorts of things which are in fact charged acts - I am diverting a little from what I am starting with, but you can use that evidence as well to determine whether or not there was what is called guilty passion of an adult, that is Michael Wilson, for a child, that being either [LC] or [RS]. If you find that to be established by the evidence here, you may use it as capable of making more credible the evidence of the complainant that the sexual activity she alleges did take place on the particular occasion. And, in relation to [LC], the prosecution says to you, look, those other incidents make it more likely that what she says happened on the occasion of the alleged indecent act did occur and that in fact it was an act with sexual connotations that took place.
[Her Honour summarised the applicant's evidence in relation to RS and LC, and continued:]
The secondary way in which you can use uncharged acts is that [it] enables the evidence relating to the alleged offence to be placed into a more complete and realistic context, and you can see, for example, in the case of [EP], where she is talking about a number of incidents taking place over a period of time because she attended upon him in a period of time, that those uncharged acts do place other parts of her evidence in context and that that is also the case with [NA], who also talked about a long-standing relationship in terms of attending upon and indeed of developing a friendship with Michael Wilson.
You can of course only use those uncharged acts in that way if you determine that they in fact occurred, and you will recall that of course the accused man denies that such actions did occur. You may, if you accept that evidence, appreciate the significance of what might otherwise seem merely to be isolated acts occurring without any apparent reason. It is for these reasons that this evidence is permitted to be given. You must understand that although this evidence may be received by you, it is admissible for the two limited purposes which I have just explained and only for those purposes.
In the long run you must be satisfied of the guilt of the accused of the actual charge or charges brought before you may convict him. You may not substitute evidence of some other incident not the subject of a charge for evidence in support of a charged incident. Above all, you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties and thus the probability or improbability of the charged acts having occurred. But it would be wrong, prejudicial and contrary to law for you to reason that because the accused had engaged in some improper conduct or in some other crime or crimes, he was the kind of person who was likely to have committed the crimes charge[d] and to use such a conclusion as evidence that he had committed them or any of them. Whether you are satisfied beyond reasonable doubt ... of the various charges is something you must decide on the evidence which relates to that [allegation] and that complainant. So that is the direction that I must give you in so far as uncharged acts are concerned.[76]
168 In Sadler, this Court considered in detail the High Court decision in HML v The Queen[77] which dealt with the directions to be given to a jury about the standard of proof of uncharged sexual acts. This Court said:
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 ...
...
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.[78]
169 In Roach v The Queen,[79] both the plurality judgment and the judgment of Heydon J briefly considered HML. In Roach, the trial judge directed the jury that the evidence of uncharged acts was led solely for the purpose of providing 'a true and proper context' to enable the jury to 'properly understand' the events that were the subject of the count of assault with which the accused was presented. The plurality judgment stated that, in these circumstances, it was neither necessary nor appropriate for the trial judge to give the jury any direction about the standard of proof to be applied to the evidence of uncharged acts.[80] Heydon J held that the direction that the trial judge had given to the jury, that '[i]f ... you do have a reasonable doubt ... about facts that would prove him guilty of the offence, then it is your duty to give the benefit of that reasonable doubt to the accused', was a direction concerning the need for the relationship evidence to be established beyond reasonable doubt, for the relationship evidence was capable of establishing facts which might prove the accused guilty of the offence charged.[81] No such direction was given in this case.
170 In the present case, the trial judge did not expressly direct the jury that LC's evidence of uncharged acts needed to be proved beyond reasonable doubt before that evidence could be used to infer that the applicant had a sexual interest in LC. Her Honour did, however, direct the jury that it must consider each count separately[82] and that it must be satisfied beyond reasonable doubt of all the facts from which it sought to infer the applicant's guilt. The latter direction was in the following terms:
You may not infer the existence of any element of the charge or the guilt of the accused unless, first, you are satisfied beyond reasonable doubt of all the facts necessary to make the inference in the way I have described, and secondly, the inference is the only reasonable inference which could be made upon those facts. If there were another inference open upon those facts, an inference consistent with innocence, you would necessarily have a reasonable doubt about the guilty inference and would not draw it.[83]
171 The Crown submitted that, in the light of these directions, the jury would have understood that it could not use LC's evidence of uncharged acts to infer that the applicant had a sexual interest in LC unless it was satisfied, beyond reasonable doubt, of the evidence concerning those uncharged acts. It was contended that, in effect, her Honour directed the jury in accordance with Sadler.
