Stubley v The State of Western Australia - [2010] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: STUBLEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 36

CORAM: OWEN JA
PULLIN JA
BUSS JA

HEARD: 13 NOVEMBER 2009

DELIVERED : 3 MARCH 2010

FILE NO/S: CACR 27 of 2009
CACR 28 of 2009

BETWEEN: ALAN JOHN STUBLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
Citation  :STUBLEY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 57
File No  :INS 47 of 2008

Catchwords:

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

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

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4), s 30(5), s 30(6)
Criminal Code (WA), s 325 (replaced)
Criminal Procedure Act 2004 (WA), s 98
Evidence Act 1906 (WA), s 31A, s 32
Sentencing Act 1995 (WA), s 10

Result:

CACR 27 of 2009
Appeal against sentence allowed
Appellant re-sentenced

CACR 28 of 2009
Appeal against conviction dismissed

Category: A

Representation:

Counsel:

Appellant: Mr D Grace QC
Respondent: Mr A L Troy & Mr A D Sullivan

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Braham v The Queen (1994) 116 FLR 38
Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362
Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1
Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Connor v Kent [1891] 2 QB 545
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Farah Constructions Pty Ltd v Say‑dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fermanis v Western Australia [2007] WASCA 84; (2007) 33 WAR 434
Fox v Walker [2004] WASCA 246
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292
Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Judge v Bennett (1887) 52 JP 247
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Maric v The Queen (1978) 52 ALJR 631
Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108
Martino v The State of Western Australia [2006] WASCA 78
Munday v Gill (1930) 44 CLR 38
Narrier v The State of Western Australia [2008] WASCA 191; (2008) 38 WAR 161
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Osborne v The State of Western Australia [2007] WASCA 183
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
PIM v The State of Western Australia [2009] WASCA 131
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Best [1998] 4 VR 603
R v Hunter (1984) 36 SASR 101
R v I A Shaw [1996] 1 Qd R 641
R v Iles [2009] VSCA 197
R v Lee Kun [1916] 1 KB 337
R v Longford (1970) 17 FLR 37
R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249
R v Mathews [1993] 2 Qd R 316
R v Mitchell [1971] VR 46
R v ML [2009] VSCA 106
R v O'Sullivan and Mackie (1975) 13 SASR 68
R v Pryor [2001] QCA 341
R v Raabe [1985] 1 Qd R 115
R v Sadler [2008] VSCA 198; (2008) 20 VR 69
R v Sims [1946] 1 KB 531
R v Smith (1987) 44 SASR 587
R v Smith [1980] 1 NSWLR 193; (1980) 2 A Crim R 245
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rattray v Roach (1890) 16 VLR 165
Rowan v The State of Western Australia [2009] WASCA 185
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650
Stubley v The State of Western Australia [2009] WASC 57
Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528
The State of Western Australia v Akizuki [2008] WASCA 267
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
The State of Western Australia v Osborne [2007] WASCA 183
The State of Western Australia v Wood [2008] WASCA 81
Thorn v The State of Western Australia [2008] WASCA 36
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Upton v The State of Western Australia [2008] WASCA 54
Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999)
Warburton v The State of Western Australia [2009] WASCA 113
WCW v The State of Western Australia [2008] WASCA 232
Wood v The State of Western Australia [2005] WASCA 179

TABLE OF CONTENTS

OWEN JA ............................................................................................................................. 8
Appeal against conviction - ground 1
Appeal against conviction - ground 2
Appeal against conviction - disposition
Appeal against sentence
PULLIN JA ........................................................................................................................ 10
Summary of my conclusion on the conviction appeal
The charges
The appellant's pre‑trial application concerning the proposed evidence of AW, LB and MM
The witness statements of JG, CL, AW, LB and MM
The appeal
The testimony of JG
The testimony of CL
The cross‑examination of JG and CL
The testimony of AW
The evidence of LB
The evidence of MM
The decision of Johnson J in [2009] WASC 57
The grounds of appeal against conviction
Ground 1
What is relevant evidence?
How are issues identified in a criminal trial?
Can the prosecutor call evidence in proof of a fact admitted by the accused?
In this case an admission was made at trial as foreshadowed at the pre‑trial hearing before Johnson J
Consent the only issue
The only issue being consent, then was the evidence of AW, LB and MM of their state of mind relevant to that issue?
Consent - relevance of conduct of the appellant
What conduct did the appellant engage in before carrying out the acts the subject of the charges?
Did AW, LB or MM give evidence that the appellant threatened them with institutionalisation?
Did AW give evidence of intimidation which was relevant to the charges concerning CL?
Did LB give evidence of intimidation which was relevant to the charges concerning CL?
Did MM give evidence of intimidation which was relevant to the charges concerning CL?
The conclusion about the evidence of AW, LB and MM
The trial judge's reasons
The trial judge erred
What was the effect of the evidence of AW, LB and MM
Substantial miscarriage of justice?
Ground 2
The outcome on the conviction appeal
Should the appellant be re‑tried?
Sentence appeal
Provisional resentencing
BUSS JA .............................................................................................................................. 64
The State's case as opened at the trial: JG and counts 1 ‑ 11
The State's case as opened at the trial: CL and counts 12 ‑ 14
The State's case as opened at the trial: the 'propensity' witnesses
The appellant's case as opened at the trial
Consent and the crime of rape
The critical issues at the trial
JG's evidence-in-chief at the trial as to the circumstances in which she became the appellant's patient
JG's evidence-in-chief at the trial in relation to counts 1, 2, 4, 5, 6, 8, 10 and 11
JG's cross‑examination at the trial
CL's evidence-in-chief at the trial as to the circumstances in which she became the appellant's patient
CL's evidence-in-chief at the trial in relation to counts 12, 13 and 14
CL's cross‑examination at the trial
The evidence of the 'propensity' witness, LB
The evidence of the 'propensity' witness, MM
The evidence of the 'propensity' witness, AW
The appellant's evidence generally as to sexual relations with his patients
The appellant's evidence in relation to the complainant, JG
The appellant's evidence in relation to the complainant, CL
The appellant's evidence as to consent in relation to both of the complainants, JG and CL
The appellant's evidence in relation to the 'propensity' witness, LB
The appellant's evidence in relation to the 'propensity' witness, MM
The appellant's evidence in relation to the 'propensity' witness, AW
The trial judge's ruling in relation to the admissibility of the evidence of the 'propensity' witnesses
The trial judge's summing up to the jury
Appeal against conviction: the grounds of appeal
Appeal against conviction: the appellant's submissions
Appeal against conviction: the nature of relevance
Appeal against conviction: the common law principles relating to propensity evidence, relationship evidence and the doctrine of res gestae.
Appeal against conviction: s 31A of the Evidence Act
Appeal against conviction: the merits of ground 1
Appeal against conviction: the merits of ground 2
Appeal against conviction: orders wanted
Appeal against conviction: conclusion
Appeal against sentence: the grounds of appeal
Appeal against sentence: the trial judge's sentencing remarks
Appeal against sentence: the State's submissions
Appeal against sentence: the merits of ground 1
Appeal against sentence: the merits of ground 2
Appeal against sentence: re‑sentencing
Appeal against sentence: conclusion

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

Appeal against conviction - ground 1

It is trite to say that the evidence of the three propensity witnesses had to be relevant to a matter in issue before it became admissible. In the circumstances of this case it was not enough simply to say that the evidence was relevant. It was of fundamental importance to identify precisely the issues to which the evidence was relevant. As Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 demonstrates, nowhere is this more so than in cases involving sexual offences in which consent is in issue. But I do not read anything said in Phillips as meaning that where consent is in issue propensity evidence that might bear on the presence or absence of consent must necessarily be inadmissible. In Phillips the Court said [46]:
Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count supported by one complainant's evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to 'the improbability of similar lies' on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen …; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.
At [361] to [364] Buss JA has summarised the particular issues to which the propensity evidence was relevant. Importantly, from my perspective, they include whether the particular acts alleged in the indictment actually occurred and whether (if complainants were not actually consenting) the appellant had an honest and reasonable, though mistaken, belief that consent had been given. This latter issue brings into play the words in the passage from Phillips that I have quoted: 'Did the accused do a particular thing? Or did the accused do it with a particular mental state?' In my view the fact that the propensity evidence might also, and incidentally, go to the complainants' state of mind does not automatically render it inadmissible. The next question is whether the evidence had significant probative value in relation to the issues to which it was relevant. In that respect there is nothing I can usefully add to what Buss JA has said.

