Sharma v Psychology Board of Australia
[2024] TASSC 62
•12 November 2024
[2024] TASSC 62
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | SHARMA v PSYCHOLOGY BOARD OF AUSTRALIA [2024] TASSC 62 |
| PARTIES: | SHARMA, John Sushil |
| v | |
| PSYCHOLOGY BOARD OF AUSTRALIA | |
| FILE NO: | 3493/2023 |
| JUDGMENT APPEALED FROM: | Tasmanian Civil and Administrative Tribunal |
| DELIVERED ON: | 12 November 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 1 November 2024 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Administrative law – Grounds of review – Error of law – Appeal against TASCAT decision to affirm Psychology Board of Australia's refusal to grant appellant's application for psychologist registration in Tasmania – Appellant's application refused in light of 2005 conviction for aggravated assault against his then wife and subsequent lack of remorse – Contention that Tribunal erred in law by making a finding that appellant made comments undermining acceptance of offending where Tribunal allegedly failed to resolve the issue of what the circumstances of the assault were – Findings open to Tribunal on evidence before it – Appeal dismissed.
Aust Dig Administrative Law [1030]
Legislation:
Health Practitioners Regulation National Law (Tasmania) Act 2010 (Tas) ss 3A, 4, 55(1)(b), 55(1)(h)(i), 82
Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) s 138
Cases:
Hobart City Council v Rich Tapestry Pty Ltd [2024] TASSC 54
Moorilla Estate v Lau [2024] TASSC 49, referred to
Administrative Law – Grounds of review – Procedural fairness - Hearing – Generally – Contention that appellant was denied procedural fairness by Tribunal where he was not informed that he could give further evidence-in-chief or re-examine himself – Appellant delivered fulsome submissions in oral argument – Further contention that appellant was denied procedural fairness by Tribunal permitting cross- examination on basis that appellant's guilty plea to aggravated assault was an acceptance of facts as put by prosecution – Content of cross-examination immaterial in Tribunal's ultimate findings of fact – No denial of procedural fairness – Appeal dismissed.
Aust Dig Administrative Law [1060]
REPRESENTATION:
Counsel:
Appellant: F Cangelosi Respondent: B Jellis SC
Solicitors:
Appellant: Cangelosi and Logan Respondent: Australian Government Solicitor
| Judgment Number: | [2024] TASSC 62 |
| Number of paragraphs: | 34 |
Serial No 62/2024 File No 3493/2023
JOHN SUSHIL SHARMA v PSYCHOLOGY BOARD OF AUSTRALIA
| REASONS FOR JUDGMENT | MARSHALL AJ 12 November 2024 |
1 The appellant, Mr Sharma, appeals from a decision of the Tasmanian Civil and Administrative Tribunal ("the Tribunal") in which the Tribunal affirmed the decision of the respondent, Psychology Board of Australia ("the Board") to refuse his application to be registered to practise as a psychologist in Tasmania.
2 The appeal is made pursuant to s 136 of the Tasmanian Civil and Administrative Tribunal Act 2020. After hearing an appeal from a decision of the Tribunal, this Court may, under s 138 of that Act, affirm the decision appealed against, vary the decision or set it aside. If considered fit, the Court may return the matter to the Tribunal for reconsideration in accordance with law. See Hobart City Council v Rich Tapestry Pty Ltd [2024] TASSC 54 at [9]. The appeal is conducted by way of a rehearing in reliance on evidence that was before the Tribunal, see Moorilla Estate v Lau [2024] TASSC 49 at [8].
3 The Board refused the appellant's application to be registered as a psychologist in Tasmania because of circumstances relevant to a conviction recorded against him in 2005, after a guilty plea to a charge of aggravated assault occasioning actual bodily harm. That proceeding was heard in the Magistrates Court of Western Australia. The Board had regard to the seriousness of the offence and the lack of insight of the appellant into the seriousness of his offending, and the lack of effort to engage in rehabilitation activities. The Board was concerned about the appellant's downplaying of the gravity of his offending and his continuing, even with the passage of time, to attack the credibility of the complainant.
