MEDICAL BOARD OF AUSTRALIA and MULLALEY - [2025] WASAT 99

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   HEALTH PRACTITIONER REGULATION NATIONAL LAW (WESTERN AUSTRALIA)
CITATION:   MEDICAL BOARD OF AUSTRALIA and MULLALEY [2025] WASAT 99
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR M EVANS-BONNER, SENIOR MEMBER
DR P WINTERTON, SENIOR SESSIONAL MEMBER

HEARD:   24, 25, 26, 28 AND 31 MARCH 2025
DELIVERED          :   17 SEPTEMBER 2025
FILE NO/S:   VR 64 of 2022
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
KIM MULLALEY
Respondent

Catchwords:

Vocational regulation - Emergency department doctor - Disciplinary proceeding - Allegation that doctor touched vulva of a vulnerable female patient during physical examination without clinical reason - Allegation made out - Finding of professional misconduct

Legislation:

Evidence Act 1995 (Cth), s 191
Health Practitioner Regulation National Law (WA) 2024 (WA), s 40
Health Practitioner Regulation National Law (WA) Act 2010 (WA) (repealed), Schedule, s 193(1)(a)(i)
Health Practitioner Regulation National Law Act 2009 (Qld)
Health Practitioner Regulation National Law Application Act 2024 (WA), s 5(1), s 5(2), s 19, s 38, s 39(1), s 42, s 42(2), s 42(3)
Health Practitioner Regulation National Law (Western Australia), s 5, s 193(1)(a)(i), s 196, s 196(1)(b)(iii)
Mental Health Act 2014 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(2)(a), s 32(4)

Result:

Practitioner found to have engaged in professional misconduct

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC
Respondent	:	Mr P Yovich SC

Solicitors:

Applicant	:	Russell Kennedy
Respondent	:	MinterEllison

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

ABC v Chau Chak Wing [2019] FCAFC 125
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Davis v The King [2024] NSWCCA 120
Dekker v Medical Board of Australia [2014] WASCA 216
Fadi Diab v R [2023] VSCA 107
Ho v R [2023] NSWCCA 245
Legal Services and Complaints Committee and Kelly [2024] WASAT 125
Lehrmann v Network Ten Pty Ltd [2024] FCA 369
Longman v The Queen (1989) 168 CLR 79
Medical Board of Australia and Arunkalaivanan [2021] WASAT 127
Panegyres v Medical Board of Australia [2020] WASCA 58
R v Hillier [2007] HCA 13
Reed v R [2006] NSWCCA 314
Reynolds v Higgins [2025] WASC 345
Richter v Walton [1993] NSWCA 233
Roberts-Smith v Fairfax Media Publications Pty Limited [2025] FCAFC 67
Shepherd v The Queen (1990) 170 CLR 573
Singh v R [2025] NSWCCA 34
Watson v Foxman (1995) 49 NSWLR 315

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant (Board) alleges that on 12 July 2016, in a cubicle in the Emergency Department (ED) at the Joondalup Health Campus (JHC), the respondent (Dr Mullaley) touched the vulva (sexual touching) of a young and vulnerable female patient (Complainant),[1] despite there being no clinical reason to do so. The Board alleges that that conduct, if it occurred, amounts to professional misconduct.[2]
[1] Pursuant to orders made 21 March 2025 the identity of the complainant is to be kept confidential. To that end, she will be referred to as the Complainant and her relatives (mother, father and aunt) as Mother, Father and Aunt.
[2] In the alternative, the Board says that the conduct amounts to unprofessional conduct or, in the further alternative, 'unsatisfactory professional performance' which we understand to mean 'unsatisfactory professional conduct': See 'Board's Outline of Opening Submissions' dated 18 March 2025, para 2.
Dr Mullaley accepts that there was no clinical reason for him to engage in the alleged sexual touching and that, if he did so, that conduct would amount to professional misconduct. However, he denies that he did so.[3]
[3] ts 24 - 25, 24 March 2025.
Ms Young SC, who appeared for the Board, described the case as one of 'oath on oath'.[4] That is, the only people present in the cubicle at the relevant time were the Complainant and Dr Mullaley[5] and the Complainant says that the alleged sexual touching occurred while Dr Mullaley says that it did not.
[4] ts 22, 24 March 2025.
[5] Another witness, a former psychiatric nurse who worked at JHC and who we refer to as PN, says that she was present. For reasons we discuss below, we have found that she was not.
Such a feature is not unusual in cases of alleged sexual misconduct and, inevitably, it presents difficulties for all involved. In addition, there are several other features of this case which present difficulties, including the considerable passage of time since the sexual touching is alleged to have occurred.
Another complication is the undoubted vulnerability of the Complainant and her history of mental illness and trauma. We have found that those (and related) factors have negatively impacted on the reliability of some of her evidence.
Nonetheless, for the reasons which follow, we are satisfied to the relevant standard that the alleged sexual touching did occur, and that Dr Mullaley thereby engaged in professional misconduct.

Brief Overview of the Background Facts and Circumstances

In her opening submissions, Ms Young SC provided a brief factual overview by way of background to the question in issue, referring to relevant documents in support of the propositions of fact. Mr Yovich SC, who appeared for Dr Mullaley, took no issue with that overview and the hearing proceeded on the basis that it was correct. What follows is, generally speaking, informed by those submissions.
On 28 June 2016, when she was 18 years old, the Complainant was admitted to Hollywood Private Hospital (HPH) for treatment for anorexia nervosa,[6] a condition from which she had suffered for several years and for which she has been hospitalised many times.
[6] ts 8, 24 March 2025.
In the very early hours of 12 July 2016, she (the Complainant) was transferred from HPH to JHC's ED, arriving by ambulance with a police escort.[7]
[7] ts 11, 24 March 2025.
The need for the transfer, and for it to occur by ambulance with a police escort, was because the Complainant was displaying high levels of agitation and distress linked to weight restoration.[8] That distress was so great that she had recently run in front of traffic on Monash Avenue outside HPH.[9] The relevant hospital notes record the need for treatment in a 'more secure setting'.[10]
[8] ts 10-11, 24 March 2025; Exhibit 1, page 227.
[9] ts 10, 24 March 2025.
[10] ts 13 - 14, 24 March 2025.
To that end, she was placed 'under forms', meaning that she was declared an involuntary patient under the Mental Health Act 2014 (WA) (MHA),[11] and was sedated with Quetiapine and Lorazepam.[12]
[11] ts 14, 24 March 2025.
[12] Exhibit 1, pages 229, 231.
The contemporaneous hospital records show that:
(a)the Complainant was triaged at JHC's ED at about 12.19 am on 12 July 2016;
(b)at a time unknown, but following that triage, a medical assessment was undertaken in the ED whereby her history was recorded but she declined a physical examination;
(c)sometime around 9.30 am, a psychiatric nurse (PN) carried out a mental health assessment of the Complainant. In her notes, PN expressed the view that, at that time:
(i)the Complainant was a low risk to herself or others;
(ii)the Complainant's judgment was reasonable, and her insight was intact; and
(iii)the Complainant should be seen by a consultant psychiatrist; and
(d)following a review by a consultant psychiatrist she was taken off the MHA 'forms' at about 12.45 pm.
It is common ground between the parties that Dr Mullaley performed a physical examination of the Complainant on 12 July 2016 and that he did so without a chaperone.[13]
[13] As we have noted, we do not accept PN's evidence that she performed the role of chaperone during that physical examination.
The purpose of the physical examination by Dr Mullaley was to ascertain whether the Complainant was medically fit and suitable for admission to JHC's Mental Health Unit (MHU).
Both the Complainant and Dr Mullaley are agreed that at some stage during or after that physical examination, Dr Mullaley provided the Complainant with what he described as 'counselling'.
On 30 March 2017, more than eight months later, Dr Mullaley undertook another physical examination of the Complainant in the JHC ED.
That second examination occurred after the Complainant's general practitioner (GP) advised her to attend (and indeed, placed her 'under forms' to ensure she attended)[14] JHC ED with concerns regarding her heart, after receipt of results following cardiac testing.[15]
[14] ts 41, 24 March 2025; Exhibit 1, pages 342 - 345.
[15] Exhibit 1, pages 346 - 347.
Again, both the Complainant and Dr Mullaley are agreed that in March 2017 there was a physical examination by Dr Mullaley as well as 'counselling'. However, the Complainant does not allege that any sexual touching occurred on this second occasion.
The Complainant took two photographs[16] of Dr Mullaley while he was in the JHC ED cubicle with her on 30 March 2017 and very promptly sent messages, including one which attached one of the photographs, to her Mother. Those messages were to the effect that she had been examined by the same doctor who had previously engaged in the sexual touching.
[16] Exhibit 1, pages 102, 107 and 108.
After the Complainant's physical examination by Dr Mullaley on 30 March 2017 (and while the Complainant remained in the ED cubicle) her Mother entered JHC ED and verbally abused Dr Mullaley, calling him a 'paedophile' and 'disgusting' and accusing him of not being suitable to hold a job at a hospital. A Dr Lovegrove then took responsibility for the Complainant and spoke to her and her Mother. His notes record various matters which we discuss below.

