Mackay v Medical Board of Queensland

[1988] HCATrans 54

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B78 of 1987

B e t w e e n -

ROBERT HUGO MACKAY

Applicant

and

MEDICAL BOARD OF QUEENSLAND

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

TOOHEY J

Mackay

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE-BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 MARCH 1988, at 10.07 AM

Copyright in the High Court of Australia

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MRI.D.F. CALLINAN, QC:  May it please the Court, I appear

with my learned friend,MR M. FOLEY, for the

applicant. (instructed by Goss Downey and Carne)

MR R.M. BOURKE: If it please the Court I appear for the

respondent. (instructed by Morris Fletcher and

Gross).

MASON CJ:	Yes.
MR CALLINAN:	Your Honours, this is an application for

special leave by a radiologist medical practitioner

who, following upon his plea of guilty to an offence

under the Queensland MEDICAL ACT, had his name

erased from the register ~f practitioners by

the Medical Assessment Tribunal of Queensland

constituted by His Honour Mr Justice Thomas and

two medical practitioners. The applicant then

appealed by way of case stated on questions of
law to the Full Court of Queensland. The Full

Court dismissed the appeal,in essence, reaffirming

the judgment of His Honour Mr Justice Thomas who

wrote the judgment, as it were, of the tribunal

at first instance.

Your Honours, the applicant had been charged

and convicted in Victoria of two offences, in 1980
and 1982, of threatening a solicitor then acting

for his wife in matrimonial proceedings, and of

damaging two motor cars by causing an accomplice

to explode gelignite in the vicinity of them. The

convictions were recorded after a 17 days trial

and the applicant was acquitted of a charge relating

to possible injury to persons.	The convictions
were recorded on 8 August 1984.	On 10 August 1984

the applicant was sentenced to four years imprisonment

on the second charge and fined $1500 on the first

charge. He appealed to the Court of Criminal Appeal

in Victoria and that appeal was dismissed on

2 November 1984. On 7 March 1986 the Medical Board of Victoria

suspended the applicant's registration as a medical

practitioner and on 23 March 1986 he was released

from prison.

(Continued on page 3)

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MR CALLINAN (continuing):  On 17 July 1986, the applicant's

name was restored to the register of medical

practitioners in Victoria. In the meantime, and
before conviction, the applicant had been registered

to practise in Queensland and he had, indeed, in

fact, practised in Queensland. He pleaded guilty

before the Medical Assessment Tribunal of

Queensland on 9 March 1987. The offence to which

he pleaded before the Medical Assessment Tribunal
was an offence under the Act, that is, section 37(1) (iii)

of the Queensland Act, the offence being his having

been convicted of an offence which would in

Queensland have been an indictable offence. There

was no question that the matters with which he had

been charged and of which he had been convicted in

Victoria would constitute indictable offence in

Queensland and that is an offence under the to section 37(l)(iii).

Your Honours, the ratio of the Tribunal

appears at page 12 of the application book and if

I could invite Your Honours very quickly to look at

tha~ His Honour Mr Justice Thomas said:

In my opinion the degree of criminality

shown by the offences for which Dr Mackay

was convicted is very different from that of

criminal negligence considered by the members

of the High Court in ZIEMS V PROTHONOTARY OF

THE SUPREME COURT OF NEW SOUTH WALES, (1957)

97 CLR 279. The difficulty in being satisfied

that Dr Mackay is a fit and proper person to

continue immediately with the practice of his

profession arises from the fact that he

concedes no wrong-doing.

The essence of the judgment of the Tribunal seems to have been that there was no concession of wrongdoing and no expression of contrition for His Honour goes

on to say:  (Continued on page 4)

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MR CALLINAN (continuing):

He expresses no remorse and his attitude is

that of a wronged victim rather than that

of a reformed wrong-doer. If he wishes to

adopt the public stance of a framed victim,

that is a matter for him, but it hardly supports

a case of a readjusted person who was guilty

of an aberration, who recognises it and will

guard against it happening again. I do not

think that this Tribunal, on the evidence

before it in this case, should in any way

regard the conviction as other than a valid

conviction of a serious offence. Bad character

in 1982 is established. Quite simply the
evidence offered in this case (which did not

include any evidence under oath from Dr. Mackay)

does not satisfy me that he has reformed or

in any way changed his attitudes or values.

