Medical Board of SA v Tan (No 1) No. Dcaat-99-438

MEDICAL BOARD OF SA v ARNOLD YANG HOCK TAN (No. 1)
[2000] SADC 144

Chief Judge Worthington, Members Heysen, Pickering and Chessell
Medical Practitioners Professional Conduct Tribunal

On 8 November 1999, the complainant, Medical Board of South Australia, (the Board) filed a complaint dated 28 January 1999 with this Tribunal against the respondent, Dr Arnold Yang Hock Tan. Its progress has been delayed by issues raised in the Supreme Court and in the High Court of Australia but the hearing of the complaint is listed to commence on 19 February 2001. The complaint alleges four counts of unprofessional conduct in the management and treatment of Bronwyn Anne White between 30 December 1992 and 11 August 1996. In brief, the particulars are that while there was a doctor/patient relationship between the respondent and Ms White, there was an ongoing sexual relationship, he gave her money, he failed to administer proper treatment and he administered drugs for non medical reasons. We are presently concerned with the respondent’s voir dire application to exclude certain evidence which the Board has indicated it intends to introduce at the hearing.
For the purposes of the voir dire, the following has been put before the Tribunal by consent. Prior to 14 August 1996, Ms White complained to the Pt Adelaide CIB that she had been raped a number of times by the respondent. On 14 August 1996, Detective Sergeant Bradshaw and other detectives attended at the respondent’s surgery at 15 Semaphore Road, Semaphore. The respondent was not present. Another doctor from that practice allowed police to search various rooms, except for one which has been referred to as room no 5. This was locked and that doctor did not have a key. DS Bradshaw made contact with the respondent by telephone requesting him to open the room. It is unnecessary to go into the detail of what happened next but later that day, police broke into room no. 5 and seized a large number of items which are listed in a declaration of Selena Gay Bazzacco, a senior constable attached to the Pt Adelaide CIB.
The seized items are many and varied. They include letters, photographs that are said to be pornographic, cameras, a tape recorder and cassettes, clothing, footwear, condoms, magazines, lubricants, handcuffs, masks, etc. The Board intends to introduce all or most of these these items into evidence saying that they are strongly probative and corroborate Ms White’s allegations about the respondent’s conduct with her. With the exception of a few which we do not need to identify, the respondent objects to any of those items being put into evidence. Before dealing with the grounds on which that objection is taken, we should deal briefly with the remainder of the chronology.
The respondent was charged with a number of counts of rape and granted bail in the Pt Adelaide Magistrates Court on 15 August 1996. On 19 August 1996 the Registrar of the Board (the Registrar) received a letter from Ms White dated 16 August 1996, in which she says its purpose is to “formally complain to your Board about Dr. Tan’s activities and actions toward me, my family and friends”. In it she lists rape, administration of unidentified drugs, pornographic photographs being taken of herself, taping of her voice, harassment and death threats. She also mentions that the matter is being investigated by the Pt Adelaide CIB.
The respondent was due to appear in the Magistrates Court on 19 February 1997 for a review of the committal proceedings but a decision was made to drop the charges. Details of that were put to us in the form of a statement of fact agreed between Mr Wilson, for the Board, and Ms Powell QC, for the respondent, which we set out. Frances Ellen Anderson is a Government Investigations Officer employed by the Crown Solicitor and Exhibit VDD4 is a direction to Mrs Anderson signed by Dr A. Kerr Grant, a member of the Board, dated 11 February 1997. We shall refer to that document again shortly.
Agreed facts (Tx 36):
On 10 February 1997, the DPP advised Bronwyn White that the criminal charges against Dr Tan would not proceed. Present at that meeting were representatives of the DPP, Bronwyn White and Celina (sic) Bazzacco. The police accordingly knew that the criminal charges would not proceed against Dr Tan from the date of that meeting.
Frances Ellen Anderson contacted the police on 11 February 1997 to make arrangements to collect the items seized. VDD4 was served on police officer Dillon on 13 February 1997 at which time Mrs Anderson took possession of the bulk of the items seized. With the exception of some items, which were in the possession of the Forensic Science Centre, the balance was collected by her on 14 February 1997.
When the matter was called on before the Magistrates Court on 19 February 1997, the prosecution tendered no evidence and the charges were therefore dismissed for want of prosecution. On that day the respondent's legal representatives requested police to return the items seized but they were advised that these had all been given to the Medical Board. On 18 June 1998 the Registrar laid before the Board a complaint against the respondent under s54 of the Medical Practitioners Act 1983 (the Act).
Part of the respondent’s argument rests on the content of document VDD4 and we therefore set it out in full. The reference to section 20(a) is a reference to s20A of the Act.

