Fernando v Medical Complaints Tribunal (No 3)

[2004] TASSC 29

[2004] TASSC 29

CITATION:              Fernando v Medical Complaints Tribunal (No 3) [2004] TASSC 29

PARTIES:  FERNANDO, Neville
  v
  MEDICAL COMPLAINTS TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 43/2003
DELIVERED ON:  1 April 2004
DELIVERED AT:  Hobart
HEARING DATES:  2, 3, 4, 8, 22, 23 December 2003
JUDGMENT OF:  Blow J
CATCHWORDS:

Administrative Law – Judicial review at common law – Procedural fairness – Disqualification for bias – Preconceived opinion – Medical Complaints Tribunal (Tas) – Alleged bias of subordinate officer.

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310, referred to.
Aust Dig Administrative Law [67]

REPRESENTATION:

Counsel:
             Appellant:  T M Forrest QC, P Gray
             Respondent:  P L Jackson
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Jackson & Tremayne

Judgment Number:  [2004] TASSC 29
Number of Paragraphs:  54

Serial No 29/2004
File No LCA 43/2003

NEVILLE FERNANDO v MEDICAL COMPLAINTS TRIBUNAL (NO 3)

REASONS FOR JUDGMENT  BLOW J

1 April 2004

1. The appellant is aggrieved by a decision of the respondent Tribunal which made findings of professional misconduct against him, and made orders that his name be removed from the Register of Medical Practitioners, that he be fined $4,000, and that he pay costs.  The Tribunal found proven allegations of sexual assaults and other misconduct involving a female patient whom he had treated using hypnotherapy as a general practitioner.  The appellant's grounds of appeal raise contentions to the effect (a) that the Tribunal erred in making findings of professional misconduct; (b) that the allegations of professional misconduct ought to be reconsidered because of fresh evidence relevant to the patient's credibility; (c) that the appellant was denied procedural fairness; and (d) that the penalties imposed by the Tribunal were manifestly excessive.  At the request of counsel, I made a determination as to the fresh evidence issues before hearing argument as to the appellant's other contentions.  I rejected his contentions as to fresh evidence: Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139. These reasons deal with his other contentions.

Procedural fairness

1. The appellant's contentions as to procedural fairness relate to a telephone call made on 14 January 2003 by one of the patient's sisters to the secretary to the Tribunal.  By virtue of the Medical Practitioners Registration Act 1996 ("the Act"), s50(8), the Registrar of the Medical Council is also the secretary to the Tribunal. 

1. The Tribunal had commenced a public hearing on 9 and 10 December 2002.  The hearing had been adjourned.  There had been media reports of the allegations against the appellant, but the patient's identity had not been revealed.  On 14 January 2003, when the patient's sister telephoned the secretary to the Tribunal, she unsuccessfully sought confirmation that her sister was the complainant to whom the proceedings related, volunteered information to the effect that her sister (the patient) was a liar, and asked for the name of the appellant's legal adviser.  A legal practitioner had been appointed by the Medical Council to assist the Tribunal in the proceedings concerning the appellant, in accordance with the power conferred by the Act, Sch3, cl 6(4).  As a result of the telephone call from the patient's sister, the secretary to the Tribunal telephoned the legal practitioner assisting the Tribunal, and sought his advice as to how she should respond to the telephone inquiry.  After taking his advice, she declined to furnish the appellant's legal adviser's name to the patient's sister.  The sister decided to wait to see what happened.  She learned the identity of the appellant's counsel after the Tribunal had made its findings and orders, and then made contact with him.  The appellant contends that the secretary's response to the patient's sister's telephone call constituted a breach of the Tribunal's duty of procedural fairness. 

1. The Tribunal is constituted under the Act, s50, which commences with the following subsections:

"50 ¾ (1)  The Medical Complaints Tribunal is established.

(2)The Council is to appoint ¾  

(a)  one legal practitioner of not less than 10 years' standing; and

(b)  one person who is not a medical practitioner or legal practitioner ¾

to be the permanent members of the Tribunal.

(3)   The permanent member appointed under subsection (2)(a) is chairperson of the Tribunal.

(4)   The Tribunal, in respect of each inquiry it conducts, is to consist of 5 members, being ¾  

(a)  the 2 permanent members; and

(b)  3 registered medical practitioners appointed by the Council for the purposes of that inquiry.

(5)   A registered medical practitioner appointed to the Tribunal for the purposes of an inquiry is known as a special member.

(6)   A special member is to be a medical practitioner who is considered by the Council to have skill, knowledge or experience that is relevant to the inquiry in respect of which he or she is appointed.

(7)   A member of the Council is not eligible to be appointed as a permanent or special member of the Tribunal.

(8)   The Registrar is to act as secretary to the Tribunal."

1. The Act is completely silent as to the role of the secretary to the Tribunal.  It contains absolutely nothing as to the secretary's powers or duties.  In fact, apart from s50(8), the secretary to the Tribunal is not mentioned at all in the Act or any subordinate legislation.  The secretary was not one of the five members who constituted the Tribunal pursuant to s50(4) in respect of the inquiry conducted in relation to the appellant.  She was a subordinate officer of the Tribunal, but not a member of the Tribunal.  There is no suggestion that she told any member of the Tribunal anything that she had been told by the patient's sister. 

Constructive knowledge

1. The appellant contends that the information imparted by the patient's sister was "constructively before the Tribunal".  After the patient's sister made contact with the appellant's lawyers, they interviewed a number of people and marshalled a quantity of evidence relevant to the patient's credibility.  The appellant contends that all that evidence was also constructively before the Tribunal. 