The Law

The Statutory Regime

The Board referred this matter to the Tribunal pursuant to s 193(1)(a)(i) of the now repealed Health Practitioner Regulation National Law (former Law), which was contained in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (2010 Act).
The Board did so on the basis that it reasonably believed that Dr Mullaley had engaged in the alleged sexual touching and had, thereby, behaved in a way that constitutes professional misconduct.[17]
[17] Two alternative orders were sought - that the behaviour constituted unprofessional conduct or unsatisfactory professional conduct. Given Dr Mullaley's concession that, if it occurred, the sexual touching constituted professional misconduct, there is no need to refer to these alternative characterisations again.
The 2010 Act was repealed by s 38 of the Health Practitioner Regulation National Law Application Act 2024 (WA) (WA Application Act) on 15 May 2024.
By s 5(2) of the WA Application Act, the Health Practitioner Regulation National Law (National Law) applies as a law of the State as if it were an Act. The National Law is an amended version of that contained in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).[18]
[18] WA Application Act, s 5(1).
The National Law operates as a continuation of the former Law.[19]
[19] WA Application Act, s 42.
As a result, although the Board's referral of this matter was made under the former Law, the proceeding is taken to have been commenced under the National Law (which the transitional provisions of the WA Application Act describe as the 'new Law'),[20] and this matter must be dealt with under the National Law as if it was commenced, and is to continue, under the National Law.[21]
[20] WA Application Act, s 39(1).
[21] WA Application Act, s 42(2) and (3).
Having said all of that, neither party took us to the legislative regime in any detail and we do not understand there to be any difference between the former Law and the National Law that is material to the decisions which we must make.
Section 196 of the National Law sets out the range of sanctions that may be imposed on a health practitioner by a 'responsible tribunal'[22] following a finding that the practitioner has behaved in a way that constitutes 'professional misconduct'.[23] That term is defined in s 5 of the National Law as follows:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)…
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

The Burden and Standard of Proof

[22] This Tribunal is the 'responsible tribunal' for Western Australia for the purposes of the National Law: National Law, s 5; WA Application Act, s 19.

[23] National Law, s 196(1)(b)(iii).

The Board accepted as 'trite' that it bore the onus of proving its allegations on 'the civil standard of proof, having regard to the Briginshaw considerations'.[24]
[24] Board's Outline of Opening Submissions, paras 29 - 30, referring to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.
We agree and, without repeating them, we adopt what was recently said in Kelly in this regard.[25]
[25] Legal Services and Complaints Committee and Kelly [2024] WASAT 125, [35] - [36].
As a result, when we describe ourselves as being satisfied of a matter, we are to be taken to be satisfied to that standard, having regard to those Briginshaw considerations.

The Use of Circumstantial Evidence

As should be clear from our introductory remarks, the case put by the Board is not one of purely circumstantial evidence; the evidence of the Complainant is central to its case.
The Board does, however, rely upon other evidence in support of its case, including 'recent complaint evidence' as well as other evidence which may be described as 'circumstantial' evidence. Circumstantial evidence is that which 'proves a fact from which another fact may be inferred'.[26] The circumstantial evidence in this case includes evidence about the Complainant's vulnerability, evidence concerning the lack of a chaperone during Dr Mulalley's examination of the Complainant in 2016, evidence that Dr Mullaley told personal stories to the Complainant by way of 'counselling' her, and Dr Mulalley's evidence that he remembers the colours and brand of the Complainant's underwear.
[26] Shepherd v The Queen (1990) 170 CLR 573, 579 (Dawson J).
Given the presence of the Complainant's direct evidence of what occurred, the cases on the approach to be taken in cases of purely circumstantial evidence are not directly on point. But the principles in those cases provide some guidance as to how we should approach this evidence including that:
(a)circumstantial evidence must be considered in its totality and not piecemeal;[27]
(b)put another way, 'the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately';[28] and
(c)to discharge the civil standard of proof it will be enough for circumstantial evidence to 'give rise to a reasonable and definite inference'. That is, it must be more than one of two or more conflicting inferences of equal degrees of probability.[29]
[27] R v Hillier [2007] HCA 13, [46] and [48]; ABC v Chau Chak Wing [2019] FCAFC 125, [135].
[28] ABC v Chau Chak Wing [2019] FCAFc 125, [134], citing Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 580.
[29] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
Of course, as just noted, in a case such as this the considerations in Briginshaw are relevant. Perhaps more accurately, in a case such as this the relevance of circumstantial evidence is likely to be its significance to whether we are 'satisfied' to the relevant standard, having regard to the considerations in Briginshaw.
In light of the above, while we have considered each of the items of circumstantial evidence relied upon by the Board by reference to whether they provide support for, or are contrary to, the central allegation, we have also (at the end of these reasons) had regard to the evidence as a whole in drawing our final conclusion.