173 There is no requirement to direct a jury that circumstantial facts should be proved to any particular standard unless:
(a) the prosecution rests substantially upon circumstantial evidence;[84]
(b) inferential reasoning is relied upon to establish an element of the offence;[85]
(c) inferential reasoning may be an indispensable link in the chain of reasoning leading to guilt;[86] or
(d) inferential reasoning may be so important to the jury's deliberations that, as a matter of prudence, the jury should not act on the evidence unless the evidence is established beyond reasonable doubt.[87]
174 Evidence of uncharged sexual acts was here admitted to establish a 'context' in which LC's evidence should be viewed and for the purpose of demonstrating that the applicant acted in a sexual way towards her on one or more other occasion[88] so as to disclose a sexual interest in her which he was prepared to act upon. Such evidence could then be used by the jury as rendering it more probable that the applicant acted in the way alleged by LC.[89] Where the evidence has been admitted for such a purpose, Sadler requires that the jury be directed that it must be satisfied of the uncharged acts beyond reasonable doubt. The trial judge did not give such a direction nor did any combination of other directions that were given satisfy this requirement.
175 The generic instruction about inferential reasoning was given by the trial judge on the day prior to her direction about uncharged acts. Her Honour did not link the two directions or otherwise suggest to the members of the jury that use of the uncharged acts involved inferential reasoning. Nothing said would have conveyed to the members of the jury that, before they could rely on the uncharged acts as supporting LC's credibility or as making it more likely that the applicant committed the offence, they had to be satisfied of the uncharged acts beyond reasonable doubt. The judge's direction that the jury could not 'infer the existence of any element of the charge or the guilt of the accused ... unless satisfied beyond reasonable doubt of all the facts necessary to make the inference' neither identified the need for the jury to be satisfied as to the uncharged acts to the criminal standard, nor did it alert the jury to the need to analyse the uncharged acts in accordance with the direction on inferences. There is an obvious distinction between:
(a) a fact which necessarily supports an inference as to the existence of an element of the offence or the guilt of the accused; and
(b) circumstantial evidence, such as relationship evidence, which is relied upon to render such a fact more probable.[90]
176 The purpose of the general direction as to inferential reasoning is to provide guidance to the jury where the prosecution seeks to rely upon circumstantial, rather than direct, evidence to establish an element of the offence or the accused's guilt. Here the prosecution relied primarily upon the direct evidence of each complainant. LC gave direct evidence as to the uncharged acts and whether they were of a sexual nature. A positive finding as to those matters would have rested upon her direct evidence and not inferential reasoning. Furthermore, in the absence of the prudential direction that any fact which the jury considers very important in their reasoning towards guilt should be proved to the criminal standard,[91] the jury would not have approached a finding as to the uncharged acts as though it was 'necessary' to inferring the existence of an element or the guilt of the applicant.
177 The conclusion flowing from the finding of an uncharged sexual act, that the accused has a sexual interest in the complainant, thereby enhancing the complainant's credibility, is treated under the Evidence Act 2008 as tendency reasoning. But it has never been customary to direct juries that the use of uncharged acts involves a process of inferential reasoning and no such direction was here given. The jury would not have understood that the general direction concerning inferential reasoning applied either to the uncharged acts or to the use that could be made of them.
178 Given that an issue in relation to count 25 was whether the applicant's kissing of LC was innocuous or indecent, there was a real risk that the jury would use the evidence of the occurrence of the prior uncharged acts and the nature of those acts as an important step in reasoning towards guilt. It follows that Sadler required an unambiguous direction about the standard of proof in relation to the uncharged acts.
