Veterinary Surgeons Investigating Committee v Howe
[2002] NSWADT 191
•09/30/2002
CITATION: Veterinary Surgeons Investigating Committee -v- Howe [2002] NSWADT 191 DIVISION: General Division PARTIES: APPLICANT
Veterinary Surgeons Inestigating Committee
RESPONDENT
Dr Peter Allan HoweFILE NUMBER: 023033 HEARING DATES: 12-16/08/2002, 19/08/2002 SUBMISSIONS CLOSED: 08/19/2002 DATE OF DECISION:
09/30/2002BEFORE: Hennessy N - Magistrate (Deputy President); Thompson R - Member; Clark F - Member APPLICATION: Veterinary Surgeons Act - veterinary surgeon - misconduct or serious misconduct in a professional respect MATTER FOR DECISION: Principal matter LEGISLATION CITED: Veterinary Surgeons Act 1986
Veterinary Surgeons Regulation 1995
Administrative Decisions Tribunal Act 1997
Interpretation Act 1987CASES CITED: In the matter of an inquiry by the Disciplinary Tribunal into a complaint against Lloyd (unreported Veterinary Surgeons Disciplinary Tribunal of NSW 16/12/94)
Hopwood v Veterinary Surgeons Investigating Committee [2002] NSWADT 44
Qidwai v Brown (1984) 1 NSWLR 100
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
NSW Bar Association v Cummins (2001) NSWCA 284
Hoile v Medical Board of South Australia (161) 104 CLR 157
Marten v Royal College of Veterinary Surgeons' Disciplinary Committee (1966) 1 QB 1
Dad v General Dental Council (2000) 1 WLR 1538
Kalil v Bray (1977) 1 NSWLR 256
Buttsworth v Walton unreported NSWCA 19/12/91
Richter v Walton unreported NSWCA 15/7/93
McBride v Walton (Supreme Court of NSW, Court of Appeal, 15/7/1994, unreported)
Re Davis (1947) 75 CLR 409
Ex parte Tziniolis Re Medical Practitioners Act 1966 67 SR(NSW) 448
Briginshaw v Briginshaw (1938) 60 CLR 336
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Clyne v New South Wales Bar Association (1960) 104 CLR 186
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82REPRESENTATION: APPLICANT
M Wade, solicitor
RESPONDENT
A Stenmark, barristerORDERS:
1 This decision relates to an inquiry into two complaints against Dr Peter Howe which were referred to the Tribunal by the Veterinary Surgeons Investigating Committee (VSIC). Dr Howe is a 53 year old veterinary scientist with a Ph.D in semen biotechnology. He has been in practice for 30 years and currently practises part-time in a small animal on the NSW central coast as well as conducting an artificial insemination centre in Mudgee. This is the first time that he has been the subject of a complaint to the VSIC.
2 Section 26 of the Veterinary Surgeons Act 1986 (the Act) provides for complaints to be made to the VSIC about veterinary surgeons. So far as is relevant to this case, that section states that:
- (1) The Investigating Committee, the Board or any other person may make a complaint to the Investigating Committee that a registered veterinary surgeon:
- (c) has been guilty of misconduct, or serious misconduct, in a professional respect, or
(e) is not of good character . . .
3 After investigating the complaint against Dr Howe made to it by the Director General, NSW Agriculture, the VSIC referred the matter to the Tribunal pursuant to s 28(1)(c) of the Act. That section provides that the VSIC shall refer the complaint to the Tribunal “if it is satisfied that a prima facie case has been made out and considers that the complaint is sufficiently serious to warrant its being referred to the Tribunal . . .”
4 The complaints referred to the Tribunal were as follows:
- The Veterinary Surgeons Investigating Committee complains that Dr Peter Allan Howe is guilty of misconduct, or serious misconduct, in a professional respect pursuant to section 26(1)(c) of the Veterinary Surgeons Act 1986.
The Veterinary Surgeons Investigating Committee complains that Dr Peter Allan Howe is not of good character pursuant to section 26(1)(e) of the Veterinary Surgeons Act 1986. (Emphasis added.)
5 The particulars of the complaint relate to conduct by Dr Howe in relation to the certification of ram SM3’s semen for export to New Zealand. There are certain government requirements in relation to the testing of the animal for certain diseases, including brucella ovis, before the semen can be exported. The VSIC alleged that Dr Howe falsely certified, on more than one occasion, that ram SM3 had undergone a test for brucella ovis on 15 December 1996. The VSIC also alleged that Dr Howe concocted false laboratory reports which recorded that test result and that he made a false or misleading statement to the VSIC. The full particulars of the complaints are set out below. Dr Howe denies that he is guilty of misconduct, or serious misconduct, in a professional respect or that he is not of good character.
Definition of misconduct and serious misconduct in a professional respect
6 There is no definition of “misconduct in a professional respect” or “serious misconduct in a professional respect” in the Act. However the Act and the Veterinary Surgeons Regulation 1995 (the Regulation) deem certain conduct to fall within those categories.
7 Pursuant to s 22(c) of the Act a veterinary surgeon is guilty of “misconduct in a professional respect” if he or she breaches any of the prescribed rules in the Veterinary Surgeons’ Code of Professional Conduct (the Code of Conduct). The Code of Conduct is Schedule 1 to the Regulation.
8 Section 22A of the Act deems certain conduct to be “serious misconduct in a professional respect”. Such misconduct includes a situation where the veterinary surgeon:
- (c) engages in conduct in the veterinary surgeon's professional capacity that, if repeated or continued, is likely to do any of the following:
- (iv) damage the international reputation of Australia in relation to animal exports, animal welfare, animal produce or sporting events, or
9 Clause 10(3) of the Regulation prescribes that breaches of Rule 5(11) and Rule 6 of the Code of Conduct are “serious misconduct in a professional respect”. Rule 5(11) is relevant to these proceedings. That provisions states that:
- A veterinary surgeon should not sign a certificate relating to the performance of a veterinary service unless:
- (a) the certificate is accurately completed to the best of the veterinary surgeon's knowledge, and
(b) the surgeon has personally performed or supervised the performance of the service.
10 Even if the particulars of the complaint are not “deemed” misconduct under the Act, Dr Howe may still be guilty of misconduct or misconduct in a professional respect as those terms are defined by the common law.
11 In the matter of an inquiry by the Disciplinary Tribunal into a complaint against Lloyd (unreported decision of the Veterinary Surgeons Disciplinary Tribunal of NSW, 16/12/94) the Disciplinary Tribunal stated that:
- In formulating the criteria to identify and assess misconduct in a professional respect apart from deemed misconduct in a professional respect under s 22(c) of the Act, the Tribunal is required to have regard to the principles established under the general law by common law precedent. It is not possible to lay down a standard of professional conduct other than in general terms. Whether a departure from professional standards in a particular case constitutes misconduct in a professional respect is basically determined by peer judgment ie the judgment of practitioners of good repute and competence and standing in the profession.
