Hewett v Medical Board of Western Australia - [2004] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HEWETT -v- MEDICAL BOARD OF WESTERN AUSTRALIA [2004] WASCA 170

CORAM: MILLER J

HEARD: 21 & 22, 29 JULY 2004

DELIVERED : 11 AUGUST 2004

FILE NO/S: SJA 1049 of 2004

BETWEEN: IAN GORDON HEWETT
Appellant
AND
MEDICAL BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Medical practitioners - Complaint of infamous conduct in a professional respect - Medical Act 1894, s 13(1) - Allegation of sexual relationship between medical practitioner and patient - Whether conduct of inquiry by Medical Board constituted a miscarriage of justice - Whether finding of infamous conduct unsafe and contrary to law - Whether Medical Board justified in accepting uncorroborated evidence of complainant - Whether miscarriage of justice by reason of the failure of Board to advert to materials before it - Whether delay in holding enquiry excessive and prejudicial to appellant - Whether Medical Board compromised by presence of other complaints which were subsequently withdrawn - Whether evidence of complaints by complainant to others admissible

Evidence - Applicability of rule in Jones v Dunkel - Failure to call witness at disciplinary hearing

Legislation:

Medical Act 1894 (WA), s 13

Result:

Decision of Medical Board quashed

Category: B

Representation:

Counsel:

Appellant: Mr K J Bradford
Respondent: Ms A G Braddock SC & Ms A M Liscia

Solicitors:

Appellant: Bradford & Co
Respondent: Liscia & Tavelli

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

Adler v Australian Securities & Investments Commission (2003) 179 FLR 1
Bradshaw v Medical Board (1990) 3 WAR 322
Briginshaw v Briginshaw (1938) 60 CLR 336
De Pardo v Legal Practitioner's Complaints Committee [2003] WASCA 274
Fabre v Arenales (1992) 27 NSWLR 437
Gipp v The Queen (1998) 194 CLR 106
Herron v McGregor (1986) 6 NSWLR 246
Hewett v Medical Board of Western Australia [2003] WASC 128
Jones v Dunkel (1950) 101 CLR 298
Kilby v The Queen (1973) 129 CLR 460
Longman v The Queen (1989) 168 CLR 79
Mavaddat v The Queen, unreported, SCt of WA; Library No 920036; 19 November 1991
McKinney v The Queen (1991) 171 CLR 468
Re A Medical Practitioner [1994] 2 Qd R 52
Re The Medical Board of Western Australia; Ex parte P [2001] WASC 103
Rosenberg v Percival (2001) 205 CLR 434
RPS v The Queen (2000) 199 CLR 620
Sinha v Health Care Complaints Tribunal [2001] NSWCA 206
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588

Case(s) also cited:

Alberta v Ringrose v The College of Physicians and Surgeons of Alberta (1978) 8 AR 113
Bhandari v Advocates Committee [1956] 3 All ER 742
Buttsworth v Walton, unreported; SCt of NSW; 19 December 1991
Carver v The Law Society of New South Wales (1998) 43 NSWLR 71
Craig v Medical Board of South Australia (2001) 79 SASR 545
Duncan v The Medical Practitioners Disciplinary Committee (1986) 1 NZLR 513
Fernando v Medical Complaints Tribunal (No 2) (2003) TASSC 139
Fernando v Medical Complaints Tribunal (No 3) (2004) TASSC 29
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Jemielita v Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992
Lanford v General Medical Council (1990) 1 AC 13
Medical Board v Thurling [2003] QCA 518
Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228
Reed v Lincoln (1975) 6 OR (2d) 391
Reza v General Medical Council (1991) 2 AC 182
Richter v Walton, unreported; SCt of NSW; 15 July 1993
Ringrose v College of Physicians and Surgeons (Alberta) (No 2) (1978) 2 WR 534
Walters v Nursing Board of Tasmania (2003) TASSC 122
Warren v Coombes (1979) 142 CLR 531
Zaidi v Healthcare Complaints Commission (1998) 44 NSWLR 82

MILLER J: This is an appeal against a decision of the Medical Board of Western Australia that the appellant was guilty of misconduct that amounted to infamous conduct in a professional respect, and in relation to which the appellant's name was removed from the Register of Medical Practitioners in Western Australia.

The appellant

The appellant is a general medical practitioner who was born in December 1939. He graduated in medicine from the University of Western Australia in 1976 with the degrees of Bachelor of Medicine and Surgery. He had earlier qualified in physiotherapy with a Diploma of Physiotherapy from the Western Australian School of Physiotherapy in 1962 and a Diploma of Manipulative Therapy from the Western Australian Institute of Technology in 1979. Between approximately 1980 and 2004, he practised as a general practitioner in Como. He also had a medical practice in Dalkeith, beginning in 1987.
The appellant was highly regarded by his patients. Testimonials to his professionalism, care, concern and dedication to patients, speak very highly of his clinical skills as a medical practitioner.

History of proceedings

By Notice of Inquiry dated 2 October 2002, the Medical Board, constituted pursuant to s 4 of the Medical Act 1894 (WA) ("the Act"), gave notice to the appellant of an inquiry to be held pursuant to s 13(1)(a) of the Act asserting that the appellant may be guilty of infamous or improper conduct in a professional respect, by reason of certain allegations that he had engaged in untoward behaviour towards four named women.
Relevantly to the present appeal, one of the allegations related to a complainant named Y. It was formulated within the Notice of Inquiry in the following terms:
"1.5On dates unknown between 1 March 1988 to 31 January 1992 in the course of providing medical treatment to [Y],
1.5.1you kissed [Y];
1.5.2you caused her to remove her clothing, without proper cause.
1.6During the period 1 March 1988 to 31 January 1992 you engaged in a sexual relationship including sexual intercourse with [Y] who was at the time one of your patients."
The Notice of Inquiry was later amended pursuant to orders of the Board dated 4 March and 1 July 2003 respectively. The allegations in relation to infamous or improper conduct toward [Y] were unaltered. The Notice, however, deleted allegations in relation to two complainants.
On 1 July 2003 the Board commenced its inquiry into the allegations against the appellant but on that day was informed that no evidence would be led in relation to allegations made by one B. Those allegations were then dismissed, leaving only for determination the allegations relating to Y. The inquiry was then adjourned to 2 August 2003 on the basis of the appellant's ill‑health.
On 6 August 2003 the Board inquired into the fitness of the appellant to practice. This inquiry was occasioned by evidence put to the Board by the appellant in relation to his ill‑health. The result was that the Board ordered the appellant to reduce his daily working regime to six hours, with a weekly maximum of 36 hours.
On 7 August 2003 the Board commenced its inquiry in relation to the amended Notice, which by then related only to complaints made by Y. The inquiry was held on 7 and 8 August 2003 and at the conclusion of the proceedings, the Board reserved its decision.
On 3 May 2004 the Board delivered its decision. It found the allegations contained within par 1.5.1 and 1.6 of the amended Notice of Inquiry to have been proven to the requisite standard, but found that the allegations contained in par 1.5.2 had not been proven.
In finding the allegations contained within par 1.5.1 and 1.6 to have been established, the Board made six specific findings. They were:
"(a)In approximately May/June 1988 in the course of providing medical treatment to [Y] the Practitioner kissed her;
(b)Between 1 March 1988 and 28 January 1992 while [Y] was a patient of the Practitioner he engaged in a sexual relationship with her;
(c)Between 1 March 1988 and 28 January 1992 while [Y] was a patient of the Practitioner he hugged and kissed her;
(d)Between 1 March 1988 and 28 January 1992 while [Y] was a patient of the Practitioner he fondled her breasts and 'touched her up';
(e)In about November 1988 while [Y] was a patient of the Practitioner he had sexual intercourse with her in his surgery on a Sunday evening;
(f)In late January 1992 while [Y] was a patient of the Practitioner he laid on top of her and kissed her neck and breasts."
The Board gave very extensive reasons for its conclusions. They occupied 71 pages of close type. The Board's conclusion was that the misconduct of the appellant found to have been established constituted infamous conduct in a professional respect contrary to s 13(1)(a) of the Act.
After hearing submissions in relation to the appropriate penalty, the Board resolved that the appellant was not a fit and proper person to practice medicine and ordered the removal of the appellant's name from the Register of Medical Practitioners in Western Australia. The power of the Board to make such an order is contained in s 13(3) of the Act.
The Board delivered detailed written reasons for its decision to remove the appellant from the Register. They were published on 12 May 2004 and (together with orders in relation to costs) comprised some 33 pages of close type. It is sufficient to reproduce par [15] of those reasons as a succinct summary of the conclusion reached by the Board:
"[15] The professional misconduct of the Practitioner is extremely grave. It is misconduct of a character which places it within the upper range of the spectrum of sexual exploitation. He touched [Y] in an entirely inappropriate manner during the course of treatment. He engaged in a sexual relationship with a vulnerable patient which culminated in sexual intercourse with her in his surgery. His exploitative behaviour continued on an intermittent basis throughout the years he was her treating doctor until [Y] ended their professional association in late January 1992 following a 'humiliating' incident when, after he had treated her, the Practitioner laid on top of her and kissed her neck and breasts. There was a sustained serious breach by the Practitioner over some four years of the trust reposed in him by [Y], the general public and his professional colleagues and of his fundamental obligations owed as a medical practitioner."
The proceedings before the Board occupied from the time of the first complaint to the Board about the appellant until the ultimate determination on 7 May 2004, a period of some 10 years. On any view of it, there were very substantial delays in the resolution of the matter in respect of which the appellant was ultimately found guilty of infamous conduct.
A helpful chronology of events prepared by the solicitors for the respondent reveals that it was on 22 March 1994 that Y made a statutory declaration to the Board particularising her complaints against the appellant. The Board wrote to the appellant on 25 March 1994, attaching a copy of Y's statutory declaration and seeking the appellant's response. That response was received promptly by letter from the appellant on 31 March 1994. It was followed up by further correspondence from the appellant dated 5 May 1994.
In mid‑1994 the appellant was charged with various criminal offences relating to three women. No charges were ever laid in relation to any complaints made by [Y]. It is unnecessary to trace the history of the criminal proceedings, save to say that by 25 July 1997, all allegations of criminal conduct were either withdrawn or dismissed.
Between March 1994 and July 1997 there can be no fault attributed to the Board by reason of any failure to proceed with any disciplinary proceedings which had been initiated by complaints from Y or any other persons. Clearly, resolution of all criminal proceedings was required before any disciplinary proceedings could be contemplated.
It was not, however, until 20 October 1997 that the Board wrote again to the appellant. The letter related to a statutory declaration of another complainant and it sought the appellant's comments. The response was a letter from the appellant's solicitor to the Board dated 1 December 1997, in which the opportunity was sought to make further submissions to the Board if any decision was made to pursue the various complaints. There was then a substantial delay until mid‑2001, at which time the Board granted to the appellant an extension of time within which to provide further submissions. Submissions were ultimately provided to the Board by the appellant on 14 August 2001.
There was then a somewhat inexplicable delay until September 2002 when the Board apparently obtained advice from senior counsel. On 17 September 2002, it resolved to proceed with an inquiry in relation to four complainants.
Having made its decision to proceed to inquiry in relation to the four complaints, the Board on 2 October 2002 issued the first Notice of Inquiry. As I have pointed out, it alleged infamous or improper conduct in relation to four complainants. Ultimately, all complaints fell away apart from those of Y.
Between 2 October 2002 and 7 August 2003, there were numerous applications and proceedings initiated by the appellant. On 20 February 2003 the appellant commenced proceedings in this Court against the Board (CIV 1171 of 2003) seeking a declaration that the holding of the proposed inquiry by the Board would constitute an abuse of process and seeking an order that the inquiry, the subject of the Board's Notice, be permanently stayed.
Shortly after the commencement of these proceedings, the appellant made application to the Board on 16 April 2003 for an interim stay of the inquiry. That application was listed for hearing before the Board on 6 May 2003, but subsequently relisted for 22 May. It was heard on that day and dismissed.
On 9 June 2003 the appellant filed in this Court in CIV 1171 of 2003 an application for an interim injunction to restrain the Board from hearing or taking any further action in relation to the matters the subject of the Minute of Amended Notice of Inquiry issued on 2 October 2002, until such time as the Supreme Court action had been heard and determined. That application came before Scott J on 25 June 2003. The following day Scott J dismissed the application. In the course of his reasons for judgment (Hewett v Medical Board of Western Australia [2003] WASC 128), Scott J said (at [28] ‑ [31]):
"28 So far as the legal principles surrounding the application are concerned, as this is an application for an injunction, the Court is required to take into account all of those factors to which each counsel has referred, both in their oral submissions and their written outlines. In particular, I would refer to the following:
1.The fact that the defendant is a disciplinary tribunal which has the responsibility of supervising medical practitioners and their registration in accordance with the terms of the Medical Act. The Board has the important role of ensuring that the public is properly protected in relation to the conduct of medical practitioners: Herron v McGregor (1986) 6 NSWLR 246; Walton v Gardiner (1993) 177 CLR 378, at 395.
2.The right of the plaintiff to a speedy trial: Bell v Director of Public Prosecutions [1985] AC 937; Jago v District Court of New South Wales (1989) 168 CLR 23, at 33 - 34.
3.The question of fairness to the accused in terms of the availability of evidence and the capacity of witnesses to recall events occurring so long ago.
4.Ensuring that the proceedings are not an abuse of process in the sense of being so unfair or oppressive as to cause the inquiry to be properly regarded as unfair: Herron v McGregor (supra).
5.The fact that the plaintiff elected to bring this application in civil proceedings 1171 of 2003 rather than appeal against the decision of the defendant delivered on 3 June 2003: see 'Spry Equitable Remedies' 4th Edition at page 465 and the authorities cited therein.
6.The history of this matter which I have taken into account and which is set out in detail in the chronologies provided by counsel for each of the plaintiff and the defendant, including reference to the criminal proceedings that were instituted and ultimately not pursued and which must have caused considerable stress for the plaintiff.
29It should also be mentioned that whilst criminal charges were pending against the plaintiff, as I have already explained, it was not appropriate for the defendant to conduct the inquiry: see Martins & Ors v Racing Penalties Appeal Tribunal of Western Australia & Anor, unreported, FCt SCt of WA; Library No 970519; 10 October 1997. That factor does account for some, although by no means all of the delay in this case. In that context it should be remembered that although the writ in this matter issued on 20 February 2003, it was not until 9 June 2003 that the plaintiff filed the application for an interim injunction. That fact should be considered in conjunction with the Board's reasons which were published, as I have said, on 3 June 2003.
30The inquiry to be conducted by the Board is scheduled to take place over a period of five days, commencing on Monday, 30 June 2003 and concluding on 4 July 2003. The parties have been aware of those hearing dates since 26 March 2003.
31No doubt the Board will take into account, in the course of the inquiry, the difficulties to which the plaintiff has referred. If it be the case that an adjournment is necessary for the plaintiff's witnesses to be called before the inquiry, either because of the difficulty in locating them, or for health reasons, then no doubt the defendant will consider such matters. In addition, as I said to counsel in the course of hearing this application, the plaintiff's medical notes (at least to the extent that they have been recovered) can no doubt be used for the purpose of having witnesses refresh their memories about events on particular dates or at particular times. To the extent that some of the notes have not been recovered, if it becomes important, the Board can either allow an adjournment or deal with an application either for a subpoena or for other steps to be taken to locate the notes in question. That, however, is a matter for the Board and not for this Court to consider."
As I have already mentioned, on 1 July 2003 the Board commenced its inquiry. However, on that day the appellant made application to dismiss the proceedings before the Board. The application was in part based upon his ill‑health. The Board resolved on 2 July 2003 to adjourn the inquiry until 6 August 2003. That decision was based upon the poor health of the appellant. On 6 August 2003 the Board investigated the appellant's state of health and having resolved that aspect, on 7 August commenced the inquiry.
It is unnecessary to relate the events that occurred after the reservation by the Board of its decision at the conclusion of the inquiry. There were further proceedings in the Supreme Court, including an application by the Board on 23 December 2003 to strike out the action as an abuse of process and failing to disclose a cause of action. That application was dismissed on 6 April 2004. On 3 May 2004 the Board delivered its reasons for decision in which it found the appellant guilty of infamous conduct.