Your Honours, I think it unnecessary, with respect,

for me to read from the judgment of the Full Court,

but Their Honours do seem to have adopted the same

reasoning as His Honour Mr Justice Thomas. That

reasoning in the Full Court is at pages 83 and 84
of the application book. It was submitted
before the Full Court that it was an error of law
to regard an absence of an expression of contrition,
or the absence of a concession of wrongdoing,
as determinative, indeed conclusive, of the case

as the Medical Assessment Tribunal appeared to

do in the passage which I have just read.

MASON CJ:  You concede, do you, that it is a relevant

consideration?

MR CALLINAN:  Yes, but not that it is conclusive and, indeed,

if one reads, we would submit, the passage which

I have iust drawn Your Honours' attention to in

the reasoning of the M.edical Assessment Tribunal

there is no doubt, we would submit, that it has

been regarded as conclusive there. I should point

out to Your Honours that there was before the Tribunal

uncontradicted and, indeed, unchallenged evidence

of current good fame and character, that is good

fame and character by other doctors and other persons

in the community, and there was also before the

tribunal a psychiatric report which made it clear

that there was no likelihood of a recurrence of

the events in question.

(Continued on page 5)

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MASON CJ:	Mr Callinan, once you make the concession that

it was a relevant consideration, does not the case

then sink below the level of a question of

general principle?

MR CALLINAN: It depends, Your Honour, the way in which

it has been used. We would submit that it remains

a question of general principle if indeed a

court should regard this as this Tribunal did, and

indeed the Full Court did, as a conclusive matter.

I understand, with respect, what Your Honour is

putting to me but there is a necessary distinction

and it is a distinction of principle, we would

submit, between a matter that is merely relevant,

on the one hand, and a matter which must be

regarded as conclusive.

MASON CJ: The fundamental question of principle is

whether the consideration is relevant; whether it

rises from the character or category of relevance

to a decisive consideration depends, does it not,

on the circumstances of the particular case?

MR CALLINAN:  Your Honour, as I understand it, the reasoning

of the Tribunal does not depend upon this being

merely relevant. As one reads the reasoning the

Tribunal, and indeed the Full Court by adopting

that reasoning, seems to have held that this

sort of matter will always be conclusive.

TOOHEY J: Mr Callinan, could you identify what it is that

you say the Tribunal regarded as conclusive?

MR CALLINAN:  The absence of a concession that he had in

fact committed the crimes and the absence of

any expression of remorse.

TOOHEY J:  But that was expressed in the context of the

commission of the offence itself, was it not?

MR CALLINAN:  With respect, no, Your Honour, we would submit,

because the remarks that I have just read to

Your Honours and which I will not repeat at page 127,

appear to be remarks of a very general kind

and not confined to the particular circumstances

of the charges in question.

TOOHEY J:  We accept that the Tribunal expresses what it says

in the context of regarding the matter before it on

the evidence, and I now quote:

I do not think that this Tribunal, on

the evidence before it in this case,

should in any way regard the conviction

as other than a valid conviction of

a serious offence.

That is really the starting point, is it not?

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MR CALLINAN:  Yes, Your Honours, but it makes the position

really impossible for a person who has a genuine

conviction which might, indeed, be well founded,

no matter how strong the evidence is or appears

to be, that he has not, in fact, been guilty of

any wrongdoing. That, of itself, would not and

ought not when it is unrelated to his conduct as
a medical practitioner disqualify him, in effect,

for all time from practising, the problem being,

of course, that he might, for 20 years, live an

absolutely blameless life but merely because he
has never expressed a contrition not be restored

to the register.

Your Honours, that is the point in the case

and we would sum up our submissions with respect

to the reasons why special leave should be granted in this way. The first question, we would submit,

that arises of importance is whether professional
disciplinary tribunals should regard as conclusive

an absence of contrition whether serious penalties will not be imposed if, but only if, the applicant admits the correctness of his convictions. Secondly,

whether such tribunals exercising a protective
jurisdiction, because the authorities make it plain

that the jurisdiction is protective and not punitive,

are entitled to impose serious penalties when the
uncontradicted evidence is of current good fame,

character and fitness.