MEDICAL PRACTITIONER’S ACT 1983
DIRECTION AND AUTHORITY PURSUANT TO SECTION 20(a)
I, DR. A. KERR GRANT, Member, Medical Board of South Australia, hereby direct Mrs. Frances Ellen Anderson, Government Investigations Officer, pursuant to Section 20(a) of the Medical Practitioners Act, 1983, to conduct an investigation into matters of a kind which might be the subject of proceedings before the Board, namely to investigate the allegations against Dr Arnold Yang Hock TAN contained in a letter from Mrs Bronwyn Anne White dated 16th August, 1996, and all matters ancillary thereto.
Pursuant to section 20(a)(2) in carrying out this investigation, Mrs. Frances Ellen Anderson may, where reasonably necessary for that purpose:-
(2)“(a)...... require a person to answer questions and to be present or attend at a specified place and time for that purpose;
(b)require a person to produce books or equipment and inspect them when produced and make copies of the books or of any of their contents.”

And take notice that pursuant to section 20(a)(4) and (5);
“(4) That a person:-
(a).... who fails, without reasonable excuse, to comply with a requirement under subsection (2); or
(b) who wilfully delays or obstructs the Registrar or another person in the exercise of powers conferred by subsection (2),
.................. is guilty of an offence and liable to a penalty not exceeding $5,000 or imprisonment for three months.”
“(5)A person is not obliged to answer a question put to the person under subsection (2) if the answer would result in or tend towards self-incrimination.”

