The State of Western Australia v ISM

[2017] WADC 120

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- ISM [2017] WADC 120

CORAM:   STAUDE DCJ

HEARD:   8 JUNE 2017

DELIVERED          :   1 SEPTEMBER 2017

FILE NO/S:   IND 235 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

ISM

Catchwords:

Criminal law - Evidence - Propensity - Whether evidence of prior offence of indecent assault and related uncharged sexual acts admissible - Turns on own facts

Evidence - Propensity evidence - Evidence Act 1906, s 31A - Admissibility of prior evidence of prior conviction of indecent assault and related uncharged sexual acts

Legislation:

Evidence Act 1906 s 31A

Result:

Proposed evidence ruled admissible

Representation:

Counsel:

State of Western Australia   :     Mr B D Sertorio

Accused:     Ms L B Black

Solicitors:

State of Western Australia   :     State Director of Public Prosecutions

Accused:     Mark Andrews Legal Pty Ltd

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

Longman v The Queen (1989) 168 CLR 79

Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303

Stubley v The Queen [2011] HCA 7

STAUDE DCJ: 

Introduction

1. The accused is charged with 18 counts of sexual offending against two complainants to whom I will refer as C1 and C2.  Counts 1 – 10 relate to C1 and allege four offences of unlawful and indecent assault and six offences of sexual penetration without consent which are said to have been committed on six separate occasions in 1989.  Counts 11 – 18 relate to C2 and allege seven offences of unlawful and indecent assault and one of sexual penetration without consent committed on separate occasions between 18 September 1988 and 2 May 1990.

2. All offences are alleged to have been committed by the accused in the course of a therapeutic relationship with each complainant.  The accused was a psychiatrist.  C1 was 17 years old at the time of count 1.  C2 was 16 years old at the time of count 11.

3. The State's application is for a ruling on the admissibility of evidence of an offence of indecent assault against a 15-year-old female patient (JL) in 1985. This evidence is sought to be adduced as propensity evidence pursuant to s 31A of the Evidence Act 1906.  The circumstances of the offence, of which the accused was convicted after trial on 24 April 1997, were found by the learned trial judge to be as follows:

   Essentially, the position accepted by the jury was at the material time you were the psychiatric superintendent of [omitted] and [JL] had consulted you in respect to psychological problems.  She was at that stage 15 years of age.

   At a particular consultation at the beginning of 1985 during the course of the consultation you put your arm around [JL], put your hand inside the armhole of her shirt and under her bra and fondled the top of her breast.  It appears, and it is consistent with the verdict of the jury, that similar conduct occurred on other occasions but ceased upon [JL] expressing her disapproval to you as to what you were doing.

4. It is the State's submission that the evidence of the indecent assault in 1985 of a female child with whom the accused was in a doctor‑patient relationship, and the evidence of JL of other similar acts, constitutes propensity evidence which has significant probative value and satisfies the fair-minded person test.

Proposed evidence

1. At the hearing of the application, the court raised a question as to the scope of the proposed evidence, specifically whether the State would seek to prove merely the act of indecent dealing of which the accused was convicted, or the wider conduct of the accused in relation to the victim in the nature of relationship evidence.

2. To enable the State to clarify its position, the court reserved judgment on the basis that the State would file further submissions to which the defence could respond and that either party could request a further hearing.  Further submissions have been received from each side, but no request has been made for a further hearing.

3. The State's further submissions make it clear that the State proposes to adduce evidence of the prior conviction as proof of the material facts of the offence, being that the accused was a psychiatrist, that JL was a 15‑year‑old patient who consulted him, and that he fondled her breast during a consultation in 1985.  The State also proposes to call JL to give evidence of other acts of the accused.  Her evidence would be that the accused fondled her breast on many occasions and that this conduct ceased when she told him to stop.

4. The accused stood trial on two counts of unlawful and indecent assault of JL.  The proposed evidence is of the facts established by his conviction on count 1.  The accused was acquitted on count 2, which arose from an alleged incident that occurred at JL's home, when she was no longer a patient of the accused, one year after count 1.  The proposed evidence of JL does not traverse the accused's acquittal on the latter count as it pertains to acts said to have been committed on earlier occasions in the course of psychiatric treatment.

