Health Care Complaints Commission v Dr Sudath
[2013] NSWMT 2
•22 February 2013
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Sudath [2013] NSWMT 2 Hearing dates: 18/02/2013-21/02/2013 Decision date: 22 February 2013 Jurisdiction: Civil Before: Elkaim SC DCJ
Dr K Ilbery
Dr V de Carvalho
Ms C Berglund (PhD)Decision: Direct the deregistration of Dr Sudath
Catchwords: Doctor convicted of serious offences. Unsuccessful challenge to the facts of the offences. Legislation Cited: Crimes Act 1900
Health Practitioner Regulation National Law (NSW) (No 86a)
Medical Practice Act 1992Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
General Medical Council v Spackman [1943] AC 627
Sudath v R [2008] NSWCCA 207
Sudath v HCCC [2012] NSWCA 171Category: Principal judgment Parties: Health Care Complaints Commission (Applicant)
Dr Aron Kondasinghe Sudath (Respondent)Representation: P M Strickland SC and E Brus (Applicant)
P R Boulten SC and M G Ainsworth (Respondent)
Health Care Complaints Commission (Applicant)
TressCox Lawyers (Respondent)
File Number(s): 400204/2008 Publication restriction: Yes
Judgment
Introduction
The proceedings before the Tribunal are brought by the Health Care Complaints Commission (the "HCCC"). The HCCC seeks resolution of two complaints. For convenience the Further Amended Notice of Complaint is annexed to this decision.
The respondent has consented to the Tribunal dealing with both the establishment of the complaints and, if proved, the imposition of protective orders.
The Tribunal is acutely aware of the seriousness of the allegations put by the HCCC and the long reaching effect of the orders open to it. Accordingly it has approached the evidence on the basis of the standard of proof prescribed in Briginshaw v Briginshaw (1938) 60 CLR 336.
Some background
The respondent, Dr Aron Kondasinghe Sudath, was born in 1967 in Sri Lanka. He came to Australia in 1991 and commenced study at the University of Adelaide with the benefit of a scholarship. He graduated in
1996 with the double degrees of MBBS and BSc. The respondent was first registered as a medical practitioner in South Australia in November 1996. He then practised in various parts of Australia. He was also registered in the United Kingdom.
The respondent's name in university documents was recorded as Aruna Sudath Kondasinghe or, another occasion, as Aron Sudath Kondasinghe. His registered name in the United Kingdom is Aron Sudath Kondasinghe. His recently obtained masters degree is in the name of Dr Aron Kondasinghe (Exhibit 5).
The respondent first married in December 1996. The marriage did not last very long. The parties separated after about a year. The respondent said he had never received any official divorce papers but he feels certain that he is divorced.
In March 2003 the respondent and a Ms A, also a person of Sri Lankan origin, were married in a Sri Lankan ceremony. They met and lived in Australia. This was not a marriage performed under Australian law but for all intents and purposes Ms A became the respondent's wife. The relationship bore a son, B, in January 2004.
The complaints
The complaints arise from two incidents in New South Wales in April 2005 and one in Queensland in 1998.
Complaint One was admitted. Ultimately the HCCC made no submissions in respect of the Queensland conviction. Although the finding of guilt was conceded the Tribunal has effectively ignored it.
Complaint Two was contested with the exception that Particulars numbered 3 and 4 were admitted. These related to accusations made by the respondent against a KH and a Dr B. In respect of these two admissions Dr Sudath gave reasons to excuse his conduct.
The convictions in Complaint One relate to the following offences:
(a) On 29 April 2005 the respondent had sexual intercourse with Ms A without her consent, knowing she was not consenting (Crimes Act 1900, Section 61I).
(b) On 30 April 2005 the respondent assaulted Ms A (Crimes Act 1900, Section 61).
The first of the offences is generally described as "rape", the second as "common assault".
On 23 March 2007, following a trial before a judge and jury, the respondent was convicted of the above two offences. The respondent was released on bail between conviction and sentence.
The respondent was sentenced on 21 September 2007. In respect of the rape he was sentenced to a period of imprisonment of five years with a non-parole period of three years. For the common assault he was sentenced to a period of nine months imprisonment with a non-parole period of six months. An appeal to the Court of Criminal Appeal against both conviction and sentence was dismissed on 9 September 2008.
The respondent was released from prison on 25 November 2011.
Based on the convictions, the HCCC seeks the deregistration of the respondent, relying on Section 64(1)(c) of the Medical Practice Act 1992. The parties agreed that this now repealed Act is the governing legislation.
The second complaint asserts the respondent "is not of good character" based on the facts giving rise to the two NSW convictions as evidence of the allegation and also relying on the letters about KH and Dr B. Once again the HCCC seeks deregistration of the respondent, this time stemming from Section 64(1)(d).