The Legal Principles as to the Evidence of Complainants of Sexual Assault

In her opening submissions at the hearing, Ms Young SC referred to the following passage from Lee J's decision in Lehrmann:[30]
[30] Lehrmann v Network Ten Pty Ltd [2024] FCA 369, [117].
(1)trauma has a severe impact on memory by splintering and fragmenting memories; such that semantic or meaning elements become separated from emotion; and interfering with the timespan memories required to consolidate and become permanent;
(2)due to the potential for cuing of emotional responses to fragmented memories, memory can change, be subject to reconsolidation effects, and even when these effects are not marked initially, memories may remain labile for some time (thus changes in what the person reports as their memory of an event can be expected);
(3)lack of clarity and confused accounts can be expected until such time as the memory has consolidated;
(4)inconsistencies in reporting following a traumatic event are often observed and explicable through underlying theories of trauma and memory function;
(5)omissions can be understood as alterations in awareness due to high arousal at the time of the event that consolidate over time;
(6)inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception;
(7)in understanding the account of an alleged "survivor", a person must consider how that account was elicited; this includes the skill and attitudes towards the person by the investigating officers; the time elapsed between the traumatic event and the formal interview; and the psychological/emotional state of the person being interviewed at the time of interview;
(8)the first forensic interview is potentially a trigger for intrusive thoughts that can lead to fragmentation of memory and dissociation; patterns of behaviour such as high confidence and clarity in the account are not helpful in determining whether the account is accurate;
(9)despite the belief that the emergence of inconsistencies across interviews is a sign of lying (people 'can't keep their story straight'), the literature on memory, impacts of trauma and the dynamic between interviewee and the interviewer must be considered; and
(10)multiple interviews are typically necessary to construct a clear narrative of events; however, the consequence of these multiple interviews may be patterns of inconsistency or omissions especially early in the interview process (which need to be carefully evaluated but are not in and of themselves necessarily indicative of deception or accuracy).
The above principles were presented to Lee J as Agreed Facts per s 191 of the Evidence Act 1995 (Cth). Accordingly, it was unnecessary for his Honour to cite authority for any of them, although in the immediately preceding paragraphs of his Honour's reasons he appears to accept that they reflect 'the accumulated experience of the common law (seen in standard directions) or in ordinary human experience'.[31]
[31] Lehrmann v Network Ten Pty Ltd [2024] FCA 369, [113] - [116].
Mr Yovich SC took no exception to the Board's citation of, and reliance on, the above principles[32] but, in any event, Ms Young SC filed further written submissions in which four principles were summarised and supported with authority. Those submissions were as follows:[33]
First, it is imperative to have due regard to the fallibility of human memory, particularly with the passage of time and overlay of subsequent recounts and discussion, when assessing a witness' evidence and honesty: Longman v The Queen (1989) 168 CLR 79, 107 - 108 (McHugh J); Watson v Foxman (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq); Roberts-Smith v Fairfax Media Publications Pt Ltd (No 41) [2023] FCA 555 [163]-[166] (Besanko J).[34]
Second, traumatic incidents may have a particular impact on a witness' memory and/or the evidence they give about an event: Fadi Diab v R [2023] VSCA 107 [77] (Beach and Kaye JJA).
Third, courts and decision-makers recognise the impact of trauma on the memory of and evidence given by victims of sexual assault, such that it is rarely appropriate to proceed as if the reliability of a sexual assault complainant's evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail: Reed v R [2006] NSWCCA 314 [64] (Spigelman CJ); referred to approvingly in Singh v R [2025] NSWCCA 34 [118].
Fourth, courts and decision-makers need to be careful in their assessment of a witness' honesty, recognising that inconsistency in accounts or a failure to report may be responses to trauma: see Davis v The King [2024] NSWCCA 120 [146]. So called 'counter-intuitive behaviour' exhibited by victims of sexual assault is not necessarily inconsistent with being a victim of sexual assault: see, for example, Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, [204].
[32] See also, Reynolds v Higgins [2025] WASC 345, [38] - [39].
[33] Board's Submissions of Evidence of Sexual Assault Complainants, 24 March 2025, paras 3 - 6.
[34] Since the hearing in this matter the Full Federal Court has dismissed an appeal against Besanko J's decision - Roberts-Smith v Fairfax Media Publications Pty Limited [2025] FCAFC 67, [27].

Again, Mr Yovich SC did not take issue with any of those principles.
He did, however, make the following submissions about them, which we accept and have sought to apply.
First, Mr Yovich SC submitted that we must not proceed on the assumption that the Complainant is the victim of a sexual assault. Rather, we must proceed on the basis that she is a complainant.[35]
[35] ts 322, 31 March 2025.
Second, and consistent with the immediately preceding paragraph, he submitted that, while we can proceed on the basis that the Complainant has suffered trauma in her life (with the prospect that, consistent with the above principles, her evidence may be affected by it), we must not assume 'that her recollection of the examination by Dr Mullaley is overlain by trauma because she was sexually assaulted' during that examination. To do so would be to 'reason in a circular fashion'.[36]
[36] ts 325, 31 March 2025.
Third, while (as noted above) Mr Yovich SC accepted that the Complainant had suffered trauma in her life, and that that trauma may impact on her recollection in the ways described in the principles set out above, he submitted that the Complainant's past trauma 'does not elevate the quality of her evidence or inoculate her from scrutiny'.[37]
[37] ts 325 - 326, 31 March 2025.
Fourth, Mr Yovich SC also put his third submission in a slightly different way by saying that, while it is recognised that inconsistencies and other irregularities in her evidence may be a response of the Complainant to her trauma, we must be careful not to start from the proposition that she is telling the truth.[38]
[38] ts 327, 31 March 2025.
Mr Yovich SC also, in addressing certain parts of the Complainant's evidence, said that that evidence could not be described as 'tangential', referring to or using the language of Spigelman CJ in Reed.[39] That is, he submitted that there are various difficulties with the Complainant's evidence about the alleged assault itself, and not merely with the peripheral details surrounding it, that cannot be explained by the impact of trauma on her memory.

The Legal Principles as to Recent Complaint Evidence

[39] Reed v R [2006] NSWCCA 314 (Reed), [64].

'Recent complaint evidence' is evidence that an alleged victim of sexual assault, not long after the alleged incident, reported it (disclosed it) to a third party.
In the Board's Written Closing,[40] the Board referred in this regard to the Tribunal's previous decision in Arunkalaivanan.[41] In that case, the Tribunal noted that such evidence is, in the criminal law context, seen as an exception to the rule about hearsay, which exception has developed on the (dubious) hypothesis that a 'true' victim of sexual assault will complain at the first reasonable opportunity.[42]
[40] Board's Written Closing Submissions, 31 March 2025 (Board's Written Closing), para 88.
[41] Medical Board of Australia and Arunkalaivanan [2021] WASAT 127.
[42] Arunkalaivanan, [46].
However, as the Tribunal also noted in that case, recent complaint evidence does not have the effect of proving that the alleged assault (that is, the subject of the complaint) actually occurred; rather, its effect is to (merely) buttress the credibility of the complainant's evidence.[43] The Tribunal further noted that in the criminal law context, in deciding whether recent complaint evidence is admissible, and therefore buttresses the complainant's credibility, it is necessary to have regard to all relevant circumstances surrounding the recent complaint evidence as well as its content.[44]
[43] Arunkalaivanan, [47].
[44] Arunkalaivanan, [47].
In Arunkalaivanan, the Tribunal noted that vocational proceedings (as that case was, and this case is) are disciplinary, and not criminal, in nature and that the Tribunal is not bound by the rules of evidence and may inform itself as it sees fit.[45] It therefore proceeded on the basis that the evidence in question was admissible if it was 'relevant and probative' of a fact in issue.[46]
[45] SAT Act, s 32(2)(a) and s 32(4); Arunkalaivanan, [49].
[46] Arunkalaivanan, [49].
The Tribunal then assessed the evidence as to each of the recent complaints, held it to be relevant and probative and, therefore, admissible and that it buttressed the Complainant's credibility.[47] It then held that the weight to be given to each piece of recent complaint evidence was to be determined having regard to:
(a)the actual content of the communications;
(b)when those communications were made; and
(c)whether anything else may have occurred which may have influenced their content.[48]
[47] Arunkalaivanan, [50].
[48] Arunkalaivanan, [51].
The Tribunal in Arunkalaivanan undertook that task because objection was taken to some of the recent complaint evidence.
That did not occur here. At no time during the hearing in this matter did Mr Yovich SC object to the admissibility of any 'recent complaint evidence'. He did, however, submit that the role to be played by such evidence is 'nuanced' and that it is not the case that 'there is a direct relationship between the recency of a complaint and the reliability of it'.[49]
[49] ts 328, 31 March 2025.
Nor, he submitted, should we proceed on the basis that the 'more closely the details of the initial disclosure correspond with what is said now, the more accurate it is likely to be'.[50]
[50] ts 328, 31 March 2025.
Rather, Mr Yovich SC submitted that several factors are 'all matters that may illustrate or illuminate a fundamental question of whether it happened' being: the fact of disclosure; the circumstances in which it was made; to whom it was made; what was said and was not said; and the fact it was made at the time it was and not another time.[51]
[51] ts 328, 31 March 2025.
In our view, the three matters to which the Tribunal referred in Arunkalaivanan as going to the weight to be given to admissible recent complaint evidence were not intended to be comprehensive or exhaustive and neither was the list given by Mr Yovich SC.
Rather, both envisage a critical engagement by the Tribunal with all of the relevant facts and circumstances to determine what weight should be given to each piece of admissible recent complaint evidence in buttressing the Complainant's credibility. We have endeavoured to adopt such an approach.

