Stubley v State of Western Australia

[2010] HCATrans 190

[2010] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P10 of 2010

B e t w e e n -

ALAN JOHN STUBLEY

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 30 JULY 2010, AT 12.42 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Michael Tudori and Associates)

MR J. McGRATH:   If the Court pleases, I appear with my learned friend, MR D.A. LIMA, for the respondent.  (instructed by Director of Public Prosecutions (WA))

HAYNE J:   Mr Grace, as I understand the point you would seek to say where is the probative value.

MR GRACE:   Yes.

HAYNE J:   Is it larger than that?

MR GRACE:   Not much larger, your Honour.  There is a slim avenue in relation to the use of the word “significant” in section 31A – “significant probative value”, but other than what your Honour has stated, the answer is no.

HAYNE J:   Is it a provision that is still in force?

MR GRACE:   Yes, your Honour.

HAYNE J:   And a provision that has been the subject, I think, of some consideration in the courts of Western Australia?

MR GRACE:   Yes, quite often, your Honour.

HAYNE J:   Does this decision stand within or without that stream of authority?

MR GRACE:   It is at one side, I would venture to submit, your Honour.

HAYNE J:   On the bank.

MR GRACE:   Yes.  There is a decision of the Court of Appeal in the matter of Osborne which is referred to in the submissions and the list of authorities.  That seeks to distinguish Phillips in its application.  Osborne’s Case was an interlocutory appeal against a trial judge’s decision to order separate trials.  The question was the cross‑admissibility of evidence of two complainants.  The Court overturned that decision in the end and had cause, in the course of that decision, to refer to Phillips’ Case and distinguish it in relation to its applicability in the circumstances of Osborne’s Case to section 31A.  The application of Phillips’ Case in the context of section 31A is a live issue which this decision seeks to address.

HAYNE J:   Yes.  We might be assisted at this stage, Mr Grace, by hearing from Mr McGrath.

MR McGRATH:   May it please the Court, what is said on behalf of the respondent is that the law was applied with certainty in this particular case.  The issue before the court was simply whether or not the three propensity witnesses could fall within the provisions of section 31A.  The majority determined that it quite clearly was for the reason that it was tendency evidence or relationship evidence.

HAYNE J:   Can we take that in stages?  Tendency evidence on the footing – what?  This man has done this before.

MR McGRATH:   No, your Honour.  It was identified by his Honour Justice Buss at application book 277 and it was a propensity evidence as defined in section 31A(1) in that it was evidence of a tendency that the appellant had at the material time in relation to at least some of his female patients.  In particular it was evidence of the appellant’s proclivity at the material time to engage in sexual activity with at least some of his female patients generally, and the manner in which he either initiated or participated in that activity.  The majority then proceeded to identify some common features.

It must be accepted – and the respondent does – that there were material differences between the two complainants’ evidence as against the three propensity witnesses, that is the specific means by which on various occasions the applicant sought sexual gratification did differ.  However, as noted by his Honour Justice Buss – and this is at application book 278, paragraph 357 - whilst noting that is the case it was common features of importance:

These features comprised the position of power and the psychological ascendency that the appellant enjoyed over each of the women.

Then the features are identified with clarity by Justice Buss.  The first and paramount was that:

the appellant was an experienced consulting psychiatrist and JG, CL, AW, LB and MM were his patients ‑ ‑ ‑

BELL J:   Mr Crown, can I just take this up with you?  Accepting that for an experienced psychiatrist to have a propensity to take advantage of the therapeutic relationship in order to have sexual relations with patients is a matter that one can appreciate may be of interest to a medical tribunal.  Concentrating on its relevance to the trial of charges brought under the criminal law where the issue is consent, can you just develop a little more clearly for me what the propensity was that had relevance to the determination of that issue?  I think one of the complainants gave evidence of some kind of threat that had been made, or an implied threat in relation to being detained in a psychiatric facility.  Is that right?

MR McGRATH:   Yes, your Honour.  Can I take that in the two stages in which your Honour asks?  The first is identifying the features and then in what way is it said to be probative.

BELL J:   Yes.

MR McGRATH:   My learned friend in his submissions characterises the features listed by Justice Buss as merely constituting evidence of personal matters or characteristics of the complainants and the propensity witnesses and therefore in combination it cannot ground a propensity.  What we say is that is wrong.  What is described by those characteristics is forming the tendency of the applicant.  It is not merely that it is a medical practitioner taking advantage.  It is this.  It always occurred in his medical rooms, always in the context of a professional relationship, always upon an appointment.  It was not a social occasion arising from the professional relationship. 

He engaged in the sexual activity because he regarded it as a helpful methodology for counselling patients.  That is at transcript 297.  It was remarkable that he used this sexual activity as a means of methodology for counselling patients.  He targeted female patients with certain characteristics.  That was his propensity and the means by which he did it was always within the confines of his room within the medical appointment.  He targeted victims with the personal characteristics which are identified by Justice Buss.  These common features do ground the tendency.  Your Honour then has referred to other aspects of ‑ ‑ ‑

HAYNE J:   Where does a question of consent enter into this identification?

MR McGRATH:   Your Honour, it is dealt with by his Honour Justice Buss, with whom Justice Owen agreed, at paragraphs 362 to 364, application book 273.  At paragraph 364 his Honour identified to what forensic purpose this tendency could be put to make it significantly probative.  Consent was recognised by the majority as not an issue to which the tendency evidence could be put to proof.  That is consistent with Phillips.  The majority did not other than follow Phillips in that regard.

HAYNE J:   But does it come to this, that the argument that this evidence was said to support was the accused has been shown to have had consensual sex in his rooms with other patients; therefore you may more readily conclude – what?  That he had sexual relations with, that he had non‑consenting sexual relations with another patient in his rooms on another occasion.  Is that the chain of reasoning that is invited?

MR McGRATH:   What is invited is that it occurred in the manner and circumstances, including the dynamics of the relationship described by the complainant and not in any different manner or circumstances.  A live issue in this trial was as to what an honest and reasonable belief was held by the applicant.  Its other issue was why contemporaneous complaint was not made.  Your Honour, it arose in circumstances and why it was relevant outlined by Justice Buss.

Compare the facts of this case with Phillips where the Court, understandably, found that the evidence that was led of propensity of the five complainants was held to be unremarkable for the reason that it was a young man having a proclivity with young women in the circumstances described.  Rather here, it is somewhat extraordinary, most unremarkable circumstances.  It reveals a modus operandi, a tendency, a conduct by the applicant and that is the reason why it was led.  They are the submissions on behalf of the respondent.

HAYNE J:   Thank you, Mr McGrath.  There will be a grant of special leave to appeal in this matter.  Mr Grace, are you content with the state of your notice of appeal?  I am not suggesting you should not be.

MR GRACE:   Yes.  I am content with it, your Honour.  We take up the acquittal point as an alternative in the order sought.

HAYNE J:   I see that, yes.  How long do you think?

MR GRACE:   Half a day, your Honour.

HAYNE J:   Half a day.  Mr McGrath?

MR McGRATH:   I am in agreement with Mr Grace, may it please the Court.

HAYNE J:   Thank you.  Again, counsel should order their affairs on the assumption that it is possible that it would be heard in a sittings of the Court in Perth at the appointed time.  That is not definite but do not express surprise if that were to come about.

The Court will adjourn to reconstitute.

AT 12.54 PM THE MATTER WAS CONCLUDED