179 The Crown relied on R v NCT.[92] That case can be distinguished. In that case, in addition to a generic direction about inferential reasoning - which was in terms similar to that given in the present case - the trial judge told the jury that before it could draw the inference that the accused performed the uncharged acts 'because of having an improper sexual relationship or interest in [the complainant, it] must be satisfied beyond reasonable doubt of any facts necessary for the drawing of an inference and satisfied beyond reasonable doubt that it is the only inference open on those facts before using it to reason towards [the guilt] of the accused'.[93] The trial judge in that case specifically linked the criminal standard of proof to the uncharged acts from which the jury was being asked by the prosecution to infer a sexual interest in the complainant.
180 In R v EF,[94] dicta of Nettle JA may be found to the effect that the trial judge's generic direction in relation to inferential reasoning in the circumstances of that case was 'tantamount to a direction that the jury could not infer that the applicant had a sexual interest in the complainant unless satisfied of that fact beyond reasonable doubt'.[95] In the present case, for the reasons we have given, we do not consider that the general direction that was given would have conveyed to the members of the jury that before they could rely on evidence of uncharged acts as demonstrating a sexual interest in LC, they must be satisfied beyond reasonable doubt of the occurrence of the uncharged acts.
181 For the above reasons, we uphold the first alleged error.
182 We turn now to the second alleged error. In Phillips, the High Court stated:
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. ... 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.
...
In short ... 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'. Evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not consent.[96]
183 The trial judge's directions to the jury in relation to cross-admissibility of evidence were as follows:
I now want to talk to you about ... what is called cross-admissibility. There are similarities in the evidence of a number of the complainants which, if you accept that evidence, could demonstrate a pattern of conduct in the alleged offending. The prosecution says to you that these similarities make it unlikely that these complainants would have made these allegations unless they were true.
[Her Honour summarised the areas of similarity in the complainants' evidence as set out above at [85], told the jury that it was a matter for them whether they accepted the evidence and continued:]
May I first tell you what is probably obvious; when you are using these pieces of evidence which I have told you are similar, you do not use them as between all the complainants ... [T]he way in which you use this evidence is as supporting - the evidence of each complainant is supporting their allegations that these incidents occurred as they have said they did. You may reason that these similarities mean it is unlikely that they would have arisen unless the allegations were true. ... [T]he similarities in evidence and the use you may make of them as supportive of the allegations are the evidence of the complainants where the similarities arise, and not across the board to all the complainants, and that is what I was trying to say to you. The fact that there are similarities between particular complainants does not mean therefore that that makes the probability of what all complainants allege as being true. The supportive use you may use of those similarities relates only to the particular complainants I have detailed to you in that particular way. But you may use those similarities as supporting the evidence in one respect of one complainant and another. But I remind you again that you must consider each charge or count separately in the light of the evidence which is relevant to it. If you conclude the accused indecently assaulted one or more of the complainants or raped one or more of the complainants you may not reason that therefore he was the kind of man who would have indecently assaulted or raped the others. ...
Again, while you may use aspects of the evidence arising from each complainant's evidence as I have outlined as being similar as being mutually supportive of each other, you may not reason that because you find him guilty of indecent assaults on one or more complainant or guilty of rape on one or more complainant, therefore he is the kind of man who would have sexually assaulted the others and therefore decide he is guilty on that basis. That would simply be prejudice, ladies and gentlemen. You always return to the evidence relevant to each count and each complainant and see if that satisfied you beyond reasonable doubt of the accused man's guilt. In doing so, you may use the similarities I have described if they apply to that complainant and supporting her allegation, but that evidence of similarity alone would never be enough for you to conclude Mr Wilson is guilty of that charge. You look at all the evidence in relation to each charge and on each charge you ask yourself, 'Am I satisfied beyond reasonable doubt on the evidence led of the guilt of the accused?' If you[r] answer is yes, your verdict is one of guilty. If your answer is no, your verdict is one of not guilty.[97]
184 It is readily apparent from the trial judge's directions to the jury concerning uncharged acts that her Honour directed the jury as to what constituted the 'uncharged act evidence'; directed the jury as to the limited manner in which that evidence could be used; and warned the jury against impermissible propensity reasoning in relation to the evidence of uncharged acts.