Delay

As Scott J observed in his reasons in Hewett v Medical Board of Western Australia (supra) the appellant was, in relation to this inquiry, entitled to a speedy resolution of it. The question of fairness to the appellant by reason of the long delay between the complaints made and their ultimate resolution, was a factor of importance which Scott J expected the Board to take into account in the course of its inquiry.
Whichever way one looks at the history of the matter, it was entirely unsatisfactory that allegations of the existence of a sexual relationship between the appellant and Y between May 1988 and January 1992 should have taken until May 2004 for the Board to resolve. Whilst a substantial portion of the delay was occasioned by the fact that there were criminal proceedings on foot, and the inquiry clearly could not proceed at that time, there were, nevertheless, other delays which appear to have been the responsibility of the Board itself. For these no reasonable explanation is apparent.

On 1 December 1997 the appellant's solicitors wrote to the Board, indicating that if the Board decided to pursue further any complaints against the appellant, they (the solicitors) would seek the opportunity to make further submissions to the Board. It was not until 13 June 2000 that the solicitors for the Board wrote to the appellant's solicitors inviting submissions on whether the Board should proceed with an inquiry. That was an inexplicable delay of 2 ½ years.
There was another lengthy delay after the appellant had made submissions to the Board on 14 August 2001. It was not until 17 September 2002 that the Board resolved to proceed with an inquiry. The delay was 13 months.
By the time Y gave evidence before the Board on 7 ‑ 8 August 2003, more than 15 years had elapsed from the date of the first of the improper acts complained of. On any view of it, that meant that the Board was faced with difficulty in determining whether the allegations could be substantiated. The appellant was also faced with difficulty. His difficulty included a lack of opportunity to explore the surrounding circumstances of each alleged offence because of the delay which had occurred.
In the context of criminal proceedings, McHugh J, in Longman v The Queen (1989) 168 CLR 79 (at 107) made the following observations about the fallibility of human recollection in testifying about incidents of sexual misconduct:
"The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling."
At 108 his Honour added the following observations about the difficulty posed to those who are called upon to defend allegations of sexual misconduct in these circumstances:
"To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony."
These observations are equally applicable to a disciplinary inquiry in which a medical practitioner is accused of sexual misconduct. The extent to which this issue of delay may have made the conclusions of the Board unsafe will be further explored in these reasons.