1. In support of these contentions, Mr Gray referred to passages in the decision of the Full Court of the Federal Court in Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532. That case concerned a review of a Minister's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was contended that the Minister had failed to take into account relevant considerations. A submission that had been brought to the attention of the previous Minister was shown not to have been brought to the attention of the Minister whose decision was under review. At 541, Bowen CJ held that knowledge of that submission should be attributed to the decision-making Minister. Sheppard J reached the same conclusion at 555 – 556, adopting a comment by Cooke J in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 148 to the effect that "the traditional duty to take into account relevant considerations extends to considerations which should have been within the knowledge of the Minister".

1. Mr Gray also relied on a decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. His Honour was considering the Administrative Decisions (Judicial Review) Act (Cth), s5(2)(g), which concerns "the exercise of a power that is so unreasonable that no reasonable person could have so exercised the power". A question arose as to what facts were to be taken into account in assessing the conduct of the decision-maker. Wilcox J expressed a tentative preference for the court being entitled to consider "those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him". His Honour's view was referred to with apparent approval by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290.

1. In my view those authorities are all distinguishable.  This is not a case about the failure of a decision-maker to take into account relevant considerations, nor is it a case about the reasonableness or unreasonableness of a decision.  Relevantly, it is a case about whether a decision-making body's duty of procedural fairness requires the disclosure to a person who will be affected by its decision of information available not necessarily to it, but to an officer providing it with secretarial support.  The cases referred to all relate to decision-making by ministers.  Ministers have duties to take into account information available to them and held by the departments for which they are responsible.  But the decision-maker in this case was a quasi-judicial tribunal, with a common law duty of procedural fairness that required it to conduct its proceedings in much the same way as a court.  Rather than having a duty to take into account all relevant information available to its subordinates, its duty of procedural fairness required it not to take into account any information without giving the parties an opportunity to challenge or contradict that information, and to make submissions as to it.  That duty is usually best discharged by not receiving any information other than in the course of a formal hearing. 

1. Mr Gray also sought to rely on Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386. That case concerned a decision of the Immigration Review Tribunal, which was obliged by a statutory provision to give the applicant a copy of a statement setting out its decisions and reasons within 14 days after its decision. The critical question in the case was whether the provision of such a statement by a tribunal officer, who was apparently not a tribunal member, constituted the notification of the applicant of the decision for the purpose of a different statutory provision imposing a time limit for appeals. Merkel J apparently assumed that the provision of the written statement by a tribunal officer was capable of constituting a giving of the statement to the applicant by the tribunal, for the purpose of the provision requiring it to be so given. I think that was a sensible approach, since Parliament could hardly have intended that the mailing out or handing over of documents was to be undertaken only by tribunal members and not by support staff. It by no means follows that the provision of information to the secretary in this case constituted the provision of information to the Tribunal for the purposes of the common law as to procedural fairness.

1. I can see no basis for holding that the Tribunal had a duty to acquaint the appellant or his representatives with information of which it was unaware, which had been passed no further than its subordinate officers.  It makes no sense to treat the Tribunal as having constructive knowledge of information available to its secretary, and having a duty to impart that information to the appellant, when there is no evidence that any of its members had any inkling that such information had been received by the secretary.  The Tribunal's duty of procedural fairness no doubt required it to inform the appellant or his representatives of any information relevant to its decision-making that it had received in their absence, or without their knowledge.  However the secretary is not the Tribunal, and has no duty to tell the Tribunal all she hears.  The Tribunal does not have a duty to acquaint itself with information available to its secretary, nor does it have a duty to acquaint the  parties to its proceedings with information of which it has not been made aware.  I therefore reject Mr Gray's submissions as to constructive knowledge.

Apprehension of bias

1. Mr Gray submitted that the response that the patient's sister received to her telephone call would give rise to a reasonable apprehension that the Tribunal was biased.  The critical question is whether a fair-minded lay observer, or one of the parties, might reasonably apprehend that the members of the Tribunal might not bring impartial minds to the resolution of the questions that they were required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; R v Watson; ex parte Armstrong (1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12; Re JRL; ex parte CRL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Laws v Australian Broadcasting Tribunal (1980) 170 CLR 70; Webb v R (1994) 181 CLR 41; Johnson v Johnson (2002) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 337.

1. The patient's sister and the secretary both swore affidavits for the purpose of this appeal, and were both cross-examined before me.  Their evidence as to what the secretary told the patient's sister includes the following:

(a)The secretary said the following in her affidavit in relation to her first conversation with the patient's sister:

"The caller then went on to say that 'her sister could say what she liked about herself, but she can't lie about other members of her family'.  In response I told the caller, in effect, that it was a matter of public record that the Medical Council had referred another matter of complaint to the Tribunal regarding allegations against Dr Fernando similar to those reported in the press, and the Tribunal had determined that it could not hear that matter.  I also pointed out to the caller that it was a matter of public record that similar matters had been before the Victorian Medical Board in relation to Dr Fernando."

(b)Under cross-examination, the secretary said that the earlier proceedings before the Medical Council had been dismissed due to a lack of evidence, but that she did not tell the caller that that was the reason for their dismissal because the previous matter was considered confidential and not in the public arena.  (It was submitted that she was selective in what she disclosed, and that her selectivity indicated bias.)

(c)According to the patient's sister's affidavit, the secretary told her during their second conversation that the appellant was "represented by excellent legal representation in the form of a QC", and went on to say that the matter was being heard before a number of experienced doctors and another person who were not biased and would listen to the evidence and make a proper decision.  The secretary said that she reassured the caller that the appellant was represented by senior and competent counsel who had already extensively cross-examined the patient; that she may have told the caller that the matter was being heard before a tribunal that included experienced medical practitioners; and that she may have explained the composition of the Tribunal; but that she did not refer to the Tribunal being unbiased.