5. These reasons take into account the initial outlines of submissions filed ahead of the previous hearing, the oral submissions of counsel at that hearing, and the further written submissions that have since been received.

The prosecution case

1. The amended statement of material facts dated 24 April 2017 alleges that at the time of the commission of counts 1 – 10 the complainant was an inpatient at a private psychiatric hospital and that the accused was her treating psychiatrist.  It is alleged at the time of the first offence the accused was aged about 41 years and the complainant 16 years.

2. It is alleged that counts 11 – 18 were committed at the accused's consulting rooms, that the accused was the complainant's psychiatrist and that at the time of the first offence the accused was aged about 40 years, and the complainant about 16 years.

3. It is alleged in the case of each complainant that such acquiescence as she gave to the accused's sexual conduct was not freely and voluntarily given.

4. The accused admits having a sexual relationship with C1 in the context of a doctor‑patient relationship, but says that it was consensual.  As to counts 11 – 18, the accused denies that he engaged in any sexual conduct in relation to C2, as alleged or at all (ts 19 – 20).

Submissions

1. The State concedes on the authority of Stubley v The Queen [2011] HCA 7, that the proposed evidence is not relevant to the issue of consent with respect to counts 1 – 10 (C1), but submits that it is relevant to, and has significant probative value, with respect to counts 11 – 18 (C2). Counsel submitted (ts 13):

   [T]he probative value of the evidence lies in its capacity to prove in combination with the evidence of C1 that the accused had a sexual interest in some of his adolescent female patients and a preparedness to act on that sexual interest by engaging in sexual behaviour with them during consultations when the opportunity presented itself.

   So we say that conclusion, if drawn by the jury, is of importance or a consequence to an issue because it is capable of being used by the jury to support a finding that it is more likely that the accused engaged in sexual behaviour with C2, which is a critical fact in issue at the trial.

2. In the State's submission, although the evidence of C1 is probative in this way, proven sexual conduct with two complainants is more probative of the accused's alleged tendency.  Without the evidence of the 1985 conduct, the admitted sexual conduct involving C1, viewed in isolation, is less probative and would not fully demonstrate the tendency which the State would seek to prove.

3. With respect to the fair-minded person test, the State argued that the risk of unfairness at trial was mitigated, firstly, by the limited scope of the proposed evidence and the fact that the previous sexual conduct was of a less serious kind and, secondly, by reason of the undisputed evidence of C1 of a sexual relationship with the accused in a similar context.  Counsel submitted that any potential unfairness due to the prejudicial effect of the evidence could be overcome by appropriate directions that are routinely given and applied in similar cases.  In the State's submission:

   [A] fair-minded person ... would be startled to think that C2 could be cross‑examined on the basis that these acts never occurred without also revealing the fact that it happened to not only one, but two of his young female patients who are of a similar age and in a similar therapeutic context during a similar period.

4. It is conceded by the defence that the proposed evidence is propensity evidence for the purpose of s 31A and is relevant to the counts involving C2. It is the accused's position, however, that it does not have significant probative value and that it does not satisfy the fair-minded person test.

5. Defence counsel's initial submissions responded to the State's application in relation to the facts of the prior conviction.  Counsel observed that the conduct proved by the accused's prior conviction is limited to the accused placing his hand inside JL's shirt and bra and fondling her breast.  As the State was able to rely on the evidence of the accused's sexual relationship with C1, the evidence of the single incident involving JL some years before could not be said to have significant probative value.

6. In the defence submission, the evidence of the offence against JL did not add to the proof of propensity afforded by the evidence of C1, having regard to the accused's admission of a sexual relationship with her.

7. In further submissions, defence counsel argues that the proposed evidence is vague and unnecessary.  It is also of less serious conduct than the counts relating to C2 allege.  Moreover, the evidence of JL would be of events that allegedly took place about 30 years ago.  Potential unreliability and the forensic disadvantage to the accused due to the passage of time would necessitate a Longman-type (Longman v The Queen (1989) 168 CLR 79) direction to the jury to scrutinise it with special care. The evidence could not be said to have significant probative value in those circumstances.

8. In terms of potential prejudice, it was submitted that the jury would find it virtually impossible to apply a direction that the 1985 incident was relevant to the case with respect to C2, but not C1.  This submission adverted to Stubley and Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303. As the proposed evidence was irrelevant to the counts involving C1, and was therefore inadmissible, the fair-minded person test could not be satisfied.