Evidence before the Board

Evidence of Y

The primary evidence against the appellant was that of Y. She was called before the Board on 7 August 2003 and her examination‑in‑chief was limited to the adoption of a statement made on 27 June 2003 for the purpose of the proceedings. The statement having been tendered and marked, Y was then made available to counsel for the appellant for cross‑examination.
Y's statement signed 27 June 2003 was by way of an elaboration of a statutory declaration she had made on 6 March 1994. Her declaration was just over 10 pages in length, but the statement (without any annexures) comprised some 20 pages or 102 paragraphs.
In the statement, Y said that although she was unemployed due to inability to work occasioned by various injuries, she was a trained nurse and real estate person. She had first attended the appellant's surgery in March 1988 in relation to an injured left shoulder. She consulted the appellant regularly between 16 March 1988 and 20 August 1991, and then saw him on one further occasion on 28 January 1992. She underwent manipulative, magnetic and laser therapy and the injection of local anaesthetic into the shoulder.
Y alleged that in May/June 1988 the appellant appeared to be what she termed "touching her up" whilst he was massaging her back and neck. She said his hands often made contact with her bare breasts. On one occasion she was about to complain when she alleged that the appellant took her in his arms and kissed her passionately. To this she initially responded, but then pushed him away.
Y contended that on the next visit to the appellant she asked for a referral to another doctor because she was so upset by what had happened. She said that the appellant was sympathetic but convinced her that another doctor might not recognise her condition. As a result, she agreed to stay with the appellant after he assured her that he would make no further sexual approaches.
Y contended that she had asked the appellant to refer her to a pain clinic, which he did in or about July 1988. There she saw a psychiatrist, Dr Tim Clarke. The significance of what she said to Dr Clarke at this time will emerge later.
Y contended that after the May/June 1988 incident the appellant would often brush her breasts while massaging her and would often place his hands on her bare breasts and fondle them during manipulation.
Y contended that on a Sunday evening in or about November 1988 the appellant rang her at her home and asked her to come to the surgery for treatment. She arrived at the surgery and initially went for a walk by the river with the appellant. When she returned to the surgery the appellant undressed her and himself, and whilst she lay on the treatment table he had sexual intercourse with her. She claimed that the appellant had thrown a condom into the bin in the room which occasioned her some amazement or concern.
Y then alleged that she thought the appellant may have had sex with her again during regular surgery visits but she was not sure and could not recall. She made reference to one occasion when he allegedly leaned across the head of the treatment table whilst she was lying down as if he wanted oral sex. She was unable to recall the date or dates when this event had occurred. She said she had a vague memory of being concerned about him throwing another condom into the bin, but it was very hazy and something she preferred to forget.
I mention in passing that on any view of it, this testimony would require any tribunal inquiring into such allegations to look with extreme care and caution at the evidence of Y. The vagueness with which reference was made to alleged subsequent sexual acts is not easy at first glance to understand.
It appears that during 1990, Y saw some other medical practitioners. She describes her relationship with the appellant during 1990 as fluctuating between being platonic, sometimes indulging in hugs and kisses, but at others more than platonic, with fondling in some way during treatments.
Nothing specific was alleged by Y until January 1992 when she made an appointment for treatment on the Tuesday after Australia Day. She had been to a funeral and was very upset. She contended that the appellant had treated her and then dropped the treatment table lower. He then lay on top of her and started kissing her on the lips and then the breasts. She said:
"… I wanted to be close to some one and I responded. Then we both came to our senses and stopped. Suddenly he threw the door to his room open and became very officious, thanked me for dropping in. I was sitting there in just my scanties exposed to any one who walked down the passage way."
This was the totality of Y's evidence in relation to the events alleged to have occurred between 1 March 1988 and 31 January 1992.
Y did, however, in her statement make reference to various other alleged sexual acts. These allegedly occurred at a time after she had ceased a professional relationship with the appellant. They were not the subject of the allegation of infamous conduct and although invited to consider the incorporation of them in the Notice of Inquiry, counsel representing the Board declined that invitation.
The basis upon which this evidence was received is unclear. The Board was not bound by the rules of evidence and so the strict rules of admissibility of evidence in criminal and other cases do not apply. However, unless the evidence of sexual relations after January 1992 was received simply to complete the picture of the total relationship between Y and the appellant, it is difficult to see what relevance it had. The evidence was not evidence of the so‑called "guilty passion" which is often admitted to explain why isolated acts of a sexual nature the subject of charges must be seen in the context of a continuing sexual relationship. There, the evidence of passion will inevitably predate the sexual incidents the subject of complaint. Even then, there are strict limitations upon the basis of admissibility of such evidence. Judicial views at the highest level differ in emphasis about the basis of admissibility of such evidence, but the observations by Callinan J in Gipp v The Queen (1998) 194 CLR 106 at [182] highlight the difficulties with this evidence and the narrow compass within which it must be confined:
"I would, with respect, [therefore] reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."
In any event, Y gave extensive evidence about events that allegedly occurred between the appellant and herself after January 1992. They included allegations of further sexual intercourse. This included an occasion in or about July 1993 when the appellant allegedly stayed overnight with Y. Again, some time after September 1993 a sexual relationship between the two was alleged to have recommenced and another act of sexual intercourse was identified. Around Christmas 1993 the relationship appears to have come to an end and the last occasion upon which Y contended that she spoke with the appellant was February or March 1994.
The cross‑examination of Y was very extensive. It occupies 81 pages of close type and appears to have all taken place on 7 August 2003. It is impossible to detail the cross‑examination, but certain portions need to be highlighted.
When asked whether she had discussed with any other persons what she was putting in her statutory declaration submitted to the Board in 1994, Y said that she had told some but not all of the issues to a friend named Lyn Derham in January 1993. The significance of this will become apparent when reference is made to Ms Derham's evidence.
It was suggested to Y that she had been anxious to achieve a long‑term relationship with the appellant but she denied that she had. She said she only wanted a long‑term relationship with him if it was a healthy one, but in contradistinction it was a "sick situation". Again, the significance of this will become apparent by reference to further evidence.
Y was cross‑examined about the circumstances in which she saw Dr Tim Clarke. She said that she went to see Dr Clarke because of the appellant's sexual approaches to her, namely the kissing and inappropriate touching of her breasts. She made it plain that it was the stress of what occurred that caused her to see him. However, when asked whether she told Dr Clarke what the appellant had done she said she had not, because it "would have been my word against his". She added:
"… I had enough stresses on me without having to deal with going to the Medical Board and lodging a complaint and having my word against his and everything else."
In the course of her cross‑examination, Y revealed that in 1988 ‑ 1989 she had taken her daughter to the appellant because "he seemed such a devoted father". Much emphasis was put upon this by counsel for the appellant at the hearing of the appeal and I will return to it.
Y was strongly cross‑examined about the alleged act of sexual intercourse in or about November 1988. It was put to her that the incident had never occurred. This she denied. It was put to her that she could not "tie herself down" to November 1988 as the date when the sexual intercourse had allegedly occurred at the surgery. She replied that she could not do so but could only estimate it.
Y was also cross‑examined in relation to the allegations of subsequent sexual acts. It was put to her that her confusion about not knowing whether she had sex on later occasions had led her to confuse that she did have sex on the one occasion which was the subject of complaint against the appellant. To this she answered:
"I can recall him putting another condom in the bin. I definitely have absolutely no doubt about the fact that he dropped his trousers and approached me while I was lying on the table - approached my head as if he wanted me to have oral sex with him. Those two things I can definitely remember happening. If he put a condom in the bin, I presume that he had sex with me, but a lot of that stuff I've just blanked out."
Y's "presumption" that the appellant had had sex with her illustrates the unsatisfactory nature of much of her evidence. It put the allegation of any later acts of sexual intercourse in the surgery in a very questionable light.
Y was cross‑examined about the statement in her statutory declaration that she had told her daughter that she was having an affair with the appellant. Her evidence was as follows:
"I told my daughter I was having an affair with Dr Hewett and she was very upset but I wanted to be sure he wasn't harming her. (Neither my daughter nor I can remember exactly when that was and I notice I have blank periods in my diary when I'm under extra stress or going through confusing times.)"
Y's daughter was not called at the hearing and this is the subject of complaint by counsel for the appellant at the hearing of the appeal. I will make further reference to the issue.
Y was also cross‑examined as to whether or not she was suffering depression in consequence of what had occurred. It was pointed out to her that she had used the words "confused and angry" a number of times in her statement. She was asked whether her confusion, anger and inability to remember things accurately had led her to hallucinate or to fantasise. To both of these questions she answered in the negative. Further reference will be made to this.
Y was asked whether she was in love with the appellant. She answered in the following way:
"… Depends on your definition of love, doesn't it? I have two definitions for love - 'I love you because I need you,' or 'I need you because I love you,' and 'I love you because I need you' to me is a very sick definition of love. It's not the one I like to go on, but with this man this was the situation I was in. I needed him because he had so much control over my life."
Y was asked whether she wanted a long‑term relationship with the appellant and she answered as follows:
"You say you needed him. Would you have wanted a long‑term relationship with him at that stage? --- Having seen the way he treated his wife and spoke about her, I have no illusions about wanting to be in her situation or a situation anything like that."
Again, I shall make further reference to this.
When asked whether she wished the appellant and she could have been together, Y said:
"… I didn't so much wish we were together. I just wondered whether at any time he'd had any feelings for me because he had seemed so caring and concerned. I just wondered, you know."
The appellant's case at the hearing before the Board was that he had never engaged in any sexual relationship whatever with Y. It was put to Y that she had imagined the matters about which she complained. The passage is as follows:
"I suggest the position was that you didn't have a relationship of the sort you wanted at the time you saw Jess Green, and when you heard how prevalent doctor‑patient relationships were, that caused you to resent the absence of the sort of relationship you would have liked? --- I suggest that you're manipulating things to your way of thinking. I know that I was in an unhealthy relationship with your client and that I sought referral to a counsellor because I wanted to break free of that relationship, not because I was imagining it.
Do you deny what I've put to you? --- I deny that I have imagined any of it. Your client and I both know that everything I've said in my statement is true. I'm under oath and I'm wondering if he'll have the integrity to admit it under oath too."
Other evidence called by counsel assisting the Board
Evidence of Dr Christopher Lee
Counsel assisting the Board sought to tender in written form a statement of Dr Christopher Lee, but met with an objection from counsel for the appellant. There were two grounds of objection. The first was that the evidence of Dr Lee was irrelevant and the second was that his statutory declaration was unnecessary because his clinical notes told the story. Counsel submitted to the Board that there should not be a statutory declaration reciting what the notes mean, but rather the notes should stand for themselves.
It is interesting to observe that Mr Mullany, a member of the Board, expressed the view at this point that the declaration had been prepared for convenience so that the Board did not have to interpret the doctor's scrawl. Unfortunately, this led to a problem. It was revealed on the hearing of this appeal that the statutory declaration of Dr Lee did not in some respects reflect accurately his notes. Nor was it comprehensive.
In the end, the Board resolved that it would accept the evidence of Dr Lee being tendered in the form in which counsel proffered it. Counsel for the appellant was invited to cross‑examine Dr Lee but he declined to do so.
It will be necessary to look closely at Dr Lee's declaration and the notes attached to it when I refer to the grounds of appeal. It is sufficient to say at this point that Dr Lee's evidence was that he was a clinical psychologist to whom Y had been referred in or about 1993. The initial letter of referral stated that Y had "many unresolved grief situations and is keen to work on unresolved traumas". At the initial meeting with Dr Lee she said that she was not coping with her relationship "with Ian" (whom she identified as the appellant). According to Dr Lee she made a complaint that she had been seeing the appellant between March 1988 and January 1992 and during that time the relationship had become a sexual one. Y told Dr Lee that the first sexual contact had taken place in the appellant's surgery when she was attending for treatment and that the last sexual contact had taken place in September 1992. She said she had ceased treatment with the appellant in January 1992.
The evidence of Dr Lee was accepted by the Board on the basis that it established consistency in Y's accounts of relevant events over time and supported her credit generally. The Board recognised that the evidence was in part hearsay evidence but pointed out that it was not bound by the rules of evidence which governed judicial proceedings and accepted that it was evidence of a character which supported the general credit of Y.
In judicial proceedings, most of Dr Lee's evidence would prima facie be inadmissible. It was not evidence of any recent complaint which would be an exception to the hearsay rule in criminal proceedings for sexual assault and it was essentially self‑serving hearsay evidence which would be inadmissible in criminal or any other proceedings. The decision of the Board to accept the evidence as showing consistency in the evidence of Y appears to be based upon the formulation of the exception to hearsay evidence which justifies admissibility of a recent complaint in cases of sexual offences. The basis of admission of that evidence is set out in Kilby v The Queen (1973) 129 CLR 460 by Barwick CJ at 472:
"The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion, upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."

