PHYSIOTHERAPY BOARD OF AUSTRALIA and SHIRAJI - [2023] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   PHYSIOTHERAPY BOARD OF AUSTRALIA and SHIRAJI [2023] WASAT 26
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
DR P MOSS (SESSIONAL MEMBER)

HEARD:   1, 2 AND 5 DECEMBER 2022
DELIVERED          :   4 APRIL 2023
PUBLISHED           :   4 APRIL 2023
FILE NO/S:   VR 40 of 2022
BETWEEN:   PHYSIOTHERAPY BOARD OF AUSTRALIA
Applicant
AND
ARASH TAVAKOLI SHIRAJI
Respondent

Catchwords:

Vocational Regulation – Physiotherapist – Disciplinary proceedings – Allegations of professional misconduct or alternatively unprofessional conduct – Allegations of sexual misconduct – Allegation of inappropriate words spoken to patient following sexual misconduct – Whether allegations proved to the requisite standard – Turns on own facts

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 4, s 5, s 6, s 31, s 35, s 39, s 41, s 193(1), s 193(2), s 196(1), s 196(2)
Health Practitioner Regulation National Law Regulation 2018 (WA), reg 4
State Administrative Tribunal Act 2005 (WA), s 32

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	R Young SC
Respondent	:	GM Abbott

Solicitors:

Applicant	:	Piper Alderman
Respondent	:	Lander & Rogers

Cases referred to in decision:

Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
Bernadt v Medical Board of Australia [2013] WASCA 259
Briginshaw v Briginshaw (1938) 60 CLR 336
Medical Board of Australia and Roberts [2014] WASAT 76
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Panegyres v Medical Board of Australia [2020] WASCA 58
Qidwai v Brown (1984) 1 NSWLR 100

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By application dated 9 June 2022, the Physiotherapy Board of Australia (Board) referred to the State Administrative Tribunal (Tribunal) an allegation that Mr Shiraji (the respondent), who is physiotherapist, behaved in a way which constituted professional misconduct, or alternatively unprofessional conduct, in the course of a physiotherapy appointment with a patient (the Patient) on 26 August 2019. The Board alleges that the respondent sexually touched the Patient and then said inappropriate things to her in the course of the consultation. The precise allegations are detailed at [4] below.
Mr Shiraji, who also goes by the name Mr Tavakoli-Shiraji, denies the allegations. He maintains that the examination and treatment of the Patient on 26 August 2019, was entirely regular and appropriate.

Outcome

For the reasons which follow, we are not satisfied that the Board has proved the allegations against Mr Shiraji to the requisite standard.

Grounds

The Board alleges in its application that Mr Shiraji has behaved in a manner that constitutes professional misconduct or, in the alternative, unprofessional conduct for the purposes of the Health Practitioner Regulation National Law(WA) Act 2010 (National Law)[1] because his conduct was substantially below the conduct reasonably expected of a registered health practitioner of an equivalent level of training or experience in that, in the course of a physiotherapy consultation which took place on 26 August 2019, he:
(a)inappropriately touched the Patient on her clitoris and digitally penetrated her vagina; and
(b)made sexualised comments to her following the touching referred to in (a). Specifically, it is said that he said to her 'you are a naughty girl' and told her 'you don't need to be embarrassed'.
[1] The National Law applies as a law of Western Australia pursuant to s 4(1)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The Board submits that each of (a) and (b) separately constitute an act of professional misconduct or alternatively, unprofessional conduct.

Issues

The primary issues to be resolved in this matter are:
(a)whether we are satisfied to the requisite standard that Mr Shiraji touched the Patient in the manner alleged; and
(b)whether we are satisfied to the requisite standard that Mr Shiraji made the inappropriate comments which are alleged to have been made by him.
If the answer to either (a) or (b) is yes, we also need to consider how to characterise his conduct. That is, whether it amounts to professional misconduct or unprofessional conduct.

What is not in issue

It is not in issue that Mr Shiraji is a physiotherapist registered under registration number PHY00002045909 pursuant to the National Law.
The parties agree that if the Tribunal finds that Mr Shiraji touched the Patient as is alleged, the Tribunal will also find that there was no clinical basis for that conduct.
Mr Shiraji accepts that if the Tribunal finds that he rubbed the Patient's clitoris with his fingers and/or digitally penetrated her vagina, he would have engaged in professional misconduct in doing so.
Mr Shiraji accepts that using the words 'you are a naughty girl' and 'you don't need to be embarrassed' in the course of any physiotherapy consultation would be outside of conduct that would be expected of a physiotherapist acting in accordance with their professional obligations.
Mr Shiraji accepts that saying those words after sexually touching a patient, as he is alleged to have done, would amount to professional misconduct. He accepts that saying those words without having first sexually touched a patient would be inappropriate but does not concede that doing so would necessarily amount to professional misconduct. He submits that the characterisation of the conduct would depend on the surrounding circumstances.

Structure of these reasons

We have structured the remainder of our reasons as follows:
1.First, we have set out relevant provisions of the National Law concerning the Board, the role of the Tribunal in this proceeding, the meaning of the relevant disciplinary standards and the findings that the Tribunal can make in disciplinary matters of this kind.
2.Second, we have set out the relevant provisions of the code of conduct which applied to Mr Shiraji's practice as a physiotherapist.
2.Third, we set out the standard and onus of proof that applies in disciplinary proceedings of this kind.
3.Fourth, we set out our findings in respect of Mr Shiraji's qualifications, training, and experience
4.Fifth, we record our findings concerning the credibility of the various witnesses.
5.Sixth, we set out our findings in respect of the allegations made by the Patient and the reasons for them.
6.Finally, we set out the orders we will make as a consequence of our findings.

The National Law, the role of the Tribunal and findings that can be made by it and the meaning of relevant disciplinary standards

The National Law

The Board[2] is established under s 31 of the National Law. It has the functions referred to in s 35 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
[2] The Board is a National Board for the purposes of the National Law: See reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA) by which the Board is constituted as a National Health Practitioner Board for the medical profession.
Section 4 of the National Law provides that an entity that has functions under the National Law (in this case, the Board) is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Those objectives include:
1.regulating health practitioners;[3] and
2.providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.[4]

The role of the Tribunal and findings that it can make in disciplinary proceedings

[3] National Law, s 3(1)(a).

[4] National Law, s 3(2)(a).

The Tribunal is 'the responsible tribunal' under s 6 of the National Law. Pursuant to ss 193(1) and 193(2) of the National Law, the Board is required to refer a registered health practitioner to the Tribunal if the Board reasonably believes that the practitioner has behaved in a way that constitutes 'professional misconduct' and that conduct occurred in Western Australia.
The outcomes which may be reached after a hearing of a matter referred to the Tribunal are set out in s 196 of the National Law. That section provides that the Tribunal may decide:
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following —
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
If the Tribunal makes one of the findings referred to in s 196(1)(b) of the National Law, it may decide to take any one or more of the actions set out in s 196(2). They range from issuing a caution or reprimand to cancelling the practitioner's registration.

The disciplinary standards

The Board alleges that Mr Shiraji's conduct could be found to amount to professional misconduct or unprofessional conduct, depending on which allegations we find have been proved to the applicable standard. We therefore set out below the meaning of each of those terms.
The expression 'professional misconduct' is defined in s 5 of the National Law as follows:
professional misconduct, of a registered health practitioner, includes —
(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)more than one instance of unprofessional conduct that, when considered together, 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
(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 expression 'professional misconduct' is defined to include 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. The definition is inclusive rather than an exhaustive statement of that term. Therefore, professional misconduct under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example, conduct that is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.[5]
[5] Medical Board of Australia and Roberts [2014] WASAT 76 at [174].
The expression 'professional misconduct' has been found to have a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise) and a conduct component (conduct, 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).[6]
[6] Bernadt v Medical Board of Australia [2013] WASCA 259 at [23].
At common law, professional misconduct is regarded as conduct that could reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency or a breach of written or unwritten rules of the profession that would reasonably incur the strong reprobation of such colleagues.[7]
[7] Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 at [761] (Lord Esher MR); Qidwai v Brown (1984) 1 NSWLR 100 at [105].
The expression 'unprofessional conduct' is also defined in s 5 of the National Law:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes —
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of —
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
The definition of unprofessional conduct is, like that of professional misconduct, inclusory. That is, other conduct not specifically referred to in paras (a) – (h) may amount to unprofessional conduct.
Unprofessional conduct is conduct of a less serious nature than professional misconduct. Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of their profession.
Like professional misconduct, the definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.[8]
[8] See National Law definition in s 5(c).