[Signed]
DR. A. KERR GRANT
MEMBER, MEDICAL BOARD OF S.A.
DATED: 11 FEBRUARY, 1997

The respondent says that VDD4 is invalid and that therefore, the police should not have produced the material to Mrs Anderson. Further, from the time the decision not to prosecute was made on 10 February 1997, the police unlawfully retained possession of that material and this was exacerbated by the hand-over to Mrs Anderson pursuant to the invalid authority. The respondent submits that this Tribunal has a discretion to exclude evidence that has been illegally or unlawfully obtained on the ground of public policy and that the discretion should be so exercised here (Bunning v Cross (1978) 141 CLR 54).
Before dealing with the argument concerning the validity of VDD4, it is necessary to refer briefly to the Act. Section 54 (as relevant) provides as follows:
54     (1)     A complaint alleging unprofessional conduct on the part of a medical practitioner may be laid before the Board by -
(a)     the Registrar; or
(b)     - - - - - - - - - - -
(c)     - - - - - - - - - - - -
(d).... a person who is aggrieved by conduct of the medical practitioner or, where that person is a child or is suffering from a mental or physical incapacity, by a person acting on his behalf.
(2)     Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board -
(a)     considers that the complaint is frivolous or vexatious; or
(b).... lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.
(3)     - - - - - - - - - - - - - -
(4)     - - - - - - - - - - - - - -
(5)     - - - - - - - - - - - - - - -
Pursuant to s15, the Board can delegate any of its functions or powers except proceedings under Part 4, which includes s54. Such a delegation may be made to a member of the Board, the Registrar, an employee of the Board or a committee established by the Board. By virtue of s20A, a member of the Board or a person acting at the direction of a Board member “may conduct an investigation of any matter that is the subject or is of a kind that might be the subject of proceedings before the Board or the Tribunal”. We need not refer to subsections (2), (4) and (5) of s20A because, although with a minor inconsequential error, they are already set out in VDD4. Subsection (3) requires the person conducting such an investigation to “comply with such general directions as may be given by the Board from time to time”.
Ms Powell’s argument about the validity of VDD4 and therefore, Mrs Anderson’s part, rests on three bases.
(1) Ms White’s letter to the Registrar of 16 August 1996 is a formal complaint of unprofessional conduct within the meaning of s54 and therefore, pursuant to s54(2) the Board must inquire into it. Because of s15, the Board cannot delegate that function of inquiry to any other person. Ms Powell submits that this means that the whole of that function must be discharged by the Board itself and, onerous as it may be, any investigation must be undertaken by the Board itself and no-one else. It is submitted that as the Board was seized of a formal complaint, there was no room for an investigation of the type contemplated by s20A. To the extent that there was anything to be investigated, that was being undertaken by the CIB.
(2) Alternatively, if there was something for the Board to investigate outside the actual inquiry under Part 4, the combined effect of ss15 and 20A means that it could be done only by way of delegation to a Board member, the Registrar, an employee of the Board or a committee established by the Board. As Mrs Anderson does not fall within any of those categories, there could be no delegation to her.
(3) Section 20A refers to a person acting at the direction of a Board member. Properly construed, that means that such a person is to act at the specific direction of a member of the Board, in other words a direction to undertake specified action (eg. to produce specified items) and not a general direction to investigate such as appears in VDD4. It is submitted that in VDD4, the Board has in effect, abrogated its investigative function, which in turn could lead to an abuse of power by being exercised unreasonably. This is all the more so because the type of investigation likely to occur in relation to medical practitioners concerns confidential information and can involve questions of an extremely sensitive nature which people may be legally obliged to answer.
In our opinion these arguments are not made out. We do not accept that in requiring Mrs Anderson to undertake an investigation, the Board was attempting to delegate its function of inquiry under Part 4 or that, as relevant here, s20A must be read down in conjunction with s15.
Part 4, Division 1, deals with proceedings before the Board. It provides for the Board to conduct inquiries about medical practitioners in two circumstances, a complaint alleging lack of competence (s50) and a complaint of unprofessional conduct (s54). Section 57 contains some general provisions that apply to all inquiries conducted by the Board. It must give at least 14 days written notice of the time and place “at which it intends to conduct the proceedings”; it must give parties a reasonable opportunity to call or give evidence, examine and cross-examine witnesses and make submissions; it may receive transcript taken in other proceedings and adopt findings of other courts or tribunals as “may be relevant to the proceedings”. Section 16 gives the Board certain powers in relation to witnesses and production of documents, and it provides protection for witnesses who appear before the Board. Section 17 provides that the Board is not bound by the rules of evidence, that it may determine its own procedures and that on the hearing of proceedings, it shall act according to equity, good conscience and the substantial merits of the case. Section 18 provides that parties to proceedings before the Board are entitled to legal representation and s19 empowers the Board to make orders for costs.
It is clear from this structure that an inquiry conducted by the Board under Part 4 is a formal hearing at which evidence is presented and all parties are entitled to legal representation, and at the end of which, the Board will make a formal determination or, if appropriate, during the course of the inquiry, terminate those proceedings and lay a complaint before this Tribunal. That is the function and attendant powers which s15 prohibits the Board from delegating.