(d)The legal practitioner who assisted the Tribunal wrote to the appellant's solicitors about the secretary's conversations with the patient's sister.  The letter was written after the Tribunal's proceedings had been concluded.  The letter was first checked for accuracy by the secretary.  It asserted that the secretary had explained to the caller that the appellant was represented by senior competent counsel who had already cross-examined the patient "about the history of sexual abuse that she had given to Dr Fernando and to others in the course of making her complaint".  That assertion was false, in that the patient had not been cross-examined about the history of sexual abuse that she had given to the applicant or others. 

(e)The legal practitioner assisting the Tribunal had cross-examined the appellant prior to the patient's sister contacting the secretary.  (The significance of this is that it was after taking advice from this practitioner, who was in an adversarial role, that the secretary refused to provide the patient's sister with information that would enable her to contact the appellant's counsel.)

1. The patient's sister's evidence was that, after their initial conversation, the secretary had asked her to hold the line while she talked to her supervisor, and that the secretary had resumed speaking to her on the telephone a couple of minutes later.  The secretary's evidence was that she had hung up after the first conversation, spoken to the legal practitioner, and then phoned the patient's sister back.  I have accepted the evidence of the secretary as to those matters.  For reasons that will become apparent, I have no need to make any further findings of fact as to the relevant telephone conversations.  It is appropriate to accept, for the purpose of evaluating the relevant submissions, the version of the facts that is most favourable to the appellant.

1. Mr Gray submitted that the conduct of the secretary would lead a fair-minded observer to think that she believed the appellant was guilty of the conduct alleged against him; that her mind was closed to further persuasion; and that she was actuated by hostility against the appellant and/or partiality to the patient.  He went on to submit that a fair-minded observer might entertain a reasonable apprehension of bias or prejudgment on the part of the Tribunal on one or more of the following bases:

(a)that the secretary's opinions might reflect the opinions of one or more members of the Tribunal;

(b)that the secretary's role was such that her opinions were to be taken to be those of the Tribunal;

(c)that, because the secretary was the conduit for information to pass between the Tribunal and others, her opinions might have influenced the information conveyed to the Tribunal in relation to the inquiry;

(d)that the secretary's opinions might have reached members of the Tribunal and influenced them.

1. It may well be open to me to conclude that the conduct of the secretary would lead a well-informed and fair-minded observer to apprehend that she was biased against the appellant, to such an extent as to try to prevent the patient's sister from doing anything to assist him.  However the critical question is whether the hypothetical fair-minded observer would entertain a reasonable apprehension of bias on the part of the members of the Tribunal, not its secretary.  Mr Gray sought to persuade me that bias on the part of the secretary would contaminate the Tribunal.  He referred me to R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256. That case concerned a conviction imposed by justices upon a motorist, following a collision, for driving in a manner dangerous to the public. At the conclusion of the evidence, the justices had retired to deliberate, accompanied by their deputy clerk. He was a solicitor, and his firm happened to be acting against the defendant in civil proceedings arising out of the collision. The conviction was quashed because it was improper for the deputy clerk, in the circumstances, to be present with the justices when they were considering their decision. Mr Gray also referred me to Stollery v Greyhound Racing Control Board (1973) 128 CLR 509. The respondent in that case was a statutory body that controlled and regulated greyhound racing in New South Wales. Its manager had accused a greyhound owner of making an improper gift to him. The Board conducted a hearing, found the owner guilty of conduct detrimental to the proper regulation and control of the sport, and disqualified him for 12 months. The manager was a member of the Board, and was present throughout its deliberations as to both its verdict and the penalty. The High Court decided that certiorari should be granted to quash the Board's decisions on the ground that the presence of the manager during the deliberations and decisions of the Board was inconsistent with the principles of natural justice.

1. However there is a significant difference between the role of the secretary to the Tribunal in this case and the roles of the deputy clerk to the Sussex justices and the manager of the Greyhound Racing Control Board of New South Wales.  English justices are not required to be legally qualified, but receive legal advice in the course of their deliberations from legally qualified clerks.  It was therefore part of the role of the deputy clerk to provide advice to the Sussex justices in the course of their deliberations.  Similarly, it was part of the ordinary role of the manager of the Greyhound Racing Control Board to voice his opinions in the course of the Board's deliberations in his capacity as a Board member.  However the role of the secretary to the Medical Complaints Tribunal was obviously intended by Parliament to be an administrative one.  Questions of guilt, innocence and penalty in any particular case are required to be determined by the five Tribunal members hearing the case, and the secretary has no role in relation to their deliberations.  Further, there is no suggestion in this case that the secretary was present during the deliberations of the Tribunal. 

1. Judges, magistrates, and members of quasi-judicial tribunals rely, in order to discharge their duties, upon a variety of associates, attendants, clerks, secretaries, interpreters, transcribers, registry staff, security officers, and other support staff.  Ideally such support staff should not form opinions as to the results of cases, or as to the participants in cases, and should not speak about such matters to the decision-makers with whom they have contact.  There is always a possibility that subordinate officers will form opinions or make inappropriate comments, but it by no means follows that decision-makers will be influenced improperly if they do.  One must of course draw a distinction between individuals who have a duty to offer their opinions to decision-makers and individuals who have no such duty.  The former category includes English justices' clerks and Family Court counsellors: R v Sussex Justices; Ex parte McCarthy (supra); Re JRL; ex parte CJL (supra).  Having regard to the provisions of s50 as to the composition of the Tribunal, and to the provision whereby a legal practitioner may be appointed to assist the Tribunal, I think it is clear that the role of the secretary does not extend to the provision of assistance or advice related to the merits of a case.  If bias is displayed by an individual whose role is to assist a decision-maker or a decision-making body in ways that do not involve contributing to the decision-making process, but there is no evidence that the biased individual said or did anything that might influence the decision-making process, I do not think there would be a sufficient foundation for an apprehension of bias to be reasonable.  Similarly, I do not think that bias displayed by an individual in such a support role would be a sufficient foundation for an apprehension that one or more of the decision-makers constituting a tribunal might be biased.