Appeal against conviction - ground 2

The full ramifications of the High Court's decision in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 have yet to be worked out. It seems to me that in cases of the type represented by HML there is much to be said for the approach recommended by Nettle, Redlich and Dodds-Streeton JJA in R v Sadler [2008] VSCA 198; (2008) 20 VR 69 [65]:
Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.
However, as Buss JA has pointed out, at [393] to [394], this is a different case and HML and Sadler are distinguishable. In those cases there was a dispute whether there had been sexual activity between the accused and the complainant. Here, the appellant admitted having had sexual relations with the complainants and with two of the three propensity witnesses. The State had to prove, not that sexual activity occurred, but that the particular sexual acts alleged in the indictment occurred and that they happened without the complainants' consent and that the appellant did not have an honest and reasonable, though mistaken, belief as to consent.
The evidence of the propensity witnesses was not at large. It was admitted for a limited purpose. The jury could not have convicted the appellant unless they were satisfied beyond reasonable doubt of the version of events testified to by the complainants. In the circumstances of this case the propensity evidence was not an 'indispensable link in a chain of reasoning towards an inference of guilt': Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579. Accordingly, it was not necessary that it be established beyond reasonable doubt and the direction of the trial judge to that effect was not erroneous. There is, to my mind, no tension between the statement that the propensity evidence is not an indispensable link leading to an inference of guilt and the view expressed in the previous

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

Appeal against conviction - disposition

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

Appeal against sentence

For me, the critical feature in the sentencing process is the appellant's age and infirmity. In this respect, the principles on which the sentencing discretion falls to be exercised are set out in Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 and in Rowan v The State of Western Australia [2009] WASCA 185.
For the reasons given by Buss JA I think the appeal against sentence should be allowed, the sentence quashed and, in lieu, the appellant be required to serve a term of immediate imprisonment of 6 years to commence on 21 November 2008. There should also be an order that the appellant be eligible for parole.
PULLIN JA: This is an appeal against various convictions for rape, attempted rape and indecent assault and an appeal against sentence.

Summary of my conclusion on the conviction appeal

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

Many years after the last of the sexual encounters, the complainants went to the Medical Board and the police became involved. The appellant was then charged with rape, attempted rape and indecent assault on the two women, and more than 30 years after the commencement of the first of the sexual encounters, he was tried and convicted of some of the charges. The complainants both gave evidence at trial of the events in the appellant's rooms, which had occurred decades before, and their evidence was either that they did not consent to any of the sexual encounters or that they were induced to consent. The appellant gave evidence that they did consent and that there was no threat or intimidation. There was no evidence that force was ever used, and there was no evidence that the two women ever had any fear of bodily harm being done to them if they did not consent.
The length of the relationships, the fact that the complainants returned time and time again anticipating that they would engage in the sexual encounters, the fact that force was never used and the long period of time which had passed, raised the distinct possibility that the jury would not be satisfied beyond reasonable doubt that the two complainants did not consent. However, something occurred at the trial which made conviction much more likely. The trial judge decided to allow the prosecution to lead evidence (described as propensity evidence) that the appellant had sexual encounters not only with the two complainants, but with three other women patients who were not referred to in the indictment. In my opinion this was a wrong decision on a question of law.

In my opinion, all that the evidence of the three other women could have shown was the appellant's propensity to have sexual encounters with women patients in his rooms in order to prove that the sexual encounters with the two complainants occurred. However, this was not in issue at the trial because of admissions made by the appellant. Evidence of his propensity was therefore irrelevant to any live issue at trial.
Some evidence was also led about whether or not the three other women consented (and one positively said that she did consent and that she instigated sexual encounters). The High Court decision in Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 makes it clear that whether one person consents or not, is not relevant to whether another person consents or not.
The evidence from these three other women, which in my opinion was irrelevant to any live issue in the case, took up a large part of the time at trial and doubtless impressed the jury that the appellant was immoral and unprofessional. However, he was charged with the serious crimes of rape and assault and not with immorality or unprofessional conduct.
I would allow the appeal against convictions. My detailed reasons for decision follow.

The charges

The appellant was charged with seven counts of rape, one count of attempting to commit rape and six counts of unlawful and indecent assault committed between 1975 and 1978 upon two women patients, JG and CL.
Section 325 of the Criminal Code (WA) as it stood at the time stated that a person who had carnal knowledge of a woman, not his wife, 'without her consent, or with consent if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm or by means of false and fraudulent representations as to the nature of the act, is guilty of the crime of rape'. The meaning of the word 'intimidation' is discussed later in these reasons. As to assault, it was defined in s 222 of the Code. It was defined as including touching a person without their consent.
The jury convicted the appellant of six counts of rape, one count of attempting to commit rape and three counts of unlawful and indecent assault. The 10 counts in the indictment on which the jury found him guilty and on which convictions were recorded read as follows:
(1)On a date unknown between 8 December 1975 and 31 January 1976 at West Perth Alan John Stubley unlawfully and indecently assaulted [JG] by touching her between her legs.
(2)On a date unknown between 15 December 1975 and 7 February 1976 at the same place as in Count (1) Alan John Stubley committed rape upon [JG].
(3)[Not Guilty]
(4)On a date unknown between 8 December 1976 and 12 June 1978 at Leederville Alan John Stubley committed rape upon [JG].
(5)On a date unknown between 22 December 1976 and 12 June 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].
(6)[Not Guilty]
(7)[Not Guilty]
(8)On a date unknown between 8 December 1976 and 12 July 1978 at the same place as in Count (4) Alan John Stubley unlawfully and indecently assaulted [JG] by introducing his penis into her mouth.
(9)[Not Guilty]
(10)On or about 12 June 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].
(11)On a date unknown between 12 July 1978 and 31 August 1978 at the same place as in Count (4) Alan John Stubley committed rape upon [JG].
(12)On a date unknown between 1 January 1977 and 31 December 1977 at West Perth Alan John Stubley unlawfully and indecently assaulted [CL] by touching her breasts.
(13)On a date unknown between 1 January 1977 and 31 December 1977 at the same place as in count (12) Alan John Stubley attempted to commit rape upon [CL].
(14)On a date unknown between 1 July 1977 and 30 June 1978 at the same place as in count (12) Alan John Stubley committed rape upon [CL].

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

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

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

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

The appeal

The appellant appeals on the ground that the trial judge's decision overruling the objection to the evidence of AW, LB and MM was an error of law, meaning that it was a wrong decision on a question of law: s 30(3)(b) Criminal Appeals Act 2004 (WA). In the alternative, the appellant appeals on the basis that the trial judge misdirected the jury concerning the evidence of the three women. Leave to appeal on both grounds has been granted.
The appellant was sentenced to a total of 10 years' imprisonment and was made eligible for parole. The appellant has been granted leave to appeal against that sentence.