Thirdly, the extent to which there should

be a difference in approach between the tribunals

of different States, Your Honours appreciating

that he has been restored to the register in

Victoria but his name has been erased from the register in Queensland. I should point out that there is an analogue to the relevant section in Victoria and it is section 17 of the MEDICAL

PRACTITIONERS ACT of 1970, Victoria, and

section 17 which is in very similar terms to the

Queensland section 37, relevantly, was inserted

by a 1981 amendment. So that we do submit that that is a question

of general importance, the way in which these matters

are to be approached throughout Australia and the

extent to which there should be any difference

in approach.

(Continued on page 7)

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WILSON J:	Do you say the Victorian Act is different from

the - - -

MR CALLINAN:  No relevantly similar, Your Honour. Section 17

contains a provision very like section 37(l)(iii)

of the Queensland Act. So that there is a question,

we would submit, of interstate interest and importance. Your Honours, fifthly, we would submit that a question

of general importance arises as to the extent to which

a person such as the applicant, having served his

sentence, should have a further punishment of

deregistration imposed upon him, that factor to be

taken into account in the light, Your Honours, of the

other factors to which I have referred.

There is a final point, and we would submit that

under the general heading of the interests of justice,

this is an important matter of status, it is an

important matter of livelihood to the applicant,
indeed, of critical importance, and under that general

heading this is, we would submit, an appropriate case

for a grant of special leave. Those are our submissions,

Your Honours, unless there is anything further.

MASON CJ:  Thank you, Mr Callinan. Yes, Mr Bourke.

MR BOURKE:  If the Court please, the Medical Assessment Tribunal

was entitled to and did consider all the attendant

circumstances, both antecedent and subsequent, so far

as behaviour is concerned. The antecedent matters

relevant to the character of the applicant are set out

at page 6, about line 4, of the appeal book, where

the Tribunal recounted the factors leading up to the

offences; on page 7 where the further background

material was referred to and the circumstances of the

offence; on page 9 where the Tribunal said, with respect

to the matter:

It shows a good deal of unsavoury

preparation, and of lies after

apprehension.

Again, on page 10 where His Honour the Tribunal

referred to the remarks of the sentencing judge in

the County Court of Victoria:

(Continued on page 8)

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MR BOURKE (continuing): In my respectful submission, rehabilitation

and remorse are essential considerations where a

professional man appears before a disciplinary body

in matters such as this. And these matters were

carefully considered by the Medical Assessment Tribunal.

My learned friend, Mr Callinan, has already referred to

the passage on page 12. It was also referred to on
page 9, where His Honour said, about half-way down the

page:

It was impossible for his counsel to submit

that his client showed remorse and readjustment,

because Dr Mackay maintains that he was wrongly

convicted.

The Tribunal took careful account of its functions,

and that appears at page 9, at the foot of the page,

where it was said:

The function of this Tribunal is protective

not punitive. However its protective function

requires it to make the best assessment it can

of the character of the respondent, and of the
appropriateness of his being held out to the

public as a person fit to practise medicine.

In my respectful submission the Medical Assessment

Tribunal took account of all the relevant factors and
in particular, perhaps the most pertinent factor in
a case such as this, was the current attitude of the

respondent before the Tribunal. And that current

attitude was: "the law was wrong, I was wrongly convicted'.'

And indeed, in having regard as to whether or not the

applicant before Your Honours showed rehabilitation

and remorse, the proper considerations were taken.

Mr learned friend, Mr Callinan, suggested it

was for all time, as it were, that the applicant was

estopped from practising. At page 13 of the appeal book

the Medical Assessment Tribunal expressly said this:

In these circumstances the proper course is

to erase his name from the Register, leaving

him free to reapply at such time as he can

re-establish his character to the satisfaction

of the Tribunal.

The fact that the Victorian Medical Board saw fit to merely suspend and subsequently reinstate him was

persuasive only. The Medical Assessment Tribunal in

Queensland is charged with the responsibility for control

and discipline of the medical profession in this State.