12 In a previous decision of this Tribunal, Hopwood -v- Veterinary Surgeons Investigating Committee [2002] NSWADT 44, the Tribunal accepted the VSIC's summary of the common law meaning of misconduct in a professional respect as follows:
- a) "such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence" ( Qidwai v Brown (1984) 1 NSWLR 100 at 105 per Priestley JA);
b) "a deliberate departure from accepted standards of such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a (veterinary) practitioner” (Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200D (Kirby P); or
c) conduct incompatible with being a member of the profession or otherwise likely to bring the profession into disrepute, including deliberate or reckless unlawful conduct (NSW Bar Association v Cummins (2001) NSWCA 284; Pillai v Messiter (No 2) at 201A; Hoile v Medical Board of South Australia (161) 104 CLR 157; Marten v Royal College of Veterinary Surgeons' Disciplinary Committee (1966) 1 QB 1; Dad v General Dental Council (2000) 1 WLR 1538).
13 In considering these matters as an expert body, the Tribunal is not limited to the evidence of professional standards, unwritten rules or the opinion of professional brethren. We may form our own opinion of such matters from our own expert knowledge (Kalil v Bray (1977) 1 NSWLR 256; Buttsworth v Walton, unreported, NSWCA, 19/12/91; Richter v Walton, unreported, NSWCA, 15/7/93.)
Definition of “not of good character”
14 We must also determine, on the basis of any findings of dishonesty, whether Dr Howe is “not of good character” pursuant to section 26(1)(e) of the Act. “Good character” is mentioned twice in the Act, firstly as a prerequisite to registration under s 11(a) and secondly as a basis for a complaint against a veterinary surgeon under s 26(1)(e).
15 In McBride v Walton, (Supreme Court of NSW, Court of Appeal, 15 July 1994, unreported) Handley J discussed the meaning of “not of good character” in a similar legislative context, namely the Medical Practitioners Act 1938. Handley J adopted the test set down by Dixon J in Re Davis (1947) 75 CLR 409 where His Honour referred to the requirement of good character as “the test of ethical fitness” which requires “enduring moral qualities.” Handley J found that there was no legal error contained in the questions that the Medical Tribunal asked itself, to determine whether Dr McBride was not of good character. Those questions were:
- (a) whether misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;
(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner’s normal qualities of character;
(d) the motivation which may have given rise to the proven episode of misconduct;
(e) the underlying qualities of character shown by previous and other conduct; and
(f) whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
16 These questions are equally applicable to this Tribunal’s consideration of the question of whether Dr Howe, as a veterinary surgeon, is “not of good character.” Dr Howe’s character must be determined as at the date of the Tribunal hearing. (Ex parte Tziniolis Re Medical Practitioners Act (1966) 67 SR(NSW)448 at 475 per Holmes JA.)
17 Onus and standard of proof. The onus is on the VSIC to prove the complaints against Dr Howe. The Tribunal must be comfortably satisfied, on the balance of probabilities, that the complaints have been proved. In applying that standard, the Tribunal must have regard to the gravity and importance of the matters to be determined in accordance with the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363. Sir Owen Dixon’s words at p 361-362 are of particular relevance:
- Except upon criminal issues to be proved by the Prosecution it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature or consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be proved by inexact proofs, indefinite testimony, or indirect inferences.
18 Instructions. In late January 1997 Mr Croake, the owner of ram SM3, instructed Dr Howe to prepare semen from that ram for export to New Zealand. At that time ram SM3 was in Dr Howe’s artificial breeding centre at Mudgee. Roberts Ltd was the Tasmanian agent for the New Zealand purchaser. In March 1997 Dr Gregory, a veterinarian who was operating from Jerilderie, NSW, was retained by Chris Heyward of Roberts Ltd in Tasmania to arrange the export of the semen.
19 Advice about requirements. On receiving the export instructions from Mr Croake, Dr Howe asked him to provide a copy of the New Zealand import permit. When Dr Howe had not received the permit by 28 January 1997, he rang Helen Wilson at the Australian Quarantine and Inspection Service (AQIS) to find out the New Zealand import requirements for sheep semen and obtain a copy of the protocol. Ms Wilson told him the protocol requirements, including tests for various diseases, and Dr Howe recorded the details in his diary. Ms Wilson did not mention the requirement that the animal test negative for brucella ovis during the two month period in the breeding centre before collection of the semen.
20 Two month requirement. When he received the New Zealand import permit and protocol on 18 March 1997, Dr Howe noted that one of the requirements for importing ram’s semen into New Zealand was that “The rams have been in the artificial insemination centre for a continuous period of at least two months before the date of collection.” Dr Howe stated that ram SM3 entered his centre proper on 20 December 1996, although it was already on his property prior to that date. He also said that the semen was collected on 19 February 1997. (See Particular One.)
21 Date on which ram SM3 entered the centre. Dr Howe’s evidence that ram SM3 entered the centre proper on 20 December 1996 is corroborated by his fax to Dr Gregory on 21 May 1997 where he says that “The ram entered the centre proper on 20/12/96 and was quarantined until 21/3/97.” However in his Reply to the VSIC’s application, Dr Howe stated, at paragraph 2, that “In the period 15 December 1996 to 19 February 1997 the “Ram SM3 was at all times in the Centre.” In his statement dated 8 August 2002, Dr Howe stated that ram SM3 was “held in isolation in my premises for two months prior to and throughout the collection times.”
22 Reason for Ram SM3 entering the centre. It was not in dispute that as at December 1996 Dr Howe had not been requested to arrange for the semen to be exported, so the reason for Ram SM3 entering the centre could not have been to comply with the New Zealand import protocol. Dr Howe said that the reason ram SM3 went in to the collection centre was to collect semen for inseminating three ewes for embryo transfer. Later he said there were four ewes. Dr Howe said that, independently of any export requirement, there were legislative requirements that ram SM3 test negative for brucella ovis before entering the centre.
23 Correct import protocol. On 18 March 1997 Dr Howe received the correct import protocol which stated that a brucella ovis test was required during the two month period in the breeding centre before collection of the semen. Dr Howe said in cross examination that he was “concerned” when he found out that a brucella ovis test was required. When questioned about his concern, Dr Howe said that his immediate reaction was concern, but then he realised that he had already carried out the required test.
24 Taking of serum. Dr Howe says that on 15 December 1996, more than a month prior to receiving instructions about the export of the semen, he took a serum sample from SM3 for brucella ovis testing. He said he took the sample primarily to exclude the possibility of SM3’s poor semen quality at that time being due to ovine brucellosis, and not to the endocrine aberration that he had diagnosed. He did not say, until he gave evidence to the Tribunal, that another reason for requesting the brucella ovis test was because it was a legislative requirement for ram SM3 to enter the artificial insemination collection centre.
25 Taking of semen. Dr Howe did not mention in his written statement to the Tribunal, in his evidence to the VSIC or in his evidence in chief to the Tribunal, that he also took a semen sample from SM3 on 15 December 1996 for semen culturing. In cross examination, Dr Howe first said that he did not know whether he took a semen sample on 15 December 1996. When asked about the “bacteriology report to follow” notation on the 19 December 1996 report from the Elizabeth MacArthur Agricultural Institute (EMAI) at Menangle, he said that he did take a semen sample on 15 December 1996. The significance of this notation is discussed further below.