4 The Health Practitioners Regulation National Law (Tasmania) Act 2010, in s 4 thereof, applies the Health Practitioners Regulation National Law to the State of Tasmania. For the purposes of this appeal, the Court will refer to the Act as the "National Law".
5 The National Law provides a national scheme for the regulation of certain health professionals, including psychologists. Under s 3A of the National Law, the guiding principles of its scheme of national regulation include "the protection of the public" and "public confidence in the safety of services provided by registered health practitioners …".
6 The Board is established under the National Law. A person seeking to be registered as a psychologist is required to apply to the Board for registration. In order to be eligible to be registered by the Board, an applicant is required to be a suitable person to hold registration in a health profession. So far as is presently relevant, under s 55(1)(b) of the National Law, the Board may decide that an applicant is not a suitable person if, having regard to the applicant's criminal history to the extent relevant to the applicant's practice, the applicant is not, in the Board's opinion, an appropriate person to practise the profession, or that it is in the public interest for the applicant not to practise that profession.
7 The Board, under s 82 of the National Law, is compelled to refuse an application for registration if the applicant is not a suitable person to hold registration. A review of the refusal is available to the Tribunal, which conducts a merits review and seeks to make the correct or preferable decision.
The Board decision and Tribunal review
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8 The Board refused the appellant's application largely for the reasons set out at [3] above. The review before the Tribunal took place on 24 and 25 August 2023.
9 The documentary evidence before the Tribunal included the following documents:
• a statement of material facts found by the Tribunal to have been tendered by the prosecution in the hearing before the magistrate in 2005; • the order sentencing the appellant to a suspended term of imprisonment of seven months; • a medical report, dated 13 February 2005 from a medical officer at the Armadale Health Service in Perth, Western Australia, setting out the injuries sustained by the appellant's ex-wife; • the transcript of the magistrate's sentencing remarks; • an incident report from Western Australia Police; • a bail undertaking; • a complaint under s 317(1) of the Criminal Code (WA); and • a certificate of spent conviction, dated 11 August 2016. 10 The appellant gave evidence before the Tribunal in the form of a witness statement. He was cross-examined on that statement and asked questions by the Tribunal. The appellant also made oral submissions to the Tribunal in the nature of evidence, as is not uncommon in proceedings before administrative tribunals involving self-represented people. After the reply submission on behalf of the Board, the appellant made a rejoinder submission.
11 The material facts found by the Tribunal were as follows:
• the appellant attended the residence of his ex-wife to collect his son, who was then four years old; • a heated discussion occurred; • during the heated discussion, the appellant pushed his ex-wife, who was on crutches, causing her to fall to the ground; • when his ex-wife was on the ground, the appellant swung a foot and part of his leg or foot connected with his ex-wife's face; • the appellant's actions were avoidable and involved unnecessary force, which resulted in an injury; and • the altercation occurred in the presence of at least one child. 12 The appellant gave evidence before the Tribunal that he pushed his ex-wife to the ground and that she started to hold his leg. He said that he tried to get free of her hold on his leg and made contact with her as a consequence. This account was taken into consideration by the Tribunal in making its findings of fact, which were not as damming as the conduct which was the subject of the statement of material facts allegedly tendered to the Magistrates Court by the prosecution.
13 In coming to its view of the facts, the Tribunal had regard to the material statement of facts which the Board said was tendered by the prosecution before the magistrate. In addition to the matters
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at [11] above, the statement referred to the complainant being 11 centimetres shorter than the appellant and of slim build, while he was of solid build. The last two paragraphs of the statement state as follows:
"The complainant later attended the Armadale – Kelmscott Memorial Hospital, where she received treatment for her injuries. She received a fractured nose, bruising to her left eye, cuts to her gums, two chipped teeth and tenderness to the ribs and hip on her right side.
On December 23, 2004 the defendant attended the Armadale Detectives' Office, where he participated in a videotaped interview. He readily admitted the offence as alleged and was advised he would be charged and summonsed in relation to the matter."
