IN RE DR A.K.S.

[2011] NSWMT 14

Medical Tribunal

New South Wales

Medium Neutral Citation:	IN RE DR A.K.S. [2011] NSWMT 14
Hearing dates:	26 September 2011
Decision date:	29 September 2011
Before:	Colefax SC DCJ; Dr Kate Ilbury; Dr Vasco de Carvahlo; Dr Catherine Berglund
Decision:	Application by doctor to adduce evidence inconsistent with underlying conviction an abuse of process and refused.
Catchwords:	Abuse of process - Collateral attack on jury verdicts
Legislation Cited:	Medical Practice Act 1992 (NSW) - repealed
Cases Cited:	A.K.S. v The Queen [2008] NSWCCA 2007 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 A Solicitor v Council of the Law Society of NSW [2004] 216 CLR 253 Gonzales v Claridades (2003) 58 NSWLR 188 Neil Pearson & Co v The Comptroller General of Customs (1995) 38 NSWLR 443 Hunter v the Chief Constable of West Midlands Police (1982) AC 529 Reichel v McGrath (1889) 14 App Cas 665 Walton v Gardiner (1993) 197 CLR 378 Metropolitan Bank v Pooley (1885) 10 App Cas 210 Rogers v The Queen (1994) 181 CLR 251 Batistatos v The Roads and Traffic Authority (2006) HCA 27
Category:	Procedural and other rulings
Parties:	Health Care Complaints Commission (Plaintiff) The Doctor (Defendant)
Representation:	Ms. E. Brus (Plaintiff) Mr. P. Boulten SC / Mr M. Ainsworth (Defendant)
File Number(s):	40020 of 2008
Publication restriction:	The name of the medical practitioner is suppressed.

Judgment

1. DEPUTY CHAIRPERSON: Although during the course of the respondent's submissions on Monday on the application that the Tribunal has just concluded hearing, I indicated that it was likely that the Tribunal would reserve its decision, the Tribunal (bearing in mind its duty to hear and determine inquiries expeditiously) is now in a position to deliver that decision immediately.

1. The respondent in the inquiry presently before this Tribunal, Dr A.K.S., is a registered medical practitioner under the now repealed Medical Practice Act 1992.

1. On 5 March, 2007, the doctor was arraigned in the District Court on an indictment which averred that: (a) on 29 April, 2005 he did have sexual intercourse with his then wife without her consent and knowing she was not consenting; and (b) on 30 April, 2005 he did assault his then wife.

1. To each count on that indictment, the doctor pleaded not guilty.

1. In the trial that then followed before his Honour Judge Nicholson SC and a jury, the doctor, although he personally did not give evidence, strongly contested the Crown evidence - not only the evidence of his former wife but also medical witnesses called in the Crown case.

1. On 21 March, 2007, the jury found the doctor guilty of both offences. In doing so, the jury necessarily accepted beyond reasonable doubt the evidence of those challenged witnesses.

1. The doctor was formally convicted by his Honour on 21 September, 2007 when sentences were imposed.

1. In relation to the assault conviction, he was sentenced to a period of imprisonment with a non-parole period of 6 months to date from 14 September, 2007 and which expired on 13 March, 2008. A balance of 9 months was fixed and expired on 13 December, 2008.

1. In relation to the sexual intercourse offence, he was sentenced to a further period of imprisonment. A non-parole period of 3 years was fixed to date from 14 March, 2008 and which expired on 13 March, 2011. A balance of 2 years was fixed to expire on 13 March, 2013.

1. In his remarks on sentence his Honour made detailed relevant findings of fact concerning the circumstances of each offence. The doctor appealed against both convictions and the sentences. It is relevant to note that the grounds of appeal included, "That in all the circumstances the verdicts of the jury were unreasonable within the meaning of s 6 of the Criminal Appeal Act, 1912."

1. On 9 September, 2008, the Court of Criminal Appeal rejected all aspects of the appeal, (See A.K.S v The Queen [2008] NSWCCA 2007).

1. It is in these circumstances that on 27 October, 2008, the Health Care Complaints Commission filed a notice of complaint with the Medical Tribunal.

1. The notice contained two complaints. First that the doctor was convicted of, relevantly, two offences. Secondly, that he was not of good character.

1. The relevant particulars for each complaint were the same, namely, "(i) that on 21 September, 2007 at Penrith District Court the practitioner was convicted of one count of sexual intercourse without consent under s 61(1) of the Crimes Act 1900; (ii) on 21 September, 2007 at Penrith District Court the practitioner was convicted of one count of common assault under s 61 of the Crimes Act..."