26 Sending the samples to Orange. Dr Howe gave evidence that on 16 December 1996, the day after taking the samples from SM3, he sent them by courier to the NSW Agriculture’s laboratory at Orange for testing. NSW Agriculture produced records of all specimens submitted to the laboratory at Orange during December 1996. There is no record of Dr Howe submitting a sample to the Orange laboratory during that time.
27 Consignment note. As part of his statement, Dr Howe provided a consignment note for the delivery of the samples. Dr Howe had not drawn the VSIC’s attention to the consignment note during the course of their investigation. He gave evidence that the consignment note related to the samples that he sent to Orange on 16 December 1996. Dr Howe said he wrote and signed the consignment note himself including his phone number “02 63733404” and the date.
28 Incorrect details on consignment note. On 13 August 2002 the Tribunal obtained evidence from Telstra that Dr Howe did not have the phone number 02 63733404 until 18 August 1997, some eight months after he says he wrote the details on the consignment note. According to Telstra records, Dr Howe’s phone number on 16 December 1996, when he said he wrote the consignment note, was 063 733404. It was put to Dr Howe that he did not write the consignment note on 16 December 1996. Dr Howe first said that he could not explain why he wrote a phone number on the consignment note which he did not have at the time. Dr Howe then said he could not be sure that he wrote the consignment note on 16 December 1996. Dr Howe’s final response was that he did fill out the consignment note on 16 December 1996. It was put to Dr Howe that he fraudulently concocted the consignment note for the purposes of the Tribunal proceedings. He denied having done so.
29 Follow up in relation to results. Dr Howe said that when he had not received a result of the brucella ovis testing by 19 December 1996, he phoned the laboratory at Orange and spoke to a woman whose name he does not know. He says that she was unable to assist him. Dr Howe said in his statement, that on 23 December 1996, a document bearing identification number MN-96/9457 RJG (“the interim report”) was faxed to him from the EMAI laboratory at Menangle to his home in Terrigal. In his evidence to the VSIC and the Tribunal, he said that he received the interim report by fax from EMAI on 19 December 1996. Records produced by EMAI do not disclose any request from Dr Howe for the relevant tests to be carried out or a test result having been sent to Dr Howe in December 1996.
30 Dr Howe gave evidence to the VSIC that he destroyed the original fax of the interim report from EMAI, but retained a photocopy. Dr Howe maintains that he attempted to cover up sensitive material about the fertility of SM3 and other rams before faxing the report to Dr Gregory. He said in evidence before the VSIC that “I had a black felt pen right, to try and ink out that bit, it didn’t work, so it’s crumpled up, well it was photocopied and then I put that blue sticker across to cover up the mess, right, and the fax copy, it’s gone.”
31 Test results. The photocopy of the interim report dated 19 December 1996 records that the brucella ovis test on ram SM3 was negative. Where more than one test is requested an interim report is issued, pending the finalisation of all the results. The interim report contains the words “bacteriology report to follow”, referring to outstanding test results. Dr Howe says that he did not receive a final report from EMAI. Dr Howe gave no explanation as to why he did not follow up the bacteriology results except that it was a busy time of the year. Furthermore, while Dr Howe said that he would have recorded all test results on ram SM3 and conveyed them to the owner, he did not produce any records from his own files of the brucella ovis test result, or any other test result, on ram SM3. Dr Howe’s comment was, “If I looked hard I could find it.”
32 Post-collection testing. As required by the protocol, Dr Howe collected a serum sample from SM3 on 15 February 1997. On 19 February he sent the serum sample to the laboratory at Orange.
33 Collection of the semen. On 19 February 1997 Dr Howe collected semen from SM3. Initially he did not intend to use this semen to fill the New Zealand order but by 22 February the ram SM3 had become sub-fertile. As the semen collected on 19 February 1997 was the only viable semen Dr Howe had collected, he used it to fill the export order.
34 Import permit. On 18 March 1997 Dr Gregory provided the original import permit to Dr Howe. Dr Howe says that this was the first time he became aware that the protocol verbally provided by Ms Wilson of AQIS, was incorrect and that an export requirement was a negative brucella ovis test during the two month period in the breeding centre before collection of the semen.
35 On 21 March 1997, Dr Howe collected a second sample of serum and a semen sample for culture for brucellosis and A bacillus. The result, shown in report number MN97-3231/RJG from EMAI, was negative.
36 Semen, import permit and certificate forwarded to Dr Gregory. On 14 April 1997 Dr Howe signed a certificate which stated, among other things, that:
· ram SM3 had been in the centre for a continuous period of at least two months prior to the date of collection (Particular One); and
· ram SM3 had been subjected to tests with negative results for brucella ovis using the complement fixation test (Particular Two).
37 On 14 April 1997, Dr Howe forwarded the semen in 73 pellets with the import permit and the certificate to Dr Gregory. (Particular Three) Dr Howe agreed with Mr Wade’s proposition that if he conducted the brucella ovis test on 15 December 1996, it was conducted four days outside the two month period required by the protocol. He agreed that the certificate he signed on 14 April 1997 was incorrect in that respect. Dr Howe said he knew the certificate would be relied on by AQIS and others to verify that the import requirements had been met. Dr Howe said that he was well aware of his responsibilities in this regard.
38 Dr Howe also sent with the certificate to Dr Gregory, a copy of an interim and a final report showing the results of various tests on Ram SM3 dated 3 March 1997 and 26 March 1997 respectively.
39 Communication between Dr Gregory and Dr Howe in relation to brucella ovis testing of SM3. On 29 April 1997 Dr Gregory phoned Dr Howe requesting further documentary evidence supporting the export requirements. On 1 May 1997 Dr Gregory faxed Dr Howe requesting pre-collection test results for SM3. He wrote as follows: “Need B.ovis CFT test which would be part of Aust. Licensed testing. Pre-collection.” Dr Howe did not respond to this request. On 20 May Dr Gregory faxed Dr Howe again stating “We URGENTLY need copies of the remaining pre and post collection tests so we can apply to AQIS.”
40 Dr Howe’s response to Dr Gregory’s requests. On 21 May 1997 Dr Howe faxed to Dr Gregory all the necessary reports except the brucella ovis pre-collection results. In that fax Dr Howe wrote, “Please note that SM3 was tested on 15/12/97 (sic) and again on 31/3/97 with negative result (Br.ovis CFT).” (Particular Four) Dr Howe denies that he re-sent the two reports dated 3 March 1997 and 26 March 1997 which he had already forwarded with the certificate and the semen. The reason he denies sending these reports is that the header records a fax number which Dr Howe says he was not using at that time.
41 Third request for report. On the same day, 21 May 1997, Dr Gregory acknowledged receipt of the reports and noted that although 15 December 1996 was four days prior to the two month time period, he did not think that would be a problem. Dr Gregory said in his fax to Dr Howe, “The date of the test (15/12) is not crucial, as I don’t think AQIS will quibble over 4 days. If you think they may, please fax the protocol they sent you to support the variation from the permit.” Dr Gregory then asked Dr Howe for the third time to provide him with the report in relation to the pre-collection test result for brucella ovis.
