Stubley v The State of Western Australia - [2011] HCA 7

HIGH COURT OF AUSTRALIA
GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ
ALAN JOHN STUBLEY  APPELLANT
AND
THE STATE OF WESTERN AUSTRALIA  RESPONDENT
Stubley v Western Australia [2011] HCA 7
Date of Order: 20 October 2010
Date of Publication of Reasons: 30 March 2011
P29/2010
ORDER
1.        Appeal allowed.
2.Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 3 March 2010 dismissing the appellant's appeal against conviction and, in place thereof, order that:
(a)the appeal to the Court of Appeal be allowed;

(b)the convictions of the appellant be set aside; and

(c)there be a new trial.

On appeal from the Supreme Court of Western Australia
Representation
D Grace QC with S Vandongen for the appellant (instructed by Michael Tudori & Associates)
J McGrath with D A Lima for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Stubley v Western Australia
Criminal law – Evidence – Admissibility and relevance – Propensity evidence – Evidence of uncharged acts – Appellant former psychiatrist charged with offences relating to sexual misconduct with two former patients – Evidence of sexual misconduct with three former patients adduced at trial – Whether trial judge erred in ruling evidence of uncharged acts had significant probative value.
Criminal law – Evidence – Admissions – Appellant conceded having consensual sexual activity with both complainants – Whether concession constituted admission for the purposes of s 32 of Evidence Act 1906 (WA) – Whether concession rendered consent the only live issue at trial.
Words and phrases – "significant probative value".
Evidence Act 1906 (WA), ss 31A, 32.

GUMMOW, CRENNAN, KIEFEL AND BELL JJ. After a trial in the Supreme Court of Western Australia, before Johnson J and a jury, the appellant was convicted of six offences of rape, an offence of attempting to commit rape and three offences of unlawful and indecent assault. The appellant was sentenced to 10 years' imprisonment and made eligible for parole. The appellant appealed against his conviction and sentence to the Court of Appeal of the Supreme Court of Western Australia.
A majority of the Court of Appeal (Owen and Buss JJA, Pullin JA dissenting) upheld an appeal against sentence, reducing the term to six years' imprisonment. The majority dismissed the appeal against the convictions[1]. On 30 July 2010, Hayne and Bell JJ granted the appellant special leave to appeal from that order. On 20 October 2010, at the conclusion of the hearing of the appeal in the Full Court, orders were made allowing the appeal, setting aside the order of the Court of Appeal and the appellant's convictions and directing a new trial. Our reasons for making those orders are as follows.
[1]Stubley v The State of Western Australia [2010] WASCA 36.
At issue in the appeal was the admissibility of the evidence of three witnesses, LB, MM and AW, of uncharged acts of sexual misconduct against them by the appellant.
Background facts
The appellant was a medical practitioner with a specialist qualification in psychiatry. Between 1965 and 2000, he had engaged in private practice as a psychiatrist and from about 1966 until about 1976 he also consulted as a psychiatrist at Royal Perth Hospital.
Between 1975 and 1978, the appellant was alleged to have engaged in sexual activity with two women, JG and CL, without their consent. Each was his patient at the time and the offences were alleged to have occurred in his consulting rooms during appointments scheduled for psychotherapy.
JG was the appellant's patient from 1974 to 1996. The sexual encounters commenced between December 1975 and January 1976 and ended some time before December 1980. In 1983, JG was questioned by a person from the Medical Board regarding an unspecified complaint. She did not speak about sexual intercourse on that occasion as she said she feared the appellant and that she would "end up in an institution". She made complaints, through her lawyers, to the Medical Board of Western Australia in 1996, and to the police in 2006.
CL was a patient of the appellant between 1976 and 1981 and the sexual encounters extended over four years, commencing in 1977. CL made complaints to the Medical Board of Western Australia in 1981.
The appellant was charged under the Criminal Code (WA) ("the Code") with 14 offences relating to sexual activity with JG and CL: seven counts of rape; one count of attempting to commit rape; and six counts of unlawful and indecent assault. The offences against JG were alleged to have been committed on unknown dates between 8 December 1975 and 31 August 1978. The offences against CL were alleged to have been committed on unknown dates between 1 January 1977 and 30 June 1978[2].
[2]Unless otherwise stated, references to the Criminal Code in these reasons are to the Criminal Code (WA), reprint as at 13 December 1983.
Prior to the trial the prosecution notified the appellant that it intended to call LB, MM and AW to give evidence of indecent touching by him or sexual intercourse with him in his consulting rooms when they were his patients. No offences involving these three women were charged in the indictment. The admissibility of the evidence was determined under s 31A of the Evidence Act 1906 (WA).
Section 31A
Section 31A provides:
"(1) In this section —
propensity evidence means —
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers —
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial."
Section 31A was introduced into the Evidence Act in 2004[3]. The provision abrogates the common law rule that similar fact evidence is inadmissible unless, when considered with the other evidence in the prosecution's case, there is no reasonable view of the similar fact evidence that is consistent with the innocence of the accused[4]. The admissibility of "propensity evidence" and "relationship evidence" is governed by the requirements of sub-ss (2)(a) and (2)(b). Sub-section (2)(a) requires an assessment that the evidence, by itself or with other evidence to be adduced in the trial, has "significant probative value". The meaning of that expression was discussed by Steytler P in Dair v Western Australia[5]:
"Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd[6]. Heydon[7] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact". (citations omitted)
[3]Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (WA), s 13.
[4]Pfennig v The Queen (1995) 182 CLR 461 at 482-483 per Mason CJ, Deane and Dawson JJ; [1995] HCA 7; Phillips v The Queen (2006) 225 CLR 303 at 308 [9] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2006] HCA 4; HML v The Queen (2008) 235 CLR 334 at 431 fn 309 per Heydon J; [2008] HCA 16.
[5](2008) 36 WAR 413 at 429 [61]. Section 31A of the Evidence Act has also been considered by the Court of Appeal of the Supreme Court of Western Australia on a number of other occasions. See eg Donaldson v Western Australia (2005) 31 WAR 122 at 142-149 [98]-[131]; Di Lena v Western Australia (2006) 165 A Crim R 482 at 492-497 [48]-[73]; Noto v Western Australia (2006) 168 A Crim R 457; Horsman v Western Australia (2008) 187 A Crim R 565; Buiks v Western Australia (2008) 188 A Crim R 362; Western Australia v Atherton (2009) 197 A Crim R 119.
[6](1995) 61 FCR 171 at 175-176.
[7]Cross on Evidence, 7th Aust ed (2004) at [21245].
The correctness of Steytler P's analysis was not in question on the appeal. The appeal did not raise for consideration the exercise mandated by sub-s (2)(b)[8]. In issue on the appeal was the conclusion of the majority in the Court of Appeal that the evidence of LB, MM and AW (whether characterised as "propensity evidence" or "relationship evidence") possessed significant probative value as explained in Dair.
[8]Sub-section (2)(b) reflects the language of McHugh J's reasons in Pfennig v The Queen (1995) 182 CLR 461 at 529.
The pre-trial application
Before his trial commenced, the appellant applied for an order for separate trials and to exclude the evidence of LB, MM and AW[9]. On the hearing of the application, the appellant's counsel conceded that the counts charging offences against JG and CL were properly joined in the indictment and the application for separate trials was withdrawn[10]. No issue with respect to joinder, or the evidence of JG and CL of sexual acts committed against them by the appellant that were not the subject of charges, or of the evidence of JG in the trial of the counts involving CL and vice versa, was raised on the appeal.
[9]Section 98(2)(a) of the Criminal Procedure Act 2004 (WA) provides that, at any time before an accused's trial begins, the court may determine any question of law or procedure that is necessary or convenient in order to facilitate the conduct of the trial. Section 98(6) provides that a proceeding under s 98(2) is taken to be part of the accused's trial.
[10]See s 133 of the Criminal Procedure Act 2004 (WA) with respect to orders for separate trials.