A hearing before the Medical Tribunal on 29 September 2011 led to a decision that the respondent was not entitled to challenge the facts behind his conviction for the above two offences. An appeal against this decision was allowed (Sudath v HCCC [2012] NSWCA 171). As a result the respondent was permitted to, and did, challenge the factual findings of the trial in the District Court. In particular he challenged Ms A's description of the detail of the rape describing a much more 'benign' (to him) scenario in which she initiated the sexual encounter, she aroused him contrary to his wishes and the intercourse after the removal of consent was brief. He entirely denied the common assault, putting forward a version in which he became the victim and Ms A was the aggressor.
The respondent's description of the events in oral testimony was an expansion of the facts he describes in his statement dated 5 September 2012 (Exhibit 1, Tab 61).
The result of the respondent's challenge to the facts was that the HCCC was required to prove the particulars of Complaint Two (other than Numbers 3 and 4). These particulars were derived from the findings of fact recorded by Nicholson DCJ in his remarks on sentence. The respondent accepts that the findings are validly based on the evidence before the jury. However the respondent says the Tribunal should not accept these findings because of the evidence he has now presented.
The 'new' material includes the statements and oral evidence of the respondent. There are also some medical reports and a number of references. The respondent did not give evidence at his trial. Ms A did not give evidence before the Tribunal. The reasons for her not doing so are set out in the affidavits making up Exhibit D. The Tribunal accepts the validity of these reasons.
The Tribunal also notes the extensive cross-examination that Ms A was subjected to in the District Court trial. She was in the witness box for over 3 days. The respondent's position was then one of total denial necessarily involving the cross-examination of Ms A on the basis that she was fabricating her allegations.
The respondent's subsequent admission of raping Ms A, although in a different factual scenario, indicates that it was the respondent who was in fact dishonest, both in his instructions to his lawyers and to the many other persons and bodies to whom he protested his innocence.
The respondent's position before the Tribunal was therefore markedly different to the stance he took at trial. His denial of the common assault was constant although his version was never tested because he did not give evidence.
Thus the Tribunal was presented with a fact finding mission in which the HCCC, carrying the onus of proof, could rely only on documentary evidence against the oral testimony of the respondent. Notwithstanding that the case was entirely in documentary form the Tribunal feels it appropriate to take into account the following:
(a) As stated Ms A gave evidence before the jury in the District Court. She was extensively cross-examined.
(b) The crown was required to prove its case beyond reasonable doubt. The standard of proof before the Tribunal is on the balance of probabilities although subject to the enhancement imposed by Briginshaw.
(c) The case put to Ms A in cross-examination is different to the case now advanced by the respondent. He challenged the whole of Ms A's assertions, assigning the characterisation of dishonesty to her evidence. He now concedes a sexual assault, albeit derived from different facts.
(d) The respondent did not give evidence before the jury. It is likely that the decision not to give evidence, no doubt influenced by legal advice, was his own.
(e) The respondent appealed against both conviction and sentence. He failed (Sudath v R [2008] NSWCCA 207).
One of the difficulties faced by the Tribunal is that the respondent has made allegations against Ms A which were not the subject of cross-examination at the criminal trial and she has not given evidence before the Tribunal to deal with these allegations. The Tribunal can be comfortably certain, as conceded by Mr Boulten, that the respondent's instructions to his lawyers were that the sex was consensual. However the Tribunal recognises it should be very cautious to infer that an absence of cross-examination on a topic was a necessary product of instructions as opposed to a tactical decision on the part of the cross-examiner.
The material tendered by the HCCC, without more, unequivocally establishes the particulars of Complaint Two. So much was accepted by the respondent.
The weight given by the Tribunal to the case presented by the HCCC is consistent with the following remarks of Meagher JA in Sudath at paragraph 102:
"The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight."
The Tribunal also accepts as correct, and fairly put, the following statement made by Mr Boulten:
"The respondent has essentially an evidentiary onus to raise material that is then capable of rebutting the primary material tendered by the applicant. In considering the respondent's evidence the tribunal does not need to reach a concluded view about every paragraph of every particular, but there may be a need, in various ways, to consider whether the evidence, as a whole, allows a conclusion that the rape occurred in a particular way, as contended for by A, and the applicant, or whether it was the way that the respondent contends." (T 283.42)
Mr Boulten went on to say, again fairly, that: "If, though, you don't believe the respondent about the version, then he has not overcome the evidential onus to rebut the significant value of the material that's before you, as it has been described."
Both parties accepted that the Tribunal's focus needed to be on Complaint Two because, although Complaint One was admitted, the circumstances behind the convictions would be an essential consideration in determining the protective orders.
The Tribunal, against this background, carefully considered the respondent's case, which was made up of the oral evidence of the respondent, Dr Roberts and Mr Taylor as well as a number of documents.
In line with Mr Boulten's formulation (paragraph 26, above) fundamental to the consideration of the respondent's case was whether the Tribunal accepted the evidence, written and oral, of the respondent. The Tribunal concluded that it could not rely on the respondent's evidence. The Tribunal found his version of both the sexual assault and the common assault unreliable and implausible. The reasons for this conclusion are given below.
Firstly, the Tribunal observed the respondent in the witness box over a number of hours paying careful attention to his demeanour. He was prone to hyperbole and the over-emphasis of his attributes. This is an example:
"Q. Yes. Yes, understand. How can this tribunal, other than your expressions of remorse, be satisfied that the flaw no longer exists?