The testimony of JG

The complainant JG gave evidence in accordance with her pre‑trial witness statement concerning the counts on which the appellant was convicted in relation to her. Her evidence‑in‑chief was that in 1975 she was admitted into hospital suffering from depression when her first child was about nine months old (ts 80 ‑ 81). She remained in hospital for several months and then, in December 1975, returned to her home and began seeing the appellant in his rooms in Kings Park Road, West Perth. The acts involved in counts 1 and 2 occurred in the those rooms. The acts involved in the fourth, fifth, eighth, tenth and eleventh counts occurred in the appellant's new rooms at West Leederville. The incident the subject of count 10 occurred when JG was about eight months pregnant with her second child. The incident the subject of count 11 occurred three or four weeks after the baby was born. There were other occasions, not the subject of any charge, when sexual activity occurred. The sexual activity between the appellant and JG then continued for about two and a half years. Unfortunately, due to the issue raised by ground 1, it will be necessary to set out verbatim parts of JG's evidence and, later, parts of the evidence of CL, AW, LB and MM.
On JG's first appointment to see the appellant, she went to his rooms with her daughter in a pram. The pram and the baby were left with the receptionist and she went into the appellant's consulting room on her own. She then gave evidence as follows concerning count 1:
What happened when you got into Dr Stubley's consulting room?---Well, I walked in and he put his arms around me and gave me a big hug and said how well I looked et cetera.
Had you ever had any physical contact with him before that time?---No.
What then happened after that?---Well, there were two chairs in the room so I sat on one of them and he sat on the other one.
Yes?---And there was sort of silence and I felt very nervous and he asked me how I'd been coping and what have you with my child and being at home so we discussed that and, yes, that was it, and then he said would I come and sit on his knee.
Do you remember now the precise words he used or not?---'Come and sit on my knee.'
How did you react to that?---Well, I was shocked and I sat in my chair. I was very shocked.
What then happened?---Well, there was just silence in the room. It was just terrible. It was just a terrible silence, and then he repeated it.
Can you help us at all as to the tone which he - - -?---Well, it was very authoritarian, quite demanding.
When he made that request or demand of you on the second occasion what then happened?---Well, I sat in my chair for quite some time and then I went and sat on his knee.
And when you sat on his knee can you tell us what then happened?---Yes. He put his hand on my leg and he rubbed his hand up my leg, in between my legs, and then, you know, out of - down my leg again.
Can you remember what you were wearing at the time?---Yes. I was wearing like a shirtmaker-style dress with buttons down to, you know, probably mid - below my waist, and stockings and shoes.
Can you tell us precisely where he put his hand?---On my legs and up in between my legs on my crotch.
And can you tell us, when he did that, when he put his hand between your legs and on your crotch, what was going through your mind?---Well, I just froze. I was just so afraid I just was frozen.
What were you afraid of?---Well, I was afraid of him and what he might do to me.
When you say you were afraid of what he might do to you, what particularly did you have in mind at that time?---I didn't have anything in mind at that time at all other than, you know, what on earth was this person doing, who was supposed to be my doctor?
Did you say anything to him?---I said I didn't want to do this.
Did he respond?---No.
And how long did this go on for?---Probably five minutes.
And how did it come to an end?---I got up and walked towards the door to leave the room.
And was anything said to you by Dr Stubley at that time?---Yes. He said he'd need to see me again in a week or two.
At that stage had there been any further appointment formally been made or not?---No.
Did you have to do anything before you left in that regard?---Yes. I had to wait at the desk and Rita made me an appointment as he requested. (ts 88 ‑ 89)
In relation to that next occasion, JG testified as follows concerning count 2:
I'm moving on. I'm moving now onto the second time that you went to see Dr Stubley. On that occasion were you on your own or did you have anybody with you?‑‑‑I was on my own because I was told to find a babysitter for my daughter.
What happened when you arrived at Dr Stubley's rooms on that occasion?‑‑‑I went into the rooms and I waited in the waiting room and I was then invited into the surgery, or his consulting rooms, and I went in and I sat down in my chair.
So was this the same room that you had been to the previous session?‑‑‑Yes.
What did Dr Stubley do when you sat down in your chair?‑‑‑He sat down in his.
What then happened, [JG]?‑‑‑It was just very quiet, silence.
Were you saying anything in particular?‑‑‑I was feeling very, very nervous and I just said, you know, tried to say what was going on in my life, like things were going okay with my daughter and everything and, you know, that was it. That's all I said.
Did anything happen then during the course of that session that you were having with Dr Stubley?‑‑‑Yes, he threw the cushion, a cushion on the floor, and he went and lay on the floor and then he said to me, 'Come lie with me.'
What did you do when he said that?‑‑‑Nothing. I sat in my chair. I felt afraid.
What then happened, [JG]?‑‑‑He repeated his request in a very authoritarian way, so eventually I did go and lie on the floor.
When you went and laid down on the floor approximately how long had Dr Stubley been on the floor for?‑‑‑10 minutes.
Was he lying on his front or on his back?‑‑‑On his back.
Did you lie on your front or on your back?‑‑‑Can't remember.
Do you remember where you lay in relation to Dr Stubley?‑‑‑Well, in between the two chairs. Not close to him but a reasonable distance away from him.
Having made your way to the floor what then happened?‑‑‑Then he undid his trousers, he pulled down my stockings and my - pantihose and my knickers and proceeded to get on top of me.
Before he took his trousers off but whilst you were on the floor, were you saying anything to him?‑‑‑I said, 'I don't want you to do this.'
At what point did you say that?‑‑‑Well, when he was undoing his trousers.
When you said that to Dr Stubley, did he respond?‑‑‑No, he ignored me.
You described the removal of your clothes and the undoing of his trousers and then him getting on top of you. What happened when he was on top of you?‑‑‑He proceeded to have sexual intercourse.
What was going through your mind at the time that he proceeded to have sexual intercourse with you?‑‑‑Terror.
Were you saying anything to him at that particular time?‑‑‑I was crying.
Other than having sexual intercourse with you at that particular time, was there anything else that Dr Stubley did?‑‑‑Yes, he undid the top of my dress, pulled out my breast and bit my nipple hard and it hurt.
Approximately how long did the intercourse last for?‑‑‑Probably 10 or 15 minutes.
Was Dr Stubley using any protection?‑‑‑No.
What happened at the end of that 10 to 15 minutes?‑‑‑Well, he got up and did up his trousers and I lay crying on the floor. Eventually I gathered myself together and pulled up my pantyhose et cetera and sat in my chair sobbing.
So did the session then continue or did it come to an end?‑‑‑It came to an end. I wanted to run out of there and I did. There were two doors and one went to the waiting room and one was an exit, fire exit, and I went out that door. He opened it and I ran down the steps, metal steps.
Having left his consulting room by that means, was there any contact after that between you and either Dr Stubley or any member of his staff?‑‑‑Rita rang me with another appointment, his receptionist.
When was that further appointment to be?‑‑‑It was in a couple of weeks' time.
Did you make that appointment?‑‑‑I went to it. (ts 91 ‑ 93)
At the third appointment there was no sexual contact, but the following evidence is relevant to JG's evidence concerning the subsequent charges:
Can you tell us what the purpose in your mind at the time was in respect of attending his rooms on that third occasion?---Well, I was angry and I wanted to know what this was all about and he said, 'It's a part of your therapy and you need to continue to come.'
When did he say that?---At my third appointment and, furthermore, he said, 'If you don't come, you'll have to go to an institution and you would be separated from your daughter and your husband.'
Did he say which institution?---From memory, it was Graylands or Heathcote or somewhere like that. I can't remember exactly.
Other than that conversation that you have described as occurring during the third appointment at his rooms, did anything else happen on that particular occasion?---I questioned him about the therapy and the need for coming, et cetera. I felt I was well enough and I didn't want to come any more but he said I must continue my therapy.
What happened during the course of that particular session that you had with him?---We had a conversation about how I was coping and what have you and, you know, he liked the nurses at the hospital and the matron and everyone else and suggested I continue my therapy.
In addition to any conversation that occurred on this occasion between yourself and Dr Stubley did anything else happen?---Of a sexual nature, do you mean?
Well, I just want you to indicate what if anything occurred during the course of that third appointment. You have told us about one occasion when the first time you went to Dr Stubley he touched you between your legs as you have described. On the next occasion you say he had sexual intercourse with you. Did anything happen on the third occasion that you went to see him?---From memory, no, not on the third occasion. I was very distressed. I was very fragile and I felt very vulnerable and I didn't feel safe with him. I was terrified of venereal disease and I simply didn't want to have sex with anyone else except my husband.
Did you continue to see Dr Stubley at those rooms in the weeks and months that followed?---Yes. (ts 94 ‑ 95)
JG said that she continued to see the appellant at the West Perth rooms on a fortnightly or three‑weekly basis (ts 95) and that sometimes sexual intercourse would occur. JG said she saw the appellant at his rooms on Kings Park Road in West Perth for 'up to a year' and that at some stage his consulting rooms moved to West Leederville. In relation to the first occasion she consulted him at West Leederville, JG gave the following evidence concerning count 4:
Can you tell us what, if anything, happened once you went into the consulting room?---Well, he closed the door behind me and it was quite a thick door and it had padding on it, like padding about so thick, and he locked it and I went in, and I sat down in a chair.
I will just pause you there a second. You told us that he locked the door?---Yes.
Had the door ever been locked previously at the other location?---No.
All right. You then sat down in the chair, I think?---Yes.
What then happened?---Well, I just, you know, said what was happening in my life and how things were going, and what have you, and he said now at these new rooms he had longer time to see me and so I just sat there, and he got up and he pulled the cord off the curtains and put it down and then he threw a cushion on the floor and said, 'Come lie with me,' and I sat in my chair. I felt nervous. I was crying and he just lay on the floor. Eventually, I got up from my chair and I went and lay on the floor.
Where did you lay in relation to Dr Stubley?---Near to him; not right close to him but on the floor next to him.
What then happened?---He took his trousers off, he pulled down my pantyhose, my knickers and proceeded to have intercourse with me quite harshly.
When you say 'quite harshly', what do you mean by that?---Well, he thrust inside me very harshly and it hurt my back. It hurt my back. It abraded my back. When I went home my back was like it was grazed and I got under the shower and I sat in the bath and my back was grazed and sore, as was my vagina, et cetera.
The intercourse on that occasion, was that protected or not?---No.
When the intercourse was occurring were you saying anything, to your recollection, to Dr Stubley?---I was crying.
Can you remember what happened when he finished having intercourse with you on this occasion?---He got up and he went over to a basin in his room and he proceeded to wash himself.
When you say 'wash himself', what part of his body are you referring to?---Well, below his waist. His penis I guess you'd have to say.
After that, what did he then do?---Handed me some tissues. I was crying and I got myself - my pantyhose and my knickers in place and I sat in the chair and continued to cry. I wanted to run out of the room and I couldn't stop crying and eventually he opened the door and I ran out of the room. I ran into the car and I sobbed all the way and halfway home I stopped in the park, Shenton Park, and I pulled up in the park and I started to scream in the car and sob and I felt out of control and I couldn't understand why he was doing this to me and why I had to do it, and I sat in the car for about three-quarters of an hour sobbing and screaming and I felt very distressed. Eventually, I drove home.
Can I just go back a little so far as this episode is concerned?---Mm.
You were telling us that after the episode of intercourse you resumed your seat and you were sobbing. At that time do you remember if Dr Stubley was saying anything to you?---He didn't say anything. He just looked at me. He just looked at me with a smirk on his face; quite sickening.
Did you see him again?---I didn't make an appointment, no, but Rita rang me some time later and said that he wanted to see me again. (ts 97 ‑ 98)