The application to exclude the evidence of LB, MM and AW was maintained. Senior counsel for the appellant informed the trial judge that the appellant would admit at the trial that during the period identified in the indictment "some or all of the acts of a sexual nature occurred" but would assert that the acts were consensual[11]. Counsel conceded that the evidence of LB, MM and AW was "propensity evidence". The evidence of LB, MM and AW appears to have been tendered to prove the appellant's tendency to act in a particular way. The prosecutor submitted that the relevance of the evidence was its capacity to prove the applicant's conduct in "bringing about a situation where sexual activity occurs, without consent in its legal sense, but without opposition or resistance from the particular complainant"[12].
[11]Stubley v The State of Western Australia [2009] WASC 57 at [3].
[12][2009] WASC 57 at [51].
Johnson J was conscious of this Court's decision in Phillips v The Queen. In that case it was said that the question of whether one complainant consents to sexual activity with an accused does not relevantly bear on the assessment of the evidence of another complainant that she did not consent to sexual activity with that accused[13]. On the authority of State of Western Australia v Osborne her Honour held that "where there is an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addresses lack of consent does not make it inadmissible"[14]. In this respect she identified two issues to which the evidence was directed[15]. The first issue was "the conduct of the accused both before and after engaging in sexual activity with the witnesses". The second issue was "matters personal to the witnesses which go to explaining or understanding why no complaint of this activity was made despite it being alleged that the sexual activity was not consensual". Her Honour concluded that the evidence of the three witnesses had significant probative value and that fair-minded people would think that the public interest in adducing it must have priority over the risk of an unfair trial[16]. She did not explain how, in light of the indication that JG's and CL's evidence that the appellant engaged in sexual intercourse with them in the course of consultations was not disputed, evidence of his conduct before or after intercourse was probative of any issue in the trial. There was no identification of the asserted tendency or feature of the conduct of the appellant which the evidence of LB, MM and AW was admitted to prove. There was no further explanation of what her Honour described as the "second issue". No matters personal to LB, MM and AW having the capacity to explain the absence of complaint were identified.
[13]Phillips v The Queen (2006) 225 CLR 303 at 318 [47].
[14][2009] WASC 57 at [39], citing State of Western Australia v Osborne [2007] WASCA 183 at [27].
[15][2009] WASC 57 at [62].
[16][2009] WASC 57 at [62], [64].
The trial
The trial proceeded more than 30 years after the last offence was alleged to have been committed. The complainants and LB, MM and AW were called as witnesses and gave evidence. The complainants both gave evidence that they did not consent to any of the sexual activity that took place in the appellant's rooms. The appellant gave evidence that he had sexual relations with JG and CL in the course of consultations and that they had consented on each occasion. He denied that their consent had been obtained by threats or intimidation.
The appeal in the Court of Appeal
The appellant appealed against his convictions to the Court of Appeal upon grounds which included that the trial judge erred in law in failing to exclude the evidence of LB, MM and AW. Section 30(3) of the Criminal Appeals Act 2004 (WA) provides (subject to the proviso in s 30(4)) that the Court of Appeal must allow the appeal if, in its opinion, the conviction should be set aside because of a wrong decision on a question of law by the judge, or there was a miscarriage of justice.
Buss JA observed that, in the case of an appeal against conviction on the ground of the wrongful admission of evidence to which objection was taken, the appeal is against the conviction and not the ruling[17]. The trial judge determined the application to exclude the evidence on the basis of the witness statements made by LB, MM and AW and the statements of the two complainants. The Court of Appeal had regard to the whole of the evidence given at the trial in determining whether the evidence was wrongly admitted and whether it had occasioned a miscarriage of justice. In the event, there appears to have been little difference between the evidence at the trial and the contents of the statements[18]. The trial was conducted, as counsel foreshadowed, on the basis that JG's and CL's evidence that the appellant had engaged in sexual relations with them during consultations was not disputed. Before turning to the reasons of the majority for concluding that the decision to admit the evidence did not involve legal error, it will be necessary to refer to the evidence of the complainants and the three witnesses in greater detail. What follows is a summary of the evidence given at the trial.
[17]Maric v The Queen (1978) 52 ALJR 631 at 634 per Gibbs ACJ, Mason and Jacobs JJ concurring; (1978) 20 ALR 513 at 520; Webb v The Queen (1994) 181 CLR 41 at 90 per Toohey J; [1994] HCA 30.
[18][2010] WASCA 36 at [22].
JG's evidence
The first 11 counts in the indictment charged the appellant with offences against JG. At the trial JG did not give evidence of the incidents that were charged in counts 3, 7 and 9. The appellant was acquitted by direction on each of these counts. The jury acquitted the appellant of the offence charged in count six, which was an allegation of indecent assault involving the penetration of JG's anus by the appellant with his finger.
JG was born in September 1946. Her first child was born in 1974. JG suffered depression following the birth of the child and she was admitted to a private hospital for treatment for this condition. She remained in hospital for about three months. The appellant attended some group psychotherapy sessions which JG and other patients attended. Before her discharge in December 1975, the appellant told JG that she could leave the hospital provided she consulted him as a patient at his West Perth rooms. She made an appointment to see the appellant a week or two weeks after her discharge.
JG's evidence of the offences was as follows.
Count 1
One or two weeks after her discharge from hospital JG attended a consultation with the appellant at his rooms in West Perth. She walked into the room and the appellant gave her a big hug, telling her how well she looked. After some discussion about how JG had been coping the appellant asked her to come and sit on his knee. She was very shocked. After a period of silence, the appellant repeated the request in a "very authoritarian, quite demanding" tone. Ultimately JG complied and sat on the appellant's knee. He put his hand on her leg, rubbing it up and down the inside of her leg and touching her crotch. JG "just froze". She was afraid of the appellant and of what he might do to her. She told him that she "did not want to do this". He did not respond. The incident lasted for "probably five minutes". After this JG got up and walked towards the door. The appellant told her that he would need to see her again in a week or two. JG made a further appointment with the appellant's receptionist.
Count 2
About one or two weeks after this incident, JG attended for a further appointment with the appellant. In the course of the consultation the appellant threw a cushion on the floor and he lay down, saying "come lie with me". JG remained seated. The appellant repeated his request in "a very authoritarian way". After a time she complied. The appellant undid his trousers, removed JG's stockings and underwear, and had sexual intercourse with her. Before removing his trousers, JG said "I don't want you to do this". The appellant ignored her. JG was crying during the intercourse, which lasted for 10 or 15 minutes. Afterwards the appellant stood up and dressed. JG remained on the floor, crying. After a time she pulled up her clothing and sat on a chair. She was sobbing. There were two doors leading from the consulting room. One gave out to the waiting area and the other to the fire exit. The appellant opened the door to the fire exit and JG ran out of the room and down the fire stairs. Later, the appellant's receptionist telephoned JG and fixed a further appointment for her.
JG attended the third appointment. She was angry and she told the appellant that she wanted to know "what this was all about". He replied that "it's part of your therapy and you need to continue to come". He also said "if you don't come, you'll have to go to an institution and you would be separated from your daughter and your husband". There was no sexual contact during this consultation.
JG continued to see the appellant following the third consultation. On occasions the appellant had sexual intercourse with her during the consultations. JG had no recollection of particular instances. She attended consultations at the West Perth rooms for perhaps a year. Counts one and two were the only offences alleged to have occurred at the West Perth rooms. The pattern of the uncharged sexual conduct described by JG was similar to her account of the incident charged in count two. On each occasion the appellant had thrown a cushion on the floor and invited JG to lie down with him and he had proceeded to have intercourse with her. On one occasion JG said to the appellant "I don't understand why I have to be doing this". He replied "it's part of your therapy and if you don't do it then, you know, you get your depression back, you'll have to go back to hospital and you'll be apart from your child and your husband".
Count 4

The appellant opened consulting rooms in West Leederville approximately a year after JG commenced seeing him. The first time JG attended the West Leederville rooms the appellant locked the door to the consulting room. After a time, he threw a cushion on the floor and said "come lie with me". Eventually JG complied. He removed his trousers and JG's pantyhose and underwear and had intercourse with her. JG was crying. The appellant thrust quite harshly causing abrasions to her back. Afterwards the appellant washed his penis in the basin in the room. JG adjusted her clothes and sat on a chair in the consulting room. She could not stop crying. Eventually the appellant opened the door and she ran out of the room.