A. Your Honour, I am very insightful man now. I - when I look back through the rehabilitation I went through, I have now developed strategies and tactics and the techniques and the skills for - it's called offence mapping, which is what we did; and I also went through intensive cognitive behavioural therapy.
In doing so, I am now skilled with strategies, techniques, to analyse my thought process and filter those thought processes before it becomes action. As I mentioned during the crossexamination, ABC of offence mapping, so that way we were taught where to pinpoint the origin of the bad behaviour came from. So that's why I'm saying I'm a very - obviously very remorseful of what happened, what I did. I'm very insightful and I'm a very different person, your Honour.
Q. The second point perhaps flows from that and that is yesterday you seemed to distinguish between the respect due to a - in your words - a blueeyed blonde and a Sri Lankan woman. If you're in practice now and in walks a Sri Lankan woman who tells you that her husband has had sex with her against her consent, would you still see her background as relevant?
A. Absolutely, your Honour. When you say background, what I'm saying is I would sympathise; I would empathise; I would not consider because she's Sri Lankan woman she was supposed to have this treatment. I would be treating her equally as I would treat for Australian girl.
And I think in the notes somewhere you probably have seen, when I went to Sri Lanka I actually wrote to the attorneygeneral in Sri Lanka, "Look, the law needs to change in this country. Is this not right for women, the - marital rape is not recognised?" And I think when I was having the interview with Dr Samson Roberts or Dr Peter Klug I mentioned that as well. I am now willing to go to that extent to use my experience, my lesson, to convinced the Sri Lankan authorities, if I could, to the best of my abilities, to even change the law in Sri Lanka. So, your Honour, I would probably think I would probably be one of the best doctors to treat a sexually assaulted Sri Lankan woman having been through this experience." (T 180.45).
The respondent submitted that his expansive manner was not necessarily a reflection of his true self. It was necessary to look behind the gloss. Dr Roberts said this:
"A. There are certainly plenty of people in substantial positions of authority and respect whom we give a lot of - to whom we give a lot of kudos to exhibit features of narcissism and exhibit a degree of grandiosity which might cause our stomachs to turn on occasion, but it certainly doesn't lead them into unlawful conduct. The fact is that - perhaps I should be absolutely straightforward - there are times when Dr Sudath's manner, use of language, intonation, even some direct comments are potentially of a nature as to lead him to come across as conceited, arrogant, superior, allknowing, and that has the potential to grate on us, but it would be inappropriate if an assessing clinician such as myself condemned everyone I saw who grated on me; in fact if I was working in justice health for any length of time and did so I would be out of business." (T 187.1)
While the Tribunal accepts the logic of Dr Roberts' remarks it nevertheless had a distinct impression of deliberate exaggeration and fabrication on the respondent's part.
The Tribunal also observes that if the respondent's self promotion are not to be taken at face value then the same caution must be applied to his effusive statements of sorrow and remorse. Here is an example:
"Q. How do you feel now about having made false allegations about the social worker, KH?
A. I'm extremely sorry. I deeply regret and I sincerely and deeply apologise for giving such a hard time to HCCC and to KH and to Dr B." (T 37.15)
The Tribunal found the respondent's protestations of remorse to be insincere and more an expression of regret of his own downfall than any genuine expression of remorse, or even concern for Ms A. There was also an overwhelming impression that the respondent was concerned to tell the Tribunal what he perceived it wished to hear in order to enhance his chances of remaining a medical practitioner. This was exemplified by the respondent's change of tack when his incorrect evidence about John Hunter Hospital was revealed (T 137.31).
The decision of the Tribunal is not however based only on demeanour and impression. It takes into account the weighing up of the whole of the evidence presented by the respondent.
Mr Boulten said that while he did not contest Ms A's reasons for not giving evidence he did rely on her 'bad' character in support of his submission that she should not be believed. Ms A had been convicted of social security fraud and was alleged by the respondent to have practised as a radiographer without proper qualifications. The difficulty with this submission is that while the convictions do not reflect well on Ms A they could reflect equally badly on the respondent. Ms A, in her statement dated18 September 2006, said the following:
"The reason why I was collecting the payments in both names is because Arun wanted me to compensate him for not receiving the DOWRY, which is a custom in Sri Lanka according to what Arun told me. This was done by me under duress." (Exhibit A, Tab 14)
The respondent, in his oral evidence, said that this allegation was untrue. He said he had not been interested in a dowry and, in any event, under Sri Lankan custom the bride's parents gave the dowry to the bride. He said Ms A's parents had said they would give her a house in Blacktown and a new Mercedes Benz. They did not. The respondent said this failure had little effect on him notwithstanding that he had bought his wife a new red Mercedes Benz at his own expense. His evidence on this matter, in common with his evidence generally, was simply not believable.