The Code of Conduct

Section 39 of the National Law provides that a National Board may develop codes and guidelines to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions.
Section 41 of the National Law provides that a code or guideline approved by a National Board is admissible in proceedings brought under the National Law against a health practitioner in a profession for which the particular National Board is established, as evidence of that which constitutes appropriate professional conduct or practice for that particular profession.
As at 26 August 2019, the Board's code of conduct, entitled Physiotherapy Board of Australia for Registered Health Practitioners Code of Conduct March 2014 (Code of Conduct),[9] applied to Mr Shiraji's practice as a physiotherapist. Among other things, it required physiotherapists to:
(a)maintain professional boundaries with patients, both in order to comply with clause 8.2 of the Code of Conduct and to ensure the good care of patients; and
(b)maintain sexual boundaries with patients, both in order to comply with clauses 3.2(g) and 8.2(b) of the Code of Conduct and to ensure the good care of patients.
[9] Physiotherapy Board of Australia Code of Conduct March 2014 (Exhibit 2).
Section 3 of the Code of Conduct is entitled 'Working with patients or clients'. Relevantly, clause 3.2 provides as follows:
3.2Partnership
A good partnership between a practitioner and the person they are caring for requires high standards of personal conduct. This involves:
a)being courteous, respectful, compassionate and honest
b) treating each patient or client as an individual
c)protecting the privacy and right to confidentiality of patients or clients, unless release of information is required by law or by public interest considerations
d)encouraging and supporting patients or clients and, when relevant, their carer/s or family in caring for themselves and managing their health
e)encouraging and supporting patients or clients to be well‑informed about their health and assisting patients or clients to make informed decisions about their healthcare activities and treatments by providing information and advice to the best of a practitioner's ability and according to the stated needs of patients or clients
f)respecting the right of the patient or client to choose whether or not they participate in any treatment or accept advice, and
g)recognising that there is a power imbalance in a practitioner-patient/client relationship and not exploiting patients or clients physically, emotionally, sexually or financially (also see Section 8.2 Professional boundaries and Section 8.12 Financial and commercial dealings).
Clause 8 of the Code of Conduct is headed 'Professional behaviour'. Clause 8.2 of the Code of Conduct provides as follows:
8.2 Professional boundaries
Professional boundaries allow a practitioner and a patient/client to engage safely and effectively in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or client and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves:
a)maintaining professional boundaries
b)never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; this includes those close to the patient or client, such as their carer, guardian, spouse or the parent of a child patient or client
c)recognising that sexual and other personal relationships with people who have previously been a practitioner's patients or clients are usually inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client, and
d)avoiding the expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress.
Practitioners need to be aware of and comply with any guidelines of their National Board in relation to professional boundaries.

In Panegyres v Medical Board of Australia,[10] Buss P and Murphy JA referred to the Code of Conduct made by the relevant National Board which applied in that case and noted that aspects of it were aspirational rather than standard setting. After doing so, they said:
[17]It cannot be assumed that any departure from the conduct of practice referred to in the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law.
[18]Ultimately, in disciplinary proceedings against a medical practitioner, the question is not whether the impugned conduct is in ‘breach’ of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
[10] Panegyres v Medical Board of Australia [2020] WASCA 58 at [17] – [18].
Those observations apply equally in this case.

Standard and onus of proof in disciplinary proceedings

It is not in dispute that the Board bears the onus of proving its case against Mr Shiraji and that the civil standard of proof applies.
However, because the allegations made against Mr Shiraji are extremely serious, in determining whether that standard has been met, the Tribunal recognises that cogent evidence will be required to establish the facts on which those allegations depend, and that satisfaction will not be achieved by inexact proofs, indefinite testimony, or indirect references: Briginshaw v Briginshaw.[11]
[11] Briginshaw v Briginshaw (1938) 60 CLR 336 at [362] (Dixon J).
As the High Court explained the position in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[12] the significance of Briginshaw is that the seriousness of the matter and its consequences does not affect the standard of proof, but the strength of the evidence necessary to establish a fact required to meet that standard on the balance of probabilities may vary according to the nature of what is sought to be proved.
[12] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at [171] (Mason CJ, Brennan, Deane and Gaudron JJ).
In this case, because of the seriousness of the allegations and the possible consequences of a finding being made against Mr Shiraji, the Tribunal will therefore need to feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation has been made out.

Mr Shiraji's professional qualifications, work history and disciplinary history

Mr Shiraji's Curriculum Vitae is Exhibit 15.[13] He also gave oral evidence about his qualifications and experience. His evidence about his qualifications and experience as a physiotherapist and his disciplinary record were not challenged by the Board. We make the following findings set out at [39] – [51] in relation to his qualifications, experience, and general background.
[13] Curriculum Vitae of Arash Tavakoli Shiraji (Exhibit 15).
Mr Shiraji was born on 2 December 1981. He completed a Bachelor of Science, Physiotherapy at the Shahid Beheshti University of Medical Sciences in Tehran, Iran in 2005.
After graduating, he held various positions as a physiotherapist in Tehran until he moved to Australia in 2012 with his wife, who he married in 2005.[14]
[14] ts 139, 2 December 2022.
After arriving in Australia, Mr Shiraji obtained employment as a sports massage therapist and as a remedial massage therapist.[15] He also completed an Advanced Diploma of Business Management at the Technical College of Western Australia.
[15] ts 140, 2 December 2022.
Between August 2016 and October 2018, he practised as a physiotherapist under supervision with limited registration at the following practices:
(a)Total Health Physiotherapy Wanneroo;
(b)Total Health Physiotherapy Armadale; and
(c)Total Health Physiotherapy Cockburn.[16]
[16] ts 143, 2 December 2022.
In October 2018, he passed the Australian Physiotherapy Board examinations and in November 2018 he completed the Australian Physiotherapy Council overseas trained physiotherapist assessment process. In January 2019, he obtained general registration as a physiotherapist from the Australian Health Practitioners' Association.
After obtaining general registration, Mr Shiraji continued to work at Total Health Physiotherapy, primarily at Wanneroo.
On average, Mr Shiraji saw approximately 100 patients per week across the three Total Health Physiotherapy clinics. Mr Shiraji saw approximately 20 patients per day on the days he worked at Total Health Physiotherapy Wanneroo.[17]
[17] ts 143, 2 December 2022.
Appointments for new patients were scheduled for a duration of 30 minutes. Returning patients had appointments of 15 minutes.[18]
[18] ts 145, 2 December 2022.
Mr Shiraji has no disciplinary history in Australia or in Iran.[19]
[19] ts 200, 2 December 2022.
Mr Shiraji has never been charged with or convicted of any offence.[20]
[20] ts 200, 2 December 2022.
Although the Board would have permitted Mr Shiraji to continue to treat male patients after the allegations were made, Mr Shiraji has chosen not to practise as a physiotherapist at all since the allegations came to light.[21]
[21] ts 203 – 204, 2 December 2022.
Mr Shiraji currently has employment as a sales consultant. He has recently been permitted by AHPRA to work as a research assistant for a physiotherapy practice. He is not paid for that work. It does not involve being in contact with any patients.[22]
[22] ts 204, 2 December 2022.
English is Mr Shiraji's third language. His first language is Persian Farsi. His second language is Turkish.[23]
[23] ts 140, 2 December 2022

