Stubley v Western Australia [2011] HCA 7

HIGH COURT OF AUSTRALIA

GUMMOW, HEYDON, CRENNAN, KIEFEL AND BELL JJ

ALAN JOHN STUBLEY APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA RESPONDENT

Stubley v Western Australia [2011] HCA 7

Date of Order: 20 October 2010

Date of Publication of Reasons: 30 March 2011

P29/2010

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Western Australia made on 3 March 2010 dismissing the appellant's appeal against conviction and, in place thereof, order that:

(a) the appeal to the Court of Appeal be allowed;

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

(c) there be a new trial.

On appeal from the Supreme Court of Western Australia

Representation

D Grace QC with S Vandongen for the appellant (instructed by Michael Tudori & Associates)

J McGrath with D A Lima for the respondent (instructed by Director of Public Prosecutions (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Stubley v Western Australia

Criminal law – Evidence – Admissibility and relevance – Propensity evidence – Evidence of uncharged acts – Appellant former psychiatrist charged with offences relating to sexual misconduct with two former patients – Evidence of sexual misconduct with three former patients adduced at trial – Whether trial judge erred in ruling evidence of uncharged acts had significant probative value.

Criminal law – Evidence – Admissions – Appellant conceded having consensual sexual activity with both complainants – Whether concession constituted admission for the purposes of s 32 of Evidence Act 1906 (WA) – Whether concession rendered consent the only live issue at trial.

Words and phrases – "significant probative value".

Evidence Act 1906 (WA), ss 31A, 32.

1. GUMMOW, CRENNAN, KIEFEL AND BELL JJ. After a trial in the Supreme Court of Western Australia, before Johnson J and a jury, the appellant was convicted of six offences of rape, an offence of attempting to commit rape and three offences of unlawful and indecent assault. The appellant was sentenced to 10 years' imprisonment and made eligible for parole. The appellant appealed against his conviction and sentence to the Court of Appeal of the Supreme Court of Western Australia. 2. A majority of the Court of Appeal (Owen and Buss JJA, Pullin JA dissenting) upheld an appeal against sentence, reducing the term to six years' imprisonment. The majority dismissed the appeal against the convictions[1]. On 30 July 2010, Hayne and Bell JJ granted the appellant special leave to appeal from that order. On 20 October 2010, at the conclusion of the hearing of the appeal in the Full Court, orders were made allowing the appeal, setting aside the order of the Court of Appeal and the appellant's convictions and directing a new trial. Our reasons for making those orders are as follows. 3. At issue in the appeal was the admissibility of the evidence of three witnesses, LB, MM and AW, of uncharged acts of sexual misconduct against them by the appellant.