1. I am unaware of any reported case concerning bias on the part of a subordinate officer of any court or quasi-judicial tribunal.  However Mr Jackson, for the Tribunal, referred me to a case concerning views expressed by the husband of a decision-maker about issues relevant to proceedings before his wife: Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310. In that case the Full Court of the Federal Court (Lockhart, Pincus and Gummow JJ) said, at 310:

"Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding."

1. In the circumstances, even if the secretary was biased against the appellant (and I am not saying that she was), it does not follow that a fair-minded observer could entertain a reasonable apprehension of bias or prejudgment on the part of the Tribunal on any of the bases relied upon by Mr Gray.

The audi alteram partem rule

1. Ground 6B of the notice of appeal asserts that the respondent failed to give the appellant "any or any fair opportunity to be heard on the decisions it made through its Secretary" not to believe the patient's sister's allegations as to credibility, not to facilitate the giving of evidence by the patient's sister in the hearing, and not to release the name of the appellant's counsel, and that such "decisions" were contrary to the rights, interests or legitimate expectations of the appellant.

1. It may well be that the secretary's response to the patient's sister was contrary to the interests of justice and unfair to the appellant.  However she was not the Tribunal.  She was an administrative officer.  Her conduct was not the conduct of the Tribunal.  She had no duty to act judicially: Ex parte Fontain; Re Althouse (1927) 27 SR (NSW) 396 at 398. This ground must therefore fail.

The reasoning and findings of the Tribunal

1. The allegations found proven by the Tribunal were as follows:

"2   That the practitioner is guilty of professional misconduct in that during consultations with his patient … on various dates between July 1996 and February 1997, on approximately ten occasions, the practitioner: 

(a)required the patient to undress while he placed her under hypnosis and while she remained under hypnosis; 

(b)sexually assaulted the patient while she was under hypnosis by touching her breasts and genitals, stimulating her clitoris and inserting one or more of his fingers into her vagina; 

(c)removed items of the patient's undergarments;

(d)required the patient to touch herself on her face, breasts and other parts of her body when that was neither appropriate nor necessary for the purposes of the consultation; 

(e)touched her face, breasts and lower abdomen while she was naked, when that was neither necessary nor appropriate for the purposes of the consultation; 

(f)required the patient to stand before a mirror while naked, observing her own body while he commented inappropriately upon her physical appearance by describing her as having a beautiful body, touching her breasts, groin and pubic hair and taking her hand and requiring her to touch herself similarly; 

(g)while inserting his fingers into the patient's vagina and stimulating her clitoris, telling the patient that she had to learn to do this for herself and to make herself good for her husband; 

(h)asked the patient whether she had ever masturbated when that was neither appropriate nor necessary for the purposes of the consultation; 

(i)engaged in all of the conduct described in paragraphs 2(a) to 2(h) for the purposes of sexual self-gratification. 

3    That the practitioner is guilty of professional misconduct in that on or about 4 February 1997 in the course of a consultation with his patient … the practitioner: 

(a)took the patient's hand and placed it on the outside of his trousers over his erect penis and attempted to rub his penis with her hand while the buckle of his trousers belt, and the top button of his trousers, were undone; and 

(b)masturbated himself in the presence of the patient."

1. The appellant contends that he was not guilty of professional misconduct; that the decision of the Tribunal that the particulars quoted above were made out was against the evidence, against the weight of the evidence, contrary to law, and wrong in law; that the Tribunal erred in fact in preferring the patient's evidence to his evidence; and that the evidence before the Tribunal was such that it could not properly have reached the requisite level of satisfaction to find that the above allegations were made out.

1. The findings of the Tribunal depended substantially on its assessments of the credibility of the patient and of the appellant, who denied all the allegations of misconduct.  No-one else was present when any professional misconduct was alleged to have occurred.  Although the civil standard of proof on the balance of probabilities was applicable, the Tribunal was obliged to reach a state of reasonable satisfaction and to be conscious, when determining whether that stage had been reached, of the seriousness of the allegations made and the gravity of the consequences which might flow from particular findings and conclusions: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

1. There were a number of factors that weighed against acceptance of the patient's uncorroborated evidence as to misconduct on the part of the appellant.  She had a long history of psychiatric or psychological disturbance.  She gave evidence of hearing imaginary voices.  She experienced flashbacks.  There were inconsistencies between her evidence and the appellant's clinical notes.  The Tribunal had some concern as to a phenomenon called transference, whereby an abused individual, at least under hypnosis, might identify an innocent person as the abuser.  There were matters of detail that the patient could not recall.  The patient, on her version of events, continued to consult the appellant for hypnotherapy and other purposes for some ten months after his misconduct commenced.  In fact she did not terminate their relationship, but he moved interstate.  She made no complaint about his conduct to anyone until 17 months after his departure.  If her allegations are true, the appellant engaged in repeated acts of misconduct when he knew that the patient was also seeing a psychiatrist, in circumstances that made it fairly likely that she might have spoken about the appellant's misconduct.  The Tribunal considered all these matters very carefully and cautiously, but still found the patient's allegations proved.  It gave significant weight to its impressions as to the demeanour of the patient and the appellant.  The appellant contends that the Tribunal should not have accepted the complainant's evidence; that it gave too much weight to its impressions as to her demeanour and that of the appellant; and that parts of its reasoning were illogical.

