Medical Board of SA v A.Y.H.T. No. Dcaat-99-438

[2001] SADC 25

MONDAY, 19 FEBRUARY 2001
MEDICAL BOARD OF SOUTH AUSTRALIA
V
A.Y.H.T.
RELATING TO P.40 OF TRANSCRIPT
CHIEF JUDGE WORTHINGTON (ex tempore)
and MEMBERS CHESSELL, HEYSEN, PICKERING

HIS HONOUR:      This is an application by Y.K.T. to suppress the name of his father, A.Y.H.T, a medical practitioner, who faces a disciplinary inquiry on 4 charges, all of which are alleged to arise out of a sexual relationship with a female patient.  The case for the Medical Board is said to involve graphic evidence of numerous sexual encounters.  I need not repeat the helpful submissions made by Ms D’Arcy, for the media, and Mr Crawley, for the applicant.  No specific submissions were put by Mr Wilson, for the Medical Board, or Ms Powell QC, for the practitioner.

The applicant is 15 years old and is, therefore, a child within the meaning of s.69A (1)(b)(iii) of the Evidence Act. The only limb of sub-s.(1) that is relevant is that, before considering whether or not to make a suppression order, the court or tribunal must be satisfied that in the absence of such an order, the applicant would suffer undue hardship. If the court is satisfied of that, it must then undertake the balancing exercise set out in sub.s.(2), i.e., be satisfied that this potential hardship should be given greater weight than the public interest in publication of that information.

The first issue is whether or not publication would cause undue hardship to the applicant. Ever since the decision of the Court of Criminal Appeal in Owen v State of South Australia (1996) 66 SASR 251 there is no doubt that a court or tribunal in this State can have regard to the Second Reading Speech when construing the meaning of a statute. The Second Reading Speech in relation to the 1999 amendment to the Evidence Act, introducing the reference “to a child”, makes it clear that its purpose was to remedy the situation where a child might fall between the then two arms of sub-s.(1), being neither a victim nor a witness, and thus have no protection in appropriate circumstances.

I refer to the Second Reading Speech of the Minister.

“There may be situations, however, where a child, although not a victim or a witness, has some connection with the proceedings such that his or her welfare maybe harmed by publication of his or her identity. As an example, the child may be related to or live with the accused or the victim. If identifying material is published, the child may be victimised at school, ostracised in social situations or may otherwise suffer hardship. This Bill permits the court to make a suppression order to protect such a child. For the exercise of this power, it is not necessary that the child fall into any particular category or establish any particular connection with the parties or the case. Rather, the sole criterion is the welfare of the child. The court will need to consider each case individually.”

I pause briefly to say that the authorities referred to by Ms D’Arcy do not support the proposition that a court is restricted in the use it may make of the Second Reading Speech.. As relevant to this part of the argument, those authorities were concerned with the way in which the word ‘victim’ in sub-s.(1)(b)(i) is to be construed.  It has been held consistently that the word “victim” should not be given a strained or fanciful interpretation. To that extent therefore, those authorities do not bear on this point.

Previous decisions make it clear that hardship alone is not enough;  the requirement is undue hardship.  In G v  The Queen (1984) 35 SASR 349, King CJ said at p352 that “undue hardship” meant something more than the ordinary degree of hardship and that it is for the court to consider on a case by case basis whether that requirement is met.

The applicant has tendered a medical report from Dr Siaw dated 19 February 2001 which makes it clear that the applicant is presently suffering overwhelming anxiety and depression because of his father’s matter in this tribunal, and that it is causing him both stress and a concern about what effect the possible outcome and subsequent publicity may have on himself.  Although the report does not say so in so many words, it can be inferred that this stress and concern applies equally to any publicity about the allegations during the course of the hearing.  Dr Siaw goes on to specify the ways in which this is affecting the applicant and I need not repeat that.

Commonsense, as well as this report, indicates that publicity about the details of the counts will add to the hardship already being experienced by the applicant. The question is whether that will constitute undue hardship.

As I have said, the applicant is already suffering distress, anxiety and depression, and the fact of these proceedings is already known beyond the confines of his family. Publication of the practitioner’s name will obviously make that much more widely known.  The applicant is a 15 year old boy at a large school and his range of interests means that he is well known outside the school itself. I need not repeat what Mr Crawley said this morning; no one seeks to gainsay that. 

The allegations against the applicant’s father are of such a nature that their wide publication will add significantly to the applicant’s present problems. The effect of publication itself will be quite traumatic for him, especially in the context of his age group. In short, publication is likely to add to the mental harm the applicant is already suffering and thus be detrimental to his welfare.  The applicant has discharged the first obligation, i.e., to show undue hardship.

I turn then to the question of public interest. At this stage the matters put forward against the practitioner are only allegations. They refer to incidents that occurred some years ago, the most recent being about five years ago. There is nothing before the tribunal to indicate that it is in the public interest for there to be publication about these matters as a matter of urgency.  It will be only a comparatively short time before the inquiry is completed.  On balance we are satisfied that at this stage of the proceedings, the hardship that would flow to the applicant outweighs the public interest in having the practitioner’s name made public.

The order is as follows:  Until delivery of the decision in this matter, the name of the practitioner, A.Y.H.T. and anything tending to identify him, is suppressed.