In this matter, the Registrar laid a complaint under s54 before the Board on 18 June 1998. For completeness, we should mention that the material put before us does not disclose the terms of that complaint and in particular, whether it differs from Ms White’s letter to the Registrar of 16 August 1996. Nor does it show why it was the Registrar’s complaint that went before the Board and not the original complaint from Ms White. We make no criticism of that since it is for the parties to determine the ambit of an application such as this. However, it means that we are not in a position to comment further or make any findings on these matters beyond saying that it was the Registrar’s complaint which was put to the Board.
It does not follow that if, before commencing proceedings by way of inquiry, the Board, or one of its members, seeks help to investigate allegations, the Board is thereby delegating a function or power, let alone one under Part 4. Indeed, s54(2)(a) contemplates the possibility that preliminary investigation may result in there being no inquiry at all. As relevant here, Mrs Anderson collected material that, on the face of it, is germane to matters complained of in Ms White’s letter of 16 August 1996. Properly classified, this was an investigation into allegations which were yet to be the subject of proceedings before the Board by way of inquiry under Part 4. Her services were used to collect information that might assist the Board to conduct an inquiry under s54 or, if appropriate, to make an assessment under s54(2)(a) or (b) without starting an inquiry. As such, it was within the power of Dr Kerr Grant as a member of the Board, to direct “a person” to conduct that investigation (s20A). As that is not a delegation of power or function, there is no cause for s15 to limit the persons to whom such a direction may be given. There is therefore no reason why that person could not be Mrs Anderson.
We do not accept the submission that a direction under s20A will be bad unless, on the face of it, it is specific and not general. We have considered the submissions put about unreasonable conduct of an investigation and the potential for abuse. However, it would be inappropriate and unnecessary to consider issues that are wider than the point before us. There is nothing in s20A itself to support the submission that it should be read so as to limit the permissible content of a direction in that way. As to whether the conduct of a person undertaking such an investigation is unreasonable or is an abuse of power, will depend on the facts. Here, Mrs Anderson used her power to obtain material which, so far as this application is concerned, had been lawfully seized by the police in August 1996. As to whether it was still lawfully in their possession at the time she took it from them, is a question that will be dealt with shortly, but there is nothing to suggest that her action by way of investigation was unreasonable. In our opinion there is no basis to impugn the validity of the direction given by Dr Kerr Grant dated 11 February 1997. This ground must fail.
We turn to the submission that it was unlawful for the police to retain the material after it was decided not to continue the prosecution. That decision was made on 10 February. Dr Kerr Grant executed the direction under s20A on 11 February and on that same day, Mrs Anderson contacted police to make arrangements for the hand-over. Although not specifically put to us as a fact, it is reasonable to infer, and the arguments proceeded on the basis, that Mrs Anderson told them about the direction. It is not suggested that the material held by the police does not come within the description of “books or equipment” within the meaning of s20A(2)(b) and clearly, no one could ignore her requirement that the material be produced to her without running the risk of committing an offence under s20A(4).
The police had seized these items in the course of their investigation into allegations of serious crimes. There is no challenge to the seizure itself but it is submitted that for the police to have retained them beyond the time of the decision not to prosecute on 10 February 1997, offended one of the requirements set out by Lord Denning MR in Ghani v Jones [1970] 1QB 693 where he said at 709:
“The police must not keep the article, nor prevent its removal for any longer than is reasonably necessary to complete their investigations or preserve it for evidence ............................................ As soon as the case is over, or it is decided not to go on with it, the article should be returned.”
From the time Mrs Anderson told police on 11 February about VDD4, it could not be said that they were free to do other than produce these items to her. They were on notice that she had power to compel and they must be deemed to have known that failure to comply would expose individual police officers to prosecution. The critical time, therefore, is between when the decision to tender no evidence was made on 10 February and when Mrs Anderson contacted police on the next day, a period of about 24 hours. No request was made during that time for any of these items to be returned to the respondent. Indeed, no such request was made at any time before they were produced to Mrs Anderson on 13 and 14 February 1997.
We were referred to some authorities (eg. Malone v Commissioner of Police [1979] 1 All ER 256; National Crime Authority v Flack (1998) 156 ALR 501) to which it is unnecessary to refer in detail. These authorities do not establish that retention by the police in these circumstances was unlawful. They were concerned with the question of whether the custodian of articles at the time could retain them in the face of a claim by a person asserting some antecedent possessory right. It may well be that if this had been an application to a court for return of the items during the relevant 24 hour period, or even up until the time Mrs Anderson presented VDD4 to the police on 13 February, there may have been a finding that the police could not retain them. But that is not the issue before us. The question is whether it can be said that retention during that short period was unlawful and that, therefore, the evidence is thereafter tainted by that unlawfulness.
These authorities do not stand for the bald proposition that from the moment the decision not to prosecute is made, it is unlawful for the police to retain possession. The retention cannot be seen in a vacuum. The decision not to prosecute was made on 10 February and within about 24 hours, the police were on notice that Mrs Anderson required them. On the facts presented to the Tribunal, we do not know whether there was any earlier discussion between a representative of the Board and the police. However, during that 24 hours, there was no request on behalf of the respondent for their return. By the time such a request was made on 19 February, they had been given to Mrs Anderson on behalf of the Board. There is no evidence of there having been any request to her or to the Board for their return.