The Tribunal did not make findings based on what is said to have occurred on 23 December
2004, in the two paragraphs quoted immediately above.
The appeal grounds
14 In his amended notice of appeal, dated 2 June 2024, the appellant raised three grounds of appeal. The first ground challenged the Tribunal's decision as not being reasonably open on the evidence, in respect of the appellant not being "an appropriate person" to practise as a psychologist.
15 The second ground contended that the Tribunal made an error of law in making a finding that the appellant made comments which undermined the effect of his acceptance of his conduct relating to the 2004 offending, in the context of the alleged failure of the Tribunal to find what the circumstances of the offending were.
16 The third ground of appeal alleged that the Tribunal denied the appellant procedural fairness as an unrepresented person in several respects.
17 As ground one is a general catch all ground, it is appropriate to deal with the other grounds first.
| Ground 2 | |
| 18 | Ground 2 states as follows: "The Tribunal erred in law in making the following findings: |
'in the documentary material before the Tribunal, and in the course of giving oral evidence and making submissions, Mr Sharma consistently, and gratuitously made adverse comments about his wife, both in the context of the circumstances of the offence that led to his conviction, and more generally. Those comments, particularly in relation to the circumstances of the offence, undermined the effect of Mr Sharma's acceptance about his conduct.'
And
'Despite Mr Sharma's apparent acceptance that his conduct was wrong, we find that he, overall, lacks insight into his behaviour and the offence. In making this finding, we have regard to his adverse comments about his wife; his insistence that he was sentenced in the Magistrates Court on the basis of lies told by his wife despite there being unambiguous independent medical evidence before the court; his expressed views that he was unfit to plead; his expressed views that if he had been legally represented he would not have been convicted; and his apparent rejection of the appropriateness of undertaking rehabilitation.' –
in circumstances where the Tribunal failed to resolve the issue of what the circumstances of the assault that was found proven against the Applicant actually were."
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19 Contrary to the allegation in ground 2, the Tribunal did set out the circumstances of the assault in its findings of fact. They are set out at [39]-[41] of the Tribunal's decision. At those paragraphs, the following is said:
"39 Having considered the material tendered in relation to the Magistrates Court proceedings, and the evidence relied upon by Mr Sharma in relation to the circumstances surrounding the offending, and in relation to the court proceedings themselves, we make the following findings:
• Mr Sharma attended the residence of his wife to collect his son, who was four years old at the time. • A heated discussion occurred between Mr Sharma and his wife, whilst Mr Sharma was holding their son. • Mr Sharma's wife was on crutches at the time. • Mr Sharma pushed his wife and she fell to the ground. • While she was on the ground, Mr Sharma swung his foot. Part of his leg or foot connected with his wife's face. • The actions by Mr Sharma of pushing his wife, and swinging his foot, both involved an avoidable and unnecessary use of force against his wife, which ultimately resulted in injury to her. • It is not necessary for us to make any finding about whether Mr Sharma's wife was pulling on or hurting their son. • The altercation between Mr Sharma and his wife occurred in the presence of at least one of their children. 40 In relation to the proceedings in the Magistrates Court of Western Australia, Mr Sharma has submitted that he was sentenced on the basis of his wife's false statement to police that she had sustained multiple injuries. 41 We note:
• The medical report from the Armadale Hospital was before the magistrate at the time of the court proceedings and the report detailed the extent of Mr Sharma's wife's injuries. • Mr Sharma has conceded that the report accurately reports his wife's injuries."