1. In my view the strongest point made by Mr Forrest QC for the appellant concerned a consultation on 23 April 1996.  The appellant made a handwritten note as to that consultation.  It reads as follows:

"v sleepy
not motivated to do anything
getting flashbacks ¾ mother had
axe handle, father urinated over her
sister was cutting up her clothes
& she could not get away
not cooking meals.  Just
walks around the house, feels
tired & drained.

Thinks husband at end of his tether".

1. The patient was cross-examined about this entry.  She said that she did not tell the appellant anything about her mother having an axe handle, nor that her father had urinated over her, nor that her sister had cut up her clothes, and that none of those things had happened.

1. The Tribunal made the following findings and comments as to the conflict between the appellant's note of 23 April 1996 and the patient's evidence:

"28  The Tribunal accepts [the patient's] evidence that she had never had those flashbacks, and that she did not recount those matters to Dr Fernando. Her evidence was convincing and there is nothing about her psychiatric or psychological condition independently of the question immediately under examination which would suggest that she has been prone to false recollections or false reports of recollections or the recounting of recollections which are not later remembered.

29It is more probable in the Tribunal's view that Dr Fernando's note is in error. There are other examples of errors in his notes, such as a reference to [the patient's] son being in prison in Western Australian when he was in fact in prison in South Australia and a reference to [the patient's] husband suffering from a serious illness when nothing which could be described as a serious illness had in fact befallen her husband.

Whilst it appears clear from the evidence that Dr Fernando knew of the sexual abuse of [the patient] by her father, he had not taken a full history from her which included the details of that abuse and it is possible that on the 23 April 1996, only the second time he had seen her during the relevant period, he misunderstood matters which related to that history involving the washing of her father's penis with the complicity of her mother, being given a hiding with a razor strap or stick and being punished even when it was her sisters who were naughty."

1. The patient had said that, when she was a child, her mother used to call her to the bathroom when her father was in the bath, and get her to wash her father's penis until he obtained an erection.  She had said that her father used to beat her with a razor strop or a stick, and that she used to be punished even when her sisters had been naughty and she had not.  Those assertions were very different from the assertions recorded in the notes of 23 April 1996.  Mr Forrest QC submitted that it was logically unsustainable and glaringly improbable that descriptions of the patient washing her father's penis, her father giving her a hiding with a razor strop or a stick, and being punished when only her sisters had been naughty, were possibly misunderstood as descriptions of the patient's father urinating on her, her mother wielding an axe handle, and one of her sisters cutting up her clothes.  There is a lot of force in that submission.  However it must be remembered that the Tribunal went no further than to suggest that a misunderstanding by the appellant was a possible explanation for the conflict between the patient's evidence and the appellant's notes.  It did not make a finding that the appellant had misunderstood the patient in the ways described, but said only that that was a possibility.  It would have been open to the Tribunal to reject the notes as to the urinating, the axe handle, and the cutting up of clothes as inaccurate without making any finding as to how they came to be inaccurate.  The suggestion of an illogical or improbable explanation does not necessarily invalidate the Tribunal's conclusion as to the inaccuracy of the notes.  There may be other possible explanations.  It may be possible, for example, that the appellant inaccurately recollected the history given by the patient when he came to write up his notes, particularly if he had seen other patients before putting pen to paper.  Mr Forrest QC submitted that it was incontrovertible that the note of 23 April 1996 was accurate, but I reject that submission.  There are all sorts of reasons why a doctor's note could be inaccurate, and I have no reason to think that there was no chance of inaccuracy on the appellant's part on the day in question.

1. The Tribunal made a finding that the patient, in giving evidence about the hearing of voices, was only ever referring to events that had in fact occurred in her past.  There was evidence before it from a psychologist, Mr Henty, to the effect that hearing voices in connection with real past events was perfectly normal, but that flashbacks about events that did not occur might lead to a conclusion that the patient was suffering from some sort of psychotic illness.  If the notes of 23 April 1996 were accurate, and if the patient was correct in saying that the events described in those notes did not occur, then it would follow that she was hearing voices in connection with events that did not occur, and therefore that there was at least a possibility that the patient was suffering from some form of psychotic illness, or at least a possibility of psychotic episodes.  If so, it would be very significant that the Tribunal evaluated her credibility without taking into account the possibility of a psychotic illness or psychotic episodes.

1. I am not persuaded that the Tribunal's finding that the notes of 23 April 1996 were inaccurate was dependent upon the suggested explanation that the appellant had misunderstood things the patient had told him.  Having regard to the comments that the Tribunal made as to the patient's credibility and the appellant's lack of it, I do not believe that the suggested explanation played any significant part in the Tribunal's reasoning process.

1. Mr Forrest QC submitted at one point that the Tribunal did not really address the issue of whether the patient was confabulating.  Later in his submissions, he said that the Tribunal had reversed the burden of proof as to the question whether the patient was suffering from any psychiatric illness such as would lead her to confabulate or make false allegations.  These matters were referred to in pars16, 28 and 30 of the Tribunal's decision.  The relevant passages read as follows:

"16There is no evidence before the Tribunal that [the patient] suffers or at any relevant time suffered from a psychiatric illness or disorder of which one of the manifestations was either the fabrication of or the false imagination of events.

…

28… there is nothing about her psychiatric or psychological condition independently of the question immediately under examination which would suggest that she has been prone to false recollections or false reports of recollections or the recounting of recollections which are not later remembered.