42 Signed certificate. On 21 May 1997 Dr Howe faxed back saying that he had followed the protocol made available by AQIS which did not require brucella ovis testing. He went on to state that “However our own state requirements were for the ram to originate from a brucellosis-free accredited flock and be subjected to a CFT for brucella ovis prior to entry to the centre. This was carried out on 15/12/96.” (Particular Five) The fax included a signed certificate stating that SM3 “was serum sampled for brucellosis testing on 15/12/96. The CFT for BR. Ovis was reported to be negative (less than 8).” (Particular Six) Dr Howe said he knew that Dr Gregory could use this certification as evidence that the export requirements had been met.
43 Composite report. Dr Howe went on to say in his fax of 21 May 1997, that “The lab report for the first Br. Ovis test is a composite report on a number of test results not all pertaining to Gilgunyah SM3. Therefore I can only provide you with a statement of testing.” Dr Gregory assumed that this meant that Dr Howe felt that there was commercially sensitive material on the report. On the same day, 21 May 1997, Dr Gregory faxed back saying that AQIS needed the actual test result with the relevant date. He suggested that Dr Howe block out any irrelevant or sensitive information from the report if he was concerned about it.
44 Fax of interim report dated 19/12/96. Dr Howe faxed the interim report dated 19 December 1996 to Dr Gregory on 21 May 1997. (Particular Seven) Before he did so he says he crossed out certain confidential material. Because some of the writing was still visible he used “white-out” in an attempt to obliterate the sensitive information. Finally Dr Howe covered the confidential part of the report with sticky blue paper so it was completely obliterated and wrote “confidential information relating to the ram SM3” on the blue paper. On receipt of this documentation, Dr Gregory faxed Chris Heyward from Roberts Ltd stating that the export could proceed with 48 hours notice.
45 On 10 June 1997 Dr Gregory faxed the Export Application and copies of all relevant certificates and laboratory results, including the interim report dated 19 December 1996, to AQIS. On 20 June 1997, following a phone call from Dr Gregory arranging the dispatch of the semen, Dr Kerry Henry of AQIS left a message for Dr Gregory requesting the final report of the pre-collection brucella ovis testing. Dr Gregory phoned Dr Howe who said that he was not sure if he had the final report but he would have a look and get back to Dr Gregory. Dr Gregory then phoned EMAI, the alleged source of the interim and final reports, requesting that they fax the final report direct to AQIS. Dr Gregory gave EMAI the reference number (MN96/9457/R) from the interim report.
46 Involvement of EMAI. Ms Louise Foley from EMAI rang Dr Gregory to explain that the number on the interim report was incorrect because it related to a cow, not a ram, and Dr Howe had not been the requesting veterinarian for that report. Dr Gregory confirmed that the number he had given was the number on the interim report and faxed a copy of that report to Ms Foley. On 19 June 1997 Mr Glastonbury from EMAI spoke to Dr Gregory and expressed the opinion that the interim report was a fraudulent document. Following this conversation Dr Gregory also came to the view that the pre-collection test result provided by Dr Howe was not authentic.
47 Fax of the final report dated 23 December 1996. On 19 June 1997 Dr Gregory said he received a “final report” from Dr Howe dated 23 December 1996 and a covering note which stated “Attached final report for brucella ovis for Gilgunyah SM3.” (Particular Eight) Dr Gregory said that he wrote the date and the time he received this fax on the top of the document. Ms Stenmark questioned Dr Gregory about why he singled out this document to sign and date. He said it was because he was suspicious that it may not be a genuine document following his conversation with Mr Glastonbury. Dr Gregory passed this “final report” on to Mr Glastonbury.
48 Dr Howe denies that he sent a copy of the final report dated 23 December 1996 to Dr Gregory under cover of a fax dated 19 June 1997. He says that he did not receive a final report in relation to the bacteriology but did not pursue the matter with the EMAI laboratory because it was Christmas time and he was under pressure to attend to family matters. Another basis for denying that he sent this fax was that the header on the final report has the number 028698830 which indicates that it did not come from his fax machine in Mudgee. He said that the fax number on the cover sheet and on the final report is the number he used when he lived in Sydney and that he has not used that number since 1991. However Dr Howe said that the hand writing on the final report “Confidential Animal I.D. & Information has been covered in this space”, “is similar to mine”. He said he “can’t be sure” if he wrote those words or not.
49 Ms Stenmark put to Dr Gregory in cross examination that he prepared a fax dated 19 June 1997 containing the final report and sent it to himself. He denied having done so even though he agreed that he had a record of the fax number on the header of that document from previous dealings with Dr Howe.
50 On 25 June 1997 Dr Howe faxed Dr Gregory again in relation to the “non aligning lab report number.” He stated in that fax that:
- The serum sample from SM3 forwarded to the lab in December 1996, as well as subsequent samples forwarded from the ram, were returned to us for additional hormone profile testing. . . (Particular Ten) We can demonstrate that the sample was sent to the lab. (Particular Nine) Nevertheless, at this stage there can be no official confirmation that the ram was tested negative to the brucella ovis CFT in December. The options as we see them now are:
(1) Return the semen to us . . .
(2) Attempt despatch using the clause in the import permit preamble relating to non-compliance with health requirements under extenuating circumstances based on:
- (a) the ram originates from an accredited brucellosis free flock
(b) the ram was tested negative to the Br. Ovis CFT during the quarantine period (Particular Nine)
(c) the ram was semen cultured negative for Br. Ovis during the quarantine period. (Particular Nine) (Words in brackets added.)
51 In relation to Dr Howe’s delay in providing the requested documentation to Dr Gregory, Dr Howe said that at first he understood Dr Gregory to be asking for the post-collection results, rather than the pre-collection results. He added that he had been supplied with the incorrect protocol so he did not know what the requirements were until the end of March 1997.
52 Expert evidence about origin of faxes. Mr Sutherland is an electronics technician who, at the request of Dr Howe, examined a fax machine with the serial number F40BO4787 which Dr Howe says was the only machine he used at his Mudgee office. Mr Sutherland was asked whether it was possible that the final report dated 23 December 1996, or the covering letter accompanying that report, were sent from that machine. He concluded that it was not possible because of various characteristics of the fax machine which were not able to be changed. Mr Sutherland also concluded that it was not possible that the final report dated 3 March 1997 and the interim report dated 26 March 1997 were sent from that fax machine.
53 Mr Sutherland was asked to look at two documents (exhibits L and H) which Dr Howe sent to the VSIC on 4 and 5 December 1997 respectively. Dr Howe asked the VSIC to retain the two faxes as he wanted to be able to refer to them in his defence. He stated that the fax dated 4 December 1997 was sent from his central coast office at Terrigal and the fax dated 5 December 1997 was sent from his Mudgee office. In relation to the fax of 4 December 1997, Mr Sutherland said that it could not have come from the Mudgee office machine No F40BO4787. Dr Howe said that the phone/fax number 028698830 was an old Sydney number that he has not used since 1991. Before providing his expert evidence, Mr Sutherland was not asked to examine Dr Howe’s central coast fax machine or any other fax machine to which he may have had access at the time.
54 Paula Berry, who has been employed by Dr Howe since 1994, gave evidence that the fax machine in Dr Howe’s office at Mudgee was the only fax machine used at that office during that period.