9. It was also submitted that the need for a Longman-type direction in relation to the evidence of JL would create unfairness.  Longman directions would be required with respect to counts involving C1and C2.  It is submitted that the evidence of JL of acts that were not charged as offences would:

   Require a complicating and difficult direction that on top of the other directions to be given will further complicate the issues to the jury and become practically impossible to be truly understood or applied by a jury.

10. Evidence of other alleged sexual acts by the accused of which he has not been convicted would be extremely prejudicial and might well result in an unfair trial.

11. It is also observed that the proposed evidence of JL was relationship evidence in the previous trial relied on to obtain the previous conviction and would, if admissible, be used twice.  It is also suggested that there is a risk of re‑litigation of the count on which the accused was previously acquitted.

12. The defence submits that, in the particular circumstances of this case, there are no adequate or comprehensible directions that would adequately reduce the risk of an unfair trial.

Conclusions

1. In my view, the proposed evidence is relevant and has significant probative value.  It is evidence that is capable of establishing a sexual interest in young female patients on which the accused was prepared to act, a conclusion that would make it more probable that the accused committed counts 11 - 18.

2. The fact that the proposed evidence is relevant only to the counts involving C2 is not, in itself, a reason for its exclusion.  In my view, no undue prejudice to the accused's position in relation to the counts involving C1 would be created by the admission of the proposed evidence.  As noted, the issue in relation to counts 1 – 10 is absence of consent.

3. Notwithstanding that the proposed evidence is of conduct that is objectively less serious than that alleged in counts 11 – 18, there is a similarity between the ages of JL and C2 (as there is with C1), they were both being treated for psychiatric conditions, and there is a temporal proximity.  The date range of counts 11 – 18 is 19 August 1988 to 14 April 1989.  JL's evidence is of incidents in 1985.

4. While the cross‑admissible evidence of C1 is capable of supporting the State's case in relation to the counts involving C2, there is no reason, in my opinion, why the State should not be permitted to rely on other evidence of propensity provided that it meets the s 31A criteria of admissibility. The fact that there is some evidence showing a sexual interest in young female patients on which the accused was willing to act does not render other relevant evidence unnecessary.

5. I do not consider there is any risk of the proposed evidence traversing the accused's acquittal of the second count because that count alleged a discrete incident at a much later time and in a different place and context.  The relationship evidence given by JL, which forms part of the proposed evidence, related mainly to the offence of which the accused was convicted.

6. The strong unifying features that can be observed in the proposed evidence give that evidence significant probative value such that it could only be excluded if it did not satisfy the fair‑minded person test.  It is not a matter of discretion.

7. Turning to that question, the main contention by the defence is that the use of the proposed evidence would occasion a need for complicated and difficult directions.  This submission, in my view, has to be considered in the light of the circumstances of the case as a whole.

8. Counts 1 – 10 relate to a period in 1989; counts 11 – 18 to a period August 1988 ‑ April 1989.  The passage of time and the nature of the allegations will obviously occasion a need for appropriately structured Longman-type directions.  As I have observed, a good deal of the significant probative value of the evidence of JL is derived from the temporal proximity of the periods in which she and the two complainants were under psychiatric treatment by the accused and the similarity of their ages.  A Longman-type direction as to the scrutiny to be applied to the evidence of JL would serve to reinforce the directions given in relation to the complainants, and vice versa.  It is the experience of the court that juries can, and do, apply such directions in cases that sometimes involve multiple complainants.

9. It has not been demonstrated that the directions would be so complicated or difficult as to be incomprehensible or impossible for a jury to apply.

10. By the same token, I do not consider that any prejudice is likely to arise by the jury being directed that the evidence of JL is not relevant to counts 1 ‑ 10.

11. In my view, therefore, a fair‑minded person would consider that the probative value of the evidence compared with the degree of risk of an unfair trial is such that the public interest in adducing all relevant evidence of guilt should have priority over the risk of an unfair trial.

Result

1. The proposed propensity evidence, being the evidence of the essential facts constituting the offence of indecent assault of which the accused was convicted on 24 April 1997, and the evidence JL of other sexual acts by the accused, is admissible.