Interestingly, the one person to whom recent complaint was made (Y's daughter) was not called to give evidence. I shall make further reference to this when dealing with the grounds of appeal.
Evidence of Lynette Derham
Ms Lynette Derham was called to give evidence. Her statement to the Board was identified as true and correct. The statement revealed that Y had been a friend of Ms Derham since 1969 or 1970. In late 1992 she had telephoned Ms Derham, telling her that the appellant had turned up at her house late one night and told her that he "needed her". According to Ms Derham, Y was happy and excited about this. In a passage deleted from the statement at the request of counsel assisting the Board, Ms Derham said:
"Not long after this telephone conversation, I believe that the relationship between [Y] and Dr Hewett became sexual. I have no specific recollection of [Y] telling me that Dr Hewett had gone to bed with her, but I believe that she did tell me this, and it would have been something she would tell me."
When cross‑examined, Ms Derham elaborated upon this as follows:
"You received a telephone call from [Y] in late 1992, I think you say? --- Late in that year.
It might have been as late as December? --- All I can say is late. I thought probably September, October, but I can't be exact on that.
Did she talk about a practitioner, Dr Ian Hewett on that occasion? --- She did.
Did she talk in terms that it was good news at that time as far as she was concerned? --- No. I think she was more confused and if anything a little apprehensive, but that may have been my own reaction.
And was that because she told you that she had just commenced a sexual relationship with Dr Hewett? --- Yes."
The significance of the final answer will become apparent when I deal with the grounds of appeal.
Evidence of the Appellant
When the appellant was called to give evidence, he identified and adopted as true and correct his response to Y's initial statutory declaration and a statement he had made for the purpose of the proceedings before the Board on 29 July 2003.
The response to Y's statutory declaration was by way of a letter to the Assistant Registrar of the Board, dated 31 March 1994. It comprised some eight pages and consisted of a total rejection of the allegations made by Y. The appellant said:
"I reject, totally, all of the allegations made by [Y] alleging misconduct of a sexual nature and alleging a sexual relationship occurred between us.
I am disappointed by these allegations, not only because they are untrue, but because I considered [Y] to have become a friend over the years after she ceased being a patient."
The balance of the letter dealt with each of the specific allegations made by Y and in each case, any allegation of sexual misconduct was emphatically rejected.
The appellant said in relation to Y's contentions about the relationship after the cessation of treatment, that it was only ever his intention to have a friendship with Y and at no time did he encourage more than a platonic relationship. He concluded the letter with the following:
"I find [Y] complaint to be malicious and disappointing. I believe [Y] is resentful towards me because it was she who wished for a closer relationship than the simple friendship which I wanted and which I thought existed.
[Y]'s allegations, like the allegations of the other women are very easy to make, but extremely difficult to defend. I can only reiterate, that they did not occur and I am staggered and disappointed that they have been made."
The statement of the appellant is a very comprehensive document which outlines the appellant's background, qualifications, medical condition and professional relationship with Y. Much detail is contained in it about the way in which Y was treated. The statement concludes with a declaration that at no time did the appellant ever have a sexual relationship with Y or any other patient. The appellant conceded that from late 1992 he developed a friendship with Y, but stressed that he did not engage in any sexual relationship with her. The concluding paragraphs are as follows:
"35.It is true, as [Y] suggests, that from late 1992 I did develop a friendship with her; but I did not engage in any sexual relationship with her. I saw [Y] on an infrequent basis and usually after she had contacted me by telephone.
36.I was grateful for [Y]'s friendship at various times of personal hardship. However, at the same time I would meet with other friends of mine, including patients, for support and to socialise.
37.At no time whilst [Y] was a patient of mine, nor subsequently in the course of our friendship did [Y] express to me any romantic interest in or attraction to me.
38.…
39.I would accept that I may have been naïve in my dealings with [Y] in that I have accepted her offer of friendship at face value and without suspecting anything other than that.
40.However, I was genuinely concerned for her well‑being and I consdiered that social contact with her was beneficial and I enjoyed her company."
Following some additional examination‑in‑chief of the appellant at the hearing before the Board, counsel assisting the Board was invited to cross‑examine the appellant. A substantial cross‑examination then followed. The appellant reiterated his denial that he had made any sexual advances of any sort to Y at any time during the period she was his patient. At no time did cross‑examining counsel establish that the appellant had in fact had any sort of sexual relationship with Y. Nor did she establish the existence of any lie on his part about the relationship.
There was considers the cross‑examination about the circumstances of treatment of patients, including the need for patients to remove clothing whilst being treated. The appellant's position throughout was that he would never ask a patient to take off any more clothing than was absolutely necessary for the purpose of treatment.
There was detailed cross‑examination about the circumstances in which the appellant came to develop a non‑professional relationship with Y. The details of meetings with her and the relationship that developed were fully explored. Communications from the appellant to Y were tendered to the Board and the appellant questioned about the reasons for these communications. His response was there was nothing untoward in these communications. Reference to them reveals that there is no mention anywhere of any sexual relationship having occurred between the appellant and Y at any time.
Considerable stress was placed by cross‑examining counsel on a letter written by the appellant to Y on 14 April 1993. The letter was written from Malaysia and was quite a lengthy document. It was put by cross‑examining counsel to the appellant that it was a "serious communication", particularly as it contained a reference to the appellant having contemplated suicide. When put to the appellant that it may have been inappropriate to have been discussing this matter with Y in the context of the relationship he said the two of them had, the appellant replied that he saw no reason why he should not have shared that thought with Y.
It is fair to say that the major part of the cross‑examination of the appellant related to events which succeeded the period, which was the subject of the allegations of sexual misconduct contained in the Notice of Inquiry. No doubt the purpose of this was to cross‑examine the appellant generally as to credit.
At the conclusion of the cross‑examination, counsel returned to the allegations of Y which were the subject of the Notice. The following passage sums up the appellant's response:
"I mean, your position is that [Y] has maliciously made up a complaint, a very serious complaint against you. Either that or she is deluded? -- Mm.
That would be a fair summary of your position? --- That would probably be a fair summary of the situation.
And you've already told us you had no indication of her being in any way deluded or psychotic? --- Yes, that's ---
So that really leaves your position being that she has maliciously made up a complaint against you, doesn't it? --- Well, I would probably have to accept that, yes.
So there's no real place for naivety, is there, Dr Hewett? --- Your position is that you didn't do it? --- Sorry. You've moved - you've moved me again.
I would like to know, Dr Hewett, in the simplest terms what you accept was naïve in your dealings with [Y]? --- My naivety goes back - that I wasn't aware of what the friendship meant to her rather than to me. I can say no more than that. I thought she was a very good friend. There we go. You can take the argument further with me and again I'm quite happy to --
She wasn't a very good friend, Dr Hewett. She was your patient initially, wasn't she? --- Yes, she was. True.
She was a patient who during the course of administering treatment to her you touched inappropriately. You touched her up, didn't you? --- No. That is incorrect.
There she was, receiving treatment in your room, scantily clad and you deliberately brought yourself into non‑medical contact with her unclothed body, didn't you? --- That's incorrect.
And, moreover, you took advantage of your position while she was in your consulting room on one occasion in about May 1988 and kissed her, embraced her and kissed her, didn't you? --- Again that's incorrect.
And presumably you will deny, as you have, that on any subsequent occasion you invited her to the surgery after hours? --- Yes, that's correct.
You will deny that anything further untoward occurred between you at all. That's right, isn't it? --- That's correct, yes.
You will continue to maintain that there was nothing but an ordinary doctor‑patient relationship between you and [Y] until September 1992. Is that correct? --- Yes, correct.
You have thought it necessary to advise the board that you have never used a condom in your life. Is that right? --- That's correct too.
You will deny, I take it, that on any occasion you had sex with [Y]? --- Yes, that's correct.
Consensually or otherwise? --- Consensually or otherwise, yes."
Other evidence called by the Appellant
The appellant called Edith Irene Welburn. She identified and adopted a statement made 8 July 2003, in which she set out details of her duties as a secretary at the appellant's medical practice in Preston Street, Como, between approximately 1986 and 1993. She stated that it was often necessary for her to enter the appellant's surgery whilst he was treating patients. She said that she had never once found the room to be locked when she wanted access to the room whilst he was treating a patient. She made reference to Y and stated that Y had never made any complaint against the appellant to her and had never been observed leaving the surgery upset.
When cross‑examined, Ms Welburn stated that if she needed to see the appellant whilst he was treating a patient she would first knock on the door before entering and await an invitation to enter. She did state, however, that she could never remember an occasion when she was not invited to enter after first knocking. She reiterated that the door was never locked at any time that she went to the appellant's room.
Counsel for the appellant tendered to the Board a report of Dr David Watson, dated 6 August 2003, which dealt with the appellant's state of health. There was also a statement of Dr Philip Kessly. He had worked with the appellant at his practice in Como between 1987 and 1991 and he confirmed that receptionists at the practice and he himself had unrestricted access to the appellant's consulting room. He said that it was necessary to visit the appellant's consulting room two to three times in each session when he was working at the practice and his routine was to knock and enter immediately. At no time in five years did he ever find the appellant's room barred from entering.
A letter from Dr G McDowall dated 3 May 1994 was tendered. Dr McDowall stated that he had worked at the appellant's Como practice after Dr Kessley left, doing morning sessions. He too stated that it was necessary to consult the appellant at random and unpredictable times, on two to three occasions each morning session. His usual procedure was to knock and enter the room immediately and never at any time did he find the entrance to the appellant's room barred by a locked door.