1. The hearing of the inquiry into the complaints was listed for 26 September, 2011.

1. For a considerable period of time following his convictions, the doctor continued to assert his innocence in relation to both charges. His assertions in that regard included at least an assertion on 24 September, 2009, that a social worker who had given evidence in the proceedings had committed a conspiracy to give false evidence; and a further assertion on 27 November, 2009, that one of the medical practitioners who gave evidence at the trial, Dr Brennan, had engaged in serious professional misconduct and possibly criminal conduct in connection with the giving of her evidence.

1. However, on 16 September, 2011, and in anticipation of the hearing of the inquiry, the doctor, through his solicitors, served a statement admitting that he engaged in sexual intercourse without consent with his former wife on 29 April, 2005. Although that statement did not qualify that admission, submissions subsequently made on his behalf, to which I will soon refer, reveal that the doctor still disputes some aspects of the facts underlying that conviction. Moreover, he continued to assert, by that statement, that he did not assault his wife on 30 April, 2005.

1. The hearing of the inquiry duly commenced on 26 September, 2011 before a fully constituted Tribunal. Ms Brus, appeared on behalf the Commission and Mr Boulten of Senior Counsel, with Mr Ainsworth, appeared for the doctor.

1. At the commencement of the hearing of the inquiry Mr Boulten raised an issue for preliminary determination, in effect whether in relation to complaint number 2 the Tribunal would permit the doctor to adduce evidence as to his version of the events that led to his conviction for the offences of sexual intercourse without consent, which would necessarily be contradictory of some aspects of his wife's evidence at trial and to dispute that he assaulted his wife.

1. The application was opposed by counsel for the Commission.

1. It is unfortunate that the doctor did not put the Tribunal, or the Commission, on clear notice that these important issues were to be raised before the morning of the hearing. Specifically the issue should have been raised with the Chairperson of the Tribunal in order that his Honour could give consideration to a preliminary ruling being made before a fully constituted Tribunal was assembled.

1. In the result, however, and over the opposition of the Commission, the Tribunal indicated that it would hear the doctor's submissions in support of the application, after which it decided to adjourn the hearing for a short period to permit the Commission to have a reasonable opportunity to respond to the doctor's contentions.

1. It is important to appreciate that whilst the doctor does not, on this particular application, seek to challenge all of the evidence adduced at the trial, it was frankly and properly conceded by Mr Boulten on his behalf that as a matter of general principle, an application such as that being made could, in fact, do so. The fact that the doctor does not seek to challenge all of the evidence, however, is ultimately of no significance in determining the point of principle raised by the application.

1. Mr Boulten submitted that a Tribunal, such as the Medical Tribunal, could examine "the whole position" surrounding a medical practitioner's convictions before determining issues that relate to his fitness to continue to practice (in the context of whether he is, at the time of the inquiry, a person of good character); or upon what terms and conditions he may continue to practice, (See Ziems v The Prothonotary of the Supreme Court of New South Wales , (1957) 97 CLR 279; and A Solicitor v Council of the Law Society of NSW [2004] 216 CLR 253).

1. That aspect of the present application, in general terms, is not disputed by the Commission and the Tribunal accepts the submission to be a correct statement of the law.

1. Mr Boulten, however, went on to submit that an examination of "the whole position", leaves, "...open the opportunity for the doctor to present his version of the events that led to his conviction of sexual intercourse without consent and to dispute that he assaulted his wife."

1. Mr Boulten did not submit that Ziems was authority for that proposition. He was correct not to do so.

1. In Ziems a majority of three Justices held in favour of allowing the appeal and setting aside orders of the Full Court of the Supreme Court striking off the barrister's name from the Roll of Barristers following his conviction for manslaughter. The Chief Justice and McTiernan J dissented. Of that majority, only two (Fullagar and Taylor JJ) held that it was permissible for the Supreme Court and, by analogy, this Tribunal, to go behind the conviction and to examine the conduct of the trial, the evidence given and the directions of the trial judge in circumstances where there had been no appeal.

(I interpolate here to observe that circumstances for appeals of criminal matters in 1955 and, for that matter, the provision of detailed remarks on sentence, were considerably different to those obtaining at the time of the doctor's trial.)

1. The third member of the majority, however, (Kitto J) did not agree with that approach of Fullagar and Taylor JJ and, therefore, that approach was approved of by only a minority of two members of the High Court. To that extent, therefore, that aspect of the dicta of Fullagar and Taylor JJ is not binding on this Tribunal. Indeed the case, properly understood, is authority directly against the proposition advanced by Mr Boulten.