Credibility of the witnesses

We make the following finding in relation to the credibility of the witnesses.
The Patient was 21 years of age in August 2019. She was raised in a conservative Christian home. At the time of seeing Mr Shiraji for physiotherapy, she was working as a domestic cleaner. She was, at that time, dating her now husband, Mr C, who she had known since childhood when they attended primary school together. Their romantic relationship commenced in about 2017 when they became youth group leaders at their church.[24]
[24] ts 49, 1 December 2022.
The Patient has struggled with her mental health since 2015.[25] She has been diagnosed with what she referred to as 'disordered eating', which was first noticed while she was at school, and with depression and anxiety.[26] At the time of the consultations with Mr Shiraji, she suffered from panic attacks. Her mental health was being treated at the time of her consultation, but in the weeks before it, she had been experiencing suicidal thoughts.[27]
[25] ts 51, 1 December 2022.
[26] ts 52, 1 December 2022.
[27] ts 77 – 78, 1 December 2022.
From our observations of her evidence, we would describe the Patient as a nervous, softly spoken and somewhat naïve witness. We observed that she became visibly distressed at times during the course of giving evidence, in particular when speaking about what she said occurred in the consultation on 26 August 2019. She seemed to us to find it excruciating to speak of sexual matters.
Our observations of the Patient’s manner or demeanour at the hearing were consistent with the accounts given by Mr C and by Mrs K of the way in which she disclosed the alleged conduct to them. They both gave evidence that initially, she could only tell them she had been touched 'inappropriately' by her physiotherapist. Mrs K gave evidence that in an attempt to understand the nature of the inappropriate touching, she had asked the Patient whether it was above or below her waist. She said that the Patient had been unable to answer that question other than to indicate agreement when Mrs K used the words 'below the waist'. It seems that apart from that detail being provided to Mrs K at the time of the disclosure to her, both she and Mr C were given no precise details of what the Patient was claiming had happened to her and were left to draw their own inferences as to the nature of the inappropriate conduct which the Patient disclosed to them.
The Patient explained her inability to talk about the incident in detail with Mr C and Mrs K, saying, 'I'm from a conservative Christian family. And don't talk about sexual things'.[28]
[28] ts 83, 1 December 2022.
The Patient impressed us as a witness who was trying to tell the truth. Despite that, she gave some evidence that was inconsistent with accounts she had given earlier. When the inconsistencies were pointed out to her, she readily accepted that was the case, and was certain that if her account in her evidence‑in-chief or cross‑examination differed in any way from the account she wrote in the weeks after her physiotherapy appointment,[29] then the earlier account would be correct as it was made while her memory was fresh.
[29] Handwritten statement of the Patient dated 26 September 2019 (Exhibit 10).
In our view, she was not defensive when challenged about variations in her accounts over time. While she accepted her evidence may have been wrong about certain matters, she was very firm in her assertion that Mr Shiraji had touched her clitoris and digitally penetrated her vagina and had subsequently called her a 'naughty girl' and told her not to be embarrassed.
Much of the evidence of Mrs K and Mr C concerned the reports of the incident that were given to them by the Patient. That evidence was admissible not to prove a fact in issue but because it might bolster the Patient's credibility.[30]
[30] ts 253, 5 December 2022.
We consider that the Patient's credibility is buttressed by the evidence that she informed Mr C of the fact that the physiotherapist had been 'inappropriate' immediately after the incident and then informed Mrs K in similar terms some days later. While there is no one way in which persons who have been inappropriately touched in the course of a medical appointment can be expected to behave or should behave, actions such as telling a friend, or the police or AHPRA are actions which one might expect of a person who had been treated as alleged.
So too, the undisputed evidence that she cancelled her next scheduled appointment with Mr Shiraji and sought to have her personal information deleted both from the physiotherapy practice's records and the records of the Wanneroo medical centre more generally, is evidence which is consistent with the actions of someone who had been treated as she alleges she was, and we find that it supports her credibility.
The evidence of Mr C is that throughout her phone call to him and when they met at Hillarys Boat Harbour, the Patient was extremely distressed. We accept that the distress that Mr C observed was genuine.
Evidence of distress immediately after an event may be an aid in assessing the consistency of the Patient's conduct. However, like recent complaint evidence, it cannot be used to confirm the truth of the Patient's evidence.
In this case, we have heard evidence that we accept that the Patient suffered from panic attacks and anxiety at the time of her appointment. It is only if we are satisfied that the Patient's distress after the appointment is attributable to Mr Shiraji's conduct, and not some other cause, that we could use that evidence as an aid in assessing the Patient's credibility.
In this case, given the evidence about the Patient suffering from panic attacks which caused her to become distressed around the time of her appointment with Mr Shiraji, we cannot be satisfied that the only cause of the distress observed by Mr C was being sexually touched during her appointment with Mr Shiraji.
Mr C's evidence is that since 26 August 2019, the Patient's panic attacks have been different in character from those he previously observed. His evidence was that before 26 August 2019, he was able to calm the Patient by putting his arms around her and just hugging her, whereas, since that time, he has had to calm her by speaking to her from a distance because touching her while she is in the midst of a panic attack now makes her worse.[31] It is said that the evidence of this change in behaviour supports her account of the events of 26 August 2019. For reasons which are set out below, we accept Mr C's evidence as to that matter and his evidence more generally and, having done so, we also find that the change in the way in which he was able to assist the Patient through her panic attacks after the appointment bolster's the credibility of the Patient’s evidence about the appointment on 26 August 2019. While that is the case, it does not, of itself, prove the allegations.
[31] ts 90, 1 December 2022.
We have concluded that the evidence that the Patient was very distressed when she called Mr C immediately after the appointment, that she told him in that phone call that the physiotherapist had been inappropriate, and later repeated that complaint to Mrs K, that she took steps to delete her contact details from the practice records, and that her behaviour has changed since that time is evidence that bolsters her credibility. In making that assessment of the Patient's credibility, however, we bear in mind that those matters do not prove that the alleged conduct occurred.
Mr C and Mrs K
The evidence, which we accept, is that immediately after the 26 August 2019 appointment, the Patient told Mr C that the physiotherapist had been inappropriate to her. When she was unable to disclose details to him, Mr C suggested she speak to the wife of their pastor, Mrs K. On 14 September 2019, she spoke to Mrs K at her home and made certain disclosures to her about the physiotherapy consultation, which we have referred to elsewhere in these reasons.
Both Mr C and Mrs K impressed us as honest witnesses. They were both thoughtful in answering the questions asked of them. Neither seemed to be trying to embellish what the Patient said to them and they both made appropriate concessions about matters they could not recall.
Mr C was, in our view, very frank with the Tribunal about his now wife's history of panic attacks and the nature of those attacks. His evidence about the disclosure made to him differed in some ways from the evidence given by the Patient about the disclosure to her husband which, we find, demonstrates that they have not colluded in their evidence and that Mr C brought his independent recollection to his evidence.
For reasons we will explain later, while we accept that both Mr C and Mrs K influenced the Patient into reporting the incident to the police and to AHPRA and supported her to do so, we find that neither Mr C nor Mrs K influenced the Patient in the nature of the account or suggested to her, her version of events.
Mr Shiraji
The Board says that we should find that Mr Shiraji was an unreliable witness for two reasons. First, because he could not be regarded as an honest, careful, and considered witness. Second, because it says that aspects of his evidence were implausible or varied in dealing with facts relevant to the exposure of the Patient's body.
In support of the first reason, the Board refers to the fact that towards the end of his examination-in-chief, Mr Shiraji's evidence was gratuitous and self-serving rather than responsive to questions asked of him, making it clear, it is submitted, that he was an advocate for his case.
We accept the Board's submission that the evidence that Mr Shiraji gave at the end of his examination-in-chief was not responsive to a question or questions and was self-serving. Towards the end of his examination‑in‑chief, Mr Shiraji embarked on something of a monologue. In it, he offered an explanation of what occurred when the police attended his home and took him to the police station for interview. He described the confusion and the shock he felt at the time and what he now regards as an irrational but overwhelming concern that he may not be able to go on his planned holiday to Dubai with his wife. He also described the concern other members of the community expressed for him at the time and gave evidence about the number of people who rallied to assist him, including lawyers with whom he was acquainted. He gave evidence that, despite legal advice that he exercise his right to silence, he spoke to the police to deny the allegations because he could not stay silent when he knew he had not done the acts alleged. He further explained that the police had not charged him with any offence.
While s 32 of the SAT Act provides that the Tribunal is not bound by the rules of evidence, it is our view that Mr Shiraji's evidence as to what happened from the time that police attended upon him and how he considers that others perceive his character is largely irrelevant to the determination of the application and we give it very little weight. However, the fact that he spent some time volunteering that information without objection from the Board's counsel, who clearly made a strategic decision to allow the largely irrelevant and unresponsive evidence to be given, does not of itself cause us to doubt his credibility or reliability generally.
In support of the broader submission that Mr Shiraji's evidence was unreliable because his evidence about the Patient's body was varied or implausible, the Board made the following submissions.
First, Mr Shiraji's denial of any knowledge of the Patient's build until the hearing commenced and he saw at the Tribunal, is said to be implausible in light of the fact that he had treated her body and particularly given his earlier evidence that he recognised her immediately when shown the Patient's photograph by the police.
Mr Shiraji's evidence-in-chief (given without it being responsive to a question) was that when the police showed him a photograph of the Patient, he was able to recognise her immediately and had told the police that she was a patient he had treated for scoliosis.[32] His evidence in cross-examination was that he did not recall her body type before seeing her at the Tribunal on 1 December 2022. The exchange between the Board's counsel and Mr Shiraji on this issue was as follows:[33]
[32] ts 201, 2 December 2022.
[33] ts 227, 5 December 2022.
Her build was very slight?---Her build was very slight?
Yes. She was very slim. She was skinny?---Well, when you – when you see a patient, you – as a physio, your brain is just keep working on your exercises, on your treatments, on your objectives. And so we don't really pay attention to those things, if someone is big, large, small, slim.
Was your evidence to the tribunal you can't remember with [the Patient] was big, large, fat, small, slim?---Not very specifically if I wanted to describe before I saw her on Thursday.
Right. But when you saw her on Thursday – you're referring to 1 December when she came to give evidence in the tribunal?---Yes. Yes.
And you saw then, on that day, that she's got a slim build?---She wasn't big.
She was slim, wasn't she?---I think so.
And that's how she looked to you on 26 August 2019?---I don't know.
Her jeans were not very tight?---I don't know what – I know that the – that area that I was working on was exposed, so ‑ ‑ ‑
So they were low on her waist; do you agree with that characterisation?‑‑‑Yes. Yes.
Low enough for you to see the skin above the iliac crest exposed?‑‑‑Correct, yes.
We do not accept that it is implausible that Mr Shiraji could recall from a photo shown to him on 15 October 2019, not long after 26 August 2019, that an individual depicted in the photo had been his patient, and yet also be truthful when he says he could not recall the Patient's build in 2022 before seeing her at the hearing. The effect of the passage of time on his ability to recollect her build may account for both statements being true.
However, we do not accept Mr Shiraji's evidence that a physiotherapist would never pay attention to a patient's build when examining or treating them. It seems contrary to common sense that a person who is to treat a patient's body would not notice the build of that body.