185 It is also readily apparent from the directions to the jury concerning cross-admissibility of evidence that her Honour specifically identified the areas of similarity in the evidence of the complainants;[98] directed the jury that what one complainant said about one of those areas of similarity, if accepted by it, might be used as supportive of what another complainant said about the same area; and warned the jury against impermissible propensity reasoning in relation to the similar fact evidence. Her Honour did not expressly or implicitly say that the complainants' evidence of lack of consent was cross-admissible in the impermissible manner set out in Phillips.
186 As we have explained at [90] to [92] above, the similar fact evidence in the present case demonstrated method or system and was probative in relation to whether the impugned acts had occurred in the manner alleged by the complainants and whether any purported consent was procured by the applicant's inducing in the complainants a mistaken belief that the impugned acts were part of their medical treatment. This contrasts with Phillips and the more recent High Court decision in Stubley v[99]Western Australia99 where the only issue at trial was whether the complainants had consented and the similar fact evidence had no probative value in relation to that issue.
187 In our opinion, therefore, the second error is not made out. As the trial judge erred in her directions to the jury in relation to the uncharged acts relating to LC, ground 14 is upheld in part in relation to count 25.
188 Under cover of ground 18, the applicant submitted that, if none of the grounds pursued was sufficient to establish specific error, the verdicts of guilty were unsafe and unsatisfactory by virtue of an aggregate of errors.
189 As we have already concluded that grounds 3, 7, 11, 13 and 14 have been made out, it is not necessary for us to deal with ground 18.[100]
Conclusion in respect of application for leave to appeal against convictions
190 For the reasons we have given, we would grant leave to appeal against conviction, allow the appeal, quash the convictions on counts 1, 4, 16, 17, 18, 25, 28, 29, 30, 31, 33, 36, 37, 38, 39, 40 and 41 and order a new trial in relation to those counts.
191 As a consequence of the outcome of the applicant's appeal against his convictions, the sentencing discretion is re-opened with respect to the remaining counts. Although it is therefore unnecessary to consider the application for leave to appeal against sentence, it is relevant to the task of re-sentencing that we state our view that we do not regard either the individual sentences that were imposed by her Honour on the counts on which the applicant falls again to be sentenced, or the orders that were made as to cumulation between counts, as being manifestly excessive or as infringing the principle of totality. Accordingly, we would propose to make similar orders on a number of those counts.
192 The applicant committed 18 separate offences extending over a period of nearly 16 years and involving 10 victims. By reason of having pleaded not guilty to all the counts he is not entitled to receive any discount in sentence. All the victims were female patients of the applicant who sought his assistance to alleviate the chronic pain that they suffered because of debilitating conditions. Most of them were young. One was a child. All of the offences, except the offence relating to LC, occurred in the context of a professional relationship and in the course of the performance of therapeutic services by the applicant. In some cases the applicant pursued a relationship with the victim following the commission of the relevant offences. The offending involved gross breaches of trust and egregious abuse of his position.
193 We have taken into account the expert psychiatric evidence that was given during the plea, namely, that the applicant had a striking underlying psychological immaturity; that he was driven by insecurity, especially as regards loving and intimate relationships; that he tried to offset his sense of repeated abandonment as a child by seeking out quantity rather than quality of interpersonal relations as an adult; and that he offended principally because he craved intimacy rather than seeking sexual gratification.[101] That said, the applicant systematically exploited the vulnerability of the victims to satisfy his own sexual and psychological needs with the result that the victims suffered serious psychological trauma. These offences were objectively grave. Although the applicant does not have any prior convictions and was highly regarded within and outside his profession, sentences must be imposed that adequately denounce his conduct and protect the community by deterring others in the medical and therapeutic professions from engaging in similar conduct.