Three or four weeks after the incident charged in count 4, JG attended a further consultation with the appellant. She was fearful of experiencing another bout of depression. She wanted to be well enough to look after her husband and child. She did not want to be re-admitted to hospital. There was no sexual contact on this occasion.
Count 5
On another occasion at the West Leederville rooms JG was upset and crying during the course of the consultation. The appellant threw a cushion on the floor, saying "let me comfort you". He had sexual intercourse with her.
JG decided to have a second child. Around this time she stopped seeing the appellant. Quite late in her pregnancy JG became anxious about the rise of post-natal depression. She discussed her fears with her general practitioner and following this discussion she resumed seeing the appellant.
Count 6
There was an occasion at the West Leederville rooms when the appellant pushed his finger into JG's anus. It hurt her. She asked him not to do it. He said that he was trying to make her have an orgasm.
Count 8
On one occasion during a consultation JG objected to sexual intercourse, saying to the appellant "I've got my period. I don't want to have sex with you." The appellant straddled JG with his legs over her head and pushed his penis into her mouth. JG was crying.
Count 10
JG attended a consultation with the appellant when she was about eight months pregnant. The appellant threw a cushion on the floor and lay down saying, "come and relax with me here". JG lay on the floor feeling quite relaxed. She did not expect the appellant to have intercourse with her at this stage in the pregnancy. The appellant took his trousers off. JG said "what are you doing? What are you doing? I don't want this. My baby's due in four weeks' time. I'm not having intercourse with my husband. I don't want to have intercourse". The appellant responded "it will be okay. It will be quite okay". He proceeded to have sexual intercourse with JG. It did not last for very long and he was not as rough as usual. JG was terrified that the intercourse might bring on the birth of her baby prematurely. The next day she started to haemorrhage. She telephoned the appellant's rooms and spoke with him. She was extremely angry and she told him about the haemorrhage. He said that "that can happen" and JG responded that "it shouldn't have happened".
Count 11
JG continued to fear post-natal depression and after the birth of her second child she returned to see the appellant. On the first occasion the appellant threw down a cushion on the floor and invited JG to come and lie with him. He repeated the request and JG complied, saying "I've got my baby in this room and my baby is asleep and I don't want to lie with you". The appellant did not reply. He removed his trousers and pulled JG's garments down and had intercourse with her. During the intercourse JG said "look, I can't do this. I can't do this". She was crying. He took no notice of her. Afterwards he washed himself in the basin. JG remained on the floor sobbing.
JG continued to see the appellant. She had tried not to go to appointments but she was very afraid of getting depressed. Her third child was born in December 1980. Sexual intercourse continued on occasions after the birth of the second child but it stopped prior to the birth of the third.
In the years following the birth of JG's third child she continued to see the appellant. She finally stopped seeing him in 1996.
CL's evidence
Counts 12, 13 and 14 charged offences against CL.
CL was born in February 1946. In 1976 she had returned to live in Perth. It was a stressful time in her life. Her marriage had broken down and she had moved back into the family home with her two infant children at a time when her mother was dying. CL consulted her general practitioner because she was suffering from tension headaches. She was referred to a psychologist who referred her to the appellant. CL commenced seeing the appellant in the later part of 1976 at his West Perth rooms.
At her first consultation with the appellant CL told the appellant that she "knew of some sorts of therapy but that [she] was quite specifically not interested in bed therapy which [she] had read about". There was no physical contact between CL and the appellant at this initial consultation.
Count 12
CL sustained a neck injury in 1977. In the latter half of 1977 she mentioned to the appellant that she had a pain in her neck in the course of a consultation. He stood behind her and rubbed her neck and then he rubbed his hands over her breasts. CL did not recall whether anything was said. She remained in her chair and the appellant moved away without referring to what had occurred.
Count 13
Either on the occasion charged in count 12 or during a later consultation the appellant invited CL to hug him. He put his hands around her and stroked her in an erotically stimulating way. He slid his hands down and lifted CL's skirt and attempted to remove her underwear. He attempted to force his penis between her legs. CL "sort of eased away" from him. The appellant's penis was flaccid. He laughed and said "oh, that doesn't work". He escorted CL into his receptionist's room to ensure that she made further appointments.
Two weeks, or perhaps a month, after this incident CL returned to see the appellant. She was in a state of turmoil. She had been stunned by his behaviour on the last occasion and she had thought that he must have forgotten himself. The appellant sat in his chair quite passively during the consultation and after a pause he said "I feel rejected". This was said in a "very, very menacing tone". CL felt very afraid of the appellant.
Count 14
At a subsequent consultation the appellant opened his arms in what CL took to be an invitation "to some sort of cuddling or something; and it led to him undressing me, undressing himself and lying on the floor and engaging in sexual intercourse". CL was "a bit stunned". Before the intercourse, the appellant engaged in stimulating foreplay. CL was not sure but she did not think that she had said anything to the appellant. At the time the intercourse commenced CL was very much aroused and she responded to it. The appellant told her that "this is the most important relationship you will ever have".
Over the next three or four years CL attended consultations with the appellant and had intercourse with him. She could not recall particular incidents. The appellant washed his genitals in the basin after intercourse. CL went to consultations anticipating that sexual intercourse would occur "but hoping to God it would not". She did not communicate this hope to the appellant. The appellant was a "very scary man" and CL was afraid of him. The appellant had led CL to understand that he had power under mental health legislation to commit her to a mental hospital without the need for a second opinion from another medical practitioner. CL recalled the appellant mentioning, in the course of a consultation, that she had a "sickness".
In cross-examination, CL gave an account of an occasion when she told the appellant that she did not want to lend money to support a project in which he had an interest. The appellant had paused and then said "you seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks".
CL said that in the period 1976 until she ceased treatment with the appellant in 1981 she had been afraid of him. In cross-examination she acknowledged that she had been infatuated with the appellant and that she had been "sucked into thinking this [her relationship with the appellant] was love".
The evidence of the "propensity witnesses"
LB
LB was a patient of the appellant between early 1973 and about 1975. She had been in what she described as a "serious mental state" and she felt that her sessions with the appellant had lessened her disturbance. As the consultations progressed there had been some hand-holding and hugging but LB had not perceived the appellant's behaviour at that time to have sexual connotations.
In early 1975, LB was planning to move interstate. Prior to her departure the appellant told her that she was sexually repressed and "too nice". He said that LB needed to be in touch with her true self and to express her true senses. He touched her breasts on several occasions. He told her that he wanted her to express her sexuality. LB thought that the appellant was in love with her. She was flattered but she was not interested in the appellant sexually. However, she felt protective towards him and did not want him to feel embarrassed or rejected.
At a consultation in January 1975, the appellant suggested that they should remove their clothes and hug each other in order to help LB overcome her fears of expressing her sexuality. He suggested that it would be easier if LB lay down. She did so and the appellant lay on top of her. After this, "everything went blank" for LB. She did not have a recollection of any other sexual acts occurring. After this incident LB saw the appellant again before leaving Perth but there was no further physical or sexual contact.
LB rejected the suggestion that the sexual activity that she had engaged in with the appellant was consensual. She said that she had conflicting emotions about it. She had felt both humiliated and excited, feelings which she considered were associated with sexual abuse.
MM
MM was employed by the appellant as a receptionist at his West Perth rooms. She became his patient during the period that she was working for him. Initially the relationship between MM and the appellant was very formal. However, on MM's 21st birthday, the appellant told her that now she could do whatever she wanted. He kissed her on the lips.
In a consultation which took place after her 21st birthday, the appellant hugged MM and undressed her, saying that he knew that she would be beautiful. He had sexual intercourse with her on the floor of the consulting room. MM had not wanted to have sexual intercourse with the appellant. During intercourse she had a "frozen grin" on her face. After intercourse the appellant washed himself in the basin. MM did not resist because she did not want to jeopardise her employment. She also believed that the appellant's conduct was part of his treatment of her as a patient. About a week after this episode MM confronted the appellant and told him that there was not to be any further sexual contact between them. The appellant agreed. No further sexual contact took place between the two.