The reasons of the Board

In its comprehensive reasons the Board dealt first with the proper meaning to be attributed to the words "sexual relationship" as contained within par 1.6 of the Notice of Inquiry. It concluded that the description "sexual relationship" denoted a relationship of a sexual nature which might or might not include sexual intercourse and adopted the formulation to that effect by Dowsett J in Re A Medical Practitioner [1994] 2 Qd R 52 at 160. Nothing turns on this aspect of the matter.
The Board dealt with the legal principles which govern the determination of a disciplinary inquiry such as that being conducted by the Board. Considerable attention was paid to the standard of proof required to approve allegations made against medical practitioners and detailed reference made to the formulation of that standard in Briginshaw v Briginshaw (1938) 60 CLR 336, particularly per Dixon J at 361 ‑ 363. The Board concluded that reasonable satisfaction of proof should be established in the sense that the Board must "feel an actual persuasion of the occurrence or existence of the fact in issue". Nothing turns on the Board's appreciation of the requisite standard of proof.
Consideration was also given to the issue of corroboration. The Board was conscious of the fact that the evidence of Y conflicted with that of the appellant and that there was no evidence of any independent witness. Reference was made to the requirement as a matter of practice for corroboration in criminal cases in which allegations of sexual offences are made and to statutory amendments to the requirement for corroboration in such cases contained within s 36BE and later s 50 of the Evidence Act 1906 (WA). There was also extensive reference to the decision of the High Court of Australian in Longman v The Queen (supra) and cases in the Court of Criminal Appeal of Western Australia since that decision. Two such cases that were extensively dealt with were Christophers v The Queen (2000) 23 WAR 106 and Crisafio v The Queen (2003) 27 WAR 169. The Board appreciated the need before accepting the evidence of Y that her evidence should be truthful and accurate, and hence reliable. The Board considered that there was a need for it to give to itself a suitably adapted direction (in accordance with Longman v The Queen) that it needed to be persuaded of the truth and accuracy of Y's evidence before reliance should be placed upon it.
The Board then proceeded to deal with the clear conflict in testimony before it of the evidence of Y and that of the appellant. It said:
"[40]. This is a case where, as Senior Counsel assisting the Board expressed it, 'somebody is telling lies'. No suggestion was advanced that [Y] is, or was at any material time, delusional or suffering from any psychiatric disorder compromising her capacity to distinguish fact from fantasy. No evidence to this effect was adduced. Either the sexual contact [Y] alleges occurred did happen or she lied to this Board. The nature of the sexual contact alleged eliminates, for all practice purposes, the possibility that she may have been mistaken as to what occurred between her and the Practitioner or that she may have misinterpreted what unfolded. This is not a case where there may be room for doubt whether physical contact made (eg; a brush of the breast in the course of examination) was intentional or unintentional, improper or innocent. The physical contact alleged to have occurred went well beyond what may be described as 'normal' or incidental given the nature of the practice of the Practitioner as a manipulative therapist. Here physical contact of an unmistakeable and clear sexual character is said to have occurred - 'passionate' kissing on the lips, 'hugging', 'fondling' and kissing of the 'bare' breasts', 'touching up', kissing on the neck, laying on top of [Y] and sexual intercourse.
…
Although significant time has elapsed since the period the focus of attention, the relevant circumstances of this Inquiry are materially different to those in Longman v The Queen. [Y] first complained (in writing) to the Board of the behaviour of the Practitioner in March 1994 some 26 months after her professional relationship with him ended and some six years after the first sexual contact is said to have occurred. There is evidence before the Board that she revealed to others details of her sexual relationship with the Practitioner prior to lodging that complaint. No reasonable possibility exists that her evidence was honest but erroneous due to the time that has now passed or any other factor. [Y] was a mature adult woman (not a young child or adolescent) when the sexual impropriety alleged to have occurred took place. She was fully aware and appreciative of what was happening during the sexual contact she claims was made. She was not asleep or waking, drugged or otherwise intoxicated at the material moments. There is no chance that [Y] is mistaken as to what transpired or that she misinterpreted events. There is no possibility that in relation to the sexual contact alleged she may have an honest but mistaken recollection. She is either telling the truth or lying. These observations having been made, there is no doubt that a very considerable period of time has passed since those contacts are said to have occurred. The Practitioner will therefore have lost some aspects of the forensic advantage he would have enjoyed had the allegations against him been determined in a timely fashion. That fact must not be lost sight of."
The Board then added:
"[44]. It should be recorded at this point that, in this Inquiry, having examined carefully all of the evidence adduced, the Board is convinced that the substance of the evidence of [Y] is true and accurate and that sexual contact of the nature alleged did occur between her and the Practitioner during the relevant period. The Board is cognisant of the fact that if it was accepted that both the Practitioner and [Y] were telling the truth as they perceive it, it would be unlikely that the facts particularised in paragraphs [1.5.1] and [1.6] of the Further Amended Notice of Inquiry would be able to be made out by reference to the requisite standard. This is not such a case. The Board is convinced that it is able to rely with confidence on the substance of the evidence of [Y] whom it finds was a witness of truth and conviction. She gave her evidence in a candid manner under what were clearly distressing and embarrassing circumstances for her. She was an impressive witness throughout her lengthy and thorough cross‑examination. Having regard to that evidence alone the Board is satisfied that the allegations she advances in paragraphs [1.5.1] and [1.6] have been proved to the requisite standard. The Board does not accept the substance of the evidence of the Practitioner. His denials of sexual contact with [Y] were fallacious. The Board has no doubt that the Practitioner lied during the Inquiry in relation to material matters in an endeavour to exculpate himself. His false evidence was provided with a view to misleading the Board in an attempt to avoid the serious adverse consequences he knew would be likely to follow a finding that he had engaged in sexual impropriety with a patient during the period he was treating her."
Having reached this conclusion, the Board then dealt with the test to be applied in relation to "infamous conduct". No issue arises in relation to that. Consideration was then given in detail to the evidence adduced before the Board. The balance of the reasons (some 39 pages) examine the testimony of each of the witnesses, with observations as to the strength or weakness of that evidence in each case. It is presently unnecessary to deal in any detail with that analysis.