JG did not then see the appellant for about three to four weeks, but saw him again because she was getting depressed again. Then there was a further lengthy time where she did not see the appellant. She resumed seeing him when she was pregnant with her second child. This child was born on 5 July 1978.
As to count 5, JG was vague as to details. Her evidence‑in‑chief was:
Relating it to the first two visits that you told us about, that is the time when you had sexual intercourse and had a carpet burn, the second occasion when nothing happened, can you relate the incident where he put a cushion down on the floor and said, 'Let me comfort you,' to those two occasions?---No, I can't really.
Was the occasion where he put the cushion on the floor and said 'Let me comfort you' on the same occasion as any of those two occasions or a different occasion?---Different.
Was it before or after the time when you - was it before or after the period when you took a break from seeing Dr Stubley?---After.
Can I then ask the question again? In respect of any times that you visited Dr Stubley before you took a break from seeing him at his West Leederville rooms in addition to the one occasion that you have mentioned was there any other sexual activity between you and Dr Stubley?---Yes, there was.
Do you have a recollection of any such activity?---Yes, but not specifically.
What do you remember?---I just remember that he took all his clothes off.
Yes?---And lay down on the floor.
And what else do you remember about that episode?---And then he said, 'Come lie with me.'
Do you remember anything else happening on that occasion?---I remember sexual intercourse took place and that he ejaculated inside me.
At the time that that episode of sexual intercourse occurred were you saying or doing anything?---I was crying. (ts 101)
JG testified that on another date the appellant pushed his penis into her mouth without ejaculating. This was count 8 (ts 101 ‑ 102).
As to count 10, JG said that she was about eight months pregnant with her second child when she went to see the appellant, and her evidence‑in chief was as follows:
Can we then go to the occasion when you went to see Dr Stubley when you were about eight months pregnant with [your daughter]?---Mm.
Was that still at the West Leederville rooms?---Yes.
Can you tell us what happened when you arrived on that occasion?---Well, he took me into the front room which was just near the stained glass windows on the left hand side as you walk in, and we sat down and he said I looked very beautiful and I said I was feeling very well and I was very excited about my new baby. Anyway, we talked for a while and then he threw the cushion on the floor and he lay on the floor and he said, 'Come and relax with me here,' you know. Anyway
So what did you do when he said that?---Well, I went and lay here and
Can I just ask you this: when you went down and lay down at that time, did you have any particular concerns?---No, I just thought - no, I didn't.
All right, so you lay down on the floor. What then happened?---Well, he took his trousers off and he raped me.
When he took his trousers off, did you say anything?---Yes. I said, 'What are you doing? What are you doing? I don't want this. My baby's due in four weeks' time. I'm not having intercourse with my husband. I don't want to have intercourse.'
Did Dr Stubley say anything in response to that?---He did respond. He said, 'It will be okay. It will be quite okay,' and proceeded to have intercourse with me.
Do you remember any details about the intercourse that he had with you on that particular occasion?---Well, it wasn't very long-lasting and he wasn't as rough as usual. I was terrified. I was absolutely terrified.
What were you terrified of in particular?---Well, I was terrified that it might bring on the birth of my baby prematurely.
Do you remember how that episode of sexual intercourse came to an end?---Yes. Well, he got himself dressed and I pulled up my clothes and he helped me up from the floor and I left.
The next day, [JG], did anything particular happen?---Yes, I started to haemorrhage.
What did you do as a result of that?---I rang my doctor.
Then what happened?---My doctor arranged for me to go and have an ultrasound.
Did you have an ultrasound?---Yes.
After that did you speak to anybody?---Yes, I rang Dr Stubley's rooms.
Were you able to speak to Dr Stubley?---Yes.
What happened in that conversation?---I said I was extremely angry that I had actually had a haemorrhage and he said, 'That can happen.' It was a burst blood vessel. I told him it was a burst blood vessel and he said, 'Yes, that can happen.' I said, 'It shouldn't have happened.' (ts 104 ‑ 105)
JG testified that after her second daughter was born she again attended upon the appellant. Her evidence concerning count 11 was as follows:
Once you left hospital did you make any contact with either Dr Stubley or with his receptionist?---Not for a while. Eventually I did ring Rita and made an appointment. It might have been a couple of weeks after the birth.
Why did you make a further appointment with Dr Stubley?---Because I was afraid I was going to get postnatal depression again and that my GP had suggested I did.
So you then went to see Dr Stubley on some occasion?---Yes.
Approximately how long after [your daughter's] birth was it that you went to see Dr Stubley?---It might have been three or four weeks.
When you went to see him did you go on your own or with anybody else?‑‑‑I took my baby.
And again was it at the rooms at West Leederville?---Yes.
What happened when you got there?---Well, he took me into the other room on the right-hand side of the passage as you come in and I took my baby in there and I put her down on the floor next to me and I sat in the chair and he sat in the other chair and he asked me how I was coping. I said I was coping very well.
What then happened?---Then he threw a cushion on the floor and he said, 'Come and lie down with me.'
What did you say to him?---I didn't lie down with him initially and he just lay there and then again he repeated, 'Come and lie with me,' so I did. I also said, 'I've got my baby in this room and my baby is asleep and I don't want to lie with you.'
Did he respond to that?---No.
What was the next thing that happened?---I lay down on the floor with a cushion and the next thing he was rubbing his hands all over my body and removed his trousers and pulled mine down and proceeded to have intercourse with me.
Can you tell us, at the time that he was running his hands over your body as you have described and then pulled your clothes off, what was running through your mind at that particular juncture?---Well, I was terrified because I was still haemorrhaging and I said, 'Look, I can't do this. I can't do this' - and he took no notice of me and he proceeded to have sexual intercourse and I cried.
At what stage were you crying?---I was crying when he started to do that, take his trousers off and take my trousers off or my skirt, whatever.
Do you remember what happened at the end of that episode of intercourse?---Yes. I looked up and his penis was covered with blood and he went over to the basin and washed himself and left me lying on the floor, sobbing.
How long did you remain on the floor for?---I pulled up my knickers and pad and pantyhose and went and sat on my seat.
Did anything happen once you resumed your seat?---I cried. (ts 106 ‑ 107)
The sexual activity between the appellant and JG continued for about two and a half years before it ceased sometime before the birth of JG's third daughter in December 1980 (ts 107). JG continued attending on the appellant at his rooms from time to time over a further 16 years, until she saw him for the last time in 1996.
In 1983 JG was questioned by a person from the Medical Board in relation to an unspecified complaint that had been made against the appellant. She did not tell that person about the sexual intercourse with the appellant. She failed to do so, she testified, because of her fears of the appellant and of ending 'up in an institution'. She eventually instructed lawyers in 1996 to complain to the Medical Board and initiated a claim for civil compensation. She made a statement to the police in 2007.