194 Upon the applicant being sentenced on both counts 3 and 6 to an individual term of imprisonment, he will fall to be sentenced on each other count as a 'serious sexual offender' for the purposes of Part 2A of the Sentencing Act 1991. Section 6E of that Act requires that the individual sentences of imprisonment on all counts other than counts 3 and 6 be served cumulatively unless otherwise directed by the Court.
195 In the light of the above, we would sentence the applicant on each count to the sentence specified in Table 3 below and order that the cumulation specified for each count be served cumulatively on count 35 and on each other making a total effective sentence of nine years and six months. We would fix a period of seven years before the applicant is to be eligible for parole.
Massaging RS's breast area, openmouth kiss, rubbing applicant's groin against RS's groin
Placing RS's hand on applicant's penis over his clothing
Touching the top of KG's vagina and applying pressure
Provisions of the Crimes Act 1958 as in force on 26 March 2008
35 Definitions
(1) In Subdivisions (8A) to (8G) -
...
sexual penetration means -
(a) the introduction (to any extent) by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; or
(b) the introduction (to any extent) by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes;
vagina includes -
(a) the external genitalia; and
(b) a surgically construed vagina. ...
36 Meaning of consent
For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following -
...
(f) the person is mistaken about the sexual nature of the act;
(g) the person mistakenly believes that the act is for medical or hygienic purposes.
37 Jury directions
(1) If relevant to the facts in issue in a proceeding the judge must direct the jury on the matters set out in sections 37AAA and 37AA.
(2) A judge must not give to a jury a direction of a kind referred to in section 37AAA or 37AA if the direction is not relevant to the facts in issue in the proceeding.
(3) A judge must relate any direction given to the jury of a kind referred to in section 37AAA or 37AA to -
(a) the facts in issue in the proceeding; and
(b) the elements of the offence being tried in respect of which the direction is given -
so as to aid the jury's comprehension of the direction.
37AAA Jury directions on consent
For the purposes of section 37, the matters relating to consent on which the judge must direct the jury are -
(a) the meaning of consent set out in section 36;
(b) that the law deems a circumstance specified in section 36 to be a circumstance in which the complainant did not consent;
(c) that if the jury is satisfied beyond reasonable doubt that a circumstance specified in section 36 exists in relation to the complainant, the jury must find that the complainant was not consenting;
(d) that the fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person's free agreement;
(e) that the jury is not to regard a person as having freely agreed to a sexual act just because -
(i) she or he did not protest or physically resist; or
(ii) she or he did not sustain physical injury; or
(iii) on that or an earlier occasion, she or he freely agreed to engage in another sexual act (whether or not of the same type) with that person, or a sexual act with another person.
37AA Jury directions on the accused's awareness
For the purposes of section 37, if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act, the judge must direct the jury that in considering whether the prosecution has proved beyond reasonable doubt that the accused was aware that the complainant was not consenting or might not have been consenting, the jury must consider -
(a) any evidence of that belief; and
(b) whether that belief was reasonable in all the relevant circumstances having regard to -
(i) in the case of a proceeding in which the jury finds that a circumstance specified in section 36 exists in relation to the complainant, whether the accused was aware that that circumstance existed in relation to the complainant; and
(ii) whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps; and
(iii) any other relevant matters.
...
38 Rape[102]
(1) A person must not commit rape.
Penalty: Imprisonment for 25 years.
(2) A person commits rape if -
(a) he or she intentionally sexually penetrates another person without that person's consent while being aware that the person is not consenting or might not be consenting ...
...
372 Orders for amendment of presentment, separate trial etc.
...
(3) Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.
(3AA) Despite subsection (3) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together.
(3AB) The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.
...
SIXTH SCHEDULE
RULES
...
2 Joining of charges in one presentment
Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character. ...
[2] [2008] VSCA 223; (2008) 20 VR 112, 125 [74].
[3] See, for example, SWC v The Queen [2011] VSCA 264 and SJF v The Queen [2011] VSCA 281.
[4] Victorian Law Reform Commission/Jury Directions/Final Report No 17 (2009), [4.2]-[4.6].