AW
AW was referred to the appellant in 1975 for psychiatric treatment. She was "very stressed and confused". Initially, the appellant did not seem to be a caring person and AW was scared of him. She thought he had an "angry personality". However, as the sessions progressed, AW came to think that the appellant was "fantastic". She wanted to be close to him. This feeling intensified, culminating with AW without invitation sitting on the appellant's lap during a consultation and kissing him. The appellant then removed AW's dress and his own clothes. He lay on the floor indicating that AW should do likewise. She did so. They had sexual intercourse. After this, the appellant washed himself in the basin. There were further instances when the appellant had sexual intercourse with AW during consultations.
In cross-examination AW said that, at the time she kissed the appellant, she had felt the need to be emotionally, not sexually, connected to him. She had wanted the appellant to put his arms around her but she had not wanted to have sexual intercourse with the appellant. She had not said anything as he undressed her or after the episode of intercourse. At the time AW believed that the only way to get the appellant's attention was through sex. On occasions AW performed fellatio on the appellant while he was seated in his chair in the consultation room. AW did not detect any change in the appellant's manner of relating to her during the period in which sexual relations between them took place. The appellant remained "still distant" and "shut off".
The conduct of the trial
The Prosecutor opened his case by stating that the issue in respect of most, if not all, counts would not be proof that the sexual acts occurred but proof that they had occurred without consent.
The appellant's counsel exercised his right to open his case immediately after the prosecution opening[19]. In his address counsel said that the appellant would admit that he was sexually intimate with JG, CL, MM and AW (the admission did not extend to LB, of whom it was said the appellant had no recall). Counsel acknowledged that the appellant's conduct might be characterised as dishonourable, immoral and unprofessional. He confirmed that the issue in the trial would be proof of absence of consent, stating that the appellant would say that on each occasion the acts were consensual and did not involve force, coercion, intimidation or manipulation. The generality of the admission was explained by inviting the jury to consider that after an interval of 30 to 35 years the appellant was unable to "tick a box" as to each act charged. Counsel concluded his address, saying:
"I think what [the general admission of sexual intimacy] does – and it really mirrors what the prosecution have said because we have spoken before the trial and clearly told Mr Troy what the issues will be, and the issue will be one of consent, so that's a matter for you. I hope by making those admissions, I haven't done it in a formal way but certainly that's going to be the issue at this trial, so that's what you need to focus on … "
[19]Criminal Procedure Act 2004 (WA), s 143.
Consistently with the tenor of the opening, the appellant gave evidence at the trial in which he admitted to having had sexual relations with JG and CL in the period limited by the indictment. He said that he had been an adherent of a school of thought that sexual relations between doctor and patient was a helpful methodology. He had since come to regard his conduct as ethically unsound and he regretted that it had occurred. He denied threatening JG that she would be sent to a psychiatric institution if she did not comply with his demands and he had no memory of saying "I feel rejected" to CL.
The reasons of the Court of Appeal
The majority in the Court of Appeal held that the trial judge's ruling was correct and that the evidence of AW, LB and MM satisfied both limbs of s 31A(2) of the Evidence Act and had been rightly admitted. In the principal judgment, Buss JA correctly identified the issues at the trial as[20]:
"(a)[W]hether the appellant had committed the particular acts alleged in each count in the indictment;
(b)whether JG or CL, as the case may be, had consented to the sexual activity or attempted sexual activity alleged in each count; and
(c)if JG or CL had not consented in relation to any count, whether the appellant nevertheless had an honest and reasonable (but mistaken) belief that there was consent."
[20][2010] WASCA 36 at [354].
His Honour said that, while there were some material differences in the evidence of LB, MM, AW, JG and CL with respect to the characteristics of their relationship generally and their sexual interaction with the appellant, there were "common features of importance"[21]. These were the position of power and the psychological ascendency that the appellant had over each of the women, which arose from the following circumstances[22]:
"(a)[T]he appellant was an experienced consulting psychiatrist and JG, CL, AW, LB and MM were his patients;
(b)the women suffered from depression or some other mental illness or, at least, a psychological difficulty requiring psychiatric treatment or psychotherapy;
(c)the women were, in varying degrees, frightened of the appellant;
(d)the women were, at least psychologically and emotionally, vulnerable and isolated;
(e)the women were significantly younger than the appellant; and
(f)the women perceived the appellant, in varying degrees, as a powerful but remote or distant authority figure."
[21][2010] WASCA 36 at [357].
[22][2010] WASCA 36 at [357].
Buss JA's reasons for concluding that the evidence of LB, MM and AW had been correctly admitted did not depend upon the capacity of the evidence to prove (by itself or with other evidence) that the appellant engaged in sexual relations with JG and/or CL during consultations. The probative value of the evidence that his Honour identified was its capacity to rationally affect, directly or indirectly, to a significant degree, four matters[23]. First, "the probability that the sexual activity occurred in the manner and circumstances (including the dynamics of the relationship) described by the complainant (JG or CL as the case may be) and not in any different manner or circumstances asserted by the appellant". Second, "the probability of whether the complainant actually consented to the activity". Third, "the probability of whether the appellant had an honest and reasonable (but mistaken) belief that there was consent". Fourth, "the jury's view as to why, and as to the significance (if any) to be attached to the fact that JG and CL continued to consult with the appellant as their psychiatrist notwithstanding his offending behaviour and, further, the fact that JG and CL did not make a contemporaneous complaint about his offending behaviour".
[23][2010] WASCA 36 at [360]-[364].
Buss JA considered that Phillips did not preclude the admission of the evidence of the propensity witnesses for purposes unrelated to consent, even though the evidence may have borne indirectly on this issue[24]. Owen JA added some further observations on the point observing that nothing said in Phillips rendered the propensity evidence inadmissible[25].
[24][2010] WASCA 36 at [375].
[25][2010] WASCA 36 at [2]-[3].
Pullin JA would have allowed the appeal against the convictions. His Honour considered that the evidence of AW, LB and MM could only have demonstrated the propensity of the appellant to have sexual encounters with women patients in his consulting rooms for the purpose of proving that the sexual encounters with JG and CL took place[26]. As this was not in issue at the trial, due to the admissions made by the appellant, his Honour found that evidence of his propensity was irrelevant to any live issue at trial.
[26][2010] WASCA 36 at [14].
Pullin JA perceived that the only live issue was "whether the [respondent] proved that JG and CL did not consent or were induced to consent by force, threat, intimidation or fear of bodily harm to touching, carnal knowledge or attempted carnal knowledge, or whether the appellant had an honest and reasonable mistaken belief that they did consent"[27]. His Honour noted that JG gave evidence of a threat made by the appellant (which was denied by the appellant) and that CL gave evidence of conduct which may have amounted to intimidation (which was also denied by the appellant)[28]. However, his Honour found that "none of [AW, LB or MM] gave evidence of conduct which went to show a propensity to engage in a particular kind of conduct in order to gain his patient's consent" and which provided evidence probative of the account of JG as to a threat or CL as to intimidation[29]. Pullin JA noted that there was some evidence as to whether or not AW, LB and MM consented. However, his Honour held that, in accordance with Phillips, given that whether one person consents or not is not relevant to whether another person consents or not[30], the evidence of AW, LB and MM was of no probative value for any purpose and therefore inadmissible under s 31A[31].
[27][2010] WASCA 36 at [112].
[28][2010] WASCA 36 at [129]-[131].
[29][2010] WASCA 36 at [138].
[30]Phillips v The Queen (2006) 225 CLR 303 at 318 [47].
[31][2010] WASCA 36 at [121], [140].