The Tribunal took account of the Victorian decision but did not act upon it.

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MR BOURKE (continuing):  In my respectful submission the

decision of the Tribunal was clearly right and

no point for special leave arises before

Your Honours.

WILSON J:  Mr Bourke, do you read that last sentence in

the decision of the Tribunal where the Tribunal
contemplates his reapplication or his freedom
to reapply at some time in the future as being
dependent upon him expressing contrition for the
offence of which he denies still that he was guilty
or do you see it as simply reflecting the relevance
of the passage of time during which he leads an

unblemished life?

MR BOURKE:	The latter, if Your Honour pleases.
WILSON J:	Yes.
MR BOURKE:	May it please the Court.

MASON CJ:  Thank you, Mr Bourke. Yes, Mr Callinan.

MR CALLINAN:  Your Honours, the only matter that we would

mention is this. We would submit that the response

to Your Honour Mr Justice Wilson's question should

have been the former rather than the latter. If one looks

at it, it is unmistakable, particularly when one

reads it in the light of the earlier passages.

It really is the conclusive consideration, it

reinforces that view, and for that reason, · as

a practical matter, unless this man expresses

contrition he will never be readmitted.

WILSON J:  I wonder if that is fair to the Tribunal,

Mr Callinan. The earlier references to the passage

that you referred us to originally, that the short
time that has elapsed since his release from prison

is surely relevant to his readmission and the Tribunal

must have had that general perspective in mind.

There were testimonies to his character as a doctor

and so on, but you could hardly say that corning

fresh from his release from prison that he was

of current good fame, to take up that phrase you

used in your opening. But in five years time or

three years time, something like that, that judgment

may well be changed simply by the passage of time

and the history of his activity in the intervening

period.

MR CALLINAN:  Yes. Of course, with respect, I must accept

the force of what Your Honour says, but could I

say this, that it is relevant in that regard that

the Victorian Board has admitted him to practise

which still raises that other question as to different

standards in different States which is a matter,

we would submit, of general importance.

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WILSON J:  And yet it would be strange if it became error

of law for the second Tribunal, that is, where

a practitioner is practising in more than one State -

an error of law for it is not to follow the

decision of the Tribunal in the first - - -

MR CALLINAN:  Your Honour, I do not put it on the basis

of error of law, I put it on the basis of being

a question of general importance. The fact that

there are, as I would put it, competing interstate

views on this question. Not that that itself

constitutes the error of law but it does make the

case one of some general importance.

WILSON J:	Yes, I understand.
MR CALLINAN:	I cannot add anything else, Your Honours.
WILSON J:	Yes, thank you.
MASON CJ:	Yes.  Thank you, Mr Callinan. In this case

the Medical Assessment Tribunal of Queensland

regarded the applicant's unwillingness to express

remorse and contrition for the commission of a

serious criminal offence of which he was convicted

as a reason for erasing his name from the register
of medical practitioners. His appeal to the Full

Court of the Supreme Court of Queensland was limited

to questionsof law and that court held that the

reason did not amount to an error of law.	Counsel
for the applicant concedes that although the

applicant's unwillingness to express contrition

and remorse was a relevant consideration it could

not, in law, constitute a decisive consideration.

Once it is conceded, as it must be, that the

matter was a relevant consideration, the question

whether it was decisive depended on its evaluation

in the light of the circumstances of the case.

This, as we read the reasons of the Tribunal and

the judgment of the Full Court, is how the Tribunal

and the Full Court treated the matter. Accordingly,

no question of general principle is involved.

The applicant is at liberty, at an appropriate

time in the future, to apply for re~egistration

and the Tribunal will then be bound to consider

his application in the light of his then character

and reputation. Accordingly, the application for

special leave is dismissed.

MR BOURKE:	If the Court pleases, I ask for costs?
MASON CJ:	You cannot resist that, can you, Mr Callinan?
MR CALLINAN:	No, Your Honours.
MASON CJ:	The application is dismissed with costs.

AT 10.35 PM THE MATTER WAS ADJOURNED SINE DIE

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