The Tribunal does not accept that being relieved of purchasing an expensive car for his wife would not have been beneficial to the respondent. The Tribunal is also mindful that Ms A has not had the opportunity to reply to the respondent's assertions although, for reasons stated above, the Tribunal does not infer, from the absence of cross-examination at trial, that the respondent did not give consistent instructions to his lawyers at the trial.
The history given to Dr Roberts also suggests the dowry issue was one of some significance to the respondent (Exhibit 2, page 6).
In April 2005, the relevant period for the present proceedings, the respondent was working at Bega District Hospital as an emergency physician. He was also apparently doing some locum work in Melbourne and New Zealand. His frequent visits to Melbourne also involved the carrying on of a liaison with another woman. The Tribunal doubts the alleged nature of this relationship. The respondent said it was a platonic connection not involving a sexual element. The respondent participated in a CORE program in which he was required to conduct certain exercises. His handwritten notes are behind Tab 6 in Exhibit C. They include the following:
(a) "In love with another woman whilst married to my wife".
(b) "Receiving the love, care, affection and attention from a woman other than the wife".
(c) "Away from home quite a lot travelling to NZ every fortnight, and to Melbourne twice a week" (the 'other woman' lived in Melbourne).
(d) "Not being totally honest with my wife about my activities in Melbourne".
(e) "Furthermore, as I will be marrying my "first love/love of my life" there is no risk of marrying a woman without genuinely loving her and then starting an extra-marital relationship with the "first love/love of my life". This situation played a significant role in my previous marriage breakdown and in my offence".
As already stated, the doctor's version of what occurred on 29 and 30 April 2005 is contained in his statement dated 5 September 2012. He expanded on this statement in his oral evidence. There does not appear to be any other document in which the detail found in the statement is present at an earlier time. Although the Tribunal could not make a finding of recent invention it does have significant doubts about the accuracy of the statement.
Paragraph 2(h) in this statement sets out the respondent's version of the sexual assault. The Tribunal finds this version difficult to accept. According to the version, both written and in oral evidence, Ms A initiated the sexual encounter by performing oral sex on the respondent and then straddling him in a manner in which his penis was inserted into her anus and she said that she would "saturate him with sex." She seems to have pressed on despite his pleas to go to sleep but then, once he was aroused, she completely lost interest and lay face down on the bed beside him. The initiation and saturation have seemingly abruptly ended for no reason. In addition, the respondent's evidence about the possible confusion between anal and vaginal intercourse was unconvincing.
The Tribunal finds Ms A's version, as expressed in her oral evidence and statements, to be more plausible. This includes an assessment of her evidence at trial, including her screaming in pain, her injuries and the medical examination by Dr B. Taken with the Tribunal's general rejection of the respondent's evidence the Tribunal is satisfied that the sexual assault occurred as described by Ms A. It is also to be recalled that the Tribunal has given "significant weight" to the findings of the trial judge.
A good deal of evidence, and submissions, concerned the so-called "cultural" element of the respondent's assertions. In essence, he said that under Sri Lankan law, at least at the time of these offences, it was permissible for a Sri Lankan man to have sex with his Sri Lankan wife without her consent. There is some support for this in Ms A's evidence (Exhibit B, page 404). There is also support in the Sri Lankan legislation that was included in Exhibit C, Tab 8.
The HCCC submitted that the respondent's reliance on this cultural background should not be accepted, for two reasons:
(a) No mention of it was made as an explanation prior to September 2011 when the respondent's first statement for these proceedings was prepared (Exhibit 1, Tab 60).
(b) The respondent is an intelligent man, he had already been married to an Australian woman whom he said would not have been subject to the same rules and he was a doctor who practised in the Australian community. Therefore he must have known that having sex with a wife, of whatever ethnicity, was unlawful.
The Tribunal thinks there is some force in the HCCC's submission but would not go so far as to entirely discount the respondent's belief in his marital rights. His descriptions of his life with Ms A, for example his control of financial affairs, suggested a domineering attitude consistent with a belief in a right to sex. Having said that, the Tribunal was unimpressed with the respondent's evidence to the effect that an Australian, blue-eyed, blonde woman (his first wife) was deserving of greater respect than his Sri Lankan born wife. He gave this evidence:
Q. For the two or three years that you were living with (Ms D), did you believe that - I withdraw that. In the year that you were married to (Ms D), did you believe that, because you got married, you could have sex with her with or without her consent?
A. She was a nice blonde, blueeyed girl from Port Lincoln, Australia - not a Sri Lankan girl. I didn't get married to her through a Sri Lankan proposal and a Sri Lankan poruwa ceremony. Absolutely not. I had full respect for her. She was a very nice girl. (T 114.43. "Ms D" has been substituted for her real name)
The respondent originally denied the sexual assault. While the Tribunal understands the respondent was entitled to require the prosecution to prove its case at trial the Tribunal notes that the defence to the charges was run on the basis of dishonest allegations by the victim, a stance which was pursued through the appeal.
The Tribunal takes the same view in relation to the common assault as it did for the rape. This was totally denied by the respondent who put forward a version in which he was the victim and Ms A was the assailant.