The appellant's admission

Section 32 of the Evidence Act provides that "[a]n accused person, either personally or by his counsel or solicitor, in his presence, may admit on his trial any fact alleged or sought to be proved against him, and that such admission shall be sufficient proof of the fact without other evidence". The provision does not require that any particular formality attend the making of an admission. Nonetheless, counsel's statement made in the course of opening the appellant's case, that the appellant had been sexually intimate with JG and CL, was not an admission for the purposes of the provision. The appellant did not admit any fact sought to be proved against him. It remained incumbent upon the prosecution to prove each act of sexual conduct that it alleged in the 14 counts in the indictment. It follows that Pullin JA's discussion of the capacity of the prosecution to adduce evidence in proof of an admitted fact does not arise for consideration in this appeal[32].
[32][2010] WASCA 36 at [92]-[119].
The evidence of LB, MM and AW was capable of proving that the appellant had a tendency to engage in sexual relations with his patients during consultations. Proof of such a tendency was rationally capable of affecting the assessment of JG's and CL's evidence that the appellant had engaged in sexual relations with them during consultations. Owen JA considered the evidence of LB, MM and AW was relevant to proof that the acts alleged in the indictment occurred[33]. This was not the basis upon which the trial judge admitted the evidence. Her assessment of the probative value of the evidence of LB, MM and AW assumed the fact that sexual activity between the appellant and the two complainants was not in issue. The evidence was admitted as tending to establish the circumstances in which the sexual conduct occurred, this being relevant to the assessment of JG's and CL's evidence that they had not consented to the various acts charged in the indictment. Buss JA's analysis of the probative value of the evidence of the three witnesses also assumed that the fact of sexual relations between the appellant and JG and CL was not disputed[34].
[33][2010] WASCA 36 at [3].
[34][2010] WASCA 36 at [360]-[364].
The respondent acknowledged that the question of whether the appellant had engaged in the sexual activity alleged by JG and CL was not a live issue at the trial. The circumstance that the trial was conducted from the outset on the basis that JG's and CL's account that the appellant had sexual relations with them in the course of consultations was not disputed was material to the consideration of admissibility of the evidence of LB, MM and AW under sub-ss (2)(a) and (2)(b). The probative value of the evidence to prove that the sexual acts charged in the indictment occurred (by demonstrating the appellant's tendency to have sexual relations with his patients) ceased to be significant once it was known that JG's and CL's evidence that the appellant had sexual relations with them during consultations was not challenged. Furthermore, evidence of sexual misconduct not charged in the indictment committed against other women led in order to prove an issue that was not live in the trial, would not meet the test in sub-s (2)(b).
As noted earlier in these reasons, before the trial judge the evidence of LB, MM and AW was conceded to be "propensity evidence", with the result that no attention was directed to the identification of the particular tendency (or other feature of the conduct of the appellant) which it was tendered to prove. In the Court of Appeal and in this Court, the parties were agreed that the evidence had been admitted either as "propensity evidence," being the appellant's tendency to act in a particular way, or as "relationship evidence". Only one aspect of the six features of the "propensity evidence" identified by Buss JA was an attribute of the appellant. The remaining features might be thought to describe a class of persons: younger, vulnerable female patients. Perhaps for this reason his Honour considered the evidence of LB, MM and AW was "relationship evidence"[35]. That characterisation was not in issue on the appeal. Whether the evidence was admitted as propensity evidence or as relationship evidence its significant probative value is said by the respondent to have been its capacity to demonstrate the appellant's position of power and psychological ascendency over JG and CL.
[35][2010] WASCA 36 at [353].
Buss JA summarised the prosecution's submission as to the probative value of the evidence in this way[36]:
"[T]he appellant was able to and did exploit his power and ascendency by manipulating JG, CL, AW, LB and MM to acquiesce in sexual activity with him without consent. His manipulation of them, in the context of his position of dominance, enabled him to exploit them sexually without violence or express threats. In any event, a complainant who, at or before the time of sexual penetration, does not by word or action manifest her dissent is not in law thereby taken to have consented to the penetration." (emphasis added)
[36][2010] WASCA 36 at [358].
At the date of these offences, the criminal law of Western Australia recognised the vulnerability of some classes of persons to sexual exploitation and criminalised sexual relations with persons within the class regardless of consent[37]. The vulnerability of girls to sexual exploitation by men in positions of authority was recognised in the offence of having sexual intercourse with a girl under the age of 17 years while being her guardian, employer, teacher or schoolmaster[38]. The protection of the criminal law in this respect did not extend to the adult patients of psychiatrists or psychotherapists.
[37]See eg, Criminal Code, s 183 ("indecent treatment of children under fourteen"); s 185 ("defilement of girls under thirteen"); s 188 ("defilement of idiots"); s 189 ("indecent dealing of girls under sixteen"; and s 190 ("defilement by guardian").
[38]Criminal Code, s 190.
The concept of exploiting a position of power or ascendency in order to manipulate another into acquiescing in sexual activity without consent is to be analysed by reference to the law as it stood at the material time with respect to the crimes of rape and unlawful and indecent assault. Rape was defined in s 325 of the Code as follows:
"Any person who has carnal knowledge of a woman or girl, not his wife, or of his wife whilst he is separated from her and they are not residing in the same residence, without her consent, or with her consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime which is called rape."
The provision drew a distinction between the absence of consent and "consent" that is vitiated by the presence of one or more of the stated circumstances. One vitiating circumstance was the making of false and fraudulent representations as to the nature of the act. There was no suggestion of that kind in the case of JG or CL. The Code did not define consent and the word bore its ordinary meaning[39]. Proof of absence of consent was directed to the subjective state of mind of the complainant at the time of penetration. It was not necessary that the complainant manifest dissent but it was necessary to prove either that she did not in fact consent or that her consent was vitiated in one of the ways contemplated by the section[40]. The law recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it, and her permission was not obtained by any of the means stated in s 325, the act was not rape[41].
[39]Section 319(2) of the Criminal Code as it now stands contains a definition of consent for the purposes of the sexual offences contained in Ch XXXI. The provision was inserted by s 6 of the Acts Amendment (Sexual Offences) Act 1992 (WA).
[40]See R v IA Shaw [1996] 1 Qd R 641 at 645-646 per Davies and McPherson JJA with respect to s 347 of the Criminal Code (Q), as it then stood, on which s 325 of the Criminal Code (WA) was based.
[41]Holmanv The Queen [1970] WAR 2 at 6.
The prosecution was also required to prove the complainant's absence of consent to the acts of unlawful and indecent assault. The Code distinguished absence of consent from consent that is obtained by fraud[42]. Nothing was said to turn on the difference between proof of absence of consent for the offence of rape and for the offence of unlawful and indecent assault. It was the prosecution's case that JG and CL did not consent to any of the sexual conduct charged in the indictment or that their consent was obtained by threats or intimidation. JG and CL each gave evidence that she had not consented. Each also gave evidence of the appellant's conduct that was capable of being viewed as threats or intimidation designed to induce consent.
[42]Criminal Code, s 222.
Neither LB, MM nor AW gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity. The respondent conceded that the evidence of these witnesses could not rationally affect the assessment of the likelihood that JG's or CL's consent had been obtained by threats or intimidation.
The probative value of the evidence of LB, MM and AW was confined to the case that JG and CL did not consent to the acts charged. In this Court the respondent submitted:
"[T]he highest it can be put is this – that the appellant engaged in conduct, which conduct was … the manipulation in the context of his position, [of] dominance, that he was able to have the sexual contact or conduct in circumstances where there was no consent."
The submission conflates proof of psychological dominance with proof of absence of consent. JG and CL were adult women at the time of these events. The evidence of their psychiatric condition, if any, did not establish that either was incapacitated such as to be incapable of consenting to intercourse. Their case was that they did not consent. Proof of the appellant's tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him could not rationally affect the likelihood that JG or CL did not consent to sexual contact on any occasion charged in the indictment.
The assessment of JG's and CL's reasons for continuing treatment
The majority in the Court of Appeal considered that the evidence of LB, MM and AW was capable of rationally bearing on the assessment of the plausibility of the reasons given by JG and CL for not complaining and for continuing to attend on the appellant for treatment. This was the fourth way in which the evidence of the three witnesses was said to have significant probative value[43]. It was the second respect in which the trial judge assessed the evidence to have significant probative value.