20 There was no error of law in making that finding. It was a finding which was open to the Tribunal on the evidence before it. In his opening statement before the Tribunal, at page 27 of the transcript, the appellant inferred that his ex-wife had exaggerated her injuries and that the police did not rely on anything she said. Mr Sharma also gave evidence under cross-examination, at transcript page 44, to the effect that his ex-wife pulled at the child he was holding to purposely get him to react. At transcript page 54, the appellant said that his ex-wife had "done some crazy things" before their separation. At transcript page 60, the appellant downplayed the seriousness of her injuries. In his statement accompanying his application to the Tribunal, the appellant referred to the claims of his ex- wife being absurd. He also made the point that the statement of material facts is not evidence, but merely a series of allegations. He said that he never intentionally kicked his wife. He said that he did not know that causing injury unintentionally might have meant that he could have been found not guilty, or words to that effect. This is all in the context of what the magistrate found to be a very serious assault. In his submission, at transcript page 90, he also downplayed the seriousness of his offending, saying "I was forced to protect that child I was holding." That was in the context of the complainant
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being of slight build, 11 centimetres shorter than the heavily built appellant, who gave evidence of being
skilled in martial arts.21 The comments quoted in the second part of the appeal ground were also findings that were reasonably open to the Tribunal. The appellant did cast doubt on the extent of his wife's injuries as discussed in the preceding paragraph. The appellant did also say that he considered himself unfit to plead and would not have been convicted if he had legal representation. He also questioned the need for rehabilitation, given the passage of time since the offending. These comments do not give rise to an error of law either. The entire ground is misconceived.
Ground 3
22 Ground 3 alleges the appellant was denied procedural fairness by the Tribunal in several
respects.
23 The first respect is that it required the appellant to give evidence under affirmation, without explaining that he was not obliged to give evidence under affirmation. This ground was difficult to comprehend. It was abandoned during the course of argument.
24 The next procedural fairness point in ground 3 was that the appellant was not told that he could give further evidence-in-chief in addition to his witness statement, or that he could re-examine himself. The appellant was cross-examined and did not seek to adduce any other evidence after that cross- examination. However, he presented fulsome submissions in the nature of evidence in his oral argument. It is difficult to see what else the appellant could have said in the nature of evidence or submissions put before the Tribunal than what he did say. The Tribunal is entitled to treat, and have regard to, the submissions made by an unrepresented person before it as in the nature of evidence, and it did so. Frequently, self-represented people make submissions before a host of tribunals, including the Fair Work Commission, or the Tasmanian Industrial Commission, where oral submissions, not under oath or affirmation, are routinely treated as evidence and had regard to by such tribunals. The same practice appears to be used in the tribunal the subject of the appeal. The Tribunal in this matter relied on the submissions and evidence of the appellant, including admissions made by him in making its factual findings. There was no error in it doing so.
25 The next alleged denial of procedural fairness related to questioning by counsel for the Board, which assumed that the appellant's guilty plea in 2005 was an admission of the facts in the statement tendered by the prosecutor. Counsel for the appellant claimed that the appellant, in pleading guilty, was doing no more than admitting to the essential elements of the offence.
26 It is correct that when a person pleads guilty to an offence, one is pleading guilty to the essential elements of that offence and no more. However, when a sentencing magistrate or judge is determining the appropriate sentence for the offending, it is not uncommon for that judicial officer to be assisted by the prosecution tending a statement of material facts. That statement of material facts, if the subject of any disagreement, can be the subject of a disputed facts hearing. Before the Tribunal, the appellant was vague as to what happened before the magistrate. That is understandable because the hearing was a long time ago. He appeared to accept that a statement of material facts was presented by the magistrate to the prosecution. He maintained that he disputed some aspects of it. Part of the sentencing remarks of the magistrate gives credence to that remark. However, unhelpfully, the magistrate's sentencing remarks do not say what was in dispute or how that dispute was resolved.