…

30The Tribunal is satisfied that [the patient] does not suffer and has not relevantly suffered from any psychiatric or psychological illness or disorder which might have caused her to make false allegations against Dr Fernando. …".

Plainly, the Tribunal did address the question of confabulation.  I am not persuaded that the Tribunal made any error as to the burden of proof.  There was evidence that the patient had seen psychiatrists over the years, and that she had sought treatment in relation to psychological problems, but there was no suggestion that she was prone to confabulation or suffering from a condition that could make her prone to confabulation.  In those circumstances, it was open to the Tribunal, and consistent with the burden of proof, for it to draw inferences leading to the conclusion expressed in par30 of its decision.

1. Mr Forrest QC submitted that, contrary to the Tribunal's view, there was evidence that the patient had experienced voices in relation to events that did not occur in the past.  He based that submission on a comment made by the patient when she was asked what the voices were.  Her response began "It was all kinds".  That sentence does not necessarily mean, as Mr Forrest QC suggested, that she experienced a mixture of real events and imagined events.  It is therefore necessary to consider that sentence in its context.  The cross-examination in relation to the hearing of voices was as follows:

"And why was it that you were hospitalised? ... Because I kept having the voices.  I couldn't cope.  I didn't know when I was taking the tablets, I was just taking them all the time and I wasn't capable of being on my own or coping.

Did you commence, or overdose - ... I took lots to stop the voices - I took lots.  I never tried to die, I just took them.

What were the voices? ... It was all kinds.  Like, my mother sending me into the bathroom in to my father, when I was a little girl, and when I took the tablets they would make you sleepier and it would go for awhile.

When did you start hearing these voices? ... It had been around for awhile.  I'd always been on my own and felt different, from a child, and it was always like chasing me, that I was a bad girl and I thought that's why those things happened.  You know, my father use to always give me a hiding with the strap - the razor strap or the stick, even when the others were naughty, because I had to set the example.  And all those things would come back when I watched television.

Would the voices tell you what had happened in the past? ... I would see pictures, hear her or him call me to run the bath, and she'd call out, [patient's name], and I would know what was going to happen.  I -

When - sorry ... .- wouldn't tell anybody.  My father said, what happens in the home has to stay there - I didn't tell anybody.

Did - when did - I'm sorry, I've asked you this question before, but I have to ask it again - when did you start hearing voices? ... I don't really remember because I don't really remember.  I remember when I started taking those awful tablets, it made me shake all over and the voices worse, but -

Which tablets were they? ... The Aropax and the ones that I had to get the permission thing for.  But, sometimes I take more, I know I must have taken more, I couldn't remember when I last took them, I didn't write it down, and you'd go off to sleep or it would be better for awhile.  I remember having to go to the hospital and I had to have some charcoal, but they didn't growl at me, they didn't growl at me - I'm sorry.

You're - are you feeling okay? ... Yes.

Did you tell Dr Tilsley about the voices? ... I don't know if I told him about the voices, I don't remember."

There is absolutely nothing in the relevant passage that supports the assertion that the patient heard voices in relation to events that had not really occurred.  I therefore reject that assertion.

1. Mr Forrest QC made a number of submissions as to the Tribunal's assessment of the appellant's credibility.  The Tribunal made the following general comment in relation to his credibility:

"Turning then to Dr Fernado's credit, the Tribunal was firstly unimpressed by his demeanour as a witness.  Making all due allowance for the difficult situation in which Dr Fernando would find himself if an innocent medical practitioner faced with very serious allegations, the Tribunal nonetheless felt that he was not spontaneous in his answers to questions in cross-examination and that his evidence lacked conviction in those areas where he agreed with some of the facts asserted by [the patient] but necessarily by virtue of his denials of misconduct did not accept all of the details asserted by [the patient] as surrounding those facts."

1. The Tribunal went on to analyse the appellant's evidence as to three areas.  They were apparently the only areas in which the Tribunal thought that his evidence lacked conviction or suggested that he was less than truthful.  In relation to each such area, Mr Forrest QC made a submission to the effect that the appellant had said little or nothing that was damaging to his credibility.

1. The first of the three areas concerned evidence given by the patient that, after hypnotherapy sessions, the appellant used to get her to stand naked in front of the mirror in his surgery.  The appellant's evidence was that, while the patient was under hypnosis, he would ask her to imagine that she was looking at herself in a mirror ¾not the real mirror.  Under cross-examination, he conceded that there might have been occasions when, after hypnosis, he suggested that she look at herself in the real mirror.  Mr Forrest QC submitted that the appellant was simply conceding something that had possibly happened.

1. The second area concerned evidence given by the patient that he used to get her to touch herself.  The appellant said under cross-examination that it was not uncommon to have patients touch their own bodies and that, whilst the patient was under hypnosis, he would have asked her to learn to touch herself in front of the imaginary mirror.  The Tribunal emphasised that he had said that he would not specifically mention intimate parts of the body like breasts; and that he conceded that he would probably have said "You're an attractive lady" or "You're good looking, why don't you like yourself?" or "You're all right" or "There's nothing wrong with you".  Mr Forrest QC submitted that in giving such evidence the appellant was simply saying what might have occurred, and that there was no basis for a conclusion that he was less than truthful.

1. The third and final area concerned the arrangements the appellant made with his patients when he was about to leave Tasmania.  Under cross-examination, he originally said that he had given the patient his number in Melbourne and his address; that he did so for most of his patients; that he invited most of them to ring or contact him if they had any problems; and that that was not something that was specifically done for the patient in question.  He resiled from that evidence, to the extent of saying that he had given his new address and telephone number only to most of the long-standing patients whom he had seen between deciding to leave and departing, and that he had left instructions at the desk to be given to other patients who enquired as to his address and phone number.  The Tribunal took the view that what the appellant originally asserted was unrealistic, and that he resiled considerably from his original position.  As to this area of evidence, Mr Forrest QC submitted that the demeanour of the appellant was irrelevant, and that it is logically unsustainable to use something like that in assessing credibility in a case where the allegations are grave. 