As to directions in sexual offence cases, see [4.[5]1]-[4.53] and Recommendations 17-19.
5 Those counts are listed below at [190].
[6] See Crimes (Rape) Act 1991 s 3.
[7] Count 5, in respect of which the jury returned a verdict of not guilty, comprised alleged penile penetration of JH's vagina.
[8] Count 16 related to the offence of rape. As JK did not give evidence of digital penetration of her vagina, the trial judge directed the jury to return a verdict of not guilty in relation to rape and left it open to the jury to return a verdict on the alternative offence of indecent assault.
[9] Count 19, in respect of which the jury was discharged after failing to return a verdict, comprised alleged penile penetration of JK's vagina while she sat on the edge of the massage table.
[10] Count 20, in respect of which the applicant was found not guilty, comprised alleged penile penetration of JK's vagina while they were in the shower.
[11] Count 21, in respect of which the applicant was found not guilty, comprised the applicant's alleged touching of CG's clitoris during the first appointment.
[12] Count 23, in respect of which the applicant was found not guilty by direction of the trial judge, comprised a third alleged incident of the applicant touching CG's clitoris.
[13] Count 32, in respect of which the applicant was found not guilty by direction of the trial judge, comprised alleged digital penetration of EP's vagina during the same consultation.
[14] Transcript of Proceedings, R v Wilson (County Court of Victoria, Judge Gaynor, 14 April 2008) 679-80 ('Transcript').
[15] The trial judge instructed the jury that count 46 comprised the applicant's hand allegedly making contact with SB's vaginal area: Transcript (30 April 2008) 1067.
[16] Count 48, in respect of which the applicant was found not guilty, comprised telephone calls to SB which allegedly constituted stalking.
[17] The trial judge instructed the jury that count 49 comprised the applicant's alleged squeezing of SB's breasts: Transcript (30 April 2008) 1067.
[18] The presentment originally included a count of possession of child pornography, which the trial judge agreed to sever: Transcript (27 March 2008) 30.
[21] The judge's ruling referred to r 2 of sch 6 to the Crimes Act; ss 372(3), (3AA) of the Crimes Act; and R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375 ('Papamitrou'), R v Taylor [2006] VSCA 53 and R v TJB [1998] 4 VR 621, 630-1.
[22] Transcript (17 April 2008) 859-61.
[23] Her Honour was in error in describing LC as a non-client.
[24] [2004] VSCA 12; (2004) 7 VR 375, 388 [27].
[25] See Neal v The Queen [2011] VSCA 172, [34] ('Neal').
[26] Those counts are counts 3, 15, 34 and 35.
[27] Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 391 [31].
[28] Neal v The Queen [2011] VSCA 172, [38].
[29] Transcript (17 April 2008) 795, 805.
[30] Transcript (17 April 2008) 807, 813.
[34] Transcript (17 April 2008) 800-1. See also at 810.
[37] The word 'normally' was originally removed by s 4 of the Crimes (Sexual Offences) Act 2006, which commenced on 1 December 2006.
[38] The word 'normally' does not appear in what the trial judge told the jury at Transcript (17 April 2008) 800, 811.
[39] Transcript (17 April 2008) 802, 811-12. These directions were given in accordance with the model direction then set out in the Model Charge hand book.
[40] The relevant provisions of the Charge Book were amended on 16 March 2011 in the light of the submissions that were made on this appeal.
[41] The trial judge's instructions to the jury on rape and indecent assault were inconsistent in relation to the applicant's awareness that the circumstances set out in s 36(f), (g) might exist. In relation to rape, her Honour used the expression 'might be mistaken' only in relation to the sexual nature of the act, whereas, in relation to indecent assault, she used that expression in relation to the sexual nature of the act and whether the act was for medical or hygienic purposes.
[42] [2011] VSCA 164 ('Getachew').
[43] [2011] VSCA 162 ('Roberts').
[45] [2011] VSCA 164 [23]-[26].
[46] Ibid [33]-[34]. Although on the 29th of September, 2011 there was a grant of Special Leave by the High Court, the principle does not appear to be in issue.