Second, his answers given about the exposure of the Patient's gluteus maximus were said to be inconsistent. In cross-examination, Mr Shiraji answered 'I don't know' when he was asked whether he had put his left hand under the Patient's jeans,[34] and yet he accepted that the Patient's jeans were low enough for her sacrum and the top of her gluteus maximus to be exposed. He also gave evidence in cross-examination that he only touched the Patient's iliac crest and, incidentally, the gluteus medius and part of the gluteus maximus to mobilise the sacroiliac joint despite doing a grade III mobilisation. In contrast, in evidence-in-chief, Mr Shiraji had said that the mobilisation of the sacroiliac joint was 'on the sacroiliac joint'.
[34] ts 240, 5 December 2022
This was a difference in his evidence that causes us to doubt whether Mr Shiraji has an accurate recollection of the way in which he performed treatment on the Patient. However, we do not accept that the inconsistencies in Mr Shiraji's evidence about this issue, and his failure to recall how the mobilisation was performed in perfect detail or how much of her gluteal muscles were exposed or precisely where he had put his hand, must lead to the conclusion that Mr Shiraji's denial of touching the Patient's clitoris and vagina should be discounted just as an unwavering recitation of how the mobilisation was said to have been performed would not, in itself, convince us that he did not touch the Patient's vagina and clitoris.
We find that, in many respects, Mr Shiraji was an honest and reliable witness. His evidence about his usual practice for assessing new patients, involving both a subjective and objective assessment, his notetaking, and the layout of his treatment room at Total Health Physiotherapy Wanneroo, was not challenged and we find it to be reliable. We also accept that his evidence about the way in which he would typically perform a myofascial release of various muscles was honest and reliable.
While we accept that English is his third language, we found Mr Shiraji to be quite conversant in it. He did not require the assistance of an interpreter at the hearing nor when he was spoken to by the police or AHPRA, and at no stage did he have to ask for an explanation of any words used in questions asked of him. Other than in relation to the meaning of the expression 'naughty girl', it was not said that his English was better at the time he gave evidence than it was when he treated the Patient in 2019. We, therefore, have reservations about the truthfulness of his evidence that until the police explained its meaning in that context to him, he did not understand that the phrase 'you are a naughty girl' might be used to suggest someone was sexually 'naughty' or promiscuous or to have some sexual meaning and that his only understanding of the term was its use in the context of disciplining a child for disobedience and was therefore not a phrase he could have used or did use.
While we have concerns about the truthfulness of that evidence, we cannot conclude that it was a lie. Further, even if we were to reject the evidence as a lie and find Mr Shiraji did understand the meaning of the expression 'naughty girl', it would not lead automatically to an acceptance that he used that phrase or touched the Patient's clitoris and vagina. While it would be relevant to our assessment of Mr Shiraji's credibility, we would not regard it as a lie that would prove the Board's allegations.
Overall, we are unable to conclude from his evidence that Mr Shiraji was a dishonest witness.

Findings regarding the allegations

The consultations with the Patient

We next turn to the evidence given about the two occasions on which the Patient attended upon Mr Shiraji for treatment and the findings we make about those appointments.
The following facts were not in dispute, and we make findings of fact as set out in paras [90] – [103] below.
Wanneroo Total Health Care is a multidisciplinary healthcare practice.
In August 2019, the Patient was a relatively new patient at Wanneroo Total Health Care. She consulted a general practitioner at Wanneroo Total Health Care, Dr Armstrong, about pain she was experiencing in her back and shoulders as a result of, she thought, scoliosis, with which she had been diagnosed some time earlier. Her pain seemed to be being made worse as a result of her work.
Dr Michael Armstrong from Wanneroo Total Health Care referred the Patient for treatment by a physiotherapist.
Someone at the medical practice, probably a practice nurse, recommended that the Patient seek treatment from Mr Shiraji.[35]
[35] ts 54, 1 December 2022.
The Patient booked an appointment with Mr Shiraji for 21 August 2019. She attended the appointment, which lasted approximately 30 minutes. At the end of the consultation, Mr Shiraji made an appointment for her to see him again on 26 August 2019. He did so on his own computer in the consulting room.
Mr Shiraji wrote to Dr Armstrong on 21 August 2019 regarding his consultation with the Patient.[36] He wrote:
Many thanks for the referral of [the Patient].
[The Patient] presented with thoracolumbar scoliosis which has been diagnosed in 2014. She complains of pain in between her shoulder blades and her lumbar spine. She works as a cleaner and is required to carry a heavy hoover on her shoulders 5 days a week. The symptoms are aggravated by prolonged standing and eased by rest.
On examination, she has left concaved thoracic spine and right concaved lumbar spine. Her left shoulder is slightly lower than the right and her right hip is higher than the left. She has protracted shoulders (more on the left), there is significant weakness in the shoulder stabilisers and tightness in the upper trapezius pectoralis minor on both sides. There is tenderness on palpation over thoracic and lumbar erectors as well as hip abductors (glute med). Both Sacroiliac joints feel stiff on palpation.
Treatment comprised of postural education with regards to the thoraco lumbar curvature and hip alignment. I did a gentle myofascial release over tight upper trapezius, pectoralis minor, thoracic and lumbar erectors and gluteus medius. I gave her stretches including pectoral stretch on a rolled towel, latissimus dorsi and ITB stretch in standing as well as ROM exercises for the thoracic and lumbar spine to be done at home. I will see her again next week and will progress with her exercise programme.
[36] Letter from Arash Tavakoli to Dr Michael Armstrong dated 21 August 2019 (Exhibit 19).
On 26 August 2019, the Patient attended her appointment with Mr Shiraji at Wanneroo Total Health Physiotherapy. At the conclusion of the appointment on 26 August 2019, Mr Shiraji booked a further appointment for the Patient, which was scheduled for 2 September 2019.
After the appointment on 26 August 2019, the Patient left Wanneroo Total Health Care and returned to her car. After a short period of time, she telephoned Mr C from the car. She made certain disclosures to him at that time and in the hours that followed.
The Patient subsequently cancelled the appointment scheduled for 2 September 2019.
At Mr C's urging, the Patient later made an arrangement to meet Mrs K. That meeting took place on 14 September 2019 at Mrs K's home, and during the meeting, the Patient made certain disclosures to Mrs K.
At some stage before 28 August 2019, the Patient asked to have her personal details removed from the physiotherapy practice's records. On 29 August 2019, she sent a text to Mr C expressing concern that her personal details were still held by the medical practice which operated out of Wanneroo Total Health Care.[37]
[37] Screenshots of text messages between the Patient and Mr C on 29 August 2019 (Exhibit 6), page 7.
Ultimately, the police and AHPRA were notified of the allegations.
Mr Shiraji was spoken to by the police about the allegations on 15 October 2019. Against legal advice, he chose not to exercise his right to silence and denied the allegations.[38]
[38] Outline of Evidence of Arash Tavakoli Shiraji dated 30 September 2022, para 10.
The police have not charged Mr Shiraji in relation to this matter.