1. None of the three areas of the appellant's evidence referred to by the Tribunal was of central relevance to any question of guilt or innocence.  The various things that the appellant said in relation to those three areas, without more, possibly should not have led to the rejection of his evidence as that of a witness lacking credibility.  However, the Tribunal took into account not just the things that he said, but also how he said them, his demeanour generally, and its assessment of the patient's credibility.  It was open to the Tribunal to regard his evidence in each of the three relevant areas as impinging upon the appellant's credibility, and to take any such conclusion into account in its overall assessment of his credibility.  It may be that the content of his evidence left the Tribunal with little to assist it in evaluating his credibility.  There is nothing in the Tribunal's decision to indicate that it attached undue weight to any or all of the three areas of evidence in assessing his credibility.

1. Mr Forrest QC submitted that, in assessing the appellant's credibility, the Tribunal had made no allowance for the fact that he was being cross-examined in relation to events that had occurred several years previously, nor for the possibility that they were observing hesitation on the part of a conscientious and truthful witness.  The Tribunal certainly did not mention those factors.  The cross-examination was in December 2002, and it related to consultations between April 1996 and February 1997.  Mr Forrest QC pointed out that, when assessing the patient's credibility, the Tribunal made some allowance for her inability to remember certain details.  However the Tribunal was not required to mention all the factors that were relevant or potentially relevant to an assessment of the appellant's credibility.  The fact that it did not mention, when assessing his credibility, the delay between the consultations and his cross-examination or the possibility of a truthful witness hesitating does not mean that it erred in its approach to the assessment of his credibility.

1. Mr Forrest QC made a submission to the effect that the demeanour of witnesses can be misleading, and should not be given a false importance.  He referred me to the remarks of Deane and Dawson JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 – 481, and to Fox v Percy (2003) 77 ALJR 989 at pars29, 71. It is certainly important for any tribunal of fact not to give the demeanour of witnesses a false importance, but, in order to evaluate the submissions made on behalf of the appellant, it is necessary to have regard to the authorities as to the circumstances in which appellate courts will disturb findings of fact based on credibility.

1. The circumstances in which that will be done have been considered in recent years by the High Court in a number of cases, notably Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commission (supra), and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306. As a general rule, appellate courts will exercise restraint in disturbing findings of fact that have been based upon assessments of the credibility of witnesses. Kirby J recently set out a useful list of situations in which appellate courts have disturbed such findings in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1616 (pars98 – 99). His Honour said this:

"In SRA (1999) 73 ALJR 306 at 331-332 [93]; 160 ALR 588 at 620-622, I listed a number of cases, illustrated by decisions of this and other courts, in which, despite credibility findings, appellate intervention had occurred and been upheld. As I pointed out in that case, the instances cited were 'by no means exhaustive' (1999) 73 ALJR 306 at 331 [93]; 160 ALR 588 at 620. They included cases (1) where the primary judge's conclusion, although expressed in terms of credibility, was 'plainly wrong' as demonstrated by incontrovertible facts or uncontested testimony; eg Voulis (1975) 180 CLR 177; Gray v Motor Accident Commission (1998) 196 CLR 1 at 36-37 [105], 51-52 [149]; Trawl Industries (1992) 27 NSWLR 326 at 349-350; (2) where the conclusion was based on evidence wrongly admitted, occasioning a substantial miscarriage of the trial cf Paterson v Paterson (1953) 89 CLR 212 at 224; (3) where the reasons, going beyond credibility, indicated a consideration at trial of irrelevant matters or a failure to weigh all relevant issues Gray (1998) 196 CLR 1 at 37-38 [105], 51-52 [149]; Watt v Thomas [1947] AC 484 at 487 per Viscount Simon; (4) where the circumstances in which evidence was given, relevant to credibility, was unsatisfactory Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 92; or (5) where the primary judge had made it plain that credibility considerations or impressions were not determinative for the judgment in question Taylor v Johnson (1983) 151 CLR 422 at 436-437.

There were two further categories that I mentioned in SRA. They are relevant to the present appeal. They were: (6) where the credibility determination 'leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding' SRA (1999) 73 ALJR 306 at 331 [93.1]; 160 ALR 588 at 620. See also Gray (1998) 196 CLR 1 at 37-38 [105] and (7) where, notwithstanding the credibility finding, the 'extreme and overwhelming pressure' The Glannibanta (1876) 1 PD 283 at 287; Paterson (1953) 89 CLR 212 at 219-220 of the rest of the evidence at the trial is such as to render the conclusion expressed at first instance so 'glaringly improbable' - Brunskill (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57 or 'contrary to compelling inferences' Chambers v Jobling (1986) 7 NSWLR 1 at 10 of the case that it justifies and authorises appellate disturbance of the conclusion reached at trial and the judgment giving it effect."

His Honour went on to observe that the categories of appellate intervention in such cases are not closed.

1. There is no possible basis upon which this case could fall within any of the first six categories mentioned by Kirby J.  Mr Forrest QC submitted that it was an incontrovertible fact that the appellant's note of 23 April 1996 was accurate, but I have already rejected that submission.  The gravamen of the submissions of Mr Forrest QC was that the evidence before the Tribunal was such that the Tribunal could not properly have been satisfied to the requisite degree that the patient's version of events was true.