Following whatever happened on 30 April Ms A and B left the house. According to the respondent he desperately tried to contact Ms A but she did not return telephone calls and he was unsuccessful. Despite his alleged attempts to locate Ms A and B the respondent then travelled to his sister's home near Newcastle. This in itself seems unusual. His wife and child lived in Northmead. Why travel to Newcastle if he was desperate to find them? The police records indicate he had left his home address by the time police arrived shortly after 12.30pm (T 316.43). This is also inconsistent with his alleged searching for his family.
The next day, in the afternoon, the respondent felt chest pain. It is to be recalled here that part of the respondent's version of the assault by Ms A is that he was hit or scratched on the back with a fork and hit over the head with a saucepan. Initially in oral evidence the respondent was adamant that the injuries consequently suffered were "no big deal".
When the respondent, still in Newcastle, felt the chest pain he went by ambulance to the John Hunter Hospital where he was admitted. He was attended by a cardiologist who was also of Sri Lankan heritage and had attended university with him. The respondent was clear in his evidence that he made no reference to any injuries from the assault by Ms A until the hospital staff noticed them. The notes produced by the hospital contradict the respondent's evidence and, for other reasons, reflect badly upon him. The notes are in Exhibit E. They include the following:
(a) The respondent gave a history of the assault to the ambulance officer. He thus mentioned the assault at the first opportunity.
(b) He did so again in the triage department where the note reads: "Yesterday? Assaulted by partner. (Lac to left arm."
(c) The history recorded by the emergency department RMO is as follows: "Pt very teary and upset. States de facto partner has anger management issues and has been verbally and physically aggressive to both him and their 16 month old child. Partner has affair with drug addict and is requesting money regularly. Yesterday Pt had no money and was assaulted physically with multiple injuries. Pt states partner has inflicted burns x2 on baby and cuts (unknown word) multiple unexplained falls and rough handling of child. Partner is also verbally aggressive/constantly to him and child. Pt is thinking of taking legal action."
(d) The reference to Ms A having an affair with a drug addict referred to an associate of hers some 11 years earlier at high school. The respondent admitted the allegation was entirely unfounded.
(e) The allegation of the infliction of burns and other injuries on the child was equally false and perhaps more insidious. He said Ms A had burnt a cake that she had thrown onto the ground causing some inadvertent burns to B.
(f) Another entry states: "Yesterday, partner attacked him and baby. He sustained several injuries in the attack". The assertion that the baby had been attacked was admitted by the respondent to be false.
(g) The respondent said he discharged himself from hospital after he spoke to the cardiologist and was told that his tests were satisfactory. There was no reason for him to stay. The notes contradict this evidence. They state that the patient was "not fit for discharge" and that he "left against medical advice". This note was made after his departure was noticed and the cardiologist had been informed.
The John Hunter Hospital notes are important because they not only reveal the dishonesty of the respondent at the time of his admission but, probably more significantly, through the inconsistencies with his oral evidence raise fundamental concerns about his honesty before the Tribunal.
The documentation, from both sides, contains numerous expressions by the respondent of untenable justification of his conduct. There is also a disturbing 'shifting" of the blame to his wife. Some examples are the following:
(a) In his letter to Mr Ware in the Department of Corrective Services dated 9 March 2010 the respondent suggests the charges against the respondent are alleged to have been an invention of the victim to promote her property settlement and child custody proceedings. (Ex A, Tab 41). The Tribunal notes that following the rape Ms A lived in a women's shelter for some months.
(b) The Pre-Release Report in December 2010 refers to the respondent attempting "to cast a negative impression of the victim". (Exhibit A, Tab 42).
(c) Even more lately the respondent seemed to be attempting shift blame onto Ms A or her family. This is evident in the report of Dr Roberts (Exhibit 2, page 6).
The Tribunal had the distinct impression the respondent's admission of the sexual assault is not an indication of genuine remorse but rather an acceptance of the inevitable and a realisation that continued denial would not assist his cause.
The respondent's sending of the letters of complaint about KH and Dr B reflect particularly badly on him. They were the health professionals involved in the care and assessment of Ms A after the allegation of sexual assault. The starting point is that when he wrote the letters he had already come to terms about his guilt. In his application to enrol in the CORE program the respondent wrote, in March 2009, in relation to the rape: "I am responsible." (Exhibit 1, Tab 64). In September and November 2009 however the respondent wrote the letters about KH and Dr B making scandalous allegations including the involvement of KH in a conspiracy with Ms A and "serious professional misconduct" by Dr B (Exhibit A, Tabs 38 and 39 respectively).
The respondent's now explanation of seeking revenge on those persons he wrongly perceived as having caused his predicament is inconsistent with his assumption of responsibility some months earlier. It also bespeaks ill of his character that he would so severely smear the reputation of a medical colleague and another health professional.
Another aspect is that there was no actual acceptance of responsibility in the CORE application. He was simply making the admission to further his chances of acceptance into the program and in turn his release on parole. Dr Roberts expressed the possibility in this way:
"I'd also have to bear in mind the fact that it's written in 2009 and it's also written for a very specific purpose. It's in order to achieve entry into a sought after program which inmates know would support their release. So in my experience, whatever the driving force behind comments in such an application form, it's not uncommon for people to write what they perceive would help them gain entry into a program.