The Sexual Touching, if it Occurred, Amounts to Professional Misconduct

There can be no doubt that the sexual touching, if it occurred, amounts to professional misconduct. As we mentioned in the 'Introduction' above, the parties are in agreement about this characterisation.
The touching of a patient's genitals in the absence of a clinical reason for doing so amounts to a fundamental breach of both the trust and the significant power imbalance that exists between a patient and their treating doctor.
The Board's Sexual Boundaries: Guidelines for Doctors (Guidelines), published pursuant to s 39 of the former Law on 28 October 2011, defines 'sexual misconduct' as including:
•Making sexual remarks, touching patients in a sexual way, or engaging in sexual behaviour in front of a patient.
The Guidelines also provide the following by way of explanation for why breaching sexual boundaries is 'unethical and usually harmful':
A breach of sexual boundaries is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients (and the community) have in their doctors and may cause profound psychological harm to patients and compromise their medical care.
Power imbalance
The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient.
Trust
Trust is the foundation of a good doctor-patient relationship. Patients need to trust that their doctors will act in their best interests. It is a breach of trust for a doctor to enter into a sexual relationship with a patient. This breach of trust may impact on that patient's (or other patients') ability to trust other doctors.
…
A breach of guidelines published by the Board does not, of itself, necessarily amount to professional misconduct.[52] Further, due no doubt to Dr Mullaley's concession that, if it occurred, the alleged sexual conduct amounts to professional misconduct, no evidence was called as to the relevant professional standard or whether the sexual touching amounts to a breach of the Guidelines so as to amount to professional misconduct.
[52] Panegyres v Medical Board of Australia [2020] WASCA 58, [17] - [18].
However, as the Court of Appeal noted in Dekker,[53] some allegations are such that no expert evidence is required as to whether the relevant conduct would breach a generally accepted standard or duty. The Court specifically referred to the 'duty not to have sexual relations with a patient' as one such example.
[53] Dekker v Medical Board of Australia [2014] WASCA 216, [73].
We are satisfied, and we find, that the deliberate touching of a patient's genitals by a doctor without a clinical basis for that touching is such a grave and fundamental breach of trust and abuse of the power imbalance by the doctor that there can be no doubt that it amounts to professional misconduct.[54]
[54] See, for a not dissimilar set of facts, Richter v Walton [1993] NSWCA 233, [1] - [2].

The Hearing and the Evidence

Helpfully, the parties filed an agreed Trial Bundle which was tendered at the hearing and became Exhibit 1. In addition, an A2 size plan of the ground floor of the JHC ED was tendered and became Exhibit 2. A Statement of Agreed Facts Accompanying Book of Documents was also tendered and became Exhibit 3.[55]
[55] This statement was limited to 'the facts relevant to the provenance of documents included or excluded from the Book of Documents'.
The Board called the Complainant, her Mother and her Aunt. Each of them gave evidence at the hearing. The Complainant's Aunt was briefly cross-examined. Her Mother was not cross-examined. The Complainant gave her evidence via video-link from a separate room at the Tribunal and was extensively cross-examined.
Dr Mullaley gave evidence and was cross-examined. In addition, he called PN, who appeared on summons. She gave evidence and was cross-examined.

The Evidence of the Complainant

Overview of the Complainant's Evidence

The Complainant gave evidence at the hearing over approximately five hours.
As we mentioned above, her evidence was given via video-link from a separate hearing room. Present with her was a support person who sat behind her so as not to be visible to the Complainant whilst she was giving her evidence.
It was very obvious that the giving of her evidence was very difficult for the Complainant. At times she appeared to be nervous, worried and sad. More often, indeed frequently, she was upset and crying. On several occasions she became very distressed. At other times she was angry and frustrated, particularly when it was suggested that her evidence was incorrect or inconsistent with other evidence, including her own. At the conclusion of her evidence, she was inconsolably distressed and sobbing and repeatedly said that she was not lying.
We will first address some of the difficulties with her evidence. We do so given their centrality to Dr Mulalley's defence. They are not inconsiderable but, as we will explain, most of them concern evidence which is not central to the key issue in this case and are explicable by one or more external factors.
We will then address her evidence as to the alleged sexual touching. For reasons that we will come to, we found that part of her evidence credible.

Difficulties with Some Aspects of the Complainant's Evidence

There are several difficulties with aspects of the Complainant's evidence. Without attempting to be exhaustive, what follows addresses them under four broad topics and is discussed by reference to examples.
The first broad topic concerns aspects of the Complainant's evidence which was incorrect when assessed against other, objective, evidence.
For example, her evidence at the hearing was that Dr Mullaley was the first person to engage with her after her admission at JHC ED on 12 July 2016 and he did so shortly after she awoke.[56]
[56] ts 32, 24 March 2025.
That evidence is consistent with what she told the police in a statement taken on 15 April 2017[57] and with what she said in a statement given to the Australian Health Practitioner Regulatory Agency (AHPRA) dated 19 January 2020.[58]
[57] Exhibit 1, pages 14 - 15.
[58] Exhibit 1, page 59.
However, the contemporaneous hospital notes record otherwise. As we have briefly detailed above, those notes record that:
(a)apparently as part of an initial assessment, and therefore, we assume soon after admission or, perhaps, soon after she awoke, she declined the offer of a physical examination;[59]
(b)she participated in a Mental Health Assessment carried out by PN, which appears to have occurred sometime prior to 9.30 am on 12 July 2016;[60]
(c)she was examined by Professor Stampfer, a consultant psychiatrist at JHC, who revoked the MHA Form 1A, thereby ending her status as an involuntary patient, at 12.45 pm on 12 July 2016;[61] and
(d)at 2.00 pm on 12 July 2016 the plan was for the Complainant to be admitted to the MHU 'open ward' for further observation.[62]
[59] Exhibit 1, page 242 - the notes are headed 'Emergency Department Medical Assessment' and are dated 12 July 2016 but no time of the assessment is recorded.
[60] The notes of the Mental Health Assessment record, on their first page, the time as 9.30 am and, on their last page, PN's signature next to the time of 10.30 am: Exhibit 1, pages 245 - 250. PN gave evidence that the times record the start and finish of her taking the notes, which would have occurred after the assessment occurred - ts 294 - 295, 28 March 2025.
[61] Exhibit 1, page 234. See, also, page 258.
[62] Exhibit 1, pages 258 - 259.
As we have previously noted, the purpose of Dr Mullaley's physical examination of the Complainant was to ensure that she was medically fit and suitable for admission to the MHU, which is entirely consistent with that chronology.
Dr Mullaley's notes of his examination of the Complainant record a time of 2.30 pm.[63] His evidence as to when he made examination notes was that his usual practice was to take notes 'straight afterward',[64] although he said that on a particular occasion, his note taking may be delayed for various reasons. His previous evidence to a JHC internal investigation[65] and to AHPRA[66] was that he commenced his examination at about 2.00 pm. His notes conclude that the Complainant was '[s]uitable for MHU currently'.
[63] Exhibit 1, page 261.
[64] ts 170, 25 March 2025.
[65] Exhibit 1, page 93.
[66] Exhibit 3, page 8.
We are satisfied and we find that the Complainant was seen by Dr Mullaley no earlier than 2.00 pm (rather than early in the morning) and that she was seen by others, including Professor Stampfer, before Dr Mullaley examined her, contrary to the evidence she gave at the hearing.
By way of a second example, the Complainant said, on several occasions, that she disclosed the sexual touching to Professor Stampfer. However, there is no documentation to support that and in written statements Professor Stampfer has said that she never disclosed the sexual touching to him.[67] Despite the Complainant's evidence, Ms Young SC did not otherwise suggest that a complaint was made to Professor Stampfer, who was not called by either party. We are satisfied that no such complaint was made. We return to this issue in more detail below at paras [156] to [166].
[67] Professor Stampfer participated in an internal JHC enquiry in April 2017 and gave a statement to AHPRA in 2021. Both are to the same effect; Exhibit 1, pages 82, 85 87.
As a second broad topic of difficulty with the Complainant's evidence, we note that some aspects of what she said at the hearing were inconsistent with what she has previously said elsewhere.
So, for example, her evidence at the hearing was that, following her examination by Dr Mullaley on 12 July 2016, she disclosed the sexual touching to her Aunt by phone and then in person during her Aunt's visit of her while she was in the MHU of JHC.[68]
[68] ts 37, 24 March 2025.
However, in her statement to AHPRA dated 19 January 2020, she said that no one visited her while she was in the MHU at JHC.[69] We discuss these disclosures and when they happened in further detail below.
[69] Exhibit 1, page 64.
Another example concerns the sequence of her examination by Dr Mullaley.
In her evidence at the hearing she said that Dr Mullaley's physical examination of her started with him checking her glands and using his stethoscope on her chest, after which he used his stethoscope on her bowels, which he also 'pressed down on'. She said that he then checked the blood flow in her legs and that it was after that the sexual touching occurred.[70]
[70] ts 32 - 33, 24 March 2025.
In her statement to the police in April 2017, she said that the sexual touching occurred before Dr Mullaley checked her legs.[71]
[71] Exhibit 1, page 18.
In both cases, her evidence was that the 'counselling' occurred after the physical examination ended.
In contrast, in her statement to AHPRA in 2020, she said that after checking her glands and using his stethoscope on her chest, Dr Mullaley pressed down on her stomach. He then provided his 'counselling' before engaging in the sexual touching, after which he checked her legs.[72]
[72] Exhibit 1, pages 60 - 62.
The third broad topic of difficulty with the Complainant's evidence concerns her response when presented with evidence that was inconsistent with that given by her at the hearing. When that occurred, she became defensive and, more than once, gave doubtful explanations and/or alleged bad faith on the part of others.
The first example concerns her level of sedation at the time of the alleged sexual touching.
As noted above, she had been sedated prior to leaving HPH for JHC.
Her evidence at the hearing was that she was given twice her usual dose of Lorazepam as well as Quetiapine, that she was 'zonked out' before getting into the ambulance, and that she came to in the ED of JHC.[73] However, her statement to the police of 15 April 2017 included that she was given some 'sedative medication [which] helped [her] relax and calm down while [she] was being transferred'.[74]
[73] ts 31, 24 March 2025.
[74] Exhibit 1, page 15.
During cross-examination, when taken to that passage in her police statement, she said that the:[75]
detective was not supportive whatsoever, had no care for it, and showed me exactly what I thought was going to happen. And that is that he does not - it is another fucking - sorry; excuse my language - another person that is just trying to complain for whatever reason or purpose about something like - like this. And I just felt like I was a liar, like I feel like right now.
[75] ts 106, 24 March 2025.
We are not in a position to assess her characterisation of the attitude of the relevant police officer, who was not called to give evidence before us. We note, however, as Mr Yovich SC said to the Complainant in crossexamination, that she signed the statement indicating her agreement with it.
However, only a few paragraphs after that passage her police statement says '[w]hen I woke up in the morning I felt tired from the medication, but I wasn't too sure why I had been sent to [JHC]'.[76]
[76] Exhibit 1, page 15.
That appears to be consistent with the evidence that she gave at the hearing, but she was not taken to it in cross-examination and was unable, therefore, to compare the two statements or comment on their interaction.
The point for present purposes is not whether or not she was sedated, to which we return in some detail, but to note the Complainant's response to what was put to her as apparently inconsistent evidence.