1. Gleeson CJ, Gummow and Kirby JJ spoke of the seventh category of case in Fox v Percy (supra) at par29.  Their Honours said this:

"In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844; 2 ALR 53 at 57 or 'contrary to compelling inferences' in the casehttp:// - Chambers v Jobling (1986) 7 NSWLR 1 at 10. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process."

1. It was not submitted that the evidence compelled an inference that the patient's version of events was false.  Rather, the substance of the submissions by Mr Forrest QC was that, despite the Tribunal having taken the view that the patient had given her evidence in a credible way, the weight of the evidence is such as to cast doubt upon the correctness of the patient's version of events to such an extent that, having regard to the seriousness of the allegations and the gravity of the consequences of finding them proven, the finding to the effect that her version of events was correct should be disturbed.

1. The Tribunal was required to make a decision in a case that was very much one of "oath against oath".  In such a case, even after making allowance for the risks associated with basing a decision upon the demeanour of two witnesses, the proper approach for an appeal court is as explained by Kirby J in State Rail Authority (NSW) v Earthline Constructions (supra) at 330 – 331 in the following passage:

"… because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.

This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it."

See also Paterson v Paterson (1953) 89 CLR 212 and Warren v Coombes (1979) 142 CLR 531.

1. As I have indicated, an exception will be made in rare cases where the conclusion arrived at is "glaringly improbable".  In my view the evidence in this case does not demonstrate that it was glaringly improbable that the appellant engaged in the acts described by the patient.  It is true that there were matters weighing against the acceptance of the patient's evidence, that the Tribunal advanced a very unlikely explanation for the inaccuracy of the note of 23 April 1996, and that the Tribunal based its assessment of the appellant's credibility in part upon some pieces of evidence that were not of enormous consequence, but it by no means follows that the Tribunal reached a glaringly improbable conclusion.  In the circumstances, I think I must accept the Tribunal's assessment of the credibility of both the patient and the appellant, and therefore its findings as to professional misconduct.

1. At the hearing of this appeal there was some discussion as to evidence received by the Tribunal concerning earlier disciplinary proceedings in Victoria that involved the appellant.  He was successful in those proceedings.  As the Tribunal did not refer to those proceedings in its decision, I infer that it did not take that evidence into account as evidence against the appellant.  I therefore have not taken it into account either.

Penalties

1. Ground 8 of the notice of appeal complains that the "penalty imposed by the Respondent was excessive".  The respondent made two orders by way of imposing penalty.  It ordered that the name of appellant be removed from the Register of Medical Practitioners, and it imposed a fine of $4,000.  Mr Forrest QC conceded that the findings of professional misconduct, if they were to stand, were sufficiently serious to warrant the removal of the appellant's name from the register.  However he submitted that the additional imposition of a fine of $4,000 made the penalties imposed by the Tribunal, taken as a whole, manifestly excessive.

1. After finding the allegations of professional misconduct proven, the Tribunal reconvened to hear submissions as to what action it should take pursuant to s52, which empowers it, inter alia, to have a defendant's name removed from the register, and to impose a fine not exceeding 50 penalty units.  The legal practitioner assisting the Tribunal did not submit that a fine should be imposed.  Counsel for the appellant did not put anything to the Tribunal by way of mitigation.  The comments made by the Tribunal on imposing the penalties I have referred to were as follows:

"The matters of complaint which were referred to the Tribunal in this case and found to be proved in the Tribunal's decision of 27 March 2003 are, in the Tribunal's view, of a most serious nature given that the sexual impropriety found on the part of Dr Fernando was perpetrated against his patient … in circumstances where she had given him a history of sexual abuse as a child. Dr Fernando's professional misconduct in this case is made all the more egregious by virtue of the fact that his purported treatment of [the patient] was in effect, a ruse to facilitate his own sexual gratification under the guise of treating her for symptoms referable to that history of sexual abuse she had given to him.

Mr Forrest QC did not seek to suggest, accepting as he must at this time the findings of this Tribunal, that there were any mitigating circumstances.

Dr Fernando is now sixty eight years old and the weight of the penalty of de‑registration is not as great upon him at this time in his professional career as it would be on a younger person. In any event, the Tribunal is of the view that a penalty in addition to de‑registration and an order for costs is called for in this case to mark the contumelious disregard by Dr Fernando of [the patient's] well‑being."

1. The Tribunal's powers as to penalties are discretionary.  The manner in which an appeal against the exercise of such a discretion should be determined is governed by the principles set out by the High Court in House v The King (1936) 55 CLR 499 at 504 – 505. No specific error by the Tribunal in the exercise of its discretion has been identified or asserted. The orders imposing penalties may therefore be interfered with only if they are unreasonable or plainly unjust, ie, if the penalties imposed, separately or in the aggregate, are manifestly inadequate or manifestly excessive. Further, I adopt the following comment made by Cox CJ in Walters v Nursing Board of Tasmania [2003] TASSC 122, at par12:

"In the determination of an appropriate penalty for members of their own profession, disciplinary tribunals made up substantially of members who belong to that profession are in a better position to assess the appropriate penalty than a court."

1. Because of the appellant's age, it is likely that he would soon be thinking of retiring even if no allegations of professional misconduct had been made against him.  It follows that the penalty of deregistration is likely to be less severe than it ordinarily would be.  The Tribunal had the power to impose a fine of up to $5,000 in addition to ordering the removal of his name from the register.  Such a penalty is unlikely to be onerous for a member of the medical profession.  Having regard to the appellant's age, the size of the fine, and the conduct that was found proven, I am not persuaded that the imposition of the fine over and above the order for deregistration was manifestly excessive.

1. For these reasons the appeal is dismissed.