27 Counsel for the appellant contended that his client was denied procedural fairness before the Tribunal by the Tribunal permitting the counsel for the respondent to question the appellant on the basis that the material statement of facts were an appropriate description of what occurred in the incident between the appellant and his ex-wife. It has already been observed that the Tribunal, in its findings of
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fact, did not go as far as the material statement of facts went. The sentencing remarks of the magistrate make it clear that the magistrate considered the relevant offending to be at the highest scale of offending for the charge of assault occasioning actual bodily harm. In the course of cross-examining the appellant about what occurred in the Magistrates Court, counsel for the Board was entitled to put to the appellant the Board's case. That is, that the offending was serious. Counsel was entitled to put to the appellant that there was a material statement of facts before the Magistrate, which was not the subject of any disputed facts hearing. The appellant was entitled, and did, contest the allegations made by the cross- examiner about his acceptance of the material statement of facts. Ultimately, the Tribunal made its findings of fact as set out above at [11], in circumstances where nothing fell from the appellant's counsel on the appeal which would indicate that the appellant disputed with what was there set out. It was not in dispute that the appellant attended the residence of his ex-wife to collect his son, who was then four years old. It was not in dispute that there was a heated discussion. It was not in dispute that during that heated discussion the appellant pushed his ex-wife, causing her to fall to the ground and that she was on crutches at the time. It is not in dispute that when the appellant's ex-wife was on the ground, the appellant swung a foot and part of his leg or foot connected with his ex-wife's face. It was not in dispute that the appellant's actions were avoidable. It was not in dispute that they involved an injury to his ex- wife and unnecessary force. What was in dispute was the extent of the force and the nature of the injury. It was not in dispute that the altercation occurred in the presence of at least one child. When the findings of fact of the Tribunal are considered as a whole, the major issue that the appellant appears to have with them is the inference that the force was unnecessary and the injury was more serious than the appellant was prepared to concede. These were matters of fact appropriate for the Tribunal to deal with and it did so by placing less emphasis on these matters in dispute than appears from what was accepted by the Tribunal and the Board as the statement of material facts.
28 The sentencing magistrate considered what had happened was a serious assault. Counsel for the appellant in the appeal did not disagree with that analysis. There was no denial of procedural fairness by the Tribunal coming to those findings of fact. Whether or not counsel for the respondent cross- examined in a way that assumed the plea of guilty entered by the appellant to the charge of assault occasioning bodily harm amounted to agreement with a statement of material facts tendered in evidence, in the end, was beside the point. That is because the Tribunal did not make findings of fact based on the statement of material facts tendered in evidence, but made findings of fact which were, with two exceptions, uncontroversial. Consequently, there is nothing in ground 3 to show that the appellant, albeit unrepresented, was denied procedural fairness.
Ground 1
29 Ground 1 alleges that the decision of the Tribunal was not reasonably open to it. It states that:
"The Tribunal erred in law in that it was not reasonably open to conclude that the
Applicant was not an appropriate person to practise as a psychologist."
30 There is no basis for that contention. There was ample evidence before the Tribunal for it to form the view that the appellant was not an appropriate person to practise as a psychologist. The evidence before the Tribunal showed that the appellant was convicted of a very serious assault, as described by the magistrate. The Tribunal also received evidence from the appellant in which he attempted to downplay the seriousness of what occurred in the incident with his ex-wife. There was sufficient evidence before the Tribunal for it to conclude that the appellant was not an appropriate person to practise psychology, and that it was not in the public interest for him to do so.
31 The submission of the appellant that there was insufficient information before the Tribunal regarding what had occurred, which gave rise to the criminal charge and what had been found through the criminal process in 2005, is rejected. There is ample evidence before the Tribunal for it to make findings with respect to what occurred in the events in 2004 which led to the charge against the
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appellant, and what occurred in the criminal process. There was also ample evidence before the Tribunal regarding gratuitously adverse comments made in the course of the evidence before the Tribunal, and prior to that the Board, in relation to the appellant's ex-wife, made by the appellant.
32 It was reasonably open for the Tribunal to find the appellant was not an appropriate person to practice as a psychologist by reference to the criteria in s 55(1)(b) of the National Law, concerning his criminal history. It was further reasonably open to hold that he was not a fit and proper person for general registration in the profession under s 55(1)(h)(i) of the National Law.
33 The conclusion of the Tribunal that the appellant was not an appropriate person to practise as a psychologist was reasonably open to it.
Disposition
34 Having regard to the foregoing, the Court will order as follows:
(1) The appeal is dismissed. (2) The decision of the Tribunal is affirmed. (3) The appellant pay the respondent's costs of and incidental to the appeal.
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