The testimony of CL

The second complainant, CL, gave evidence in accordance with her pre‑trial witness statement concerning the counts on which the appellant was convicted in relation to her. CL testified that she attended upon the appellant for treatment in November 1976 and then in February 1977, following which she saw him once a month. She testified she went for 'counsel rather than treatment' (ts 180) because she had a broken marriage, a dying mother and family issues (ts 180). She said that she 'needed somewhere safe to explore those issues to establish [her] life … in Perth' (ts 180). She was asked whether she thought that she was suffering from any mental health issue and she said that she was not (ts 180). She had been trained as a psychiatric nurse in New Zealand (ts 180) and she was familiar with a theory of psychiatry that there could be sexual relations between doctors and patients (ts 180). She testified that she told the appellant that she did not want 'bed therapy'. However, eventually sexual activity commenced between them and it continued over four or five years.
There was no physical contact between CL and the appellant until February 1977. CL was suffering from a neck injury and she suffered pain from it. Her evidence regarding count 12 was as follows:
Prior to moving into your own accommodation in Claremont, was there any physical contact between you and Dr Stubley during your meetings?---Not that I recall.
Did that ever change?
JOHNSON J:   I'm sorry. Could you keep your voice up?---Sorry, not that I recall.
TROY, MR:   After you moved into your own accommodation in Claremont, did that change?---Yes. At one meeting I was clearly in pain from my neck and it was bad pain. He stood behind and rubbed my neck and moved his hands around and it seemed to me that he was rubbing his hands over my - the front of my chest, the breasts. Sorry? Sorry, go on.
If you just want to take a moment, [CL]? I wanted, if I could, just to ask you in a little bit more detail about that episode that you have just described. You told us about the neck condition that you had. Can I ask you this: at the time that this episode occurred that you have just described were you receiving any other medical treatment at that particular time?---Not that I can immediately recall, no.
…
Do you remember what was said between you and Dr Stubley immediately before any physical contact?---There were, as I recall, two occasions on which he touched me about my neck, as I recall, but on one occasion he said, 'Here, let me have a look.'
What I would like to do, [CL], is look at those separately?---Okay.
So can we start with the first occasion when you say that there was any physical contact between you and him so far as your neck was concerned?---At that first time I don't actually remember saying anything very much at all.
Do you remember anything that Dr Stubley said?---Not really.
Do you remember on that first occasion what it was that Dr Stubley did?---He touched my [neck].
He touched you?---He touched my neck but I think that's all I can remember, I think.
Do you remember whether he touched the front of your neck or the back of your neck?---Yeah, he rubbed his hands down my front.
How far down did he rub his hands? You're indicating to your chest or breast region. Is that correct?---Yes.
When he did that was he standing, to your recollection, on front of you or behind you?---Behind the chair.
And were you sitting or standing?---Sitting in a chair.
For how long was it that he touched you in that way that you have described?---Not very long.
And do you remember now if anything was being said by him at the time he that he was doing that?---No.
What happened when he stopped touching you in that way?---As far as I remember, I just sat back and he moved away, as far as I remember without reference to my diaries.
Prior to that occasion had there been any physical contact between Dr Stubley and you?---On one occasion, and I can't remember where it actually fits into that, he ended the session by saying, 'Oh, are you going to give' - he put his arms out, 'Are you going to give me a hug?' I had always been sort of ticked off for being very cold and unresponsive to people, that I would not accept hugging and kissing from people - still won't - and I thought, 'I suppose I should; this is possibly something to do with therapy,' but I think that was all that happened that time.
Are you able to say whether that occasion, when there was an invitation to you to hug him, occurred before the time that he massaged you from behind over your breasts as you have described?---Yes. I'm pretty sure that that was the case.
JOHNSON J:   I'm sorry, was that before, did you say, or after?---Before.
Before, okay?---I'm sorry, I'm muttering.
TROY, MR:   Now, on the occasion when you say that Dr Stubley was behind you and massaging you ultimately over your breasts as you have described, do you remember what was going through your mind at the time that was happening?---Not a lot. I was just frozen. I mean when you're with a doctor the rules are you do what the doctor says and I just sort of sat there and there, 'Maybe this is a mistake.'
Is that a thought that was going through your mind at the time or subsequently?---Subsequently. At the time I was just frozen.
Now, at the time that this happened, that is, the massaging of your breasts as you have described or the touching of your breasts more accurately, did you say or do anything to Dr Stubley?---I don't think so, no.
Can I ask you this: on that particular occasion, that is, when Dr Stubley from behind touched you to your breasts, was there any other form of physical contact between him and you on that particular occasion?---I don't think so.
Did you see him again?---Yes. (ts 166 ‑ 169)
On the next occasion that CL saw the appellant, her neck was still painful and the appellant once again asked if he could have a look and he motioned to the appellant to remove her top. He then invited CL to 'come and lie down here', referring to the floor. She removed her bra. CL said that she was not sure whether it was on that occasion or another occasion where the appellant asked 'will you give me a hug?' (ts 170). She then testified that the appellant's hands were around her and that:
At first around my back and he stroked my back quite a lot, which was - I'm ashamed to say it was erotically stimulating. My body might have been erotically beginning to be aroused but my mind was screaming, 'No, no, no,' I did not want that. He kept handling me and gradually slid his hands down and lifted up my skirt. (ts 171)
She testified that he attempted to insert his penis between her legs (ts 171), but that he failed to get his penis into her body (ts 172). That was the evidence in relation to count 13.
She then saw the appellant at a subsequent appointment a month or two weeks later (ts 172). The appellant stayed in his chair. CL 'sort of ran out of things to say' and there was a pause and the appellant then said 'I feel rejected'. He said it 'in a very, very menacing tone'. CL described him as seeming to be 'angry' (ts 173) and that he almost 'snarled out' the comment that 'I feel rejected' (ts 174). She was then escorted out to the receptionist to make an appointment.
Subsequently, and CL did not know whether it was a few appointments later or not (ts 174), she then said in relation to count 14 (ts 175):
He somehow got to - I think it might have been that as soon as I got in there he sort of started to open his arms and - and have an invitation to some sort of cuddling or something; and it led to him undressing me, undressing himself and lying on the floor and engaging in sexual intercourse.
So did you undress yourself or did Dr Stubley undress you?‑‑‑Dr Stubley.
When he was undressing you was he saying anything that you can recollect?‑‑‑I don't think so.
Were you saying anything to him?‑‑‑I don't think so.
At ts 176, CL was examined as follows:
Did you do anything at the time that sexual intercourse commenced?‑‑‑I was very much aroused and I did respond.
How did you respond?‑‑‑The way you do. Sort of moving hips and things.
…
What happened once the sexual intercourse ceased?‑‑‑He spoke. He said things like - no, not even like. He said specifically, 'Now, there will be a complete metamorphosis for you. A whole beautiful new butterfly - like a whole beautiful new butterfly you are - a whole new person will emerge.' The last phrase was something like, but it was the butterfly and the metamorphosis and - I think he also, no, it was at a subsequent occasion he put his fingers into mine like that and he said, 'We have got - this is' - no, he also said, 'This is the most important relationship you will ever have.'
At ts 177, CL was questioned as follows:
Can you remember details of any other occasions that occurred?‑‑‑Yes, it became a bit of a pattern. I went to meetings with him anticipating that sexual intercourse might happen but hoping to God it would not.
When you say hoping to God it would not, did you ever communicate that to Dr Stubley in any way?‑‑‑No, I don't believe so. No, he was a very, very scary man and I was afraid of him.
JOHNSON J: And you were?‑‑‑Afraid of him.
TROY, MR: How did that scariness manifest itself?‑‑‑He was a person who just seemed to regard the rules as being for other people, like for example having sex with somebody on the consulting room floor. I mean that's just not on. He just seemed to me to be someone who just would stop at nothing to get his own way.
Was that an assessment that you made of him at the time or is that something that you have subsequently concluded?‑‑‑That's my assessment of him from the time of the first
Is it possible to put it into either a period of - either weeks, months or years, as to how long it was that sexual relations were occurring between you and Dr Stubley?‑‑‑Sorry, could you repeat that?
Yes. In terms of the period over which you were having - that sexual relations occurred between you and Dr Stubley, that is, sexual intercourse, was that a period that lasted for weeks or for months or for years approximately?‑‑‑The period of which sexual intercourse took place?
Yes?‑‑‑About four years.
Was there ever a time during that period of four years when you were not afraid of Dr Stubley?‑‑‑I think it waned a bit.
CL confided to a cousin that she had had the experiences and this information reached JG who then made contact with CL. In 1981, CL made complaint to the College of Psychiatrists and the Medical Board about the appellant.

The cross‑examination of JG and CL

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

The testimony of AW

AW gave evidence that she was suffering from 'emotional illnesses' following her daughter's birth. She saw the appellant in his West Perth rooms.
At ts 222 ‑ 223, AW gave evidence as follows:
How did he come across to you when you first met him?‑‑‑I was scared of him He was an angry - I thought an angry type of person. Yeah, not a person I, sort of, could feel at ease with and that's what I needed. Yeah.
After that first appointment did you ever see Dr Stubley again?‑‑‑I saw him about every two weeks.
That impression that you got the first time of him; namely that he was someone that scared you, that he was an angry type of person and that you didn't feel at ease with; did that remain? Did that remain the way you looked at him or did that change as you started to see him more regularly?‑‑‑No. He was always - he seemed always distant, not really concentrating on me as a person. I just felt his distance.

Then at ts 223, AW gave the following evidence:
Now, in one of the sessions that you had with Dr Stubley, [AW], did something in particular happen?‑‑‑Yes.
Can you tell us what happened?‑‑‑Well, I needed - I can't - I, kind of, needed to be emotionally connected with him so I went over to his chair, sat on his lap and kissed him and he got up abruptly and undressed - pulled down the zip of my dress and he had intercourse with me on the floor.
I will just ask you a couple of questions about that, if I can, [AW]?‑‑‑Yes.
You talked about a need to feel emotionally connected with him?‑‑‑Yes.
And you walked across and kissed him?‑‑‑Yes.
Up until that point had there been any physical contact between you and Dr Stubley?‑‑‑No.
AW gave evidence that after intercourse occurred, she dressed herself, he washed himself in the basin in his room and dressed. She made an appointment to see him a couple of weeks later (ts 224).
At ts 225, AW was questioned as follows:
Did some form of sexual contact occur on other occasions other than the one that you've just described?‑‑‑Yes. There was - there was oral sex. He would sit in a chair and I would, you know. I got it into my head that, you know, I wanted - I didn't get his attention any other way. He started it off.
All right. So you said that there was oral sex on occasions and that occurred when he was sitting in his chair. Is that correct?‑‑‑Yes, yes.
So you mean that that you performed oral sex on him?‑‑‑Yes.
Did you notice in that period in which you were seeing Dr Stubley and that sexual relations were occurring was there any particular change in the way Dr Stubley dealt with you?‑‑‑No. No, he was still distant. He never seemed to be - he never seemed to be really - no. He was shut off. No.
She agreed that in her statement to the police when speaking of one of the occasions of intercourse that occurred, she said:
I think that I may have instigated it because I wanted to please him. I don't remember exactly but I may have encouraged him by pulling down his fly while I was sitting on his knee. (ts 233)
She was asked questions about her statement describing the occasion when fellatio occurred as follows:
The next occasion that I recall in any detail is me going to visit him and going and sitting on his lap and thinking how I could please him because he sat back in his chair with no expression on his face.
And I asked you: is that what it says?‑‑‑Yes.
Thank you. The next paragraph is the one that I want to focus on. Does it say this:
I think I must have rubbed him on the penis through his clothes. He stood up and pulled his pants down and then sat back in his chair and I knelt down on the floor and sucked his penis. I felt that his might please him, so I went ahead and did it. He did not ask me. He never said anything to me at all.
Is that what it says?‑‑‑Yes. (ts 235)
Some time later, AW fell pregnant and was not sure whether her husband or the appellant was responsible. She confronted the appellant by walking into a therapy session he was conducting and saying, 'Look, you made me pregnant' (ts 226). That was the last she saw of the appellant.
It is also relevant to refer to one passage of cross‑examination which drew from the witness part of a statement that she made to the police, and which was in the 'brief' that the trial judge had (ts 228) and would therefore have been before her Honour when the pre‑trial decision was made. A passage was read from the statement by counsel for the appellant (ts 233) which AW agreed was correct (ts 234). It read:
I went and visited him again and again. We had intercourse, from what I could remember. I believe that I probably would have indicated to him that I had no objections to it occurring. He certainly enjoyed it and I wanted to please him.
She also agreed that her statement said:
He didn't force me to have intercourse with him. (ts 233)