Grounds of appeal

The appellant appeals from the decision of the Board on four grounds. They are detailed and particularised in each case, but the essence of those grounds can be summarised as follows.
(1)The Board's conduct of the inquiry was a miscarriage of justice by reason of:
(a)the delay in holding the inquiry;
(b)the pursuit of Y's inquiry in the knowledge that there had been complaints by three other complainants to a similar effect;
(c)the assistance given by the Board to Y in the detailed elaboration of her statement of evidence.
(2)The conclusion reached by the Board was unsafe and contrary to law by reason of the fact that the finding was based solely on the evidence of Y, which evidence was contradicted by the evidence of the appellant and which was also accepted largely on a comparison of the demeanour of Y against that of the appellant.
(3)The Board erred in finding the allegations of Y proven to the requisite standard by reason of a number of factors, which included:
(a)The finding was based solely on the evidence of Y, whose evidence was contradicted in a number of respects;
(b)in preferring the evidence of Y the Board had regard to hearsay evidence of statements which had no probative value but which were prejudicial to the appellant;
(c)insufficient weight was attached to the evidence of Ms Derham;
(d)the evidence of the complainant was inherently improbable in circumstances where she encouraged her daughter to consult the appellant at a time when Y alleged there was a sexual relationship between herself and the appellant; and
(e)generally on the totality of the evidence, the Board could not have been satisfied to the requisite standard that the allegation had been proven.
(4)The Board erred in its decision to remove the appellant's name from the Register of Medical Practitioners in Western Australia.
Some of the grounds of appeal can be dealt with immediately. They are as follows:
Ground 1(b): Other complaints
Although counsel for the appellant contended that the Board determined Y's complaints against a background of irrelevant and prejudicial propensity evidence by reason of the fact that there had been complaints by other women, I can find no substance in this ground. As Murray J made clear in Re The Medical Board of Western Australia; Ex parte P [2001] WASC 103 there is a preliminary administrative investigative role which is a necessary precondition to the holding of any inquiry under the provisions of s 13(1) of the Act. The formation by the Board of an opinion that a medical practitioner may be brought within any of the matters enumerated in s 13(1) is an administrative process and a necessary process in the context of inquiries of this nature. Its obvious purpose is "merely to filter out trivial matters, matters without merit, or matters which do not in the public interest justify the holding an inquiry" (at [35]) and it is therefore inevitable that the Board may become aware of other allegations against a practitioner such as was the case here.
In my view a Board of medical practitioners constituted under the provisions of s 4 of the Act can be relied upon to determine complaints against medical practitioners without prejudice having been engendered in the Board by reason of knowledge of the fact that other persons have made complaints similar to the matters under investigation. I can find no substance in the proposition advanced by counsel for the appellant that there was any likelihood of the Board being prejudiced against the appellant in this case by reason of the fact that complaints of three other persons had initially been lodged with the Board, but for one reason or another, had fallen away.
Ground 1(c) - Elaboration of the statement of evidence
Counsel for the appellant did not suggest that there had been any impropriety on the part of the Board or its solicitors in the preparation of a more elaborate statement of Y for the purpose of the inquiry, but sought to contend that the preparation of the second statement had led to a situation which Y's recollection for the purpose of inquiry became different from that which was set out in the statutory declaration of March 1994. However, as I made clear at the hearing of the appeal, I can see no substance in this ground of appeal. It was surely more convenient for the purpose of the inquiry to have the statement of Y put into the format in which it was received. That statement was adopted as the evidence‑in‑chief of Y and she was then open for cross‑examination. That cross‑examination was extensive and enabled counsel for the appellant to compare the statement made for the proceedings, with the earlier statutory declaration and to ask such questions in relation to that aspect as were relevant. This ground has no substance.
The grounds which have substance are as follows.
Ground 1(a) - Delay
I have already made reference to the chronology of events which led to the very substantial and unexplained delay in the ultimate hearing of the Board's inquiry. Without doubt, the appellant was placed in a very difficult position by reason of the fact that some 15 years had elapsed between the date of the first of the events complained of by Y and the hearing before the Board. His opportunity to properly defend the allegations was compromised.
In these circumstances, one might have expected the Board to have made substantial allowances in consideration of the issue of credibility of the appellant. As it was, the Board contended itself with the observation that when determining the question of whether Y was telling the truth or lying, regard was to be had to the fact that a very considerable period of time had passed and the appellant would have lost some aspects of the forensic advantage he would have enjoyed, had the allegations against him been "determined in a timely fashion". It said that this fact "must not be lost sight of".
The Board had, when determining the application by the appellant to stay the proceedings, recognised the appellant's submissions in relation to the prejudice he would suffer by reason of delay. It listed them in its reasons at [65] as follows:
"(a)The unavailability of witnesses;
(b)The loss of his medical records dealing with his treatment of the complainants;
(c)The recollection of witnesses;
(d)His own recollection of events;
(e)The length of time that has elapsed between the events giving rise to the complaints and the issue of a Notice of Inquiry on 2 October 2002;
(f)Central to any Inquiry into the professional conduct of the Practitioner is the question of 'his current fitness to practice'. Because the alleged events the subject of complaint occurred many years ago it is 'difficult to justify' an inquiry on the basis that the conduct of the Practitioner 'poses a present and existing and immediate threat to the public interest'."
When it came to determine the respective credibility of Y and the appellant, the Board concluded that it was most unimpressed with the appellant's evidence. Although conceding that the task of giving evidence before the Board in disciplinary proceedings was a new experience for the appellant, it did not accept any of his evidence and rejected his assertions that sexual conduct had not occurred between himself and Y. Indeed, the Board concluded that the appellant was untruthful and had lied to the Board because of the serious repercussions that he knew would follow from an adverse finding.
The Board described the demeanour of the appellant throughout his cross‑examination as somebody who was under considerable pressure and not telling the truth. It said that he was hesitant in his answers, tentative and on occasions, gave long pauses before responding. It concluded that his demeanour was lacking in relation to evidence he gave about his relationship with Y after January 1992. It described his correspondence with her as "very personal and intimate" and considered that the interaction between the appellant and Y was "usually reserved for those with whom one has an especially close bond".
Nowhere in these conclusions about the appellant's testimony did the Board recognise that any hesitance or tentativeness in answers given by him reflect the difficulty that he may have faced by reason of having to answer the allegations so many years after the event. It contented itself with the observation I have quoted. By contrast, the Board gave full approval to the testimony of Y and found reason to excuse any contradictions that there may have been in her account of events. It said (at [88]):
"[88]. Although there are some differences in the accounts of events provided by [Y] (a hardly surprising fact given the lapse of time between the preparation of her statements and the different circumstances surrounding their preparation and purpose), the Board makes it clear that, having considered all of her evidence in detail, the manner in which it was given, her demeanour and all of the submissions advanced in relation to her credit, it is unpersuaded that she is properly to be characterised as a witness who is not to be believed. It might be observed that, far from it being a sufficient basis to support a theory that [Y] invested allegations of sexual contact, some discrepancy in the evidence is consistent with what might be expected of a witness of truth in a case like this. Had there been none there may have been cause for concern. The Board does not agree that what are, in truth, relatively minor differences of detail in written statements prepared nine and a half years apart and in different circumstances can fairly or reasonably be classified as 'cumulative' and indicative of a lack of veracity."
The effect of long delay between the date of allegations and the time at which they are considered by a disciplinary tribunal was the subject of the following observations by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 254 ‑ 255:
"The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United state Supreme Court said in Barker v Wingo (at 532) 'what has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317‑318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: 'Where there is delay the whole quality of justice deteriorates.' The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983).
…
Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule."
I have already quoted from the judgment of Scott J in Hewett v Medical Board of Western Australia (supra) where his Honour (at [31]) anticipated that when hearing this inquiry the Board would take into account the difficulties to which the appellant had referred when seeking an interlocutory injunction to stay the Board's inquiry. His Honour was at pains to point out that it would be incumbent upon the Board to take full account of the long delay that had occurred between the allegations of sexual misconduct against the appellant and the ultimate date upon which the Board inquired into them.
In my view, the Board failed to give sufficient weight in its determination to the very substantial and unjustified delay in the ultimate prosecution of the complaints of Y against the appellant. It failed, in my view, to appreciate the difficulties inherent in the appellant answering those allegations, particularly as there was ample evidence that his state of health had deteriorated considerably in the 15 years since 1988. Rather than make allowances for any shortcomings in the appellant's testimony due to delay, the Board was trenchant in its criticism of the appellant, whom it went so far as to conclude was actually lying in the proceedings.
In giving consideration in its reasons to the question of corroboration, the Board referred to the problems of delay in the case of Longman v The Queen (where there had been a delay of some 20 to 25 years between the events complained of and the trial) and contrasted this delay with the situation before the Board. The Board said (in a passage I have already quoted) at [41] that the circumstances of the inquiry were materially different to the circumstances of Longman v The Queen. It placed emphasis upon the fact that the first complaint by Y to the Board had been in March 1994, which was only 26 months after her professional relationship with the appellant had ended and some six years after the first sexual contact was alleged to have occurred. The Board also placed emphasis upon the fact that the complainant had revealed to others her sexual relationship with the appellant before lodging the complaint. It found "no reasonable possibility" that the evidence of Y was honest but erroneous due to the time that had passed.
In my opinion, the mere fact that Y may have made a complaint to somebody else of sexual misconduct prior to lodging the complaint with the Board, was insufficient to justify the conclusion that there was no reasonable possibility that her evidence was honest but erroneous because of the time that had passed. The Board was, in my view, too ready to accept the testimony of Y, notwithstanding that the events complained of had occurred so long ago.
Whether this failure on the part of the Board is sufficient to justify a quashing of its decision is another question. I shall deal further with that aspect of the matter when I have dealt with other grounds of appeal.
Grounds 2 and 3
These grounds can conveniently be dealt with together. They effectively challenge the conclusion of the Board that the allegations of Y had been established to the requisite standard of proof. They particularise a number of aspects of Y's evidence in relation to which it is said the conclusion of the Board that it could rely upon that evidence was "unsafe and contrary to law".
Counsel for the appellant included in grounds 2 and 3 some matters which are not specifically identified by way of particulars, but no objection to this was raised by counsel for the respondent.
The first matter complained of was that the Board formulated the real question for it to determine as being which of the two key parties in the proceedings had lied. As it put it at [40], counsel assisting the Board had said that it was a case in which "somebody is telling lies".
The question of lies
The conclusion reached by the Board is that Y was either telling the truth or lying. It embarked upon an inquiry into which of the two parties were truthful and which was a liar. It concluded that it was Y who was truthful and the appellant who was a liar.
Senior counsel assisting the Board had invited this approach in her closing submissions on 8 August 2003. She said:
"This is a case where clearly somebody is telling lies. He says he didn't and she says he did. The analysis can be put as simply as that. There are a number of possibilities, as has been touched upon. Either it happened or [Y] is lying about it or she is delusional about it or at the margins there may be some room for mistake of brushing contact that could be proper or improper, but that is marginal in this case. There is no serious suggestion being made that [Y] is or was at any material time delusional, so we have got either that it has happened or [Y] is telling lies.
It is not in my respectful submission a case for really balancing anything. It is not a case for really preferring the evidence of the practitioner or not. If the board believes the evidence of the practitioner, obviously that would be the end of the matter. If the board absolutely believed the evidence of [Y], that also would be the end of the matter but if the board does not believe the evidence of Dr Hewett that is not the end of the matter. If the board were to say, 'We're not sure about any of this. We put that on one side,' one would still have to be satisfied upon the vidence of [Y] standing alone that the allegation was made out."
Much of what was put by counsel as to the comparison of the evidence of Y on the one hand and the appellant on the other is largely unobjectionable. However, the Board seems to have taken from it a belief that the true question was "who is lying". This is apparent from the reasons at [40].
In criminal proceedings, it is undoubtedly wrong for a jury to be told to focus upon the question of who might be lying. In the context of challenges to police evidence of confessional statements, the High Court of Australia had this to say in McKinney v The Queen (1991) 171 CLR 468 at 477:
"The question which is inevitably raised by a challenge to police evidence of confessional statements is, as earlier noted, whether it is a reasonable possibility that the police evidence is untruthful, which, in the circumstances, entails the possibility that police witnesses have perjured themselves and conspired to that end. That is a different question from the question whether the police have, in fact, perjured themselves and conspired to that end. It cannot be sufficiently emphasized that a jury should never be directed in terms which suggest that it is necessary to decide that latter question."
It may be tempting in disciplinary proceedings for a tribunal to look to see who is telling the truth and who is lying, but there is a danger in following this path. It overlooks the fact that the ultimate question for a tribunal in these circumstances is whether the tribunal of fact is persuaded on the balance of probability that the allegations contained within the Notice of Inquiry have been made out. In Briginshaw v Briginshaw (supra), Dixon J (at 362 ‑ 363) formulated the appropriate reasoning processes that are required of a tribunal of fact sitting as the Board was in this case. His Honour said:
"… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of thekind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency … It is often said that such an issue as fraud must be proved 'clearly', 'unequivocally', 'strictly' or 'with certainty' … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."