The Patient's account of the consultations

The Patient's account of her two consultations with Mr Shiraji differed significantly from Mr Shiraji's account, even about matters unrelated to whether or not he touched her as she alleges.
We find that the Patient's evidence about the appointments with Mr Shiraji was different in some respects from accounts she had given earlier about the consultations. Further, her evidence differed in some respects in cross-examination from that which she gave in evidence‑in‑chief. We set out the inconsistencies below.
The Patient's evidence-in-chief was that Mr Shiraji had made her feel uncomfortable during her first consultation with him.[39] She said that what made her uncomfortable was his massaging close to her chest while she lay prone on the treatment table.[40] This account of feeling uncomfortable during the first session was not what Mr C told us that the Patient had told him after the appointment. Mr C's evidence was that the Patient had told her that the treatment was 'relaxing' and a 'good session'.[41] In cross-examination, she accepted that she had never told Mr C that she was made to feel uncomfortable at the first consultation.[42] Initially, the Patient accepted in cross-examination that she had told Mr C it had been 'relaxing' but denied that she had said it was a 'good' session. She ultimately accepted that if Mr C could remember that she had told him it was a good session, then that was 'probably accurate'.[43] In cross-examination, she explained the apparent contradiction in those descriptions of the consultation in the following way:[44]
I was uncomfortable with where his hands were at the start. But overall the massage was relaxing.
[39] ts 19, 1 December 2022; ts 73, 1 December 2022.
[40] ts 18 – 19, 1 December 2022.
[41] ts 103, 2 December 2022.
[42] ts 72 – 73, 1 December 2022.
[43] ts 73, 1 December 2022.
[44] ts 73, 1 December 2022.
The Patient made a note on 26 September 2019 of her recollection of the two physiotherapy appointments with Mr Shiraji. In respect of the first consultation, the note said:[45]
I recently changed physios and was recommended Ash by a female doctor. The first appointment I had made me feel a little uncomfortable as he massaged around my arms and chest but not too far as I was lying down. He also massaged my butt – I felt that this was probably a muscle relating to my back pain.
[45] Exhibit 10.
In her evidence-in-chief about the first consultation and treatment, the Patient said that she lay on the table face down with her t‑shirt on and that Mr Shiraji massaged her with her clothes on but under her t-shirt. Her evidence was that, with her consent, Mr Shiraji moved her shirt up and unclipped her bra in order to massage up and down her spine.[46] Her evidence was that the highest point he reached was 'all the way up to her shoulders'. When asked about the lowest point his hands reached she gave the following answer:[47]
At the top of my pelvis, like – not the – I can't remember if it's the thoracic or the lumbar, but the base of my spine.
[46] ts 18, 1 December 2022.
[47] ts 18, 1 December 2022.
The Patient was then asked to describe the place relative to the top line of her denim shorts. She said:[48]
It was – it didn't go past the line of my shorts.
[48] ts 18, 1 December 2022.
That evidence was inconsistent with the note the Patient made on 29 September 2019 of the two consultations in which she had written that Mr Shiraji had massaged her 'butt'.
When that inconsistency was put to her in cross-examination, the Patient said that what she had written in her note would be more accurate than her evidence-in-chief on the point, but that she could not remember whether he had massaged her 'butt'. Ultimately, she said she could not recall Mr Shiraji doing any massage below her waistline on that occasion.[49]
[49] ts 72, 1 December 2022.
Mr C's evidence was that after the first appointment, the Patient had told him that it had been 'a good session' and 'relaxing'. Nothing was said to him about Mr Shiraji having massaged her buttocks. The Patient accepted that Mr C's account of what she had said at the time was likely to be correct but also said that the contents of her own note would be more accurate than her current recollection because it was written closer to the event.[50]
[50] ts 72, 1 December 2022.
The conflicting accounts that the Patient has given about whether she was made to feel uncomfortable during her first appointment with Mr Shiraji and whether he massaged her buttocks leads us to have doubts about her reliability regarding what occurred during this appointment.
The Patient's evidence, which we accept, was that she attended the appointment on 26 August 2019 wearing a thin, light green long‑sleeved top over her bra, and denim jeans over what she described as 'regular brief' style underwear which sat a few centimetres below the waistline of her jeans. Her jeans were not tight and sat a few inches below her belly button.[51]
[51] ts 21 – 22, 1 December 2022.
The Patient's evidence was that she lay in the prone position on the treatment table for the entirety of her treatment.[52] Her evidence was that Mr Shiraji initially massaged up and down her spine and then moved to her shoulders and the front of her body just below her collarbones.[53] She said that while standing to her left, he returned to massaging her back but this time his hands moved to the area below the waistline of her jeans and under her underpants.[54]
[52] ts 22, 1 December 2022.
[53] ts 18 – 20, 1 December 2022.
[54] ts 24, 1 December 2022.
Her evidence was that Mr Shiraji's left hand gradually got further (by which we understood her to have meant further under her clothing towards her pubic region each time his hand came around her hips coming forward.[55] Her evidence was that Mr Shiraji's left hand was touching her skin under her jeans and underwear.[56] She said that his left hand then touched her pubic bone and then she felt his finger touch her clitoris.[57] Her evidence was that she thought he was touching her clitoris with two fingers.[58] She described the touching in the following terms:[59]
[His fingers] started slowly. Like, small circles. And it got faster.
[55] ts 24 – 25, 1 December 2022.
[56] ts 25, 1 December 2022.
[57] ts 26, 1 December 2022.
[58] ts 26, 1 December 2022.
[59] ts 26, 1 December 2022.
Her evidence was that the touching of her clitoris with the practitioner's left hand lasted for about one or two minutes.[60]
[60] ts 26, 1 December 2022.
The Patient gave evidence that at the same time that Mr Shiraji was touching her clitoris with his left hand, his right hand had moved down the centre of her 'butt' under her jeans and underwear and then 'all the way underneath', which she clarified, meant 'directly underneath [her] vagina'.[61] She said that he then put a finger inside her vagina.[62] Her evidence was that he kept it there for one or two minutes.[63]
[61] ts 25, 1 December 2022.
[62] ts 25 – 26, 1 December 2022.
[63] ts 26, 1 December 2022.
The Patient's evidence was that after the touching stopped, Mr Shiraji stepped away from her and went to his desk, and she stayed face down. Her evidence was that it took her a little while to sit up because she felt 'dizzy'[64] and that when she got up from the table, Mr Shiraji called her a ‘naughty girl’ and said words to the effect that she did not need to be embarrassed.[65] Mr Shiraji next made a further appointment for her for two weeks later.[66] Her evidence was that she indicated by nodding that she wanted the next appointment.[67] Her evidence was that the two of them left the consultation room together with Mr Shiraji leaving first as they walked together down the hallway back to the waiting room and reception area. The Patient's evidence was that during that walk, Mr Shiraji made inquiries about what she was doing that evening, and her evidence was that she believed she had told him she was just going home to relax.[68] She said they parted at the waiting room, she did not speak to anyone else, and she left the Wanneroo Total Health Care by the side door that led to the carpark.[69]
[64] ts 27, 1 December 2022.
[65] ts 27, 1 December 2022.
[66] ts 27 – 28, 1 December 2022.
[67] ts 28, 1 December 2022.
[68] ts 28, 1 December 2022.
[69] ts 28, 1 December 2022.
The Patient's evidence was that she would estimate that she had been in the treatment room for approximately 25 minutes by the time she sat up.[70] In cross-examination, it was put to her that the appointment of 26 August 2019 lasted only 15 minutes while the initial appointment was for half an hour. The Patient agreed that the initial appointment lasted 30 minutes but said she did not think the second appointment would have been only 15 minutes in duration. She explained that belief by saying that she did not understand why she would book a 15‑minute appointment and could not understand why the two appointments would have been of different lengths.[71]
[70] ts 27, 1 December 2022.
[71] ts 62, 1 December 2022.
On the issue of the length of the appointment, we prefer the evidence of Mr Shiraji, which was that initial consultations are booked for 30 minutes, whereas subsequent appointments are only 15 minutes in duration.[72] Even though we find the Patient to have been unreliable in relation to the duration of the appointment, we do not think that her inability to estimate the time on its own makes the Patient's evidence about the whether Mr Shiraji touched her clitoris and inserted his finger into be vagina inherently unreliable.
[72] ts 174, 2 December 2022.
In cross-examination, the Patient said she was a little bit anxious going into the appointment on 26 August because she had 'felt uncomfortable in the first appointment'.[73]
[73] ts 63, 1 December 2022.
The Patient was asked in cross-examination whether she had eaten on the day of the appointment. Her answer was that she could not remember but that she thought she probably had eaten because she had a longer cleaning client that day and needed energy. Her evidence was that she had probably eaten a muesli bar and fruit.[74] She was asked whether a side effect of not eating and working was that she blacked out from time to time. She answered that she had never blacked out as a result of not eating and working and had only blacked out on one occasion as a result of reading a story about someone having their teeth taken out.[75] She subsequently added that she had once blacked out at school, but that that occasion was related to making soup.[76]
[74] ts 62, 1 December 2022.
[75] ts 63, 1 December 2022.
[76] ts 75, 1 December 2022.
After giving that evidence, the Patient was referred to a note dated 26 September 2019,[77] which, at the suggestion of Mrs K, she had made regarding what she said had happened to her at the relevant appointment. That note records that the Patient had not eaten that day. When the discrepancy was put to the Patient, she accepted that the note would be more accurate, having been made at a time much closer to the event.[78]
[77] Exhibit 10.
[78] ts 64, 1 December 2022.
The note also records that the Patient thought she might have blacked out during the appointment on 26 August 2019.[79] When that was pointed out to her, the Patient said that she had thought she may have blacked out because her heart rate was up and she felt at a distance from everything.[80] Her evidence before us was, consistent with her note, that she was not sure whether she had blacked out or not.[81]
[79] Exhibit 10.
[80] ts 76, 1 December 2022.
[81] ts 76, 1 December 2022.
Mr C's evidence was that the Patient had told him that she had blacked out during the appointment on 26 August 2019.[82]
[82] ts 91. 1 December 2022.