Q. You mean treat it with a pinch of salt?
A. I would say that you have to be cautious to place weight on this document in isolation." (T 198.40)
If Dr Roberts' possibility is the reality it conforms with the Tribunal's conclusion that the respondent often tailored his evidence to his perception of what he perceived the Tribunal would want to hear in order to give him a favourable result.
In addition the Tribunal does not accept the respondent's explanation for the letters about KH and Dr B as excusing his conduct. By September 2009 the respondent had been in prison for some time and had ample opportunity to come to terms with his predicament.
As already stated the Tribunal has rejected the respondent's version of the rape and common assault. Complaints One and Two are therefore found to have been proved.
Insight and re-offending
The Pre-Release report mentioned above makes this comment on the respondent's insight: "Mr Sudath appears to lack insight regarding the effect of his behaviour upon others which has been problematic at times in his interactions with other offenders and staff throughout his custodial sentence." In its conclusion the report states:
"Mr Sudath's attitude to his offences has wavered between denial and minimisation. He has failed to demonstrate genuine victim empathy or insight into his offending behaviour and apportions blame to the victim, often denigrating her and her background."
The Tribunal finds this lack of insight still infects the respondent's appreciation of his wrongdoing and remains a significant factor in the protective orders that should be made. The Tribunal notes Mr Taylor's evidence that insight is not a single concept but can be obtained in stages. Thus a person's insight may be small or more complete.
The respondent said there was no history of abuse in the relationship. This is contradicted by Ms A. She told the Dr B that :" The physical abuse story is one that has repeatedly occurred over the six years of living with her partner." (Exhibit A, Tab 18). The sentencing judge also commented: "In mid-April 2005 (the victim) had reached a point where she could no longer tolerate the abuse and violence she experienced from him." (Exhibit A, Tab 6). In fairness to the respondent, the allegation of Ms A that the respondent was deregistered and practising under an alias does not appear to be correct.
The Tribunal has mentioned above the various names used by the respondent but, unlike the prison authorities, could not reach a conclusion of deliberate use of aliases.
The respondent's assertions of his rehabilitation and freedom from risk of re-offending include reference to his participation in the CORE Moderate Program between May and November 2011. This is therapy program for men who have "sexually abused adults and/or children." The treatment report is behind Tab 5 in Exhibit C. Despite a number of supporting comments the conclusion is reserved:
"Mr Sudath is a 44 year old male with a professional background. He offended against his partner in the context of a problematic relationship. During treatment it appears the he may have attempted to portray himself in a positive light, and may have engaged in dishonesty regarding his life circumstances. Taking into account both static and dynamic risk factors, the risk rating of Low on the STATIC-99R is considered to under-represent Mr Sudath's potential risk. Poor stress management, combined with entitled beliefs within a relationship may pose most likely risk scenario for Mr Sudath. In order to manage Mr Sudath's future risk the following is recommended;
- Case Management decisions be made on the basis of supporting collateral information
- Attend relationship counselling in any future relationship
- Attend Domestic Violence program for perpetrators of domestic violence
- Maintain a work-life balance that allows for adequate relaxation pursuits, in order to assist with stress management
- Attend individual counselling with COS Psychologist to assist with stress management on a needs basis
- Attend individual counselling with SVOTP Rural Aftercare or CSOCAS accredited psychologist to assist with offence related risk management on a needs basis
- Encourage Mr Sudath to engage in honest and open communication with support people, so they are aware of risk management issues."
The Tribunal does accept that there is a good deal of evidence to suggest that the respondent is unlikely to re-offend. For example Dr Roberts and Mr Taylor are of this view and time spent in prison has no doubt had a deterrent effect.
Ultimately the Tribunal accepts there is a low risk of re-offending but does not regard this conclusion as impacting on the assessment of the respondent's character or the nature of protective orders that must be made.
Protective orders
The respondent has submitted that his registration should not be cancelled. He says he should rather be dealt with by way of the imposition of conditions upon his registration. He says that he has done his best to rehabilitate himself. He has a good deal to offer the community as a medical practitioner and he has been sufficiently punished by the sentence already imposed upon him. It is, of course, trite to say that the role of the Tribunal is not one concerned with punishment but rather the protection of the public and of the medical profession.
Perhaps reasonably, the respondent could not identify a specific time when he came to accept his wrongdoing. There seem to have been periods when he both admitted his guilt but also maintained his innocence. This has been mentioned above in relation to the letters about KH and Dr B.
The Tribunal does not think that the common assault conviction, without more, would necessarily lead to cancellation of the respondent's registration. The assault was serious, a fact which is evident in the imposition of a term of imprisonment. The Tribunal may have considered a suspension of the respondent's registration as being the appropriate protective order in respect of the conviction of common assault.
The position, however, is very different in respect of the rape conviction both viewed alone and in conjunction with the common assault and the circumstances behind them including the letters about KH and Dr B.