55 Evidence of practices at EMAI. Louise Foley has been a clerical officer at EMAI since the end of 1995. She told the Tribunal that each sample received by the laboratory is allocated an “MN” (Menangle) number in sequence. Part of her job is to issue laboratory reports by entering data into the computer system such as the name and address of the person requesting the test, the history given and the test results. The reports are typed into template documents. All interim and final reports are given to a veterinarian to sign and are then posted or faxed to the client on the same day.
56 When she received Dr Gregory’s request to provide the final report, Ms Foley entered the report number MN96/9457/R (the same number that appears on the interim report dated 19 December 1996) on to the computer system. She gave evidence that the report number relates to a final report for a test on a cow, not to ram SM3. Ms Foley also identified the accession list from EMAI. That list records sample MN96/9457/R as being received on 3 September 1996 from EMAI itself. In the monthly list of every submission received by EMAI, sample MN96/9457/R is recorded as being submitted by a person by the name of PJ Healy, not by Dr Howe.
57 Ms Foley said that a report could be changed on the computer system and that there was always the possibility of human error in relation to the completion of a report.
58 Evidence of Mr Graydon. Mr Graydon’s signature appears on the interim report dated 19 December 1996, on the final report dated 23 December 1996 and on another interim report dated 1 April 1997 which the VSIC alleges Dr Howe used to concoct the 19 December interim report. The 1 April 1997 report relates to a serum sample from SM3. Mr Graydon worked as a veterinarian at EMAI from August 1996 to November 1999. Part of his job was to check and sign reports before they were sent to the client. He said that he was meticulous about signing reports and that he never signed a report on a date which was not the date under his signature. When asked whether he signed the interim report dated 19 December 1996 or the final report dated 23 December 1996, Mr Graydon said that, while his signature appeared on both those documents, he did not sign either of them. The reason he is sure that he did not sign the 19 December 1996 interim report is that he was not in the office that day because he was driving to Melbourne. He has a specific recollection of the date because it was the day after his 50th birthday. Records from EMAI confirm that Mr Graydon was on leave from 19 December until 3 January 1997.
59 In cross examination, Ms Stenmark pointed out to Mr Graydon that the statutory declaration he signed on 2 September 1999 contains incorrect dates and that his flex sheet also contained some incorrect dates. She submitted that this cast serious doubt on whether Mr Graydon was as meticulous as he claimed to be. Ms Stenmark also put to Mr Graydon that the interim report could have been signed by him on a date other than the 19 December 1996. Mr Graydon denied that this was a possibility.
60 Expert evidence on handwriting and questioned documents. Mr Dubedat provided a written report dated 4 January 1999 and gave oral evidence to the Tribunal. He has nine years experience as a document examiner. Mr Dubedat said that he “took note” of comments made in letters from Conway McCallum, the solicitors who instructed him to provide his expert opinion. A letter to him from the solicitors dated 1 October 1998 stated that “It is my view that the original document MN97/3231/RJG dated 1 April 1997, has been used to produce document MN96/9457/RJG, dated 19 December 1996.” A further letter from the solicitors dated 10 December 1998 states that: “The VSIC believe that Dr Howe’s report on 19 December 1996 has been fabricated from an earlier report forwarded to him from the laboratory dated 1 April 1997 . . .” Ms Stenmark submitted that the Tribunal should give no weight to Mr Dubedat’s evidence on the basis that he “took note” of these comments and must have been influenced by them.
61 The Tribunal allowed Mr Dubedat to give his evidence despite Ms Stenmark’s objection. Although Mr Dubedat “took note” of the solicitor’s views, he gave his evidence in an objective and convincing manner which leads us to believe that his conclusions were not influenced by those views.
62 Mr Dubedat’s conclusion, based on an examination of the interim report dated 19 December 1996 (Q1) and an interim report dated 1 April 1997 (S1) addressed to Dr Howe was that “the bulk of the printed text and signature on Q1 originated from the original printed text and signature on the original of document S1 or a copy of that document. The details on Q1, not reproduced from S1, are the typed text “Laboratory Report” and “MN96/9457/RJG” in the header, “Our reference MN96/9457/RJG” in the top right hand corner and “19 Dec 1996” in the bottom right hand corner. Mr Dubedat concluded that Q1 is a composite photocopy document based primarily on the original, or a copy, of S1 with portions of printed text added, obscuring some of the original text, by some superimposition method (eg photocopy, cut and paste). Some of the findings on which Mr Dubedat based these conclusions were that:
· the signature of “RJ Graydon” on S1 and Q1 precisely coincide and are in exactly the same relative position on each document;
· certain typed words on Q1 including the reference number is out of alignment with the remainder of the document; and
· the entries “Our reference MN96/9457/RJG” and the date “19 Dec 1996” are in a similar font, however this font is different from that used to produce the characters in most of the remainder of the text.
63 In response to questions from Ms Stenmark, Mr Dubedat agreed that a document can be distorted during the photocopying process and that it is always preferable to compare original documents if they are available. He also agreed that it would have been possible for staff at the laboratory to change the font in relation to some of the text before sending out the report.
64 Dr Howe denied that he concocted the interim or the final report and says that he acted honestly at all time. He maintains that he received the interim report by fax from EMAI. Even though Dr Howe agreed at the hearing that the interim report was not a genuine report, he could not explain why he did not complain to EMAI about that report. He does not know why the reference number on the reports does not correspond with any request he made to the laboratory at EMAI and in fact relates to a cow, not a ram.
65 Complaint to VSIC. In July 1997, the VSIC received a complaint from the Director General, NSW Agriculture. The VSIC investigated the complaint. During the course of that investigation, the following exchange took place:
- Committee: . . . I mean, it’s either one or the other, it’s either the lab that has concocted the whole thing or you’ve concocted the whole thing. I think we’ve sort of come to that. I don’t think anyone else is involved.
Dr Howe: Well who put the sticker on the bottle? Is that a lab sticker from the lab or is it something that I’ve just made up?
Committee: Well, apparently you have sent tests there since, and you’ve also sent some, I think, I haven’t looked up, but I looked through the list of all the samples you’ve sent there, and there was, ah, you have sent other samples.
Dr Howe: but I’ve never had the samples returned to me. So how would I know what they put on the bottles.
66 It was put to Dr Howe that his evidence that he has never had the samples returned to him, directly contradicts the assertion made in his fax to Dr Gregory of the 25 June 1997 that “The serum sample from SM3 forwarded to the lab in December 1996, as well as subsequent samples forwarded from the ram, were returned to us for additional hormone profile testing. The samples all bear the laboratory ID stickers.” His response to this conflict was that the semen sample from SM3 was returned to him in a post-pak. He subsequently gave what he says was the serum sample to the VSIC but the VSIC has apparently misplaced the sample. Dr Howe said that the subsequent samples he sent in March and April 1997 were never returned to him from the laboratory. He said that when he wrote to Dr Gregory that “subsequent samples forwarded from the ram, were returned to us . . .” he was confused and annoyed and he overstated the position. He admitted that he was wrong in saying that the subsequent samples had been returned to him and he regrets making that statement.