The evidence of LB

The evidence of LB was that she had been admitted to hospital in 1972 because she had cut her wrists; that upon leaving hospital she saw the appellant at his rooms in West Perth on a fairly regular basis; and that she was very depressed following a breakdown of her marriage (ts 242). She said that initially the appellant held hands with her and cuddled her and he was 'comforting' (ts 243). LB did not make any objection to this. Later he told her that he wanted to 'connect with how [she] felt' (ts 245). LB saw the appellant for about two years and towards the end of that time he began to be 'more sexual' and he touched and played with her breasts. She said that she told the appellant that she was self conscious because she had a fear of her sexuality (ts 243) and had a skin problem (ts 245). She then said that she saw the appellant in a 'small hospital' (ts 246) and that the appellant had said that 'if I didn't confront my fears, I'd be running away from them for the rest of my life. The way we would confront my fears would be by being naked together and he would show that he would not lose control in that circumstance' (ts 246). She then gave evidence as follows:
I was too frightened to take off my clothes so Dr Stubley took off his clothes. I was concerned that there was no lock on the door and he said that no‑one would dare to come in. Also because he had taken off his clothes I felt embarrassed on his behalf and I didn't feel like I could leave that room. I took off my clothes to make him feel better.
Did you want to take your clothes off?‑‑‑No.
What happened when you did take your clothes off?‑‑‑Then he proceeded to hug me which made me feel very embarrassed and uncomfortable so he suggested I lie down on the bed that was in the room and it would be easier for me.
So did you do that?‑‑‑Yes.
Did you lie on your front or your back? Can you remember?‑‑‑I lay on my back.
On that bed?‑‑‑Yes.
What happened?‑‑‑Dr Stubley lay on top of me. (ts 247)
LB did not testify that the appellant had intercourse with her. She saw him again subsequently. They did not have any further physical contact (ts 248). LB obtained a scholarship and then went to Sydney. She remained there for 30 years.
LB gave evidence that when she was consulting the appellant he became 'an anchor' in her life for about two years and that he made her feel good (ts 246).
In cross‑examination, LB was asked about her diary for 1974 which the appellant's counsel had been provided with. It recorded an entry by LB that she had 'a desire to sleep with [the appellant] because '[she] loved him' (ts 249). LB agreed that she 'may have' recalled making the entry.

The evidence of MM

MM gave evidence that when she was 18 years old she commenced seeing the appellant as a patient and also working as his part time receptionist, and that their relationship was very formal. When she turned 21 in 1977, the appellant kissed her on the lips, which startled her because it was not typical of her relationship with him (ts 262). She used to address the appellant as 'Dr Stubley' (ts 262).
She saw the appellant as a patient because 'I regarded myself as still a very anxious person, prone to depression, and I felt he had some mysterious answers' (ts 262).
At ts 262 ‑ 265, AW gave evidence as follows:
All right. So with that in mind, you had a consultation. I think you said it was the first consultation after the time when he kissed you on your 21st birthday?‑‑‑That's right.
What happened during that consultation?‑‑‑It started off as usual, in mutual silence was the pattern, and at one time he looked across at me and he said, 'You look like you need a big hug,' and held his arms out from his chair.
In any previous consultation that you had had with Dr Stubley had such a thing occurred?‑‑‑No. It was usually just I sat in a chair and he sat in a chair and quite often nothing was said.
All right. So when Dr Stubley said that to you and extended his arms towards you what did you do?‑‑‑I accepted the hug. I went to his chair and accepted the hug.
When you hugged was he still sitting or was he standing?‑‑‑Initially he was sitting.
Yes, and then what happened?‑‑‑I found him undressing me and initiating sex.
All right. You say you found Dr Stubley undressing you. Did you say anything to him at the time that he was undressing you?‑‑‑No.
Did you wish him to undress you?‑‑‑No.
What about Dr Stubley? Did he remain clothed or did he undress himself?‑‑‑He was partially undressed.
In what sense?‑‑‑He used to wear shirts with buttons missing. I think the shirt - I mean, he had a long, grey beard. I think the shirt was undone and I think the shorts were down. That's as clear as I remember.
Were you undressed partially or completely?‑‑‑I think I was undressed completely; maybe partially. I think completely.
Thank you. When you were undressed do you remember if Dr Stubley said anything?‑‑‑He said something that stayed in my mind because he said, 'I knew you would be beautiful' and that seemed to say to me that it was something planned.
Did you respond to him when he said that?‑‑‑No, not - no, I didn't.
So you were naked; Dr Stubley was partially unclothed; said to you, 'I knew you would be beautiful.' What then happened?‑‑‑To be quite accurate, I next remember myself being on the carpet underneath him. I don't remember the steps of getting there.
JOHNSON J: I'm sorry, I didn't hear you. Could you repeat that, please?‑‑‑I next remember myself on the carpet with him on top of me. I don't remember the steps of getting there.
TROY, MR: When you were underneath him on the carpet what, if anything, was happening?‑‑‑He was having sex with me.
Do you remember if he was wearing any form of protection?‑‑‑I'm pretty sure he wasn't.
How long, very approximately, did the sexual intercourse continue for?‑‑‑A few minutes.
How did it come to an end?‑‑‑He ejaculated and got up and went over and washed himself.
Where did he wash himself?‑‑‑He had a basin in the rooms.
During the time, [MM], that intercourse was occurring were you saying anything to Dr Stubley that you can remember?‑‑‑I don't think I said anything. I think I was in shock.
Do you remember what was going through your mind at the time that this episode of intercourse was occurring?‑‑‑Well, I knew - I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn't be happening because I didn't know how to tell him that I felt revolting and he was my boss and I didn't think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just 'How do I get out of this? How do I get out of this?'
When you say these thoughts were swirling through your mind, do you mean at the time the intercourse was occurring or afterwards?‑‑‑Well, both.
Did you want to have intercourse with Dr Stubley?‑‑‑No, no.
MM remained working for the appellant for about three months. Nearly 30 years later, in 2006, she met JG.

The decision of Johnson J in [2009] WASC 57

The trial judge in her reasons acknowledged that the objection to the evidence of AW, LB and MM required consideration of s 31A(2) of the Evidence Act. Her Honour recorded a concession by counsel for the appellant that the evidence sought to be adduced met the definition of 'propensity evidence' in s 31A of the Evidence Act.
Her Honour also recorded a statement by senior counsel that the appellant would admit that 'some or all of the acts of a sexual nature occurred', both with the complainants and with three witnesses giving propensity evidence, but that the acts were consensual. Counsel for the respondent on this appeal acknowledged that what was said by counsel was understood as meaning that consent was to be the only issue at trial. This appears from the following exchange at appeal ts 43:
PULLIN JA: Do you accept that her Honour proceeded on the basis of what she had been advised by senior counsel and recorded in paragraph 3; that is, that there was to be an admission that some or all of the acts of a sexual nature occurred both with the complainants and the three witnesses, but the acts were consensual?
TROY, MR: Yes.
(An admission was in fact made by counsel for the appellant at the commencement of the trial. The precise terms of that admission are set out below.)
Counsel for the State advised the trial judge, and her Honour recorded in her reasons, that the State was 'not seeking to lead the evidence of the propensity witnesses in order to demonstrate by their evidence that, in the case of an individual complainant, it must be the case that she was not consenting'.
The trial judge in her reasons set out the legal principles which governed the decision she had to make and no complaint is made about the statement of those legal principles. At [35] and [40] her Honour referred to Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 and observed that the High Court there concluded that the evidence about whether one complainant consented was not relevant to whether another complainant did not consent. Her Honour added at [41]:
However, I do accept that, if I am not satisfied that the propensity evidence is relevant to an issue other than consent then, consistent with the decision in Phillips v The Queen, the propensity evidence would be held to be inadmissible.
The trial judge also observed by reference to The State of Western Australia v Osborne [2007] WASCA 183 (Wheeler JA, Miller JA agreeing) that where there was an evidentiary purpose other than establishing lack of consent, the fact that the propensity evidence also addressed lack of consent did not make it inadmissible.
The trial judge concluded that the evidence of AW, LB and MM was of 'significant probative value'. The reasons for this decision which the appellant submits reveal error are set out further on in these reasons. The conclusion, and those reasons, are the subject of the first ground of appeal.

The grounds of appeal against conviction

The grounds of appeal read as follows:
Ground 1: The Learned Trial Judge erred in law in … failing to exclude the evidence of the Appellant's propensity to be adduced from [LB, MM and AW].
Ground 2: The Learned Trial Judge erred in her directions to the jury about the standard of proof of the propensity evidence given by the witnesses [LB, MM and AW], who were not complainants in respect of the counts on the Indictment.