It is, of course, difficult to know what the Board would have made of much of this evidence had it been before it. However, I have what Kennedy J termed the primary duty of making up my own mind what facts were proven by the evidence in this case and what inferences should be drawn from those facts. Although due weight is to be given to the opinion of the Medical Board, this is not a case in which the opinion was one in which great weight should be given to the conclusions reached by the Board (cf De Pardo v Legal Practitioner's Complaints Committee [2003] WASCA 274 at [17] as it was not a medical matter that was at the heart of the Board's determination.
This was a case in which the Board was called upon to determine whether, on balance of probability, the complaints of Y had been made out. There was much material before the Board, including the testimony of Y herself. There was, however, missing from the Board's determination on the issue of credibility, reference to a great volume of material to which I have referred.
Exercising my own duty to reassess the evidence, and although conscious of the fact that I have not seen Y in person, I am nevertheless of the firm view that the Board was too willing to accept the truth and accuracy of Y's testimony from the manner in which it was given and her demeanour generally. This is particularly apparent from the conclusion at [88] that "the Board makes it clear that having considered all of her evidence in detail the manner in which it was given, her demeanour and all the submissions advanced in relation to her credit, it is unpersuaded that she is properly to be characterised as a witness who is not to be believed".
The Board was firmly of the view that Y's demeanour was the factor which told in her favour. The submissions which had been put on behalf of the appellant were all dismissed, one after the other. The referral to Dr Tim Clarke at which Y had failed to tell him of her difficulties with the appellant, was explained away by acceptance of Y's testimony that she had too much on her plate and did not feel that she could cope with another stress in discussing the matter with him. It overlooked the fact that she said she had been referred to Dr Clarke specifically because of the appellant's conduct.
The Board considered that the referral by Y of her daughter to the appellant was entirely acceptable on the basis of Y's explanation that her daughter was an adult and capable of making any informed decision as to who should treat her - notwithstanding the fact that Y had allegedly told her daughter of the "affair" she was having with the appellant. The Board did not accept that the decision to leave it to the daughter to choose who treated her provided any foundation for the conclusion that Y was unworthy of credit.
The Board accepted Y's evidence in relation to the alleged act of sexual intercourse in or about November 1988 and put no weight upon the submission of counsel for the appellant that Y had created the detail of an unwrapped condom being thrown in the bin to give credibility to her story. The Board accepted that the inability to detail specifically a second occasion of alleged sexual intercourse in which an unwrapped condom was thrown in the bin was something which Y had blanked out. No true analysis seems to have been given to the vagueness of her evidence in relation to this aspect of the matter which. It was a troubling aspect of her testimony.
The Board rejected the proposition that Y could be characterised as a woman who was disappointed, frustrated and angry because the appellant had not permitted the development of the type of intimate relationship with him which she desired. It accepted her testimony that she did not desire any long‑term relationship with the appellant. However, there were numerous entries in the notes of Dr Lee which told against the appellant in relation to this aspect of her testimony. They were not analysed by the Board.
The Board concluded that there was no substance in any suggestion that Y had made up the serious allegations she made against the appellant with the malicious intention of causing him harm, or that she was embittered in any way in her failure to achieve a fulfilling and satisfying relationship with him. The Board overlooked material in the clinical notes of Dr Lee which indicate that at a late stage of their association, Y had requested the appellant to move in with her and clearly held feelings of anger and frustration in relation to him. The reference to wishing to "grind him into the dirt" is something which was relevant to the Board's assessment on this point.
The Board found no evidence of significant variations between the contents of Y's statutory declaration and her written statement of evidence. It considered in her explanation that nine and a half years had passed between the two statements was a sufficient explanation for any variations that existed. However, the Board failed to address the question of variations between what was contained in the written statement and what was contained in the notes of Dr Lee.
Consistency
The Board saw it as of the utmost importance that the substance of Y's evidence in relation to the most critical issues had been consistent over the years. It said that it was not suggested to her at any stage during cross‑examination that she had been inconsistent in the accounts of events she had given to others. The Board entertained "no doubt" that at no time did she attempt to present false and misleading evidence during the inquiry to facilitate her own agenda.
The evidence of Dr Lee was relied upon as evidence of consistency in her account of the events in question. However, the statement of Dr Lee, and his clinical notes, raise more questions than they answer on the question of consistency. None of these matters was the subject of scrutiny by the Board. Far from the evidence of Dr Lee being "evidence of a character which supports the general credit of Y", it is my view that Dr Lee's statement and clinical notes raise serious questions about the credibility of Y.
The Board found the evidence of Dr Singh to be of limited assistance because notes he had made were not contemporaneous with the alleged misconduct of the appellant. The Board said it generally took into account his evidence. In view of the conclusion that it was of limited assistance, little turns on it.
The evidence of Ms Derham raised serious questions in relation to consistency of Y's accounts. The Board did not consider that her evidence that Y had told her in late 1992 that she had "just commenced a sexual relationship" with the appellant was of any real significance. Counsel had submitted that this testimony was clear evidence that on the occasion that Y complained to Ms Derham about a sexual relationship with the appellant, she fixed the period September/December 1992 as the date of it. This was what she alleged before the Board.
The Board found five reasons to dismiss counsel's submission in relation to Ms Derham. In the first instance it found a tension between the proposition being put forward by counsel for the appellant and the appellant's own evidence that there had been no sexual relationship at any time with Y. The tension was said to be that counsel for the appellant was putting the proposition that any sexual relationship had begun at some time after the period under inquiry. However, I fail to see how that this created a tension. Counsel for the appellant was entitled to put the proposition that notwithstanding his client's denial that there was ever any sexual relationship, at best Y was caught in the situation in which she had told her friend Ms Derham that the relationship began in the period September/December 1992 and not earlier as she had contended.
The second basis upon which the Board dismissed the submission was that it did not consider Ms Derham had a full appreciation of precisely what was being put to her in the questions. I find this difficult to understand. The transcript reveals a very clear questioning process and a clear answer that it was at some time between September and December 1992 that Y was saying she had just commenced a sexual relationship with the appellant.
The third basis upon which the submission was dismissed was that the Board thought there were good reasons why Y may have elected not to fully inform Ms Derham about the details of her physical intimacy with the appellant. This was unjustified speculation.
The fourth reason was that at no stage was it put to Y during her cross‑examination that she had told Ms Derham that the sexual relationship with the appellant commenced in September/October 1992. However, the Board was not bound by the rules of evidence and whatever the implications of the rule in Browne v Dunn, the reasons of the Board do not persuade me in this respect.
The final basis upon which the submission was dismissed was that the primary focus in the inquiry was whether Y should be believed in relation to the substance of her evidence. As to this, the Board was satisfied that Y was telling the truth and her evidence standing alone was compelling. This conclusion really begs the question. It does not address the issues which were being presented by counsel for the appellant.
Failure to call Y's daughter
In her statutory declaration of 27 March 1994, Y said that she had told her daughter that she was having an affair with the appellant. She repeated this during her evidence before the Board. Y's daughter was not, however, called to give evidence. Counsel for the appellant asked the Board to draw an adverse inference against Y on the basis of the rule in Jones v Dunkel (1950) 101 CLR 298, that the daughter's evidence would not have assisted Y's case.
The rule, so far as is applicable here, is that failure by a party to call witnesses may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party's case.
However, the significance to be attributed to the fact that a witness did not give evidence depends in the end upon whether, in the circumstances, it can be inferred that the reason why the witness was not called was because the party expected to call him, feared to do so. There are, of course, circumstances in which it has been recognised that such an inference is not available, or if available, is of little significance. A party may not be in a position to call a witness: Fabre v Arenales (1992) 27 NSWLR 437 per Mahoney JA at 449 ‑ 450.
The rule in Jones v Dunkel will have no application if the failure to call a witness is explained, for example, by the absence of a witness, coupled with a reasonable explanation for not compelling attendance by subpoena, or where the failure to appear is explained by illness, or other unavailability, or by loss of memory: Cross on Evidence (6th Australian ed, J P Heydon [1215]).
The rule in Jones v Dunkel is particularly applicable to civil proceedings. It will seldom apply to the defence in a criminal trial. This was made clear in RPS v The Queen (2000) 199 CLR 620, where Gaudron ACJ, Gummow, Kirby and Hayne JJ said that the observations in Jones v Dunkel must not be applied in criminal cases without taking into account that an accused person is not bound to give evidence and that it is for the prosecution to prove its case beyond reasonable doubt. Callinan J was of the view that the observations in Jones v Dunkel should not be applied in any circumstances.
In Adler v Australian Securities & Investments Commission (2003) 179 FLR 1, the Court of Appeal of New South Wales concluded that civil penalty proceedings are no different from ordinary civil proceedings and thus the rule in Jones v Dunkel is applicable to them. However, the application of the rule there related to the drawing of inferences against defendants, rather than plaintiffs.
In criminal proceedings, the failure of the prosecution to call a particular witness can lead to the application of the rule in Jones v Dunkel. In Mavaddat v The Queen, unreported, SCt of WA; Library No 920036; 19 November 1991 Nicholson J (with whom Malcolm CJ and Rowland J agreed), said at 19:
"The law is that a prosecutor is not bound to call a particular witness and cannot be directed by the court to call a witness: Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; The Queen v Apostilides (1984) 154 CLR 563. In civil cases, the failure by a party to call a witness may properly found an inference that the testimony would not have assisted the party's case: Jones v Dunkel (1959) 101 CLR 298. In Browne, Moorehouse & Blewett (1987) 30 A Crim R 278 at 295 the New South Wales Court of Criminal Appeal said:
'The only question which arises here is whether the rule approved in Jones v Dunkel applies to criminal proceedings. In Buckland [1977] 2 NSWLR 452, Street CJ, after referring to the rule observed that, although there were some situations in criminal cases in which comment on the failure to call a witness was expressly precluded by statute, and other situations in which it would be dangerous to make any such comment on such a failure, none the less, in general, the rule of practice referred to in Jones v Dunkel applies equally in criminal as in civil proceedings: see also per O'Brien J (at 468-469) and cases there cited.'
The same view of this matter was also taken by Perry J in Taylor v Hayes (1990) 46 A Crim R 457 at 462. I am unable in the face of this authority or general principle to see any reason why that approach is not correct.
It follows that the failure by the prosecution to call the complainant's sister or to offer any explanation for such failure to the Court was capable of giving rise to the inference that her evidence would not have assisted the case of the prosecution. There was nothing in statute law to preclude a direction on the matter by the trial Judge to the jury nor were the circumstances of the matter such as to make such a direction dangerous. Indeed, given that there was no independent supporting evidence of the complainant's evidence, the failure to call her sister gave rise to a most important and relevant inference, particularly where the evidence for the defence raised doubts that the offence could have taken place or that it could have taken place at the time or place alleged …"
The Board expressed the view that had Y's daughter been called to give evidence, a question may have arisen as to the admissibility of any complaint made to her as evidence of past consistent statements. However, in view of the fact that the Board saw the evidence of Dr Lee as establishing consistency of Y's testimony, it is difficult to see why the evidence of the daughter would not have been admissible. Provided the complaint made to the daughter was made at the first reasonable opportunity (and it seems from the reasoning of the Board that it was) the evidence would seem to have been admissible as evidence of a recent complaint in a case of a sexual allegation. In criminal proceedings, such evidence would be an exception to the rule against hearsay on the basis that it would tend to show consistency of statement or conduct on the part of the complainant and it would exceptionally constitute a buttress to her credit. There is no reason why that principle should not be applicable to civil proceedings and particularly disciplinary proceedings before the Board.
In my view the rule in Jones v Dunkel was clearly applicable in the Board's inquiry. The failure of counsel assisting the Board to call Y's daughter was capable of giving rise to the inference that her evidence would not have assisted the Board's case against the appellant. Given that there was no independent supporting evidence of the testimony of Y, the failure of counsel assisting the Board to call Y's daughter gave rise, in my view, to the clear inference that Y's daughter was unable to confirm that an immediate complaint had been made to her of the sexual relationship that had commenced between Y and the appellant. Evidence to this effect from Y's daughter would not have proven that the relationship existed, but it would have been powerful evidence to buttress the credibility of Y: Kilby v The Queen (supra).
It is true that the failure in Mavaddat (supra) to call the complainant's sister had a different emphasis than the failure to call Y's daughter before the Board. In Mavaddat, the sister was capable to giving evidence as to the facts, whereas in the Inquiry, Y's daughter's evidence would have been limited to evidence of recent complaint. The distinction does not take away from the fact that failure to call Y's daughter gave rise to the inference that she would not have supported Y's case.
Sinha v Health Care Complaints Tribunal
Counsel for the appellant made reference in reply to Sinha v Health Care Complaints Tribunal (supra). This is a decision of New South Wales Court of Appeal where Hodgson JA, Ipp AJA and Fitzgerald AJA set aside a decision of the Medical Tribunal of New South Wales and remitted it for rehearing. The Tribunal had found a medical practitioner guilty of professional misconduct by reason of improper or unethical conduct related to the practice of medicine. It concluded that the practitioner had masturbated a patient in or about September 1975 during a professional consultation and thereafter, engaged in a personal and sexual relationship during professional consultation throughout a period of over 20 years from September 1975 to October 1996.
In New South Wales, a medical practitioner aggrieved by a decision of the Tribunal has a right of appeal only with respect to a point of law. As Fitzgerald AJA pointed out at [25], a practitioner distressed by a decision of the Tribunal which, if wrong, had caused him a grave injustice, does not have the right to have the Court of Appeal review the Tribunal's findings generally. At [26] his Honour said that:
"… Matters such as the seriousness of the patient's allegations, the possibility of false accusations, the difficulty of responding to them, and the catastrophic consequences of the decision for the practitioner were matters for the Tribunal to consider in its deliberations. If the Tribunal did so - as it says it did - the Court could not properly set aside its decision merely because '… there is no evidence from an independent source which supports the correctness of the complaint and … it is categorically denied by the practitioner of outstanding reputation against whom it is made', or if the Court considered the Tribunal's decision 'unreasonable'."
The powers of the Court of Appeal of New South Wales are thus in contradistinction to the power given to me under s 13(8) of the Act to conduct an appeal in the nature of a rehearing.
The evidence of the complainant before the Tribunal was that she had a consensual sexual relationship with the practitioner. Many of the allegations have a similarity to the case under review in this appeal. Fitzgerald AJA at [37] ‑ [40] summarised them as follows:
"… She said that she was impressed by his status and flattered by his attention and compliments and his willingness to discuss his early life and personal and domestic affairs with her. He told her of family problems and of personal difficulties, including an investigation by the Commissioner of Taxation. She wore feminine clothes, attractive underwear and high heels at his request. She appeared to consider that, over time, their relationship developed into one of mutual affection. She described him as the only doctor who understood her.
On the patient's evidence, she and the practitioner had dinner only once and met once for coffee. On two occasions, he visited her and engaged in sexual activity with her at her home. Infrequently, they met and participated in sexual activity in the back of his car. Almost all sexual contact was at the practitioner's rooms. Twice they had sexual intercourse in his rooms at night. However, most of her attendances at his rooms were during business hours in accordance with appointments made well in advance although he sometimes telephoned her and asked her to come. Often, she was his last or second‑last patient for the day and sexual activity occurred after Ms Fleming left. When the patient took her children to the practitioner for treatment, they later waited in the reception area while their mother and the practitioner engaged in sexual activity.
…
The patient did not mention her relationship with the practitioner to other medical practitioners who treated her during that period, including a psychiatrist, Dr Edwards, to whom she was referred after each of two life‑threatening rail accidents in which she was involved. However, she told her husband and confided in her closest friend, Ms Theresa Gordon.
The patient's husband and son each gave evidence and the Tribunal regarded them as 'impressive witnesses'. The patient's husband said that she discussed the initial masturbation episode with him and continued to tell him about her sexual activity with the practitioner."