In cross-examination, the Patient's evidence was that Mr Shiraji did not show her any exercises at the end of the second appointment.[83] She also said he offered her a glass of water.
[83] ts 78, 1 December 2022.
She gave evidence that Mr Shiraji did not laugh at her when he called her a naughty girl and that she did not tell Mr C that he had done so.[84] That evidence was inconsistent with Mr C's evidence, which was that the Patient had told him that Mr Shiraji had laughed at her while she was pulling her pants up.[85] The Patient did not give any evidence that Mr Shiraji lowered her pants or that she had had to pull her pants up when she got up from the table at the conclusion of the second consultation. For the reasons we have set out above, we accept the evidence given by Mr C about what the Patient told him about the appointment.
[84] ts 78, 1 December 2022.
[85] ts 91, 1 December 2022; ts 110, 2 December 2022.
In cross-examination, the Patient maintained that she was sure that the touching occurred in the manner she had described.[86]
[86] ts 81, 1 December 2022.
The Patient has maintained a consistent account of Mr Shiraji touching her clitoris and vagina during the appointment on 26 August 2019. However, the inconsistencies in her account of the first appointment on 21 August 2019 and the second appointment on 26 August 2019 have caused us to have some doubts about the accuracy and reliability of her evidence about the alleged touching.
Further, if we accept her evidence that she did not have to pull her pants back up when she got up from the table, then we have some difficulty accepting that Mr Shiraji was able to put his left hand down the front of her jeans and underwear and rub her clitoris while also simultaneously placing his right hand down the back of her jeans and underwear and inserting a finger into her vagina while she was lying face down on the treatment table even if she was slight and her jeans were loose fitting and resting on her hips. That too seems implausible and contrary to common sense.

The Patient's disclosure to Mr C

The Patient's evidence was that after the consultation with Mr Shiraji, she went to her car and sat for five to 10 minutes crying and upset.[87] After that, she called Mr C, who is now her husband.[88] She was crying and upset and unable to speak clearly. Her evidence was that she told him, 'the physiotherapist had been inappropriate and [she] didn't know what to do'.[89]
[87] ts 29, 1 December 2022.
[88] ts 49, 1 December 2022.
[89] ts 29, 1 December 2022.
Mr C's evidence was that the Patient had telephoned him and disclosed that 'something had happened at her physiotherapy appointment'[90] or 'something happened between her and the physio'.[91]
[90] ts 85, 2 December 2022.
[91] ts 100, 5 December 2022.
We find that almost immediately after the appointment, the Patient telephoned Mr C and disclosed that something unexpected and upsetting had occurred in the course of the physiotherapy appointment. That disclosure, lacking in detail though it was, was unprompted.
Mr C and the Patient both gave evidence, which we accept, that they agreed to meet at Hillarys Boat Harbour. They continued talking on the phone while each drove their own car the approximately 20 – 35 minutes it took to get to Hillarys.[92] During that drive, Mr C was primarily concerned with calming the Patient down.[93] The Patient's evidence, consistent with Mr C's, and which we accept, is that during that call, they did not speak about details of what had occurred and that Mr C did not ask for details. The Patient's evidence was that Mr C did not ask because he knows she 'struggles to talk about certain things' and is 'reserved'.[94]
[92] ts 50, 1 December 2022.
[93] ts 85, 1 December 2022.
[94] ts 51, 1 December 2022.
At Hillarys, Mr C and the Patient talked in the car for somewhere between 20 minutes to an hour.[95] They talked about Mr C missing the careers conference he was supposed to have attended that evening, the appointment and about who the Patient might feel comfortable talking to about what had occurred. The Patient accepted, and we find, that while at Hillarys, she did not provide Mr C with any details about what had occurred during the physiotherapy appointment.[96] Her evidence was that Mr C urged her to talk to her mother but that she did not wish to do so. She said that while she and her mother have a very close relationship, she did not want to talk to her mother. In cross‑examination, she explained that reluctance in the following way: [97]
My mum struggles with her mental health, and I didn't want to add to what she had to worry about.
[95] ts 51, 1 December 2022.
[96] ts 50 – 51, 1 December 2022.
[97] ts 51, 1 December 2022.
Mr C's evidence about the disclosure is generally consistent with that given by the Patient. He accepted that when he received the telephone call from her on 26 August 2019 at around 5.00 pm, she was sobbing and panicky.[98] He rejected the suggestion put to him in cross‑examination that he immediately thought she might be suicidal, but he agreed that he immediately went into his natural response of calming her down and going to see her.[99] His evidence was that she never disclosed to him any details of what occurred but that he was able to infer what had occurred.[100] Consistent with the Patient's evidence, Mr C said he encouraged her to speak to someone to whom she might be more comfortable discussing the details. Mr C initially suggested the Patient speak to her mother, but she did not want to take that course. When asked if the Patient expressed any reasons for not wanting to speak to her mother, Mr C said:[101]
[The Patient] has a very close relationship with her mother and she didn't want to possibly ruin that sort of relationship by exposing her mum to, like, the trauma that she experienced and she didn't want to start making it a big thing at home. It was just kind of like a black cloud over everything.
[98] ts 108, 2 December 2022.
[99] ts 108, 2 December 2022.
[100] ts 109, 2 December 2022.
[101] ts 108, 2 December 2022.
Mr C agreed they were not the Patient's exact words but said she had used words to that effect to convey to him her reason for not talking to her mother at the time.[102]
[102] ts 108, 2 December 2022.
The Patient's evidence, which we accept, was that the two of them then had dinner at Hillarys, following which they drove separately to the Patient's home. Mr C then left between 9.15 pm and 9.30 pm to be home before his 10.00 pm curfew.[103]
[103] ts 32 – 33, 1 December 2022.
Mr C gave evidence, consistent with that of the Patient, and we find, that on 26 August 2019, the Patient did not tell him that the physiotherapist had penetrated her vagina or rubbed her clitoris.[104] In cross‑examination, Mr C's evidence was that he inferred that that was what had occurred.[105]
[104] ts 91, 1 December 2022 (XN) and ts 109, 2 December 2022 (XXN).
[105] ts 109, 2 December 2022.
Mr C's evidence was that, over time, he and the Patient had had about 10 conversations about what had occurred with the physiotherapist. He said that, at some point, the Patient told him:[106]
(a)that she had blacked out in the course of the physiotherapy treatment;
(b)that when she got up from the table on 26 August 2019, her pants were underneath her 'butt', and she pulled them back up when she stood up; and
(c)the physiotherapist laughed at her while she pulled her pants back up.
Mr C maintained that he was sure the Patient had told him those things had occurred.

The disclosure to Mrs K

[106] ts 91, 1 December 2022 and ts 109 – 110, 2 December 2022.