Ground 1

Before s 31A of the Evidence Act was enacted, the position at common law was that a prosecutor was not permitted to lead evidence of criminal offences on other occasions if the evidence of those offences was not relevant to any issue other than the accused's general propensity to commit criminal offences. If there was an issue about whether the acts constituting the charge occurred, the reason the prosecutor was not permitted to lead this evidence was not because the evidence was not relevant to that issue. The reason for not permitting such evidence to be led was because of an exclusionary rule which had developed at least by the early 1800s. See the reference to the 1810 case R v Cole, unreported, but referred to in R v Sims [1946] 1 KB 531, 541. The reason for the exclusionary rule was given by Gibbs CJ in Perry v The Queen [1982] HCA 75; (1982) 150 CLR 580, 585 when he said:
Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it.
See also Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590, 607 (Toohey J). The statement that the propensity evidence was ordinarily regarded as relevant was clearly a reference to cases where there was an issue about whether the acts the subject of the charge had been committed. However, there is not in every case any such issue and so in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 Toohey J explained at 501 that the 'first enquiry' must be whether the evidence is relevant. That requires an identification of the issues in the case.
Before 1995, the formulation of the exclusionary rule was the subject of considerable amount of case law throughout the common law world, which was all given detailed consideration in Pfennig v The Queen. After that decision, s 31A of the Evidence Act was enacted.
Section 31A reads:
(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.
The definition of 'relationship evidence' is to some degree confined, but the definition of 'propensity evidence' is extremely wide. However, it is not necessary to consider those definitions further because both parties submitted, and in my opinion properly so, that it does not matter for the purposes of this case whether the conduct is defined as 'propensity evidence' or 'relationship evidence'. What the parties correctly went straight to, and what ground 1 is concerned with, is whether the evidence given by the three witnesses, AW, LB and MM, was evidence of 'significant probative value', having regard to other evidence adduced or to be adduced.
In Wood v The State of Western Australia [2005] WASCA 179, I noted at [41] that s 31A(2) of the Evidence Act was a statutory adoption of what was said by McHugh J in Pfennig's case at 528. However, I should further particularise that observation by saying that it refers to s 31A(2)(b). The preceding paragraph, s 32(2)(a), requires relevance to be considered. That is, there is no question of the judge having to engage in the balancing act required by s 32(2)(b) unless the court first determines that the evidence is relevant. Indeed, the statute now says that the evidence must not only have probative value, that is, be relevant, but it must also be of 'significant' probative value, ie 'significantly' relevant.
In Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, Steytler P, in analysing s 31A, made the obvious point (and which his Honour said was obvious) that the evidence in question must be relevant before it can be admitted into evidence under s 31A. His Honour said that unless such evidence is relevant, it could otherwise have no probative value, let alone 'significant' probative value. Furthermore, if the evidence does not have significant probative value, then s 31A(2)(b) does not have to be considered.

What is relevant evidence?

The word 'relevant' means that:
[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in conjunction with other facts proves or renders probable the past, present or future existence or non‑existence of the other.
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 [55] (McHugh J); Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [31] (McHugh J). Expressed in another but not materially different way, evidence is relevant if (assuming it to be accepted) it could rationally affect (directly or indirectly) the assessment by the tribunal of fact of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands at [2], Gleeson CJ; Phillips v The Queen [50].

Section 31A of the Evidence Act does not deal with the standard of proof in relation to evidence admissible under that provision.
Before the decision in HML, it was well-established that although the guilt of an accused on the charge against him or her must be proved beyond reasonable doubt, an 'uncharged act', which has been admitted generally, may be considered together with the other evidence and, for that purpose, does not have to be proved to a particular standard. It may be considered together with the other evidence which, as a whole, must prove the accused's guilt beyond reasonable doubt if he or she is to be convicted. But if the 'uncharged act' is an indispensible link in a chain of evidence necessary to prove the accused's guilt, then the 'uncharged act' must be proved beyond reasonable doubt before he or she may be convicted. See Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 626 ‑ 627 (Deane J); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579, 585 (Dawson J); Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson & Gaudron JJ); Best (618) (Callaway JA). Consistently with the principle established by these authorities, in Buttsworth v The Queen [2004] WASCA 69; (2004) 29 WAR 1, the Court of Criminal Appeal of Western Australia (Murray, Templeman, Wheeler, Miller & McKechnie JJ) said:
Generally, there is no need to do more than to refer to the need, before the jury has regard to the extraneous conduct, to find the facts established by truthful and accurate evidence. Only if the evidence has the sort of direct relevance to the proof of facts constituting the offence charged that it might be regarded as providing links in a chain of proof of guilt, should the jury be specifically directed that they may not so use the evidence in question unless satisfied of the facts established by that evidence beyond reasonable doubt. In this case it is apparent that in this regard the trial Judge made no error of law [44].
In my opinion, the point raised by ground 2 of the appeal against conviction is to be resolved by the application of the principles in Shepherd and not by reference to HML or Sadler.
Sadler is authority for the proposition, relevantly, that until the High Court provides further guidance on the point, a trial judge should, ordinarily in a child sex case, direct the jury that they should not conclude, on the basis of evidence of uncharged sexual acts, that the accused had a sexual interest in the child complainant unless they are satisfied beyond reasonable doubt of the existence of the sexual interest. I agree, with respect, with the analysis of HML made by Nettle, Redlich & Dodds‑Streeton JJA in Sadler [59] ‑ [67]. See my observations in PIM [316] ‑ [319].
HML and Sadler are distinguishable, however, from the present case and the proposition I have just stated does not apply, either directly or by analogy. That proposition was formulated in the context of child sex cases where the accused denied having sex with the child or children in question and also denied having a deviant sexual interest in children generally. By contrast, in the present case, the appellant acknowledged having had sexual relations at the material time with some of his female patients, including the complainants, JG and CL, and the 'propensity' witnesses, AW and MM.
In my opinion, it was unnecessary, on the authority of Shepherd, for the evidence of each of AW, LB and MM in relation to 'uncharged acts' to be proved beyond reasonable doubt before the jury could rely on it for the particular or limited purposes I have mentioned. Their evidence of uncharged acts was not an indispensible link in a chain of evidence necessary to prove the appellant's guilt in relation to the counts in the indictment. The only relevant indispensible links in the chain of evidence necessary to prove the appellant's guilt comprised the evidence of the complainants, JG and CL, as to the particular acts alleged in the counts in the indictment and the occurrence of those acts without their consent.
Ground 2 fails.

Appeal against conviction: orders wanted

The orders sought by counsel for the appellant were that the appeal be allowed, the convictions be quashed and a re‑trial be ordered. Counsel did not contend that this court should enter verdicts of acquittal. The possibility of verdicts of acquittal being entered was not raised by the court or counsel for either party.
Even if, contrary to my view, ground 1 or ground 2 had any merit and the appeal should have been allowed, I would have ordered a re‑trial. Certainly, I would not have entered verdicts of acquittal without having heard from counsel for the parties (in particular, counsel for the State) on the issue. This accords with the usual procedures of this court which are based on the principles of procedural fairness.

Appeal against conviction: conclusion

I would dismiss the appeal against conviction.

Appeal against sentence: the grounds of appeal

The appellant relies on two grounds in his appeal against sentence. First, he asserts that the net effective head sentence imposed infringed the totality principle. Secondly, he contends that the trial judge erred in law in finding and treating as an aggravating factor that the appellant had committed offences against the 'propensity' witnesses.