1. The specific authority relied upon by Mr Boulten for his submission is the decision of the Supreme Court in Gonzales v Claridades (2003) 58 NSWLR 188. That was a case where the plaintiff and his sister were the beneficiaries named in the joint will made by their parents on 23 February, 1998. On 10 July, 2001, the plaintiff's parents and his sister were murdered. The prima facie position was, therefore, that the plaintiff was the sole beneficiary under the will. Probate was granted to the will on 24 December, 2001, although the plaintiff was not named as the executor. Before probate could be granted, the plaintiff was charged with the murder of his parents and his sister. The issue for the Supreme Court was an application by the plaintiff for an order that the executrix pay him an amount of money out of the estate so as to enable him to finance his defence of the forthcoming criminal charges. Relevantly in the course of his Honour's judgment, Campbell J said at paragraph 67 and 68:

"Thus, if the outcome of [the plaintiff's] trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father's estate. However, anyone who is contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of proving, and it would be open to [the plaintiff] to call evidence, if he wished, with a view to showing that any such conviction was erroneous.

It follows that, whether the outcome of [the plaintiff's] trial is a conviction or an acquittal, that outcome will not be determinative of any civil proceedings to which he is a party in which there is an issue about whether [the plaintiff's] benefit under his father's will has been forfeited."

1. The unsuccessful plaintiff appealed to the Court of Appeal. In his reasons for judgment, Mason P, with whom Beazley JA and Forster AJA agreed, said, at paragraph 16, that he agreed with Justice Campbell's, "pellucid reasons for dismissing the application."

1. After that general statement, his Honour then addressed the particular issues raised in the appeal by the appellant. Those particular matters did not address the dicta of Campbell J which I have just quoted.

1. There is a well established line of authority that there is inherent in any court of justice a power to prevent a misuse of its procedures in a way which would bring the administration of justice into disrepute. This power is not limited to proceedings between the same parties or the same interests. "This mechanism will most often be employed where, although not technically bound by an earlier determination, a party should, in substance, be so adjudged." (See Neil Pearson & Co v The Comptroller General of Customs (1995) 38 NSWLR 443 at 451 per Kirby A-CJ, with whom Allen and Dowd JJ agreed. See also Hunter v the Chief Constable of West Midlands Police (1982) AC 529, Reichel v McGrath (1889) 14 App Cas 665 and Walton v Gardiner (1993) 197 CLR 378.

1. Mr Boulten has acknowledged that general proposition, but submitted it was limited to proceedings brought by a plaintiff who, in effect, sought to litigate previously determined issues.

1. However, in Reichel v McGrath the House of Lords held that a defence which was not barred by res judicata estoppel may nevertheless be struck out as an abuse of process.

1. Furthermore as Lord Blackburn observed in Metropolitan Bank v Pooley (1885) 10 App Cas 210, the power existed to enable a court to protective itself from abuse of its processes, thereby safeguarding the administration of justice. That purpose may transcend the interests of any particular party to the litigation (not, it should be noted, to the moving party).

1. See also Rogers v The Queen (1994) 181 CLR, 251, where, at 286 McHugh J said:

"Many, perhaps the majority of, cases of abuse of process arise from the institution of proceedings. But any procedural step in the course of proceedings that had been properly instituted is capable of being an abuse of the court's process."

1. And as Walton v Gardiner shows, extra curial tribunals, such as this tribunal, can call in aid this doctrine - a doctrine which: "is insusceptible of a formulation comprising closed categories. Development continues."; see Batistatos v The Roads and Traffic Authority (2006) HCA 27 at [9] per Gleeson CJ, and Gummow, Hayne and Crennan JJ.

1. The judgment of Campbell J in Gonzales did not deal with the issue of abuse of process generally, nor expressly consider whether the administration of justice would be brought into disrepute by inconsistent decisions. Neither were his Honour's remarks directed to proceedings of the present kind where the rules of evidence do not apply. In addition, his Honour did not refer to Ziems, or any authority dealing with similar issues. Moreover, his Honour's remarks were obiter - but in saying that, I am conscious of the general proposition that obiter dicta remarks of a judge of the Supreme Court ought to be highly persuasive for a tribunal such as this, particularly where that judge is of the standing of Campbell J.

1. Ultimately the Tribunal has concluded that it is not bound by the observations of his Honour upon which Mr Boulten relies. The course proposed by the doctor constitutes a clear collateral attack upon the finding of guilt in both cases by the jury, the findings of fact in both cases by the trial judge in his remarks on sentence, and the orders of the Court of Criminal Appeal. It would be an abuse of the processes of the Tribunal to permit the doctor to do so. Therefore, to the extent that the doctor seeks to adduce evidence inconsistent with the evidence of his wife concerning the circumstances of the sexual assault, or with the findings of the remarks on sentence, or any evidence to dispute his conviction for assault, that evidence would not be admitted for the purpose of challenging that evidence or those findings. However, his statement, marked Exhibit 1, is evidence (and any oral testimony would be evidence) relevant to the issues of remorse or rehabilitation - issues which are relevant to the question of whether the doctor is of good character.

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Decision last updated: 09 January 2012