The second example is her response to a challenge to her evidence that she had wanted to disclose the sexual touching to a doctor while she was at JHC MHU and had tracked down and disclosed the sexual touching to Professor Stampfer while there.[77]
[77] ts 109, 24 March 2025.
It was put to her that she was wrong and that, in fact, she had not seen Professor Stampfer in the MHU. Rather, it was said that she had seen a female psychiatrist while in MHU, who had engaged in an 'extensive conversation' with her but that she (the Complainant) had not disclosed the sexual touching to that psychiatrist.[78]
[78] ts 109, 24 March 2025.
To that suggestion the Complainant said:[79]
That's because I got put - thrown into the locked ward. I didn't really get much of an opportunity to, because she was more fussed about me being - I remember being put in a padded almost room with just a pillow and a yucky mattress on the floor. I was mistreated so probably didn't feel like I could speak to her or trust her. Doesn't matter whether female or male, it's who you feel safe with and trust.
[79] ts 109, 24 March 2025.
There is no other evidence to support the suggestion that she was treated that way while she was a voluntary patient at JHC MHU following her examination by Dr Mullaley and given her voluntary status we consider it most unlikely.
The third example arose immediately after that evidence. The Complainant was taken to some hospital notes from HPH that recorded her disclosure of the sexual touching to a nurse (AC), who worked at HPH (rather than JHC), and who the Complainant described as her 'favourite' as she made her 'feel cared about'.[80]
[80] ts 110, 24 March 2025.
The notes in question were made by another nurse on (Tuesday) 15 March 2017, three days after the alleged sexual touching on (Saturday) 12 March 2017. The Complainant had been discharged from JHC MHU back to HPH the previous day, (Monday) 14 July 2016.[81] The notes record:[82]
[The Complainant] disclosed to [AC] that on Monday night she was seen by a Dr/psychiatrist who gave her a physical, [the Complainant] felt sedated from lorazepam and he 'touched her up' this was clarified and [the Complainant] stated he touched her intimately. She would like to take action and wants to report this, she is also scared and frightened as he has her details.
[81] Exhibit 1, page 269.
[82] Exhibit 1, page 300.
In cross-examination, Mr Yovich SC took the Complainant to those notes. In the exchange that followed, the Complainant appears to have recognised that the timing recorded in the notes is different to what she now alleges. The exchange was as follows:[83]
Was that your memory of what happened three days after the events?---No. And I did tell this nurse in particular the exact – what had happened. And that is not what I told her in terms of time frames and when it happened. So that is their confusion, not mine.
So you say that that note - - -?---Because you can see it is a different nurse to [AC] - - -
Yes?--- - - - that wrote that note. Yes. So there is probably a mix up there, I am assuming.
Well, - - -?---Because that is not what I told [AC].
Well, [Claimant's name omitted], could it be you who has mixed up?---I don't trust these notes. I really do not trust these notes. That is second written by another nurse in interaction. Maybe she wasn't – maybe I was wrong, and [AC] did not care and listen and take in what I actually said to her. So there you go. I don't know [what] else to say.
[Claimant's name omitted], - - -?---I fucking hate this.
[83] ts 112, 24 March 2025.
This represents another example of 'recent complaint evidence' and we will return to it in more detail below. For present purposes we note the discrepancy and her reaction when taken to it, including that she was critical of nurse AC who she had previously described favourably.
A fourth example concerns the suggestion, put to the Complainant in cross-examination, that she had made previous false allegations of sexual assault.
The JHC notes show that the Complainant was admitted to JHC ED again on 23 May 2017 (approximately seven weeks after her second examination by Dr Mullaley). The Special Care Request Notes record that at 1.15 pm she was told by a doctor that she 'has to go' to MHU and that she 'cryed and said no I will vomit and said last time I went there I got raped'.[84]
[84] Quoted verbatim; Exhibit 1, page 443.
She agreed in cross-examination that, contrary to those notes, she had never been raped and that her allegations against Dr Mullaley concern conduct which she says occurred in JHC ED, not JHC MHU.[85]
[85] ts 99 - 101, 24 March 2025.
When, following those answers, the Special Care Request Notes were put to her, her initial response was that the nurse who had taken the notes had mis-recorded what she had said. However, she quickly, and without any real prompting, accepted that the notes accurately record what she had said and explained it as follows:[86]
Yes, the 24/7 nurse that would sit in my room and watch me do every single thing and pretty much treat me like crap. A lot of them did. So yes. Out of anger, I probably did say something along the lines of what happened to me because I wanted them to understand the depth of how much I was struggling and why my anger - and why I wanted to do these certain things. Because they did not understand.
[86] ts 101, 24 March 2025.
Mr Yovich SC submitted that the Complainant has a history of false accusations of sexual assault, including this example. We return to this topic in more detail below.