Impact on export industry of false certificates
67 Dr Gregory said that Dr Howe’s signature on the import certificate would lead him to accept that everything set out in that document was true and correct. Dr Gregory gave evidence that if the certification process cannot be trusted as being accurate, then the export industry would grind to a halt. Dr Howe gave evidence that the export procedure is designed to prevent the spread of infectious diseases. He agreed that it was important that we be able to reliably assure our trading partners that our animals are free from disease.
Motive for deception
68 Conflict within scientific community. Dr Howe provided evidence of a conflict within the scientific community in relation to the breeding of merino sheep. Dr Watts, a business associate of Dr Howe, invented a breeding system called the “soft rolling skin” technique. The concept of “soft rolling skin”, which Dr Howe supports, is controversial because it uses a different methodology from that of the traditional studs. Both Dr Watts and Dr Howe have promoted that technique in the face of trenchant criticism from their allegedly more conservative opponents.
69 Dr Gregory has known Dr Howe since 1984 but has only dealt with him in relation to the occasional business transaction. Dr Howe gave evidence that he had often encountered problems when dealing with Dr Gregory. Dr Gregory could not recall that there had been any particular problems.
70 In addition, Dr Gregory promotes the traditional view of wool classification espoused by the Department of Agriculture and opposes the soft rolling skin concept. He is in competition with Dr Howe because he also collects semen and artificially inseminates sheep. Dr Howe said that those whose views differ from his own would have a motive to discredit him by concocting false laboratory reports.
71 Motivation of Dr Gregory to discredit Dr Howe. At one stage in the evidence Dr Howe said that he decided that the false interim report was “just another one of Dr Gregory’s stunts.” Later, Dr Howe said that he has never meant to imply that Dr Gregory had anything to do with the creation of the interim report. Dr Howe agreed that there was no basis for him to think that Dr Gregory was wrong in asking for the interim and final reports, as distinct from his written certification that those tests had been carried out.
72 Ms Stenmark put to Dr Gregory that he sent the final report dated 23 December 1996 to himself. The motivation for him doing so was allegedly that he was annoyed that the export may be in jeopardy. Dr Gregory denied that he manufactured any reports or deliberately set out to discredit Dr Howe in relation to the export of semen to New Zealand.
73 Payment. The only payment Dr Howe says he received for collecting and receiving the semen from SM3 was $426 from which he had to pay freight charges to deliver the semen to Dr Gregory and the cost of liquid nitrogen. He says he had no financial motivation to fabricate any documents because he could just as easily have sold the semen in the domestic market.
74 Dr Howe agreed that he had a good business relationship with Mr Croake, the owner of SM3, and that if the export order did not go through, that relationship may be compromised. According to Mr Wade, Dr Howe’s motive was to maintain Mr Croake as a valued client and not to lose face when he had agreed to organise the export.
Qualification, reputation and character evidence
75 Qualifications. Dr Howe completed a Bachelor of Veterinary Science in 1972. He completed a Ph.D in semen biotechnology, relating to the role of seminal proteins on semen quality. He began a wool testing business with Dr Jim Watts in 1991. He has never been subject to any inquiry by the VSIC or any other disciplinary body in the past.
76 Character evidence. Dr Watts also gave evidence that he has known Dr Howe for 33 years and that they commenced a business together in 1991. That business ceased to trade early in 2002 for reasons unrelated to these proceedings. Dr Watts stated that in his opinion, Dr Howe is a diligent, well respected practitioner who is “totally intellectually honest.” In the 33 years that he has known him, he has never had the slightest reason to doubt his honesty or professionalism. According to Dr Watts, Dr Howe’s scientific discovery, isolating and characterising a specific protein responsible for sperm damage and foetal defects, is an important scientific achievement with likely implications for human health. Dr Watts conceded that he had not seen any of the documentary material that was before the Tribunal.
77 Mr Massy gave evidence that he has known Dr Howe since 1993, socially and professionally. He said that Dr Howe was a meticulous technician and an outstanding scientist. He said “As science is the world of testing an hypothesis, and that successfully proven hypotheses are testable and repeatable, it makes no sense to these good scientists to ‘fudge’ results.” According to Mr Massy, it would be “totally out of character” for Dr Howe to forge a test result in order to make it seem that he had complied with New Zealand export requirements. Mr Croake also gave character evidence in support of Dr Howe.
Particulars of the complaint
78 There are two complaints:
- The Veterinary Surgeons Investigating Committee complains that Dr Peter Allan Howe is guilty of misconduct, or serious misconduct, in a professional respect pursuant to section 26(1)(c) of the Veterinary Surgeons Act 1986.
The Veterinary Surgeons Investigating Committee complains that Dr Peter Allan Howe is not of good character pursuant to section 26(1)(e) of the Veterinary Surgeons Act 1986. (Emphasis added.)
79 There are ten particulars of these complaints.
Particular One - Certification of Quarantine Period before Semen Collection
- On or about 14 April 1997 the Respondent signed a veterinary certificate in which he certified that Gilgunyah Ram SM3 (‘Ram SM3’) had been in the Howe and Associates Pty Ltd Artificial Insemination Centre (‘the Centre’) continuously during the two month period before the collection of semen from Ram SM3 on 19 February 1997 for export to New Zealand in circumstances where:
- (i) the Respondent knew or ought to have known that Ram SM3 had not been in the Centre continuously during the two-month period before the collection of the semen from Ram SM3;
(ii) the Respondent knew or ought to have known that his certification as a registered veterinary surgeon that Ram SM3 had been in the Centre continuously during the two-month period before the collection of the semen from Ram SM3 would be relied upon to facilitate its export;
- (a) the Respondent’s conduct in signing the veterinary certificate was conduct in his professional capacity as a registered veterinary surgeon which, if repeated or continued, was likely to damage the international reputation of Australia in relation to animal exports (S.22A(c)(iv));
(b) the Respondent’s conduct in signing the veterinary certificate contravened clause 5(11)(a) of the Veterinary Surgeons’ Code of Conduct in that he should not have signed a certificate relating to the performance of a veterinary service unless the certificate is accurately completed to the best of the veterinary surgeon’s knowledge;
(c) the Respondent’s conduct in signing the veterinary certificate contravened clause 5(11)(b) of the Veterinary Surgeons’ Code of Conduct in that he should not have signed a certificate relating to the performance of a veterinary service unless he personally performed or supervised the performance of the service;
(d) the Respondent’s conduct in signing the veterinary certificate contravened clause 9 of the Veterinary Surgeons’ Code of Conduct in that by signing the veterinary certificate he failed to conduct himself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general;
(e) the Respondent’s conduct was dishonest.
80 There is no dispute that Dr Howe signed the certificate referred to in Particular One. One of the conditions appearing on that certificate is that “The rams have been in the artificial insemination centre for a continuous period of at least two months before the date of collection.” Dr Howe’s undisputed evidence was that the date of collection was 19 February 1997. He maintained that ram SM3 entered the centre on 20 December 1996, although he had previously said that the ram had been in the centre since 15 December 1996.
81 Neither party made submissions on the meaning of “months” in the phrase a “continuous period of two months before the date of collection.” In our view the plain meaning of the word “months” is “calendar months.” Although the protocol requirement is not an Australian Act or instrument covered by the Interpretation Act 1987, we have adopted the definition of calendar month in s 21 of that Act as being the plain meaning of that term. Section 21 states that:
- calendar month means a period commencing at the beginning of a day of one of the 12 named months and ending:
- (a) immediately before the beginning of the corresponding day of the next named month, or
(b) if there is no such corresponding day, at the end of the next named month.