[43][2010] WASCA 36 at [364].
The absence of timely complaint was relevant to the credibility of JG's and CL's evidence that neither had consented to the sexual conduct[44]. It may be doubted that evidence was admissible in order to support acceptance of the plausibility of JG's or CL's account in either of these respects[45]. The evidence of LB, MM or AW in any event did not have the capacity to bear rationally on the determination of any collateral issue involving the reasons for JG's late complaint and the continuation of her treatment by the appellant, nor for CL's continuation of treatment.
[44]Crofts v The Queen (1996) 186 CLR 427 at 446-448 per Toohey, Gaudron, Gummow and Kirby JJ; [1996] HCA 22.
[45]HML v The Queen (2008) 235 CLR 334 at 396-397 [164] per Hayne J; 432‑433 [293] per Heydon J.
In examination in chief JG was asked why she had continued to see the appellant for so many years given his conduct towards her. The question, which went only to JG's credibility, was not the subject of objection. JG said that she had wanted to see another psychiatrist but that she had been dissuaded from this course because she was part-way through her therapy. She also said that she was suffering from depression, that she had undergone a traumatic divorce and that she had developed a degree of dependency on the appellant. JG was cross‑examined to suggest that it was unlikely that she would continue to seek treatment from the appellant had he been sexually abusing her. JG responded that she had "dissociated" and that she feared being committed to an institution.
CL stopped seeing the appellant in 1981 and she complained to the Medical Board about his conduct in that year. The prosecution did not seek to lead evidence of CL's reasons for not making a prompt complaint. The challenge to CL's evidence of non-consent was not directed to any claimed delay in making a complaint or in continuing to attend the appellant for treatment.
LB moved interstate, as she had planned to do, shortly after the incidents of sexual abuse occurred. MM confronted the appellant a week after sexual intercourse telling him that there was to be no further sexual contact. He agreed. MM's reasons for not complaining included that she did not want to lose her job. AW was infatuated with the appellant and engaged in sexual relations with him to get his attention. After a period of hospitalisation during which AW came to appreciate the wrongfulness of the appellant's conduct, she confronted him in the presence of a group of his patients.
The differing accounts of the sexual abuse experienced by LB, MM and AW were not capable of bearing rationally on the assessment of the reasons given by JG for continuing to undergo treatment and for not complaining about the appellant's conduct. It was equally incapable of bearing rationally on the assessment of CL's reasons for continuing to attend consultations with the appellant over the four year period that the sexual conduct took place.
The defence of honest and reasonable but mistaken belief in consent
In the event that the jury were satisfied beyond reasonable doubt that JG or CL did not consent to any act charged in the indictment, it was necessary to consider whether the prosecution had established beyond reasonable doubt that the appellant did not have an honest and reasonable but mistaken belief that either JG or CL had consented[46]. It was open to the prosecution to lead evidence to negative the "defence" of honest and reasonable belief in its case. It was incumbent on it to establish the absence of such a belief regardless of whether the appellant gave evidence that he held that belief. However, nothing in the evidence of the LB, MM or AW, when taken with that of JG and CL, was capable of relevantly bearing on the exclusion of the defence. The evidence of JG, CL, LB, MM and AW was capable of proving a pattern of sexual misconduct between the appellant, a psychiatrist, and younger, vulnerable, female patients. It was open to reject the appellant's account that his motives were altruistic and to conclude that he knowingly took advantage of the dynamics of the therapeutic relationship to manipulate his patients into having sexual relations with him.
[46]Criminal Code, s 24.
LB removed her clothes to make the appellant feel better because she felt embarrassed on his behalf. MM said she did not want to have sexual intercourse with the appellant but she had not known how to convey her revulsion. AW initiated sexual contact with the appellant in an endeavour to get his attention on occasions. She fellated him while he sat in his chair somewhat impassively. It may have been open to conclude that the appellant well understood the dynamics which led AW to act in this way and that he appreciated his gross professional misconduct in fostering the situation. However, manipulating a person into sexual intercourse by exploiting that person's known psychological vulnerability would not, without more, vitiate their consent. The cynical exploitation of the appellant's position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.
The jury were not directed that it was open to have regard to the evidence of LB, MM or AW in assessing whether the prosecution had negatived the appellant's honest and reasonable but mistaken belief in consent. The respondent acknowledged that there were "difficulties" with the directions given as to the use the jury might make of the evidence of the propensity witnesses. In this Court the respondent did not advance any basis upon which the evidence of LB, MM or AW might have tended towards negativing the defence of honest and reasonable mistake save by recourse to the contention that the evidence of these witnesses demonstrated the appellant's psychological ascendency over his patients. Absent any feature of the evidence tending to demonstrate the appellant's awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by the "defence".
The evidence of LB, MM and AW did not have significant probative value under s 31A(2)(a) of the Evidence Act. It should not have been admitted into evidence at the appellant's trial.
The disposition of the appeal
The appellant submitted that taking into account his age and poor health, the proper order was to allow his appeal, set aside his convictions and enter a verdict and judgment of acquittal on each count. In the Court of Appeal the appellant was less ambitious. In the event that his appeal to that Court was upheld, he had sought an order for a new trial.
The respondent did not submit that, in the event that the appellant's challenge to the admission of the evidence succeeded, it was a proper case for the application of the proviso. However, the respondent submitted that the appropriate order was to direct a new trial. This was the order made. The charges in the indictment allege the commission of serious offences. The evidence of JG and CL was in each case capable of establishing the prosecution case. The matters on which the appellant relied in support of the order he proposed were properly matters for the Director of Public Prosecutions to take into account in the exercise of his discretion.
HEYDON J. This appeal should have been dismissed. That is because the similar fact evidence showing the commission by the accused of acts of sexual intimacy was admissible, though on different grounds from those assigned by the trial judge and the majority in the Court of Appeal. Below the expression "similar fact evidence" is used to mean the evidence of LB, MM and AW about alleged conduct not the subject of any charges. The expression "the complainants" is used to mean JG and CL, whose evidence went to the alleged conduct which was the subject of charges. The expression "acts of sexual intimacy" is used to mean the intentional commission of the various rapes, attempted rapes and acts of gross indecency alleged against the accused in the testimony of the complainants and in the similar fact evidence. The expression "the consent issues" is used to mean the issue of whether JG and CL did not consent to acts of sexual intimacy, the issue of whether they were induced to consent to acts of sexual intimacy by force, threat, intimidation or fear of bodily harm, and the issue of whether the accused had an honest and reasonable mistaken belief that JG and CL consented to acts of sexual intimacy.
Making "admissions" in criminal cases
The common law. At common law, at least in felony prosecutions[47], once the accused pleaded not guilty, it was not possible for the accused to make any admission otherwise than by admissions in testimony[48]. This rule seems to have rested on the theory that the rules of evidence in criminal cases cannot be waived by the accused[49]. Thus the accused cannot waive compliance with the rule that evidence given in English must be translated for the benefit of an accused person who cannot understand that language. Speaking in that context, the English Court of Criminal Appeal (Lord Reading CJ, Scrutton and Low JJ) said[50]:
"the trial of a person for a criminal offence is not a contest of private interests in which the rights of parties can be waived at pleasure. The prosecution of criminals and the administration of the criminal law are matters which concern the State. Every citizen has an interest in seeing that persons are not convicted of crimes, and do not forfeit life or liberty, except when tried under the safeguards so carefully provided by the law."
With respect, there is sense in this approach. The accused may be unrepresented, or not well represented. Taking shortcuts may be adverse to the interests of both the accused and justice generally. It is difficult to classify facts into those that do and do not relate to particular issues in criminal cases, since typically some relate to several issues. Where trial is by jury it is often the simplest and fairest course to let the jury hear the whole unbowdlerised story. Further, the common law rule against waiver is simply an illustration of the burden resting on the government in criminal investigation and prosecution. Suspects cannot be arrested or charged or put on trial without some factual basis. Once a trial has started, accused persons are not to be put to their defences unless a case to answer is established by evidence. No conviction can be obtained unless the prosecution discharges the burden of proving its case beyond reasonable doubt. So, it has been thought, it is not for the accused to relieve the prosecution of that burden by admitting parts of the prosecution case.