The details of the offences are set out in the judgment on sentencing of Judge Nicholson SC delivered on 21 September 2007 (Exhibit A, Tab 6). It is not necessary to repeat the details. Suffice to say that the offences involved not only the humiliation of the respondent's wife but the infliction of significant pain and distress. His Honour found that the offence, by a narrow margin, fell "below a mid range of seriousness". This is to some degree a technical classification, which should not be seen as mitigating the seriousness of the offence. The Tribunal notes that the Court of Criminal Appeal made this comment:
"In relation to the first count I am completely satisfied that the sentence imposed was within the range. Indeed, having regard to the serious nature of the sexual assault a non-parole period greater than that which was imposed would not have been inappropriate." (Paragraph 74, Exhibit A, Tab 7).
The effect of the finding by the Tribunal that it does not accept the respondent's version of the sexual assault and the common assault necessarily leads to a finding of his dishonesty in the witness box. Of itself, such a finding cannot be classified as a particular of being a person not of good character. However, the respondent's dishonesty before the Tribunal can be taken into account in this way: The Tribunal has little doubt, and in fact there is no real dispute, that on the basis of its findings the respondent was a person not of a good character at the time he committed the offences and probably for as long as he continued to deny them. That being so, the evidentiary onus would have shifted to the respondent to establish that he was no longer of bad character. This task is made almost impossible by his present dishonesty.
The Tribunal's findings in respect of Complaint Two lead almost automatically to a conclusion that the doctor was, and more importantly is now, a person who is not of good character. Although the role of the Tribunal in protective orders is not to punish, it does have an obligation to maintain the standards of the profession and the confidence of the public in it. It also must consider the deterrence element in relation to other practitioners conducting themselves in a similar fashion.
Further, the gravity of the offences committed by Dr Sudath, in particular the rape, is such that the following statement of Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 is applicable:
"The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour."
The Tribunal is firmly of the view that deregistration is the only option open to it having regard to its findings in respect of Complaint Two. When these findings are applied to Complaint One the same result becomes inevitable.
The HCCC submitted that if the respondent was removed from the Register he should not be permitted to apply for re-instatement for three years. Having regard to the length of time for which the respondent has been suspended the Tribunal thinks the period should be two years.
The Tribunal makes the following orders:
(a) A direction that the respondent be deregistered.
(b) The respondent should not be permitted to apply for reinstatement of his registration for a period of two years from the date of these orders.
(c) The respondent is to pay the costs of these proceedings.
ANNEXURE
NO. of
IN THE MEDICAL TRIBUNAL CONSTITUTED UNDER SECTION 146 OF THE MEDICAL PRACTICE ACT 1992
IN THE MATTER OF Dr Aron Kondasinghe Sudath, a person registered under the Medical Practice Act 1992
FURTHER AMENDED NOTICE OF COMPLAINT
TAKE NOTICE THAT the Medical Tribunal has received a complaint from the Office of the Health Care Complaints Commission ("the Commission") following consultation with the New South Wales Medical Board in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 51(1) of the Medical Practice Act 1992 ("the Act") THAT Dr Sudath of Long Bay Correctional Complex, Malabar, New South Wales, 2036 ("the practitioner"), being a medical practitioner registered under the Act:
COMPLAINT ONE
Has been convicted of offences in the State of New South Wales and made the subject of a criminal finding in the State of Queensland.
PARTICULARS OF COMPLAINT ONE
(i) On 21 September 2007 at Penrith District Court the practitioner was convicted of one count of sexual intercourse without consent under section 611 of the Crimes Act 1900 (NSW).
(ii) On 21 September 2007 at Penrith District Court the practitioner was convicted of one count of common assault under section 61 of the Crimes Act 1900 (NSW).
(iii) On 23 September 1998 Brisbane District Court found the offence of common assault under section 335 of the Criminal Code 1899 (Qld) proved against the practitioner. The Court recorded no conviction and fined the practitioner the sum of $375.00.
COMPLAINT TWO
Is not of good character.
PARTICULARS OF COMPLAINT TWO
On 21 September 2007 at Penrith District Court, the practitioner was convicted of one count of sexual intercourse without consent under s. 611 of the Crimes Act 1900 (NSW) arising out of the following underlying conduct:
(i) At all material times, the practitioner and his wife, the Complainant in the criminal proceedings ("the Complainant"), resided at Baulkham Hills with their son who was born on 25 January 2004.
(ii) On the evening of 29 April 2005, the family had returned to the family home at Baulkham Hills after a short stay in Bega.
(iii) At about 9.00 p.m., the Complainant went to a bedroom, intending to breastfeed her son. She was laying on the bed, her son at her breast.
(iv) The practitioner lay beside her and began making advances consistent with indicating a desire to have sex.
(v) The Complaint said "No. I am breastfeeding my son. Leave me alone". She was wearing a nightdress; he a sarong.
(vi) The child began to cry.
(vii) The Complainant moved from the lying position. The practitioner asked "Where's the fucking sorbolene?"