Explanations for the Difficulties with Some Aspects of the Complainant's Evidence

It was clear that the Complainant was struggling to focus and concentrate when giving her evidence, particularly but not only toward the end of her cross-examination.
To give one banal example, the Complainant answered 'yes' to a question that presented an either/or option.[87]
[87] ts 60, 24 March 2025.
Quite early on in his cross-examination of her, Mr Yovich SC paused that process and, after the Complainant left the hearing room and during an exchange with the bench, advised that he was of the view that her memory had been 'splintering' whilst giving answers to his questions.[88] We agree with that observation.
[88] ts 72 - 75, 24 March 2025.
On several occasions during her evidence she said that the process of revisiting the events in question was very stressful for her, such that, for example, she had not refreshed her memory of what she had previously said before giving her evidence because it was too painful to do so.[89]
[89] ts 55 - 56, 24 March 2025.
Elsewhere she described herself as tired and said that her 'brain is not really taking in [the] questions'.[90]
[90] ts 58, 24 March 2025.
We accept her truthfulness in this regard; we do not think she gave that evidence for an ulterior purpose. Rather, we accept that she finds it difficult to think and talk about the events in question and that having to do so is distressing and exhausting and that giving her evidence exacerbated that difficulty.
In our view, that difficulty, distress and exhaustion provides some explanation for errors and inconsistencies and for those occasions where she was defensive and blamed others for apparent errors and inconsistencies.
In addition to that difficulty, distress and exhaustion, we are satisfied that the effluxion of a considerable period of time, the consequences of Electro-Convulsive Treatment (ECT)[91] and the effects of the undisputed trauma she has suffered on her memory also provide some explanation for the inaccuracies and inconsistencies in her evidence.
[91] ts 54, 24 March 2025.
There is little need to say much about the effluxion of time. Although the Complainant has since had cause to revisit the events in question on a couple of occasions by, for example, giving statements to police and AHPRA, it is now nearly nine years since Dr Mullaley examined her in July 2016. That is a very considerable period of time and it is not surprising that the Complainant's memory of various elements of the events in question have changed, are inconsistent with previous versions, or are otherwise unreliable.
As to ECT, the Complainant's evidence was that she had undergone such treatment in 2019 and that it had significantly affected her memory for the worse.[92] Impacts of ECT on memory are a well-recognised side effect of that treatment and Mr Yovich SC did not challenge her on this in cross-examination or otherwise suggest to the contrary.
[92] ts 54, 24 March 2025.
As to the effect of trauma on memory, we have previously noted the well-recognised principles in that regard. There can be no doubt that the Complainant has suffered considerable trauma:
(a)Her own evidence spoke of a diagnosis of PTSD;[93]
(b)Her Aunt also spoke about the Complainant's very many hospital admissions, and both the Complainant and her Mother spoke about the Complainant's long-term anorexia nervosa;[94]
(b)The evidence also provides a basis to find considerable family dysfunction - the Complainant gave evidence that she does not have a relationship with her brother and said that she does not speak with her Mother.[95] In addition, her Father - whom she described as 'my everything'[96] - died in October 2017; and
(c)It is also notable in this regard that the Complainant was present at JHC ED due to her serious attempts at self-harm, including by running in front of traffic the previous evening.
[93] ts 30, 24 March 2025.
[94] ts 120, 25 March 2025.
[95] ts 61, 24 March 2025; ts 114, 24 March 2025.
[96] ts 61, 24 March 2025.
Indeed, Mr Yovich SC accepted that it was 'undoubtably so' that the Complainant had 'suffered trauma of one form or another throughout her life'.[97]

The Complainant's Evidence of her July 2016 Physical Examination

[97] ts 325, 31 March 2025.