[48] [2011] VSCA 162, [32]-[33].
[49] [2011] VSCA 172, [79]-[80] (citation omitted).
[50] The elements of the offence of rape are set out above at [95].
[57] See Transcript (2 May 2008) 1076-8. On the appeal, the parties did not address whether her Honour erred in referring to a belief by the applicant that a complainant 'might be consenting' in a manner that could have suggested that such a belief would constitute a defence.
[58] See Crimes Act, s 568(1).
[59] Transcript (17 April 2008) 805-6. A similar statement was made at 852-3.
[60] [2003] VSCA 189; (2003) 7 VR 423 ('Munday').
[61] [2003] VSCA 189; (2003) 7 VR 423, 440 [47].
[62] [2006] VSCA 72; (2006) 14 VR 11 ('Zilm').
[63] [2006] VSCA 72; (2006) 14 VR 11, 13-14 [2]-[4] (citations omitted) (emphasis in original).
[65] [2009] VSCA 66 ('Gose').
[67] See Yusuf [2005] VSCA 69; (2005) 11 VR 492, 501-2 [16], [18].
[70] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 149 [86].
[71] Cf R v MMJ [2006] VSCA 226.
[73] On the appeal, two other alleged errors were abandoned.
[74] [2008] VSCA 198; (2008) 20 VR 69, 87-9 [59], [62]-[63], [65] ('Sadler').
[75] [2006] HCA 4; (2006) 225 CLR 303 ('Phillips').
[77] [2008] HCA 16; (2008) 235 CLR 334 ('HML').
[78] [2008] VSCA 198; (2008) 20 VR 69, 87-9 [62]-[63], [65] (citation omitted).
[79] [2011] HCA 12 ('Roach').
[80] [2011] HCA 12, [49].
[82] See, for example, Transcript (16 April 2008) 779; Transcript (17 April 2008) 861-2; Transcript (21 April 2008) 1024.
[84] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 ('Shepherd').
[85] R v Sorby [1986] VicRp 77; [1986] VR 753.
[86] Shepherd [1990] HCA 56; (1990) 170 CLR 573; Gipp v The Queen (1998) 194 CLR 106; R v Jones [1993] 1 Qd R 676; R v Zaiter [2004] NSWCCA 35.
[87] Kotvas v The Queen [2010] VSCA 309; R v LRG (2006) 16 VR 89; R v Heaney [1999] VSCA 169.
[88] HML [2008] HCA 16; (2008) 235 CLR 334; R v Mckenzie-McHarg [2008] VSCA 206; R v AH (1997) 42 NSWLR 702; Rolfe v R [2007] NSWCCA 155.
[89] R v Ball [1911] AC 47; R v BJC [2005] VSCA 154; (2005) 13 VR 407; R v VN [2006] VSCA 111; (2006) 15 VR 113; Rodden v R [2008] NSWCCA 53.
[90] Roach [2011] HCA 12, [66] (Heydon J).
[91] The direction which Heydon J considered sufficient in Roach was a form of prudential direction.
[96] [2006] HCA 4; (2006) 225 CLR 303, 318-19 [46]-[47], [50] (citations omitted). See also Stubley v Western Australia [2011] HCA 7.
[97] Transcript (17 April 2008) 859-63.
[100] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123, 157 [114].
[101] The applicant expressly eschewed any submission that prison would affect him more severely than other prisoners.
[102] Section 38 was in these terms at the time that the applicant allegedly committed the rapes.
# Wilson
The Queen \[2011\] VSCA 328
(2008) 20 VR 69
(2006) 225 CLR 303
(2008) 20 VR 112
(2005) 11 VR 492
(1993) 178 CLR 193
(2006) 16 VR 89
(1997) 42 NSWLR 702
(2008) 235 CLR 334
(2004) 7 VR 375
(2003) 7 VR 423
(1990) 170 CLR 573
(2005) 13 VR 407
(2006) 15 VR 113
(1998) 194 CLR 106
(2006) 14 VR 11