82 Applying this definition to the protocol requirement, we find that the period of two months before the date of collection is the period from 21 December 1996 to the 19 February 1997. (One calendar month prior to 19 February is 20 January 1997 and a further calendar month prior to 20 January 1997 is 21 December 1996.) If Dr Howe’s evidence that ram SM3 went into the centre on 20 December 1996 is accepted, then the requirement has been met.
83 While Dr Howe stated that ram SM3 entered the centre on 20 December 1996, in his Reply to the VSIC’s application, Dr Howe said that ram SM3 was in the centre “in the period 15 December 1996 to 19 February 1997.” Apart from this inconsistent evidence, other evidence which suggests that Ram SM3 did not enter the centre on 20 December 1996 is that Dr Howe did not provide any independent record in support of his evidence. Given that Dr Howe was conducting fertility research on the ram at the time and that he said this was the first time any ram had entered his centre, it is highly likely that he would have recorded the date the ram went into the centre. He provided no such record to the VSIC or the Tribunal.
84 Despite this evidence, which raises some doubt about when ram SM3 entered the centre proper, we are not comfortably satisfied that the VSIC has proved the allegations set out in Particular One.
Particular Two - Certification of Negative brucella Ovis Test during Quarantine Period
- On or about 14 April 1997 the Respondent certified that during the two-month period in the Howe and Associates Pty Ltd Artificial Insemination Centre (‘the Centre’) before the collection of semen from Gilgunyah Ram SM3 (‘Ram SM3’) on 19 February 1997 for export to New Zealand, Ram SM3 had been subjected to tests with negative results for brucella ovis using the complement fixation test in circumstances where:
- (i) the Respondent knew or ought to have known that Ram SM3 had not been subjected to tests with negative results for brucella ovis using the complement fixation test during the period in the Centre before 19 February 1997;
(ii) the Respondent knew or ought to have known that his certification as a registered veterinary surgeon that Ram SM3 had been subjected to tests with negative results for brucella ovis using the complement fixation test during the period in the Centre before 19 February 1997 would be relied upon to facilitate the export.
- (a) the Respondent’s conduct in signing the veterinary certificate was conduct in his professional capacity as a registered veterinary surgeon which, if repeated or continued, was likely to damage the international reputation of Australia in relation to animal exports (S.22A(c)(iv));
(b) the Respondent’s conduct in signing the veterinary certificate contravened clause 5(11)(a) of the Veterinary Surgeons’ Code of Conduct in that he should not have signed a certificate relating to the performance of a veterinary service unless the certificate is accurately completed to the best of the veterinary surgeon’s knowledge;
(c) the Respondent’s conduct in signing the veterinary certificate contravened clause 5(11)(b) of the Veterinary Surgeons’ Code of Conduct in that he should not have signed a certificate relating to the performance of a veterinary service unless he personally performed or supervised the performance of the service;
(d) the Respondent’s conduct in signing the veterinary certificate contravened clause 9 of the Veterinary Surgeons’ Code of Conduct in that he failed to conduct himself in a manner in accordance with the professional standards expected by other veterinary surgeons, the users of the services of veterinary surgeons and the New South Wales public in general;
(e) the Respondent’s conduct was dishonest.
85 There is no dispute that Dr Howe signed the certificate referred to in Particular Two. There is also no dispute that one of the conditions for the importation of ram’s semen into New Zealand from Australia is that “During the two month period in the centre before the collection of the semen, all rams used for semen collection for New Zealand have been subjected to tests with negative results in each case for the following diseases: . . . brucella ovis: using the complement fixation test.”
86 Ms Stenmark submitted that this requirement was ambiguous. Dr Howe was clear that it meant firstly, that the animal in question must be in “the centre” for a continuous period of two months prior to the collection of semen and secondly, that the animal must test negative for brucella ovis at any time during that period.” We agree with Dr Howe’s characterisation of the requirement and reject Ms Stenmark’s submission that it is ambiguous.
87 It was not in dispute that the semen was taken from ram SM3 on 19 February 1997. If SM3 was tested negative for brucella ovis, then, according to Dr Howe, that test was done on 15 December 1996. On our calculations, this is six days outside the two month period. Dr Gregory apparently thought it was four days outside the period when he wrote that he did not think that AQIS would “quibble over 4 days.” In either case, if the test was carried out on 15 December 1996 it was not carried out during the two month period prior to the collection of the semen. Particular Two is proved in that respect.
88 Dr Gregory suggested to Dr Howe that if he thought AQIS would object, he should fax the protocol to support a submission to vary the requirements in the permit. Dr Howe did not do so. If the breach related only to the time period, it would be a relatively minor one. Nevertheless, Dr Howe should have alerted AQIS to the fact that the two month requirement had not been complied with and sought their approval prior to signing the certificate.
89 The more serious question raised by Particular Two is whether ram SM3 had been subjected to a test with a negative result for brucella ovis on 15 December 1996 as alleged by Dr Howe. Dr Howe says that he took a serum sample for brucella ovis testing from ram SM3 on 15 December 1996 and sent it for testing at the Orange laboratory the next day. He said at the hearing that he received the interim report on 19 December 1996, but that he never received a final report.
90 Ms Stenmark quoted Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 in support of a submission that if there is no evidence to the contrary, a witness must be believed. In that case, at first instance, an injured worker was asked “How long did you intend to continue working?” The worker replied, in part, “Until the age of fifty-five years old.” Gibbs J concluded that:
- The respondent’s evidence that she intended to work until she reached the age of fifty-five was not inherently incredible . . . In these circumstances, in my opinion the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five.”
91 This is not a case where the principle enunciated by Gibbs J applies. A member of the Tribunal questioned Dr Howe about what samples he took on 15 December 1996. In addition, unlike the evidence of the injured worker, Dr Howe’s evidence that he took a serum and semen sample on 15 December 1996 was inherently incredible given the evidence set out below.
92 Against the background of Dr Howe’s assertion that he took the samples and sent them for testing, and the character evidence in his favour, there is overwhelming evidence that Dr Howe knew that Ram SM3 had not been subjected to tests with negative results for brucella ovis during the relevant period.
93 Dr Howe pointed out in his Reply and during the course of his evidence that he was not aware of the correct protocol until March 1997. He was “concerned” when he found out on 18 March 1997, that a brucella ovis test was required. Dr Howe said that he then realised that he had already carried out the required test. Dr Howe consistently maintained that he acted on the information he received by phone from Ms Wilson of AQIS. That information did not include a requirement for a negative brucella ovis test. The fact that Dr Howe did not know that a negative brucella ovis test was required until the end of March and that he says he relied on the information given to him by AQIS, suggests that the required test was never carried out. Dr Howe is unlikely to have kept emphasising the fact that he did not have access to the correct protocol if he was confident that all the requirements in that protocol had been met.