The critical issue in this case is whether the sexual touching occurred. The Complainant's evidence that it happened, as well as what and how it happened, has been very consistent (albeit not precisely the same) over a long period of time starting with disclosures made very soon after she alleged it occurred.
In her statement to the police, dated 15 April 2017, the Complainant said that:[98]
[98] Exhibit 1, pages 14 - 25.
(a)the doctor introduced himself as 'Doctor Kim';
(b)she was lying on the bed, flat on her back with a hospital gown covering her body from her neck to her knees, and with the doctor on her right side;
(c)the examination started with the doctor feeling her glands and he then listened to her heart;
(d)while she was lying down, the doctor lifted her gown to a point below her breasts (so that they remained covered) and pressed down on her stomach; and
(e)at this stage the sexual touching occurred. The doctor was sitting on her right-hand side. He had his left hand on her left side so that he was leaning over her, facing away from her face and towards her feet;
(f)her statement then continues:
32.The doctor then slowly slid his right hand underneath my underwear.
33.He arched his hand in a way that he stretched my underwear away from my vagina.
34.He then moved his hand on to my vagina.
35.I could feel his fingers on my vagina.
36.He was moving his had [sic – hand] around my vagina, but using mainly his fingers.
37.This went on for about a minute.
38.At one point, I felt as if he was going to put his fingers inside my vagina, so I clenched my legs together, closing my thighs around his hand.
39.When I did this, the doctor pulled his hand out from underneath my underwear and away from my vagina.
40.The doctor only touched the outside of my vagina and did not put his fingers inside.
41.When he touched me, I remember that his hands were cold. …
42.…
43.The doctor then stood up and he started to examine my legs. I think he was checking for blood flow.
44.When he finished checking my legs, I pulled my gown back over my legs so I was covered up again.
45.The doctor walked around the bed and sat on the bed on my left side.
46.The doctor then talked about his past and discussed his previous experiences with depression and also his experiences with treating depression.
47.The doctor also told me about how he was abused at school and growing up.
The Complainant's handwritten notes, which the Index to Exhibit 1 dates as 14 December 2019, and which appear to have been made preliminary to her AHPRA statement of the same date, provide as follows:[99]
[99] Exhibit 1, pages 29 - 30.
I was wearing my hospital gown, with only my underwear on underneath.
Standing on my right side – he began the 'physical examination' by feeling my glands with his hands, under my jaw area.
Then he moved his way down to my chest - Gown still on, and listened in a few areas from my back, to my chest.
Without permission, he lifted my gown up from my knees to my breast area – in which the gown covered my breasts, but left everything else below bare.
He began feeling my stomach – assume it was to feel my stomach + bowels.
‑‑
Sat down, right side facing feet. His left hand leaning on my left side.
Right hand in underwear, fingers touching all around area
For 1 minute approximately
Didn't go inside, thought he may of [sic], but didn't.
I clenched my thighs together as a way to tell him to stop as I couldn't verbally say it.
Hands cold?
He stood up and ignored the fact of what he did, and did further examinations
ie – legs/ blood flow
then sat down on my bedside and began talking to me about irrelevant things, ie his past mental health issues, suicide attempts, him being bullied at school … something about him being pushed in a ditch and physically abused
…
The Complainant's written statement to AHPRA dated 19 January 2020 is, relevantly, as follows:[100]
[100] Exhibit 1, pages 59 - 69.
16.Dr Kim then told me that he was going to perform a 'physical examination' on me. I didn't understand why he needed to do this since I was there for my mental health.
17.He commenced the examination without telling me what he was doing or why.
18.He was standing to the right of me and was facing towards me.
19.Dr Kim first felt my glands in my throat without warning me or telling me what he was going to do. His hands were really cold. He then moved down to my chest and used his stethoscope to feel my heart over the top of my gown. He told me to breath in and out whilst he listened through the stethoscope.
20.He then said to me 'I just need to feel your stomach; can you please lift your gown up?'
21.I was still sitting up in bed at this point and Dr Kim was standing next to me, on my right.
22.Dr Kim began pressing down and feeling my stomach. I think he was checking my bowels. He was pressing quite heavily and pushing into my stomach deeply with his hands.
23.He didn't say anything the entire time.
24.He then sat down next to me on the bed, on my left side, facing me. He was in-line with and next to my waist area.
25.Dr Kim then started talking about his past mental health issues and how he struggled when he was younger. He told me three personal stories, but I can only recall one story. It was about how he was severely bullied when he was at school for the way he looked and was thrown in a ditch, spat on and punched by a group of boys who also threw rocks at him.
26. The other stories were about his ex-partners and girlfriends. He also mentioned a scar and told me that he used to self-harm a lot too.
27.I then became confused because he had told me he was a medical practitioner. I started wondering if he was the psychiatrist.
28.I wasn't really listening because I thought it was all weird that he was telling me personal stories about himself.
29.He then turned away from me, so that he was facing towards my feet, with his back was facing me. I couldn't see his face. He was leaning on his right hand, still to the left of me, when he then lent over me and slid his right hand underneath my underwear. He didn't say anything when he did this and kept facing away from me.
30.I froze. I couldn't speak. I didn't know what was happening.
31.He was feeling me around my genital area towards my vagina in the same spot lower than my clitoris with about 4 fingers and did this for around 60 seconds. It was no longer than a minute, but it felt like forever.
32.At one point, he arched his hand underneath my underwear and I thought that he was going to insert a finger inside me, so I clenched my thighs together to stop him.
33.He then quickly moved his hand out from my underwear, without entering his finger into my vagina. I pulled my hospital gown back down to cover up my underwear. He then acted like nothing had happen and stood up and began examining my shins by touching them. He still didn't say anything.
34.Dr Kim then finished examining my shins and told me that 'the mental health psychiatrist should be here shortly, it won't be much of a wait'. He then left the cubicle.
The Complainant's initial evidence at the hearing was to the following effect:
(a)she was alone when she woke up and was wearing just her bra under a hospital gown, with no underpants underneath. Dr Mullaley attended after she awoke;[101]
(b)the physical examination began with Dr Mullaley using his stethoscope on her chest and belly and that he felt her glands;[102]
(c)he then pressed down on her belly, over the top of her gown. The pressing occurred from below her navel to her pelvic area;[103] and
(d)he then moved to check the blood flow in her legs 'but not long after that is what happened'.[104]
[101] ts 32, 24 March 2025. As we will discuss, she later corrected herself, saying that she did have underwear on.
[102] ts 32 - 33, 24 March 2025.
[103] ts 33, 24 March 2025.
[104] ts 33, 24 March 2025.
In her evidence-in-chief she did not speak of her gown being raised to allow Dr Mullaley to examine her belly. However, in crossexamination she was asked about Dr Mullaley's version of events which include that he obtained a blanket or some other piece of fabric which was used to cover her. When asked, she said that she remembered that it was only lifted to cover her mid-shin to her feet.[105]
[105] ts 88, 24 March 2025.
She was then asked questions about how she was positioned and where Dr Mullaley was located in relation to her. She said that she was lying on her back[106] and that he was sat beside her, although she could not remember which side, saying first left and then right.[107] She said that he was '[n]ot facing me at all. He was facing the opposite way towards my feet, beside me, sat on the bed'.[108] She was then asked again which side he was on, to which she answered the right-hand side.[109]
[106] ts 33, 24 March 2025.
[107] ts 33, 24 March 2025.
[108] ts 34, 24 March 2025.
[109] ts 34, 24 March 2025.
Those answers were given to questions which were concerned with Dr Mullaley's location across the entirety of the examination to that point. Plainly, the answer given - that he was facing towards her feet - cannot be correct as to his examination of her glands and chest. We understand, therefore, her answer to address Dr Mullaley's location and position after he had completed those parts of the examination, and he was examining her abdomen.
The Complainant was then asked, '[a]fter checking your legs, what happened then?', to which she said, '[f]rom what I try not to remember - have to now - he moved his hand towards my vaginal area or whatnot'.[110]
[110] ts 34, 24 March 2025.
She was then asked which hand was used. The answer to that question was not recorded - the transcript shows a 'Reporter's note' that two minutes and five seconds of audio is missing from the recording.

In cross-examination, he was also asked about his physical position, relative to the patient, when providing this counselling.
He said that he often sat down when providing counselling as he did not want to be standing over the patient. He said that it was 'not unusual' in 2016 and 2017 for him to sit on the patient's bed when doing so.[336]
[336] ts 205, 25 March 2025.
Later, in cross-examination, he was taken to one of the photographs taken by the Complainant, which shows him sitting on her bed in March 2017. He agreed that it shows his elbow was 'just above' the Complainant's knee and that he was 'sitting close' to her on that occasion, although he denied doing so in 2016.[337]
[337] ts 271, 25 March 2025.
His evidence as to counselling is significant for three reasons.
First, it is strongly correlative of the Complainant's evidence that the doctor who she says engaged in the sexual touching during his examination of her also told her personal stories of his childhood, including his own experiences of being bullied. Indeed, her evidence that the doctor who sexually touched her spoke of being 'thrown into a ditch' is, in our view, plainly a reference to Dr Mullaley, who gave evidence that he told the Complainant a story of being forced into a drain.
Second, it is consistent with the Complainant's evidence that Dr Mullaley sat on her bed.
Third, as we have previously found when discussing PN's evidence, it demonstrates a failure on Dr Mullaley's part to recognise and respect appropriate boundaries between doctor and patient.

Incident Post-Examination in July 2016

Chronologically, the next part of Dr Mullaley's evidence was that, following his examination of the Complainant in July 2016, he was confronted by a middle-aged woman who screamed at him in a way that he understood she was accusing him of sexual impropriety. He said that when she had finished, she was taken to the Complainant's cubicle and he spoke with members of the psychiatric team.
We have previously addressed this evidence. For the reasons that we previously gave, we do not accept Dr Mullaley's evidence about this incident, and we are satisfied that it did not happen.

Dr Mullaley's Examination of the Complainant in March 2017

Dr Mullaley said that, despite reading the Complainant's notes prior to examining her in March 2017, he failed to recognise that he had previously examined her in 2016.
He says that a nurse was present when he entered the Complainant's cubicle, but he does not describe her as a chaperone.[338]
[338] ts 181, 25 March 2025.
His evidence is that his physical examination in 2017 was very similar to that which he carried out in 2016, including the post-physical examination counselling, although he says that the Complainant lay on the bed the 'correct' way around.[339]
[339] ts 181 - 182, 25 March 2025.
He said that the counselling went for 15 - 20 minutes[340] and then he went to speak to the psychiatric team, during which he was confronted by the Complainant's Mother.[341]
[340] ts 189, 25 March 2025.
[341] ts 190 - 192, 25 March 2025.
He said that initially he did not remember the Complainant, but the nature of the incident reminded him of a previous and very similar confrontation in 2016, that he then went back through the previous notes and put the pieces together.[342]
[342] ts 192, 25 March 2025.
The significance of Dr Mullaley's evidence of the 2017 examination and its aftermath is somewhat limited, in that it concerns conduct that occurred well after the conduct the subject of the allegation of sexual touching.
Its primary significance is that his evidence was that the 2017 examination was very similar to that of the 2016 examination, which is consistent with the evidence of the Complainant that she experienced the 2017 examination as déjà vu.
It was that experience which prompted her to take photographs of Dr Mullaley and send the Facebook and SMS messages to her Mother.