Mr C's evidence was that he urged the Patient to speak to Mrs K because she was the wife of the senior pastor of their church and had experience with pastoral care for women and lots of life experience and would have made the Patient comfortable to say explicitly what she would not say explicitly to him.[107] The Patient gave evidence that some days later, she spoke with Mrs K who is the wife of the pastor at the church which she has attended for many years and was attending in 2019. The communications began with a text from her to Mrs K sent on 11 September 2019 asking if the two of them could meet.[108] In the text, the Patient says she does not want anyone else to know.[109] No details about the subject of the discussion were provided in the text message.
[107] ts 109, 2 December 2022.
[108] Screenshots of messages between the Patient and Mrs K on 11 September 2019 (Exhibit 7).
[109] Exhibit 7.
The two women agreed the meeting would take place at 9.30 am the following Saturday. That Saturday was 14 September 2019.[110]
[110] See 2019 Calendar (Exhibit 8)
The Patient's evidence was that she attended the meeting at Mrs K's house and informed Mrs K that she 'had been to the physiotherapist and that he had been inappropriate'.[111] Her evidence was that when asked if she had offered any other details, her evidence was only that 'he had touched me'. When asked if she had disclosed to Mrs K where the physiotherapist had touched her, the Patient answered:
I felt that it was – like, that she understood, so I didn't need to say it.
[111] ts 42, 1 December 2022.
The Patient said that in response, Mrs K encouraged her to report what had happened to AHPRA and possibly to the police and her parents. Her evidence was that she told Mrs K that she did not want to tell her parents and that Mrs K told her to think about it but that she was not going to force her to do anything.[112]
[112] ts 42, 1 December 2022.
Mrs K made a note which she said recorded what she was told during that meeting.[113] Her evidence was that she made the note a couple of hours after the meeting with the Patient.[114] Her evidence was that she subsequently added to the note information she obtained later as a result of inquiries she made.[115] The original notes were made in black pen. The notes made in blue pen were made later as she obtained relevant information. She could not specifically recall when they were made.[116] The notes in blue pen include Mr Shiraji's full name and professional registration number, among other things.[117]
[113] See Copy of notes made by Mrs K dated 14 September 2019 (Exhibit 14).
[114] ts 124 – 125, 2 December 2022.
[115] ts 117, 2 December 2022.
[116] ts 117, 2 December 2022
[117] Exhibit 14.
The Patient's evidence, which we accept, was that she received a text from Mrs K the following Tuesday requesting an update on 'steps forward'.[118] In response, she replied that she would call Mrs K when she finished work. The Patient's evidence was that she called Mrs K after finishing her work and said she would be fine to go to the police if Mrs K was willing to attend with her.[119]
[118] See Screenshots of messages between the Complainant and Mrs K on 17 & 18 September 2019 (Exhibit 9).
[119] ts 43, 1 December 2022.
She subsequently sent Mrs K a message at 3.26 pm, which stated:[120]
This might sound stupid and I'm sorry to ask. Does it count as penetration if it's just fingers? I'm so sorry.
[120] Exhibit 9, page 2.
Mrs K subsequently sent a message in reply which said: [121]
Don't need to apologise it's a fair question and as I mentioned the other day it's one they will ask you. I know it's embarrassing but maybe easier for you to say in a message. How far did his fingers go into your vagina or were they outside the area?
[121] Exhibit 9, page 3.
The Patient replied to that message as follows:[122]
I don't know how far but I know they were inside.
[122] Exhibit 9, page 3.
The Patient and Mrs K both gave evidence, which we accept, that Mrs K suggested the Patient speak to her parents about the incident. The Patient agreed to do so. That conversation was initially intended to take place at a lunch at Mrs K's home, which Mrs K organised. The Patient said the meeting and discussion took place but, for some reason, it was changed to an after-dinner meeting.[123] Her evidence, which we accept, is that she started to explain to her parents what had happened but that she found it difficult to explain fully, so [Mrs K] 'filled in the rest for me'.[124] The Patient said that she couldn't remember the exact words Mrs K used in informing her parents, but it was essentially that the 'physio had been inappropriate' and had 'touched her where he shouldn't have'.[125] We accept their evidence that neither the Patient nor Mrs K gave her parents any specific details of where the physiotherapist had touched her.
[123] ts 46, 1 December 2022.
[124] ts 46, 1 December 2022.
[125] ts 46, 1 December 2022.
The Patient gave evidence that Mrs K attended with her when she made a statement to police. Her evidence, which we accept, was that Mrs K did not have input into the statement and was there only for support.[126]
[126] ts 46, 1 December 2022.
Mrs K also gave evidence about the disclosure that was made to her. It was more detailed than the evidence given by the Patient about that meeting. Mrs K said while she did not recall precisely how long the meeting with the Patient took, she estimated it would have been 'a good hour'.[127] She said that at the time, she had no prior knowledge of what the meeting the Patient had requested was to be about. She said that at the meeting, the Patient told her she had been referred to a physiotherapist who had 'touched her inappropriately'.[128] Mrs K gave evidence that because the Patient had difficulty verbally expressing what had happened, she tried to ask her questions. Mrs K said she asked where he had touched her, and when the Patient did not respond, she tried to be more specific, asking whether the touching had been above or below the waist. She said the Patient had nodded when she asked if the touching was below the waist.[129] She said that the Patient had been unable to verbalise anything further.[130]
[127] ts 114, 2 December 2022.
[128] ts 115, 2 December 2022.
[129] ts 116, 2 December 2022.
[130] ts 116, 2 December 2022.
Mrs K gave evidence that she had suggested that the Patient report the matter to police because the Patient was concerned about the same thing happening to other young girls.[131]
[131] ts 116, 2 December 2022.
Mrs K's note, in black pen, reads as follows:[132]
14.9.19. [the Patient] visit 9.30am. explained her back pain from scoliosis + cleaning jobs agrivation [sic]. Dr + referred to physio from the same medical practise [sic]. 1st visit was [word written and crossed through] a little uncomfortable. 2nd visit the physio was inapropriate [sic] in touch in her lower female genitals. Feelings of shame – I should have said something. Fear – if people know that they will think differently of me. When did it happen? 3 weeks ago. Referring Dr + physio names – Wanneroo Super Clinic.
Willingness to report it? Yes. Mum + Dad – what is your fear of them knowing.
In blue pen, she added the full name of the practitioner, his registration number, and the words:
Spoke to Rachel at 131444, job number 706108.
[132] Exhibit 14.
Mrs K's evidence in cross-examination was that the word she had written and crossed through may have been 'okay'. Her evidence was that, while she was a little uncertain because she was being asked to recollect someone from three years earlier, if she had written 'okay' she later thought that she should change it because the Patient had said it was 'a little uncomfortable'.[133]
[133] ts 125, 2 December 2022.
In cross-examination, Mrs K accepted that she had added the word lower into the note on reviewing it because she wanted to make it clear that the Patient had indicated to her (through her nodding in response to her question) that the 'inappropriate touching' had been to the lower female genitals.[134]
[134] ts 125 – 126, 2 December 2022.
Mrs K gave evidence that she had a subsequent telephone discussion with the Patient in which she told the Patient that she would need to be able to verbalise what had happened to her if she went to the police and be more specific regarding what took place and whether there had been penetration. She said it had become clear to her that the Patient was struggling to find the words.[135]
[135] ts 119, 2 December 2022.
In cross-examination, Mrs K accepted that she had only asked the Patient whether the touching was above or below the waist, although the note she made following the meeting records that the touching was to the 'lower female genitals'. We find that Mrs K inferred that a touching which was said to be 'inappropriate' and 'below the waist' was a touching to 'the lower genitals'. That inference was what led her to say that the Patient would need to be able to describe more precisely what had happened to her, including whether there had been any penetration.
Mrs K's evidence, which we accept, was that it was after that conversation, in which she had mentioned the word penetration, that she received the text from the Patient asking about the definition of penetration. We find that this was the first time that the Patient inferred to what she had until then described as 'inappropriate touching' as involving penetration.

Mr Shiraji's account of the consultations

21 August 2019

Mr Shiraji's evidence is that the consultation on 21 August 2019 was unremarkable. He called the Patient's name in the waiting room, and they walked from the reception area of the practice to his treatment room. His evidence is that it is his usual practice for him to permit a patient to walk into the room before he follows.[136] He said he opened the referral from Dr Armstrong, read it and then commenced his subjective assessment of the Patient.[137] He described a subjective assessment as a series of questions asked in order to ascertain what the patient says is the reason for their attendance. Mr Shiraji gave evidence that he uses the same phrases every time because it makes it easier for him and takes less time than if he were to translate from Farsi to English every time.[138] As a consequence, he was confident that he would have asked her either, 'What brought you here today?' or 'How can I help you today?'.[139] Mr Shiraji said that in reply, the Patient started to tell him about her scoliosis.[140]
[136] ts 150, 2 December 2022.
[137] ts 150, 2 December 2022.
[138] ts 150, 2 December 2022.
[139] ts 150, 2 December 2022.
[140] ts 151, 2 December 2022.
Mr Shiraji said that he would then have asked her what the main complaint was on that day, what made the pain better and what made it worse and some further questions about the history of the pain.
Mr Shiraji's evidence was that he also asked the Patient if she had any previous physiotherapy sessions and that the Patient had replied that she had had a not very good experience with a prior physiotherapist who was rough or too harsh, which led him to understand that that physiotherapist's treatment had been too painful for her.[141]
[141] ts 156, 2 December 2022.
The notes that Mr Shiraji made of the appointment on 21 August 2019[142] are consistent with his evidence about the subjective assessment.
[142] Clinical Notes of Mr Shiraji in respect of the Patient (Exhibit 16), page 1.
Mr Shiraji's evidence was that he then explained to the Patient what he was going to do next, which was a physical observation and then an examination, which he refers to as an 'objective assessment'. In this case, the objective assessment began with an observation of the Patient's posture and range of movement, following which he palpated the relevant parts of her body and asked the Patient to indicate by reference to a score of one to 10 how much pain was being experienced as he applied pressure with his fingers.[143]
[143] ts 157, 2 December 2022.
His evidence was that he made a subjective examination of her posture, her pectoralis major and pectoralis minor muscles, her spine and then her gluteus medius and sacroiliac joint.
Mr Shiraji said that in order to look at the Patient's spine, he asked the Patient to lift up her shirt while she was lying face down on the treatment table.[144] His evidence was that his examination did not require the Patient to remove her shorts.
[144] ts 167, 2 December 2022.