Lord Denning said, and it is made clear in the line of authorities to which he refers in Ghani, that the common law requirement is one of acting reasonably in all the circumstances. It cannot be said to be unreasonable that the items seized by the police were not voluntarily returned to the respondent at the very moment the decision not to prosecute was made. Moreover, in the absence of an additional factor such as a request for their return, it was not unreasonable for police to have still been in possession of this material on the day after that decision was made. All the more so when the decision to tender no evidence was not finally implemented in court until some days later, 19 February. We therefore do not accept the submission that the police were in breach of a common law duty to return these items, either at the time Mrs Anderson asked for them or at the time she collected them.
We should deal briefly with the position in the event that, contrary to our finding, it may be held that the police were in breach of a common law duty to return the material to the respondent during the short period in question and that therefore it was being held unlawfully when Mrs Anderson took possession.
These proceedings are disciplinary. Although the Board carries a civil onus of proof in relation to the complaint of unprofessional conduct, this Tribunal is not a court of law; it is an administrative tribunal (R v White (1963) 109 CLR 665 at 670-671); The proceedings are neither a criminal prosecution nor a civil action (Attorney General v Riach [1978] VR 301 at 304-305). The Tribunal’s function is sui generis and “may at times mean that it can or should allow a procedure that would not be followed in criminal proceedings or in civil proceedings” (Law Society of SA v Jordan (1998) 198 LSJS 434 per Doyle CJ at 465).
We were addressed on the question of whether the public policy discretion to exclude evidence obtained unlawfully or unreasonably which operates in the criminal law, also applies in civil actions and in a matter such as this (Mazinski v Bakka (1979) 20 SASR 350 at 380-381; Taylor v Harvey (1986) 2 Qd R 137 at 140-141; Pearce v Button (1985) 60 ALR 537 at 551-553). Judicial opinion on this question differs, but it is unnecessary to resolve it. From the respondent’s point of view, the most favourable position would be that there is a discretion of the type for which Bunning v Cross stands, namely a discretion to exclude evidence illegally or improperly obtained. However, there is no general rule that evidence which is illegally or improperly obtained should be excluded. Stephen and Aickin JJ observed in Bunning v Cross at 78:
“............................. it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law.”
Here there is no complaint of any breach of a statutory requirement. Assuming, without deciding, that this Tribunal has such a discretion, if, contrary to our finding, there was unlawfulness at common law on the part of the police in retaining the material, we would exercise the discretion against exclusion of the evidence. There is no question of the material having been retained for an inordinately long time or in the face of requests for its return. The material appears, on the face of it, to be highly relevant and, for the purposes of the voir dire, it is acknowledged that it may well have significant probative value. There is no evidence that the police or the DPP flagrantly or deliberately defied any rights of the respondent, or showed calculated disregard of the common law. Nor do we accept that to receive the evidence would demean the Tribunal. There is nothing unfair in the way the material was produced to the Board nor, on the face of it, would there be any unfairness to the respondent if it is admitted into evidence. For these reasons, it is not a case where, if the criminal law test were applied, the public policy discretion to exclude the evidence would have been enlivened. In particular, although the Tribunal is not bound by the rules of evidence, it is required to “act according to equity, good conscience and the substantial merits of the case” (s62). In our opinion, there is nothing in s62 that would require a different conclusion.
The application is refused.

[2000] SADC 144

14 December 2000