"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

The Western Australian Court of Appeal had split 2-1 on this case over the admissibility of the evidence of the three other women. The 429 paragraph judgment looked, in part, like the court was trying to read down the High Court's earlier decision in Phillips v R (a decision which Jeremy Gans from Melbourne University has highly criticised). When the High Court granted special leave on this case, I originally thought that it might be a chance for the court to re-examine Phillips, or alternatively, assert must be followed faithfully.

As it turns out, this prediction was wrong. The High Court re-asserts the (in my view, dubious) logic from Phillips in passing, but the majority judgment primarily focused on the consequences of a defence admission that the acts of sexual penetration were not in issue. On the appeal, the Crown concede that this was the case. The High Court held that, under the law in force at the time of the alleged acts, there was a distinction between absence of consent and consent that is vitiated by one of more of a number of circumstances specified by statute, such as threats, intimidation and false representations as to the nature of the act. The High Court ultimately held, based on differences in the circumstances between the various offences and submissions or concessions by the Crown (see, e.g., paragraph [73] of the judgment), that the evidence of the three other women was not relevant for the purpose it was adduced.

Heydon JA dissented on the basis that, despite the Crown concession and an ambiguous admission by the defence at trial, that proof of the acts of sexual penetration remained in issue. In a stinging critique of the Crown's concessions to the High Court, Heydon JA remarks that:

With respect, each concession was irrationally generous. Each was plainly erroneous. Neither can alter the actual position at the trial.

Most of Heydon JA's judgment is concerned with showing why it was that the Crown still needed to prove that the acts of sexual penetration took place. He examines the history of formal admissions, the limitations on such admissions, and principles concerning the Crown obligation to prove its case.

Comment
This case continues the trend that some commentators have observed that the current High Court prefers to decide narrow factual issues rather than general points of principle if possible. There is minimal discussion of authority in the majority judgment. While Heydon JA's judgment contains more discussion of authority, it focusses on the point of distinction between his view of the case and the majority - namely the consequences of the defence "admission" at trial.

The case also exemplifies the need for counsel to be careful about any concessions they make during the hearing of an appeal. In the end, the difference in result seems to turn largely on the fact that Heydon JA was prepared to reject the Crown concession, whereas the majority acted on the concession and concluded that the challenged evidence was then irrelevant.