Mr Shiraji gave evidence that from the subjective assessment, he concluded that the Patient had protracted shoulders, S‑shaped scoliosis, a right hip higher than the left hip and stiffness on the sacroiliac joint.[145] He said he would have completed the objective assessment within 15 minutes of her entering the room but that he could not recall exactly how long it took.[146]
[145] ts 170, 2 December 2022.
[146] ts 174, 2 December 2022.
Mr Shiraji's evidence was that the Patient was sitting up on the bed while he explained his findings to her and that, in doing so, he showed her some photographs and diagrams on the computer. While he was doing so, she nodded to indicate that she understood what he was saying, and when he asked if she had any questions at the conclusion of his explanation, she said that she did not.[147]
[147] ts 175, 2 December 2022.
Mr Shiraji said he then turned to treating the Patient and commenced with a myofascial release starting with the shoulder, which he considered most significant because the carrying of the heavy hoover for her cleaning job would make it worse and worse every day.[148] He gave evidence that he explained his treatment plan to the Patient and started the treatment with the Patient face down on the treatment bed with her shirt pulled up.[149] Mr Shiraji's evidence was that he used a little bit of sorbolene and treated her from the head of the bed (i.e. standing at the end of the bed in front of the Patient's head) because, from that position, he can reach both shoulders at the same time.[150]
[148] ts 175 – 176, 2 December 2022.
[149] ts 177, 2 December 2022.
[150] ts 177, 2 December 2022.
Mr Shiraji explained, following a review of his notes, that the next thing he did was a grade II (being gentle) myofascial release over several sites on the Patient's back. He said he was careful to ask her frequently how she was finding the pressure because of her earlier experience.[151]
[151] ts 178, 2 December 2022.
Mr Shiraji's evidence was that after that, he asked the Patient to turn onto her back so that he could treat her pectoralis minor. While he could not recall specifically that the Patient had a loose neck on her shirt, he did know that he was able to perform the treatment without her removing her shirt.[152] His evidence was that when that treatment was concluded, the Patient sat up and he explained to her how to perform a pectoralis stretch using a towel, and he recommended that she do the stretch three of four times a day for 20 to 30 seconds at a time. His evidence was that he then had her move to the chair, and he lay on the bed and demonstrated it on himself and then had the Patient lie down again and do the stretch in order to be sure that she could do it correctly.[153] He said he then gave her two more stretches, again demonstrating them himself and observing the Patient complete the stretch.[154]
[152] ts 181, 2 December 2022.
[153] ts 183, 2 December 2022.
[154] ts 183 – 184, 2 December 2022.
Mr Shiraji said that at the end of her consultation, he booked her another appointment for 26 August 2019, and they said goodbye. She left the room while he remained in the room to finish his notes. Mr Shiraji said he thought he would have then seen another patient because he never left work before 6.00 or 6.30 pm.[155] Mr Shiraji's evidence was that, consistent with practice policy, he wrote a letter to Dr Armstrong, either before seeing his next patient or at the end of the day.[156] That letter is Exhibit 19.[157] It is consistent with his account of the appointment.
[155] ts 185, 2 December 2022.
[156] ts 186, 2 December 2022.
[157] Letter from Arash Tavakoli Shiraji to Dr Michael Armstrong dated 21 August 2019 (Exhibit 19).
In cross-examination, he denied massaging her buttocks.
26 August 2019
Mr Shiraji's evidence is that he next saw the Patient on 26 August 2019, as had been arranged. His evidence was that he did not do an objective assessment because she was a returning patient, instead. His evidence was that instead, he just briefly asked her how she was feeling, whether she was better than last week and whether she had done her exercises. His evidence was that she replied that she had not been completing her exercises.[158] Mr Shiraji said he could not remember the reason she gave for not doing the exercises, but she assured him that she would do them next time.[159]
[158] ts 186, 2 December 2022.
[159] ts 188, 2 December 2022.
Mr Shiraji's evidence was that he then did an objective assessment and intended to focus his treatment this time on the glute medius and the positioning of the hip in the pelvis.[160]
[160] ts 189, 2 December 2022.
He said that in order to treat her spine, she lay on the bed in a prone position. He said that her bra strap would have been unclipped, although he could not specifically recall whether he unclipped it or whether the Patient did it.[161]
[161] ts 192, 2 December 2022.
In cross-examination, Mr Shiraji said he could not recall the clothing the Patient wore to the appointment on 26 August 2019 and said he never saw her underwear.[162] He said that her jeans were low enough on her hips that the area he was working on, her iliac crest, was exposed. He said the top part of her gluteus medius was also exposed.[163]
[162] ts 226, 5 December 2022.
[163] ts 227, 5 December 2022.
In cross-examination, Mr Shiraji agreed that he treated the Patient's upper trapezius on 26 August 2019 but denied treating her pectoralis minor by massaging her shoulders on this occasion.[164] He said that he commenced his treatment of the Patient with the treatment of the thoracic and lumbar erector spine. He agreed that in treating the sacroiliac joint, 100 percent of the Patient's iliac crest was exposed. He said he was '100 percent sure' that her whole sacrum was not exposed. It was only just the top part of the iliac crest and the top part of the sacrum.[165]
[164] ts 229, 5 December 2022.
[165] ts 232, 5 December 2022.
Mr Shiraji said in cross-examination that the Patient's jeans were not pulled down to expose her buttocks but agreed they were low enough to expose the top part of her gluteus maximus.[166]
[166] ts 235, 5 December 2022.
In cross-examination, he denied putting a finger of his right hand into the Patient's vagina while making circular motions on her clitoris with the finger of his left hand. He denied telling her she was a naughty girl and told her not to be embarrassed.
In cross-examination, Mr Shiraji denied offering the Patient a drink of water at the conclusion of the session. He said that the session concluded with him booking a further appointment for her and, because he had completed his notes during the session, he was able to walk the Patient out from the room to the reception.
Ms Shiraji's notes of the appointment on 26 August 2019[167] are consistent with his evidence about that appointment. They do not record any treatment of her upper traps and pectoralis minor. Mr Shiraji denied that he had treated those areas but had not recorded doing so in the notes because they were made in a rush. He said he would not fail to make a note of treating a particular part of a patient's body.[168]
[167] Exhibit 16, page 2.
[168] ts 245, 5 December 2022.

Conclusion

We find that immediately following the appointment with Mr Shiraji on 26 August 2019, the Patient was distressed. She then did everything one might expect a young woman to do in the circumstances where she is or believes she has been sexually assaulted by another person. She was distressed and called her boyfriend, and without disclosing any details, she told him that the physiotherapist had been inappropriate. She subsequently informed Mrs K, a woman she trusted as a result of her position in her church, that the physiotherapist had been inappropriate. The Patient cancelled the next physiotherapy appointment that had been scheduled; she went to the police and made a complaint, and reported Mr Shiraji to AHPRA. She also sought to have her personal details removed from the medical centre's records.
It seems unlikely that a young woman who finds it so difficult to speak of sexual matters, even to her boyfriend, to her trusted female confidante and to the Tribunal, would simply make up an allegation which she would then be required to speak about in detail with the police, with AHPRA and, ultimately, the Tribunal.
We do not accept the respondent's suggestion that Mr C or Mrs K may have, even unintentionally, led the Patient into giving specifics of the allegations to the police and the Tribunal that were untrue. We accept Mrs K's evidence that the Patient nodded when she was asked if the touching had been below the waist and that she asked Mrs K whether penetration included 'fingers', using the plural, in response to Mrs K's counsel that she would have to be able to provide specifics to the police, including whether there had been penetration.
We accept that the reported change in the nature of her panic attacks may be consistent with an experience of the kind she has recounted.
We accept that the Patient's recollection of what might be regarded as peripheral details of events has lessened over time, but her account of the occurrence of the touching of her clitoris and penetration of her vagina has remained consistent and unshakable.
All of those matters support her account.
However, there are significant inconsistencies in her account that do cause us to doubt the reliability of the Patient's account of the events of 26 August 2019. We have referred to them above.
Further, it seems to us improbable that Mr Shiraji could have placed his left hand down the front of the Patient's jeans and underwear and touched her clitoris while simultaneously placing his right hand down into the back of her jeans and under her underwear to penetrate her vagina with his finger while the Patient was lying prone on the treatment table without having to disturb (by which we mean unfasten and move down) her jeans irrespective of how low slung and loose her jeans may have been and how slim the Patient may have been.
While we had some reservations about Mr Shiraji's evidence that he had no idea what the words 'naughty girl' meant in a sexual context at the time, we have been unable to conclude that he was an untruthful witness.
In those circumstances, we have asked ourselves whether, faced with two apparently honest witnesses with conflicting accounts of what occurred on 26 August 2019 and where we have concerns about the reliability of the Patient's account, we actually feel a persuasion that while the Patient was lying on her stomach with her jeans (which came to her hips) pulled up, and her underwear on; Mr Shiraji, while standing on her left side, placed his left hand down the front of her pants and rubbed her clitoris for approximately two minutes, while simultaneously placing his right hand down the back of her jeans and under her underwear and placing his finger into her vagina and subsequently called her a 'naughty girl' and told her not to be embarrassed. We have had to conclude that we do not feel the necessary sense of persuasion.
As a result, the Board's application must be dismissed.

Orders

In light of our findings, we make the following orders:
1.The Board's application dated 9 June 2022 is dismissed.
2.Any application for costs is to be made by the respondent by 28 April 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Deputy President Judge Glancy
4 APRIL 2023