[47]Smart v Pepper (1987) 26 A Crim R 140 at 142.
[48]R v Bateman (1845) 1 Cox CC 186; Munday v Gill (1930) 44 CLR 38 at 68 and 80; [1930] HCA 20; R v O'Sullivan (1975) 13 SASR 68 at 73; R v Maes [1975] VR 541 at 550. Cf R v Thornhill (1838) 8 Car & P 575 at 576 [173 ER 624], where Lord Abinger CB refused to accept an agreement between the attorneys and said that no admission could be made unless it was made at the trial by the defendant or the defendant's counsel; but in Rattray v Roach (1890) 16 VLR 165 the Full Court of the Supreme Court of Victoria denied the proposition that admissions could be made by counsel. In Smart v Pepper (1987) 26 A Crim R 140 at 142 it was said that the trend of recent English authority "gravitates towards requiring a defendant to be bound by admissions made by his advocate in his presence as an application of the general principles of agency", citing R v Turner (1975) 61 Cr App R 67 at 82. But R v Turner concerned admissions made by an advocate, not in the trial of the accused in which they were tendered, but in an earlier trial.
[49]See the authorities collected by Isaacs CJ in Munday v Gill (1930) 44 CLR 38 at 66-68. A possible exception exists where there is a failure to object to evidence – a topic neither fully nor decisively explored in the authorities.
[50]R v Lee Kun [1916] 1 KB 337 at 341.

Pullin JA criticised counsel for the prosecution for cross-examining the accused about acts of sexual intimacy in relation to counts 10 and 11, on the ground that it "was cross-examination regarding a fact not in issue."[84] The accused repeatedly answered counsel's suggestions in cross-examination, in relation to count 11, by saying it was not the sort of thing that in his belief he would have done. Pullin JA said that this was not a denial of committing the acts, and thus that the accused did not resile from the "admission which had been made on his behalf, namely that he would not dispute the evidence JG and CL gave as to the acts constituting the charges."[85] With respect, that is not so, because the accused's answer invited the court not to accept JG's evidence – and there were quite a few answers of the same kind in relation to other counts. So the accused, too, seemed to regard the occurrence of acts of sexual intimacy as a live issue.
[84]Stubley v The State of Western Australia [2010] WASCA 36 at [119].
[85]Stubley v The State of Western Australia [2010] WASCA 36 at [119].
These aspects of the cross-examination reveal that counsel for the prosecution was endeavouring, with some limited success, to elicit evidence of sexual intimacy going beyond what the accused had been prepared to give in chief. That endeavour, the failure of counsel for the accused to object to it, and the failure of the trial judge to stop it, indicated that counsel on both sides and the judge thought that the occurrence of acts of sexual intimacy remained a live issue.
The trial judge's summing up
At most the statements of counsel for the accused in opening indicated what would and what would not be the main fields in controversy. But this leaves open what the position was if the complainants gave evidence of sexual intimacy, but not in a convincing manner. Were the jury bound to convict? Or did they retain liberty to refuse to convict? If an affirmative answer were given to the latter question, the issue of whether acts of sexual intimacy took place was a live issue.
The trial judge directed the jury in a manner indicating an affirmative answer to the latter question. She said:
"If at the end of your deliberations you are left with a reasonable doubt as to any necessary component or element of the charges brought against the accused, it is your duty to find him not guilty of those charges."
If that were so, the question of whether particular acts of sexual intimacy had taken place remained a live issue. Counsel did not complain about that direction.
The trial judge pointed out that the "accused has admitted having a sexual relationship with a number of the witnesses", but she did not say that that obliged the jury to find that he had in fact had those relationships.
The trial judge then gave various examples of how the jury could use the similar fact evidence, and said:
"for example, you may listen to the evidence of the complainant and think, 'Who behaves like that? That can't be true,' but you can, if you accept it, use the evidence of the other witnesses to see if that assists you in reaching a conclusion about those sorts of circumstances; so in other words, you do not have just the witness saying, 'This is how it happened, in this way, no communication. He undressed me. He did this and I just lay there doing nothing,' or, 'I just stood there,' or whatever. There is other evidence to support those accounts of the surrounding circumstances of how the events occurred."
That direction does not suggest that the occurrence of acts of sexual intimacy was not a live issue.
The trial judge also gave the following direction:
"When you are considering the evidence given by one of the complainants and you are considering what facts you find, what you are prepared to accept, you may think, 'I'm not satisfied that the accused would behave in that particular way, it's too unlikely or it's too implausible.' The same evidence given by one of the other witnesses may support the complainant's evidence, if you accept it, and lead you to review that sort of conclusion and conclude, 'Actually I do accept that that occurred.'"
The trial judge also gave directions about the difficulty which the lapse of time caused the accused. She gave four examples.
"If a complaint had been made at the time, the accused may have been able to call evidence to say that [1] in relation to some charges perhaps he was not in his rooms on a particular date or [2] he was on leave during a particular period of time or [3] call a witness, such as the receptionist, to say that on a particular day in relation to a particular matter she saw the complainant leave the room and she was happy and laughing. That sort of evidence the accused is precluded from calling because of the time lapse.
Another example: [4] he may have been able to call the receptionist to say that on a particular occasion, the first visit, [JG] did not bring her baby to the room. So the accused man may have been able to call evidence that would cast considerable doubt on the evidence of the complainant."
The third example goes partly to consent, but it and the other three all go to whether particular acts of sexual intimacy happened as the complainants said at all.
In directing the jury as to the ingredients of the crime of rape, the trial judge told the jury that they had to be satisfied beyond reasonable doubt that penetration occurred. She then said:
"the accused admits that sexual intercourse took place which includes penetration. However, he was unable to identify specific events, so you still need to be satisfied in relation to each charge of rape that penetration took place in that incident or in relation to that incident."
That is a clear indication that the question of whether acts of sexual intimacy had occurred on the particular occasions charged was a live issue. She also gave directions, based on a similar assumption, about attempted rape and indecent assault. In relation to indecent assault, for example, she said that one element was "that the assault was committed by the accused and that is most certainly something that I will entirely leave to you."
Then she said:
"clearly the principal issue between the parties is this issue of consent, because the actual sexual contact between the accused and the complainants is admitted, but it is also whether there is indeed evidence of each specific offence."
She concluded by summing up the evidence of the two complainants on counts 1, 2, 4-6, 8 and 10-14. She made no suggestion that there was no need to reach a view on the correctness of parts of it going to the occurrence of acts of sexual intimacy on the ground that its correctness was not a live issue. She also took the jury through the testimony of the accused in which he denied, or said he could not recall, particular details of the complainants' testimony.
In Dhanhoa v The Queen Gleeson CJ and Hayne J said[86]:
"It is the duty of the prosecution, in its case, to lead the whole of the evidence to which the accused is required to make answer[87]. It will often appear, in the course of a defence case, that some, perhaps much, of that evidence is not in dispute. In that event, it will be appropriate for a judge to point that out to the jury."
Neither Pullin JA, nor the accused in this Court, denied that it was the duty – and the entitlement – of the prosecution to lead the evidence of JG and CL at the trial. If it had appeared from the defence case that some or much of that evidence was not in dispute, it would have been appropriate for the trial judge to point that out to the jury. She did not do so because, as events turned out, it seemed to be largely in dispute despite what counsel for the accused said in opening.
[86](2003) 217 CLR 1 at 9 [20]; [2003] HCA 40.
[87]R v Chin (1985) 157 CLR 671 at 676-677 per Gibbs CJ and Wilson J; [1985] HCA 35.
There was no complaint by counsel for the accused about this summing up. He did not submit that matters had been left to the jury which were not live issues. His stance fits in with his opening, in which he spoke of the obligation on the prosecution to prove its case, in which he said he was telling the jury of the accused's "perspective" and "position", and in which he requested the jury to "listen until her Honour puts it all in perspective". When the trial judge did that, making it plain that the jury had to be convinced beyond reasonable doubt of the acts of sexual intimacy, counsel for the accused made no protest about misdirection. That is a further indication that counsel for the accused at the trial considered that the occurrence of the acts of sexual intimacy remained a live issue.