It is to be observed that as in the present case, the complainant in Sinha had been referred to a psychiatrist, but had not mentioned her relationship with the medical practitioner. It is also to be observed that in Sinha the complainant had made a prompt complaint to her husband about what was happening and he testified before the Tribunal in relation to that complaint. Although in the present case Y had allegedly made a contemporaneous complaint to her daughter, the daughter was not called to give evidence.
At [44], Fitzgerald AJA made reference to the circumstances in which the complainant had come to make her complaint:
"The patient explained why she complained of the practitioner's conduct after a relationship of so many years. She gave evidence that, in February 1997, a few months after her last sexual activity with the practitioner, she read books 'When Ministers Sin' and 'Sex in the Forbidden Zone' and came to realise that the practitioner had exploited her vulnerability as a victim of childhood sex abuse and that their relationship had been improper."
Again, this aspect of the matter has similarities with the present case. Here, Y had read "Sex in the Forbidden Zone" before making her complaint.
The Tribunal was satisfied on the balance of probability that the complaints against the practitioner had been established. In a passage which has overtones in the decision of the Board in this case, the Tribunal concluded that information provided to it by the complainant must have come from the practitioner and in circumstances which revealed more than a proper doctor/patient relationship. Fitzgerald AJA (at [47]) summarised it in this way:
"The Tribunal was satisfied that the patient 'was able to provide information which was substantially accurate, the most likely source of which was the practitioner', and considered that the 'only rational or reasonable conclusion to be drawn' from the patient's knowledge 'that the practitioner was under investigation by the Taxation Department' was 'that the practitioner informed her of this matter. Such a confidential communication must reflect more than an off the cuff remark in a proper doctor/patient relationship.' "
Fitzgerald AJA referred to State Rail Authority v Earthline Constructions Pty Ltd (In Liq) (supra) and to the subsequent decision in Rosenberg v Percival (2001) 205 CLR 434, in which the High Court again discussed the appellate review of findings of fact based on witness credibility. His Honour pointed out that factual findings based on credit assessments are plainly not always entirely immune from appellant review, although in the case before him, it was not the Court's function to review the Tribunal's findings.
In concluding that the Tribunal had erred in its failure to take full account of all the evidence led, including evidence from the practitioner's secretary that she was present at all times at the surgery where sexual activity was alleged to have occurred, Fitzgerald AJA (at [60]) made the following observations relevant to this case.
"… the practitioner did not establish that the Tribunal misapplied the burden or standard of proof. However, while the Tribunal's determination that the patient was either telling the truth or maliciously lying might have been open although other possibilities were canvassed in the evidence of two psychiatrists, its rejection of other possible reasons why the patient's evidence might not have been reliable involved a risk that the Tribunal concerned itself with whether the patient was a malicious liar instead of the real question for its decision, namely, whether the practitioner misconducted himself as alleged."
The same criticism can be made in the present case of the Board's preoccupation with the question of which of Y on the one hand and the appellant on the other was the liar. The real question was whether the appellant had misconducted himself as alleged by Y and not which of the two protagonists was a liar.
In Sinha, the New South Wales Court of Appeal considered the Tribunal had failed to deal with a significant conflict in the evidence between the complainant and the practitioner's secretary. That conflict arose out of the fact that the secretary testified that the complainant came for consultations with the practitioner late in the day and was the last patient. The Tribunal found that sexual activity between the patient and the practitioner had taken place after the secretary's departure from work in the afternoon so that there was nothing impracticable in the secretary being in total ignorance of what was occurring. However, this conclusion was contradicted by the secretary's unchallenged evidence that she did not leave work until after the practitioner had finished attending to patients for the day. The New South Wales Court of Appeal considered that the Tribunal's failure to deal with the significant evidentiary conflict made its reasons critically defective.
In the present case, there was evidence from Ms Welburn that she had unrestricted access to the appellant's treating room at all times whilst she was in his employ. Similar evidence was given by doctors Kessly and McDowall. There was thus uncontradicted evidence before the Board that the appellant's treating room was at all times accessible by members of the staff and/or colleagues working with him and at any time of the day. There was no evidence that Y was in the treating room on any particular occasion when any one of these three came to the room, but the fact remains that aspects of the sexual relationship complained of by Y were said to have occurred during ordinary consulting hours when, if either Ms Welburn, Dr Kessly or Mr McDowall had wanted to see the appellant, they would have been free to enter the room at any time. Their evidence was that they were never denied entry and the door was never locked.
In the face of this evidence, one might have expected the Board to have concluded that it was a telling factor in favour of the appellant. After all, if there had been a sexual relationship carried on in the consulting rooms whilst staff and other doctors were present in the same location, it is almost inconceivable to think that the appellant would have run the risk of somebody entering the room whilst it was being pursued.
The Board was most dismissal of this aspect of the appellant's case. It said at [134]:
"There can be no question that sexual contact in the form of passionate kissing, hugging, fondling of breasts and 'touching up' could have taken place in the Practitioner's room without detection notwithstanding that the partitioning was thin, staff and patients were nearby, the door was not locked and that it was not unusual for Ms Welburn and others to walk in during consultations. Those activities can occur within a very short space of time. So too can an act of intercourse."
The Board pointed out that the relevant act of intercourse under investigation in the inquiry was that which was said to have occurred in or about November 1988 on a Sunday evening in the surgery when no other persons would have been present. However, there was evidence from Y that there had been at least one, if not other acts of intercourse, during surgery hours. I have already made reference to that passage.
The Board said in relation to the evidence of Ms Welburn, Dr Kessly and Mr McDowall (referred to as "the second doctor"):
"[135]. It is for these reasons that, in the ultimate analysis, the evidence of Ms Welburn, Dr Kessly and the second doctor is of very limited, if any, assistance in the determination of the critical disputes of fact. Dr Kessly and the second doctor were not cross‑examined for the reason identified earlier. A written statement of evidence of Ms Welburn dated 8 July 2003 was admitted. She was cross‑examined. It should perhaps be recorded that she indicated that, although she did often enter the room of the Practitioner during consultations to arrange or rearrange appointments, she would knock before entering. Opportunity was afforded for the Practitioner to indicate that he did not wish her to enter. She would 'never' walk in without knocking and being asked to enter."
The conclusion of the Board that the sexual relationship could easily have occurred, notwithstanding the presence of other persons and an unlocked door was, in my view, unrealistic. Of course it is possible that such things could occur in circumstances where a medical practitioner misbehaved with a patient in his unlocked rooms during ordinary surgery hours, but I consider it highly unlikely. The evidence of Ms Welburn, Dr Kessly and Mr McDowall was therefore of much more than "very limited, if any, assistance in the determination of the critical disputes of fact". It is an aspect of evidence before the Board which, in my view, it grossly underestimated.

Conclusion

In my view, the appellant has made out a case that the conclusion of the Board that it should be satisfied on the balance of probability that the testimony of Y was credible and acceptable, was an unsafe conclusion. Whilst I am conscious of the fact that it was the Board which saw the witnesses, particularly Y and the appellant, it is nevertheless my view that the evidence leaves so many question marks in relation to Y's testimony that when her evidence is subjected to careful scrutiny, it is dangerous to accept it. In this respect, I have exercised my primary duty of making up my own mind from the evidence contained within the voluminous materials which have been put before me.
I consider that the appellant has made out a case that the conclusion reached by the Board was unsafe and constituted a miscarriage of justice by reason of the combination of grounds 1(a) and grounds 2 and 3. That is, a combination of unacceptable delay when added to and combined with the shortcomings in the testimony of Y.
The provisions of s 13(8)(b) of the Act provide that any appeal to this Court should be in the nature of a rehearing and the Judge hearing the same may confirm, quash or vary the order made by the Board. In Bradshaw v Medical Board of Western Australia (supra) the Full Court held that the decision of a Judge hearing an appeal under s 13(8)(a) of the Act is final and the effect of s 13(8)(c) is to preclude any appeal to the Full Court. There is no power to remit the matter to the Board for further determination.
The consequences to a medical practitioner of being found guilty of infamous conduct are extremely serious. In this case the Board took the view that the proper penalty was to remove the appellant's name from the Register of Medical Practitioners. No greater penalty could be suffered by a medical practitioner. The observations of Fitzgerald AJA in Sinha v Health Care Complaints Tribunal (supra) at [23]‑ [25] are to this effect.
Because of the importance of the matter to the appellant, it was always essential that the evidence of Y be placed under very careful scrutiny. Having given the evidence that scrutiny, I have come to the conclusion that it had elements of unreliability which make the conclusion of the Board unsafe. There is no alternative other than to quash the decision of the Board. In the circumstances it is unnecessary to consider the challenge to penalty contained in ground 4 of the grounds of appeal.