(viii) The Complainant left the room to look for the sorbolene, thinking the practitioner may use it, as he had apparently done so in the past, for self-pleasuring.
(ix) The Complainant returned to the room and was told by the practitioner "Look under the bed in our room".
(x) At the time the son on the bed was still crying.
(xi) The Complainant crawled on the bed towards the pillows where the boy was lying. She intended to lift the baby and take him from the room. As she made her way across the bed to the child, she was pushed forward so that her backside was raised but her head and shoulders lowered towards the bed clothing. Her ankle or lower leg was grabbed.
(xii) The practitioner lifted the Complainant's nightgown and put sorbolene in the region of her anus.
(xiii) She screamed "Don't do it, don't do it".
(xiv) The practitioner inserted his erect penis into her anus. It was painful for her. She was being held and was fearful of falling towards her son.
(xv) The practitioner pumped his penis into and out of the Complainant's anus. The Complainant called upon him to stop. She screamed in pain. Her son had not stopped crying and was crying still in response to the Complainant's cries of distress.
(xvi) The Complainant's whole anal area felt ripped apart.
(xvii) The Complainant sustained injury as a consequence of the incident. On her thighs there were a number of small bruises. On the angiogenital area, there were more than a dozen linear abrasions, some two or more reaching into the anal canal. Those injuries were occasioned by the application of force to the area in the course of this sexual assault. The ones reaching into the anal canal were caused by force penetration of the anus. The Complainant experienced pain when she sat upon the toilet the following morning.
2. On 21 September 2007 at Penrith District Court, the practitioner was convicted of one count of common assault under s. 61 of the Crimes Act 1900 (NSW) arising out of the following underlying conduct:
(i) On the morning following the sexual assault which occurred on 29 April 2005, the practitioner encountered the Complainant on the upper landing of their two storey dwelling at Baulkham Hills. The Complainant was carrying their child.
(ii) The practitioner asked her for her passport, claiming to need it for the purpose of opening a bank account. The Complainant replied she did not have it. Immediately the practitioner replied "Where's the fucking passport?", again to be told the Complainant did not have it. The practitioner responded "You're a fucking liar. Your parents are fucking liars." The practitioner became angry. The Complainant told the practitioner she did not want to open a bank account in her name, if the practitioner wanted to open an account he could do so himself because the Complainant would not be part of that stuff anymore.
(iii) By now, the practitioner was screaming. The Complainant turned to go down the stairs. The practitioner grabbed the Complainant's hair, banged her head up against the doorframe of the upstairs study up to three times, all the time demanding the Complainant's passport.
(iv) The Complainant lost her footing but was able to put her son on the floor. She tried to regain her footing.
(v) The practitioner said "Here is the fucking child.", and handed the child back to the Complainant.
(vi) For a second time the practitioner grabbed the Complainant's hair, pulling it as both the Complainant and the practitioner made their way down the stairs.
(vii) At the foot of the stairs the Complainant fell backwards, striking her bottom on one of the steps. The Complainant retained her son, clasping him in both arms.
(viii) Pulling on the Complainant's hair, the practitioner pulled her forward onto her feet, and pushed her towards a couch in the loungeroom.
(ix) The-Complainant sat holding the child. She-was distressed and crying.
(x) The practitioner kept continuously striking her head with his fists numerous times. The Complainant was screaming.
(xi) The Complainant was pushed to another couch. In anger, the practitioner struck the Complainant yet again in the head. The Complainant stood to defend herself by raising her hands. The Complainant called out for the practitioner to stop.
(xii) At some point the Complainant stood up, only to be pushed back to the first couch and assaulted yet again.
(xiii) The Complainant began to scream for help "Please help me, please help me.
(xiv) The practitioner grabbed a cushion and put it on the Complainant's face. The Complainant struggled for breath. She stopped screaming. The practitioner released the cushion. The Complainant commenced screaming again. The practitioner replaced the cushion on her face. The Complainant lost air and stopped screaming. The cushion was removed. The Complainant screamed a third time. Three times the cushion was replaced before the Complainant's will was overcome and she stopped screaming.
(xv) The Complainant was then told by the practitioner "Feed the fucking child." The Complainant went to the kitchen and made the child's formula. Once the formula was made the Complainant grabbed the child with one hand, her handbag with the other, and fled the house, running to a nearby neighbour's house.
(xvi) The assault was of such ferocity that it was capable of causing injuries such as deep bruising to the proximal interphalangeal joints, and a fracture of the final phalanx of the third finger.
On or about 24 September 2009, the practitioner wrote to the Commission in which he made improper allegations and comments against a social worker, KH.
On or about 27 November 2009, the practitioner wrote to the Commission in which he made improper allegations and comments against Dr B in relation to Dr B's examination of the complainant on 2 May 2005 at the Liverpool Sexual Assault Centre and Dr B's subsequent report dated 16 May 2005 (date typed 6 May 2005)
Dated: 29 October 2008
Karen Mobbs
Director of Proceedings
Health Care Complaints Commission
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Decision last updated: 22 February 2013
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