Resolution

As we have previously found, when considered in its entirety, the evidence of the Complainant contains some inconsistencies and inaccuracies and was in some aspects unreliable. She also, when she became aware of flaws in her evidence, became defensive, gave doubtful explanations and/or alleged bad faith on the part of others.
The latter action did not do her credit but, as we have said, the majority of those inconsistencies and inaccuracies may be explicable by one or more matters: the passage of time, the Complainant's past history of trauma, her treatment by ECT and the undoubted distress and trauma that she experienced giving evidence.
More significantly, the majority of those inconsistencies are also properly described as tangential, as that term is used in Reed. Those include matters that Dr Mullaley, through Mr Yovich SC, relied upon as impacting materially on the Complainant's accuracy and/or honesty: differences in her account of the recent complaints to her Mother and her Aunt, her evidence that she was under the effects of sedative medicine during the examination, whether she disclosed the sexual touching to Professor Stampfer, and whether Dr Mullaley was seated on her right or left side.
While we have found that those matters are tangential, we accept that, in a general sense, they weigh somewhat against the reliability of the Complainant's evidence.
Also weighing against her reliability are the differences in her evidence as to which hand Dr Mullaley used to touch her and, more significantly, her evidence that Dr Mullaley moved her underwear to the side with his hand, whereas previously she had said that he slid his hand underneath her underwear.
We have previously said that that difference in her evidence should be understood in context: that she realised that she had previously given incorrect evidence that she was not wearing underwear at all.
As we have said, at other times she reacted strongly (and poorly) when she realised that her evidence was incorrect or inconsistent with previous statements. We are satisfied that her realisation that she had previously said that she was not wearing underwear, and the need to correct it, would have rattled her, which may explain the difference in her evidence.
However, despite that possible explanation, we accept that that inconsistency weighs with some reasonable weight against the reliability of her evidence as to the circumstances surrounding the sexual touching.
Weighing in favour of the reliability of her evidence as to the sexual touching is its consistency as to its several central features.
As we have previously identified, her statement to the police, her handwritten notes preparatory to the AHPRA statement, her AHPRA statement and her evidence at the hearing was all to the following effect:
a.that during her physical examination in the JHC ED, the doctor examining her touched her vulva;
b.that he used only his fingers;
c.that it went on for about a minute;
d.that he did not insert his fingers inside her vagina;
e.that it stopped when she clenched her legs together; and
f.that when it occurred, he was seated next to her, facing her feet, with his far hand taking his weight on her other side while his other hand touched her.
We accept Mr Yovich SC's submission that, as a general proposition, consistency does not, necessarily, amount to accuracy. But the consistency in the Complainant's evidence about the sexual touching is remarkable for the following reasons.
First, it covers several years - the police statement was made in April 2017.
Second, the consistency is in stark contrast to the very considerable variability of other, tangential, aspects of her evidence.
Third, we find it unlikely that the consistency is the result of her simply repeating what she had previously stated for at least two reasons:
(a)There is no suggestion that she had her police statement before her when giving the AHPRA statement, rather she appears to have been 'proofed' by an AHPRA investigator.[343]
(b)Further, her evidence at the hearing was that she had found it difficult to refresh her memory ahead of the hearing. She said that she had tried to look at both her police and her AHPRA statements but that she stopped doing so because it brought back difficult memories.[344]
[343] See, e.g. Exhibit 1, page 26.
[344] ts 54 - 55, 24 March 2025.
Also weighing in favour of accepting the Complainant's evidence of the sexual touching is the recent complaint evidence which, as we have previously noted, buttresses her credibility.
We have previously held that she told both her Mother and nurse AC within a few days of her 2016 examination by Dr Mullaley that she had been touched on the genitals ('under her underwear', to her Mother) by the doctor who had physically examined her. She also told her Aunt within those same few days that the doctor who had physically examined her did so in a way that made her feel 'uncomfortable'.
In addition to the very timely nature of those disclosures, the complaints to her Mother, Aunt and nurse AC contain enough information to both identify the alleged assailant (in that they identify him as the doctor who physically examined her, and no doctor other that Dr Mullaley appears to have done so) and what he is alleged to have done. They are also consistent with her subsequent statements and evidence at the hearing.
There was no challenge to the Mother's evidence, which we have accepted and we have previously held that the reference in the notes recording the complaint to nurse AC to 14 July 2016 rather than 12 July 2016 is likely to reflect an error by the note-taker rather than the Complainant. But even if it is an error of the Complainant, we do not accept the suggestion that it reflects an error that goes to her credibility.
Equally, we have rejected the suggestion that there may have been a misidentification of Dr Mullaley as the assailant. While Dr Mullaley's name was not given in the recent complaint evidence, in each case the Complainant alleged that the sexual touching occurred while she was being physically examined. There is no suggestion that she was physically examined more than once during her time in HPH/JHC in July 2016, and it is admitted that Dr Mullaley examined her on 12 July 2016.
Further, we find that her reaction to the 30 March 2017 examination, evidenced by her messages to her Mother, demonstrates that she knew that Dr Mullaley was the person she had previously accused of the sexual touching. Given that contemporaneous documentary evidence, we accept her evidence at the hearing that she felt an immediate sense of déjà vu on 30 March 2017.
We do not accept that the contemporaneous written evidence that the Complainant presented as alert and oriented to place and time was necessarily inconsistent with her evidence that she was feeling sedated at the time of the sexual touching. As we explained, it was possible that she presented in such a way, whilst feeling the effects of the sedatives she had been given. The hospital records showing the sedative medication the Complainant was given are consistent with her version of events. In any event, we were satisfied that this evidence was tangential.
We also do not accept the suggestion that the Complainant has a history of making incorrect or dishonest allegations of sexual assault. We have rejected the submissions that she has a willingness to lie about matters of sexual misconduct. Rather, we are satisfied that the two instances relied upon by Mr Yovich SC can properly be understood as references to what the Complainant alleges occurred on 12 July 2016.
For all of the above reasons, we accept the Complainant's evidence as to the sexual touching and we are satisfied, and we find, that it occurred.
We are strengthened in that view by the evidence of Dr Mullaley.
First, we have found that the altercation between him and an unnamed woman following his examination of the Complainant in 2016 did not occur. As a result, we do not accept his explanation for why he remembers what he says was an otherwise unremarkable examination.
In those circumstances, we are sceptical of his evidence as to what occurred during the examination.
Second, we are satisfied that the examination occurred without a chaperone. We have found, consistent with the relevant policies and PN's evidence, that it was very unusual at that time for a female mental health patient to be physically examined without a chaperone. We have also rejected Dr Mullaley's explanation as to why he chose not to use a chaperone. Indeed, we have found that his failure to use a chaperone is consistent with the allegation that he engaged in the sexual touching.
Third, we have found that Dr Mullaley's evidence that he had a specific recollection of the Complainant's underwear is explicable only if his examination of the Complainant was extraordinary. We therefore reject his evidence that nothing out of the ordinary occurred during the examination and, critically, that the underwear was visible for only a second or two. We have found that the evidence is consistent with the allegation that he engaged in the sexual touching.
Fourth, we have also found that Dr Mullaley's counselling of the Complainant was highly unusual and, indeed, inappropriate. It represents a failure by Dr Mullaley to recognise and respect relevant boundaries and, in that way, supports a finding that the sexual touching, which also represents a failure to respect boundaries, occurred.
For these reasons we are satisfied that the sexual touching occurred - that during his examination of the Complainant on 12 July 2016, Dr Mullaley touched her vulva with his fingers for about a minute in circumstances where there was no clinical reason to do so.
In so finding, we are conscious of the very serious nature of the findings and the consequences which are likely to follow.[345]
[345] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 362.
As we have previously held, and which was accepted by Dr Mullaley, a finding that he engaged in the sexual touching requires a finding that he has engaged in professional misconduct.
We therefore find that he has done so. The parties are encouraged to confer and provide an agreed timetable for the listing of the matter for the determination of penalty and costs.

Orders

The Tribunal finds that the respondent, Dr Kim Mullaley, engaged in professional misconduct by touching the Complainant's vulva on 12 July 2016 during a physical examination of her when there was no clinical reason for doing so.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FA
Associate to the Deputy President Judge Jackson
17 SEPTEMBER 2025