If the occurrence of acts of sexual intimacy remained an issue, was the similar fact evidence admissible?
Pullin JA rightly accepted that the evidence of LB, MM and AW showed that the accused had an unusual propensity to engage in sexual relations with his patients during consultations, and that proof of this tendency was rationally capable of affecting the assessment by the jury of the probability that the accused had engaged in acts of sexual intimacy with JG and CL during consultations[88]. For those reasons it had "significant probative value" within the meaning of s 31A(2)(a) of the Act. And its probative value compared to the risk of an unfair trial was such that "fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial" within the meaning of s 31A(2)(b).
[88]Stubley v The State of Western Australia [2010] WASCA 36 at [90].
That is because to many people – perhaps not all, and perhaps not all jurors, but at least many people who have not been afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers – an allegation that a psychiatrist was engaging in sexual intercourse with a female patient suffering from a mental disturbance which it was his duty to treat would seem so serious and inherently unlikely as to be startling, outlandish and far-fetched to the point of being bizarre. It would seem so bizarre, in the absence of corroboration, that it would be extremely difficult for the prosecution, in a case of oath against oath about conduct taking place in secret, to exclude a reasonable doubt. Thus a prosecution which rested on a single allegation by JG might very easily founder, however truthful she was. A prosecution including all JG's allegations might also easily founder: it would be easy for the defence to rely on her mental illness, her delay in complaint, the long lapse of time and so forth. A prosecution in which CL's evidence was admissible on each count concerning JG and vice versa – a state of affairs the validity of which the accused at no stage, in no court, challenged – would be a prosecution supported by evidence of much greater probative value. And a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations would be a prosecution backed up by evidence of so high a degree of probative value that the public interest had priority over the risk of an unfair trial. Accordingly, the reception of the similar fact evidence was not erroneous.
Precluding the reception of similar fact evidence
Earlier an assumption was made that it is open to accused persons to limit the issues in a case even if no s 32 admissions are made[89]. Is that assumption correct? If so, how can the issues be limited? The underlying problem has been acute in similar fact evidence cases. At one extreme Lord Sumner saw the limitation of issues as being legitimate and possible. In Thompson v The King he said[90]:
"Before an issue can be said to be raised, which would permit the introduction of [similar fact] evidence so obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial evidence is relevant. The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice. No doubt it is paradoxical that a man, whose act is so nakedly wicked as to admit of no doubt about its character, may be better off in regard to admissibility of evidence than a man whose acts are at any rate capable of having a decent face put upon them, and that the accused can exclude evidence that would be admissible and fatal if he ran two defences by prudently confining himself to one. Still, so it is."
At the other extreme, two cases may be noted. In R v Armstrong[91] a solicitor was accused of murdering his wife by administering arsenic. The similar fact evidence tendered was that after the wife died the accused offered a buttered scone containing arsenic to a rival solicitor with the emollient words, "Excuse my fingers."[92] Counsel for the accused at the trial "intimated that the defence would be that the deceased committed suicide by taking arsenic, and that no defence of accidental poisoning would be raised."[93] The English Court of Criminal Appeal (Lord Hewart CJ, Avory and Shearman JJ) said[94]:
"an intimation given by counsel at an early stage of the case as to the defence upon which he proposes to rely cannot preclude the prosecution from offering any necessary evidence to show that the accused committed the crime. It was an essential part of the case for the prosecution here to prove that arsenic was designedly administered by the appellant to his wife, and any evidence that tended to prove design must of necessity tend to negative accident and suicide … The fact that he was subsequently found not merely in possession of but actually using for a similar deadly purpose the very kind of poison that caused the death of his wife was evidence from which the jury might infer that that poison was not in his possession at the earlier date for an innocent purpose".
[89]See above at [111].
[90][1918] AC 221 at 232-233.
[91][1922] 2 KB 555.
[92][1922] 2 KB 555 at 557.
[93][1922] 2 KB 555 at 565.
[94][1922] 2 KB 555 at 565-566.
The other extreme case is R v Sims, where the English Court of Criminal Appeal (Lord Goddard CJ, Oliver, Croom-Johnson, Denning and Lynskey JJ) stated, in a judgment which Lord Goddard CJ said had been largely prepared by Denning J[95]:
"whenever there is a plea of not guilty, everything is in issue and the prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent. The accused should not be able, by confining himself at the trial to one issue, to exclude evidence that would be admissible and fatal if he ran two defences; for that would make the astuteness of the accused or his advisers prevail over the interests of justice."
[95][1946] KB 531 at 539.
In turn, the Privy Council in Noor Mohamed v The King preferred Lord Sumner's opinion, with one qualification, which Lord du Parcq expressed thus[96]:
"An accused person need set up no defence other than a general denial of the crime alleged. The plea of not guilty may be equivalent to saying 'Let the prosecution prove its case, if it can,' and having said so much the accused may take refuge in silence. In such a case it may appear (for instance) that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other offences, may tend to prove that they are consistent only with a guilty intent. The prosecution could not be said … to be 'crediting the accused with a fancy defence' if they sought to adduce such evidence."
[96][1949] AC 182 at 191-192.
Shortly afterwards the English Court of Criminal Appeal (Lord Goddard CJ, Hilbery and Barry JJ) retreated in R v Hall when it said[97]:
"a plea of not guilty is a plea of the general issue, and when the general issue is pleaded all defences are open to a prisoner, but it would not, on that account, be right at once in all cases to assume that a prisoner is going to set up a defence which is theoretically open to him. He may, however, have shown perfectly clearly the defence which he is going to raise by what he has said at the time of arrest or by the way in which the matter was conducted at the magistrate's court; or it may be that some particular defence does not emerge until some cross-examination takes place in the court of trial, from which it can be seen that a prisoner is going to set up a mistake or accident, or, as in this case, innocent treatment.
As soon as it becomes clear that the prisoner's defence is that the facts alleged by the prosecution have an innocent and not a guilty complexion evidence may be given which otherwise might be inadmissible".
[97][1952] 1 KB 302 at 307.
The problem in the present case is the vagueness of the accused's stated position, which was simply not probative or corroborative of the specific evidence given by the complainants. It may be compared with the following example given by Denniston J in R v Rogan[98]:
"if in a charge of burglary it is relevant to prove that the accused was at a certain place on the day of the burglary, and it was proposed to prove that fact by evidence that he on that day committed another offence in that town, an admission of the fact that he was there on the day would make the proof unnecessary, and it would be excluded."
In New Zealand in 1915 there was an equivalent to s 32, namely the Crimes Act 1908 (NZ), s 426, and an admission of the kind postulated by Denniston J would now be receivable in Western Australia under s 32. The same is true of another New Zealand case, in which an admission of identity was held to make similar fact evidence inadmissible[99]. Until 1967 there was no provision having the broad effect of s 32 in England.
[98][1916] NZLR 265 at 304.
[99]R v Horry [1949] NZLR 791 at 798-799.
In Harriman v The Queen Toohey J said[100]:
"If the accused is concerned that evidence sought to be adduced is relevant only to a defence upon which he does not intend to rely and that it is prejudicial to him, his counsel may so inform the court. Presumably the evidence will not then be pressed or, if pressed, it is likely to be rejected because it is not probative of any disputed fact."
It is not clear whether Toohey J only "had in mind the making of a formal admission"[101]. It is plain that the widespread existence of statutory provisions similar to s 32 affords a facility for removing issues from the case. The question is whether there are other means of doing so.
[100](1989) 167 CLR 590 at 608; [1989] HCA 50.
[101]Di Lena v Western Australia (2006) 165 A Crim R 482 at 498 [81] per Roberts‑Smith JA.
There is no point in analysing further the difficult question of what techniques are open to an accused person who is concerned to forestall the admission of similar fact evidence, particularly since this is a dissenting judgment. That is because whatever techniques are available to remove particular issues from the case, none of them was successfully employed here.