Appeal against sentence: the trial judge's sentencing remarks

The trial judge made particular reference to the following aspects of the appellant's offending behaviour:
(a)The appellant was a psychiatrist and psychotherapist and the complainants were his patients (ts 497 ‑ 498).
(b)The complainants were young mothers who were suffering from mental illnesses when they consulted the appellant (ts 498).
(c)The offences occurred in the appellant's consulting room and on many occasions the door was locked (ts 499).
(d)The appellant had sexual intercourse with JG when she was heavily pregnant. He acknowledged that having intercourse with her at that stage posed a risk to her and the baby (ts 500).
(e)The appellant abused his position of power in relation to JG and her fears of not being well enough to care for her children (ts 501).
(f)The appellant indicated to JG that he had the power to send her to a place where 'she no longer had her freedom or control of her life' (ts 501).
(g)The appellant applied pressure to JG repeatedly to retain her as a patient (ts 502 ‑ 503).
(h)The appellant's actions could not have had any positive effect on JG's mental health (ts 506).
(i)CL told the appellant at the outset that she was not interested in 'bed therapy' (ts 503).
(j)CL was desperate to talk to someone as a result of her personal circumstances (ts 504).
(k)CL was frightened of the appellant (ts 504).
(l)The appellant was aware that CL had been a victim of previous sexual abuse and, on his own evidence, 'bed therapy' was inappropriate for a victim of sexual abuse (ts 507).
(m)The offences committed against JG and CL were not out of character for the appellant (ts 504).
(n)The offending conduct occurred over an extended period (ts 504).
(o)JG and CL suffered terribly throughout the period of offending (ts 505).
(p)The appellant's evidence that his relationship with each of JG and CL was loving and mutually consensual increased the level of humiliation and pain experienced by them (ts 506).
(q)The appellant's assertion that his sexual interaction with JG and CL was a form of therapy was 'no more than a poor excuse for abusing [his] position by having sex with [his] patients' (ts 506).
(r)The appellant had demonstrated little, if any, remorse or empathy for his victims (ts 508).
(s)When JG and CL made complaints about the appellant to the Medical Board, he exaggerated their mental illnesses to protect himself (ts 508).
(t)The appellant's actions were entirely selfish (ts 508).
(u)JG and CL had experienced ongoing detriment as a result of the appellant's offending (ts 509 ‑ 511).
(v)The appellant's offending behaviour involved a degree of coerciveness (ts 516).
The trial judge noted various mitigating factors, as follows:
(a)The appellant had turned to religion (ts 506).
(b)The appellant's parents were lacking in affection towards him, and he was sexualised at a very young age by witnessing them having sex (ts 509).
(c)The appellant alleged that he was sexually abused at the age of 7 by a 12‑year‑old boy (ts 509).
(d)The appellant was at a low risk of re‑offending. This, combined with the appellant's advanced age and deteriorating health, indicated there was no need for an element of personal deterrence in the sentence (ts 509 ‑ 510, 518).
(e)The appellant was suffering from the onset of early dementia and age‑related heart problems. He did not currently suffer from dementia, but he would do so in the near future (ts 509, 511).
(f)The appellant suffered from a major depressive disorder and may have been suffering from significant depression at the time of the offences (ts 511).
(g)The trial judge had received numerous written references which spoke well of the appellant. However, most of these references displayed a profound lack of insight into the appellant's proven criminality (ts 511 ‑ 512).
(h)The appellant had a good professional reputation, but his offending conduct indicated that this reputation was undeserved (ts 512).
(i)Many years had elapsed since the commission of the offences, but the appellant had contributed to the delay (ts 512).

Appeal against sentence: the State's submissions

Counsel for the State submitted that the most substantial mitigating factor was the appellant's advanced age and associated illnesses at the time of sentencing.
It was submitted that the trial judge rightly noted that 'the reason [he was] being dealt with at this age is a matter of [his] own doing' (ts 518). JG and CL had made complaints to the Medical Board at a time much closer to the period of offending. However, the appellant's actions in defending these complaints resulted in his avoiding repercussions when he was a much younger man. Further, the appellant's denial of the allegations exacerbated the complainants' distress.
It was submitted that, in the circumstances, the mitigating effect of the appellant's advanced age and associated illnesses was diminished by his own conduct after the period of the offending. A heavy discount on the term of imprisonment that would otherwise have been appropriate was not warranted.
According to counsel for the State, the net effective head sentence of 10 years' imprisonment did not infringe the totality principle.

Appeal against sentence: the merits of ground 1

The primary sentencing considerations for offences of the kind in question are punishment of the offender, and specific and general deterrence. See Thorn v The State of Western Australia [2008] WASCA 36 [49] (Buss JA, Wheeler & Miller JJA agreeing).
In The State of Western Australia v Akizuki [2008] WASCA 267, Steytler P reviewed numerous authorities which reveal the range of sentences customarily imposed for offences involving sexual penetration without consent [4] ‑ [67]. It is unnecessary to reproduce his Honour's review. It is sufficient to note his Honour's conclusions (McLure JA agreeing):
As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:
(1)An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.
(2)Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.
(3)Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA) [68].
See also Warburtonv The State of Western Australia [2009] WASCA 113 [9] ‑ [21] (Wheeler JA, Pullin & Miller JJA agreeing).
Although there is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances (after having regard to the maximum available penalty), it is nevertheless important, in deciding whether a particular sentence infringes the totality principle (or, indeed, is manifestly excessive), to appreciate what sentences are customarily imposed in cases involving similar offending. Otherwise, as Steytler P pointed out in Akizuki, there is a risk that sentencing will become idiosyncratic and arbitrary [3].
As Steytler P noted in The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165, whether sentences for multiple offences should be made cumulative, partly concurrent or wholly concurrent arises at two of the three stages in the sentencing process. The orthodox approach is to decide upon the appropriate sentence for each offence, then to decide whether the sentences should be made cumulative, partly concurrent or wholly concurrent in accordance with established principle and, finally, to decide upon the net effective or total head sentence by reference to the totality principle [54].
The totality principle usually applies where an offender is to be sentenced for more than one offence or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence. The principle comprises two aspects. First, the total effective sentence imposed on the offender must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate). Secondly, the total effective sentence imposed on an offender should not constitute a 'crushing' sentence; that is, it should not destroy any reasonable expectation of useful life after release from custody. Generally see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 309 (McHugh J); Jarvis v The Queen (1993) 20 WAR 201, 216 (Anderson J); Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [21] - [22]; Vlek v The Queen (Unreported, WASCA, Library No 990153, 29 March 1999) 12 (Anderson J); Carr v The State of Western Australia [2006] WASCA 125; (2006) 166 A Crim R 1 [6] (McLure JA), [66] (Buss JA).
Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be 'crushing' for the purpose of the totality principle. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] ‑ [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
See also Gulyas [36] ‑ [37].
In the present case, there was evidence before the trial judge as to the appellant's ill‑health. In particular, there was evidence that he suffers from:
(a)heart valve incompetence and mild heart failure due to a pulmonary embolism in 1973;
(b)osteoarthritis in both hips;
(c)a long history of pain and reduced neck movement due to cervical spondylosis;
(d)acute arthropathy in his left ankle;
(e)bilateral carpel tunnel syndrome; and
(f)the on‑set of early dementia.
In my opinion, the net effective head sentence of 10 years' imprisonment imposed on the appellant was a 'crushing' sentence in that it destroyed any reasonable expectation of useful life after release from custody. My reasons for that opinion are these.
First, the appellant was aged 80 years at the time of sentencing. He will not complete his sentence until he is 90.
Secondly, the appellant will, in the near future, suffer from dementia and age‑related heart problems.
Thirdly, there is a substantial likelihood that the appellant may die before he completes his sentence. Alternatively, if he survives to the age of 90 years, his dementia will have significantly diminished, if not entirely destroyed, the quality of his life.

Fourthly, in the circumstances I have described at [416] ‑ [418] above, and having regard to the absence of any requirement for personal deterrence, and the apparent limited necessity for general deterrence in relation to psychiatrists and clinical psychologists as a class, a sentence of 10 years' imprisonment exceeded the range of sentences required by the applicable sentencing considerations or to ensure that the appellant's punishment was fairly proportionate to the offences he committed.
Fifthly, this court received in evidence on the appeal, without objection from the State, an affidavit of Alixandra McGregor sworn 11 November 2009. Ms McGregor is the appellant's solicitor. She annexed a letter dated 6 November 2009 from a medical practitioner, Joseph Diaz, which indicates that the appellant's state of health has deteriorated since his imprisonment. Dr Diaz refers to the appellant having been detained in the infirmary at Casuarina prison 'due to his limited mobility secondary to osteoarthritis and fatigue related to his anaemia'.
It is true that the trial judge referred in her sentencing remarks to the appellant's advanced age and his health. Nevertheless, on the basis of the matters I have set out at [415] ‑ [419] above, I infer error in the sentencing process (that is, the imposition of a 'crushing' sentence). See House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).
Ground 1 has been made out.

Appeal against sentence: the merits of ground 2

It is unnecessary, in the circumstances, to deal with ground 2.

Appeal against sentence: re‑sentencing

This court has the materials necessary to re‑sentence the appellant.
The appellant's offences were, without doubt, very serious. His conduct towards JG and CL was disgraceful. It involved an appalling breach of trust and derogation from his professional responsibility. Each of the complainants was vulnerable and in need of psychiatric treatment for significant mental health issues. The appellant abused his position of power, to the detriment of the complainants, for his own selfish gratification. His offences were not, however, within the 'worst category' for the purposes of the majority's decision in The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129.
I consider that a net effective head sentence of 6 years' imprisonment would be commensurate with the seriousness of the appellant's offences after taking into account the statutory penalties for the offences (see s 10 of the Sentencing Act 1995 (WA)), the circumstances of their commission (including the vulnerability of the complainants and the effect on them of the offending) and all aggravating and mitigating factors. I have not taken into account, as an aggravating factor, the appellant's sexual interaction with the 'propensity' witnesses. Otherwise, I have taken into account the aspects of the appellant's offending behaviour referred to by the trial judge, the various mitigating factors noted by her Honour, the absence of any requirement for personal deterrence, the apparent limited necessity for general deterrence, and the additional evidence adduced in the appeal.
No complaint is made about the individual sentences. They should not be disturbed. The net effective head sentence of 6 years' imprisonment should be achieved by making each individual sentence concurrent with the other sentences.
I would order the terms of imprisonment to commence on 21 November 2008 (being the date on which the appellant was taken into custody). The parole eligibility order should not be disturbed. The appellant will be eligible to be considered for release on parole after having served 4 years' imprisonment calculated from 21 November 2008.

Appeal against sentence: conclusion

I would allow the appeal against sentence, and re‑sentence the appellant in the manner I have indicated.