189 As well as making findings about the conduct particularised in the complaints, we find that Dr Howe fraudulently concocted the consignment note for the purpose of the Tribunal hearing. The evidence in support of this finding is set out at paragraphs [27] and [28].
190 In McBride v Walton, (Supreme Court of NSW, Court of Appeal, 15 July 1994, unreported) Handley J considered whether findings that Dr McBride’s “evidence demonstrated internal contradictions, inconsistencies, inventions, evasions and falsehoods” could be used in coming to its ultimate conclusions. Handley J held at [119] that the Tribunal had erred by ruling that its “finding could not be taken into account in determining whether present lack of good character had been proved.” Handley J went on to say at [119] - [120] that:
- Complaints 9 and 10 as particularised did not refer to the Doctor’s deliberately false evidence before the Tribunal. If the scientific fraud case as particularised had failed or as proved was not sufficiently serious to warrant removal from the Register the Complainant could not have relied upon the false evidence finding as misconduct which itself warranted removal or elevated the scientific fraud proved above its intrinsic seriousness.
191 And, at [121]:
- The fact is that the Tribunal was both entitled and bound to take that finding into account when considering the Doctor’s present character. In the end the Tribunal used the finding for a purpose lawfully available to it.
192 Powell JA said at [236], that:
- I am unable to accept the view . . . that is it never open to a disciplinary tribunal to have regard to matters going to the conduct and character of the subject person unless those matters have been particularised in the relevant complaint.
193 Based on the decision in McBride (supra), our understanding of the use which can be made of our finding that Dr Howe concocted a consignment note for use in evidence before the Tribunal, is as follows:
· such a finding can only be used if Dr Howe was afforded procedural fairness in relation to the making of that finding;
· such a finding can be used to assess whether Dr Howe is currently not of good character, having found that he was not of good character based on the particulars; and
· such a finding is one of the relevant matters to be taken into account when determining the appropriate orders to be made.
194 We are of the view that before coming to our finding, Dr Howe was afforded procedural fairness. After questioning by the Tribunal about the consignment note, Mr Wade put to Dr Howe that he had fraudulently concocted the consignment note for the purposes of the Tribunal proceedings. In addition, prior to Ms Stenmark making final submissions on behalf of Dr Howe, Mr Wade submitted that the Tribunal should find that Dr Howe had fraudulently concocted the consignment note on an unknown date and that he had lied to the Tribunal when he said that he completed the consignment note on 16 December 1996.
195 Having found that Dr Howe was not of good character on the basis of the particulars, we are comfortably satisfied that he is currently not of good character. Rather than admitting his guilt and untangling himself from the web of deceit which he had created, Dr Howe chose to continue and further exacerbate his dishonest behaviour at the Tribunal hearing.
Orders
196 Section 32 of the Act sets out the orders the Tribunal may make if a complaint has been proved.
- (1) If the matter of a complaint against a registered veterinary surgeon has been proved to the satisfaction of the Tribunal, the Tribunal may make any one or more of the following orders:
- (a) an order reprimanding or cautioning the veterinary surgeon,
(b) an order suspending the veterinary surgeon from practice for a period not exceeding 12 months,
(c) an order directing that the name of the veterinary surgeon be removed from the register of veterinary surgeons or the register of specialists,
(d) an order imposing a fine on the veterinary surgeon of an amount not exceeding $10,000,
(e) an order imposing conditions on the registration of the veterinary surgeon with respect to the practice of veterinary science,
(f) an order requiring the veterinary surgeon to pay specified costs relating to the hearing.
- (a) because the matter of the complaint is of a trivial nature, or
(b) because of the circumstances in which that matter occurred, or
(c) for any other reason, it is in the public interest that the veterinary surgeon should be allowed to continue to practise veterinary science.
(4) On directing the name of a person to be removed from a register, the Tribunal may fix a time after which the person may apply for restoration of the person's name to the register.
(5) While an order under this section suspending a person from practice remains in force, the person is taken not to be a registered veterinary surgeon.
(6) An order under this section does not take effect until 21 days after notice of the order is given to the veterinary surgeon by the Registrar, subject to any decision of an Appeal Panel of the Tribunal on appeal under section 34.
197 Ms Stenmark submitted that if findings were made against Dr Howe the Tribunal should confine its orders to a reprimand or caution. Ms Stenmark said that the Tribunal is unable to de-register Dr Howe pursuant to s 32(1)(c) because it is not in the public interest to do so. That submission was based on the evidence of Dr Watts and Mr Massy that Dr Howe’s research and inventions in the area of artificial insemination of sheep were ground breaking. In Ms Stenmark’s words, Dr Howe is a “flawed genius” who, according to Dr Watts, is interested in the “big picture”. If the Tribunal finds against Dr Howe, Ms Stenmark submitted that he should be given one opportunity to be forgiven.
198 Mr Wade submitted that Dr Howe should be removed from the register of veterinary surgeons on the basis of his serious misconduct and lack of good character. In response to Ms Stenmark’s submission that it would not be in the public interest to remove his name from the register, Mr Wade submitted that Dr Howe has not published any material that was before the Tribunal to support any “ground breaking” research he had undertaken. It is only his friends and business associates who credit him with having made a significant contribution to the artificial insemination industry.
199 When determining a penalty we are not concerned with punishing Dr Howe, but rather with protecting the public and the reputation of the profession. (See Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.)
200 Firstly, we a satisfied on the basis of Dr Howe’s serious misconduct alone, that he should be removed from the register of veterinary surgeons, for at least two years. That misconduct, especially the concoction of a false laboratory report, is of the most serious kind. If Dr Howe is permitted to continue to practise as a veterinarian, there is a strong risk of harm to the public and, more particularly, to Australia’s export of animals and animal products. Public confidence in the testing and certification of livestock will be damaged because there would be a perception that veterinarians could not be relied upon to be honest. The public must also include exporters of sheep who need to be assured that veterinarians are caring for the well-being of their industry.
201 A further justification for removing Dr Howe from the register of practitioners is the dishonesty he has displayed which reveals a serious flaw in his character. We do not accept Ms Stenmark’s submission that we should form the opinion that it is in the public interest that Dr Howe should be allowed to continue to practise veterinary science. While Dr Howe has made a contribution to the body of knowledge in relation to artificial insemination of merino sheep, that contribution is not significant enough in scientific terms to override the harm to the public interest that his continuation to practise is likely to engender.
202 Pursuant to s 32(4), we fix the time after which Dr Howe may apply for restoration of his name to the register as two years from the date this decision comes into effect (See s 32(6) of the Act.)
203 The fate of any application by Dr Howe to be reinstated as a veterinary surgeon must be determined in the light of the evidence tendered on that application. In Zaidi v. Health Care Complaints Commission (1998) 44 NSWLR 82 the Court of Appeal noted that a medical practitioner who has been deregistered because of proven misconduct is not required to confess before he or she is reinstated; however, continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness.
Costs
204 VSIC applied for an order for costs against Dr Howe under s 32(1)(f) of the Act, given his continued dishonesty in the face of overwhelming evidence against him. We agree that Dr Howe has put the VSIC to considerable expense because of his refusal to acknowledge that he has been dishonest and that in all the circumstances of this case, an order for costs against Dr Howe is justified.
205 At the hearing, Ms Stenmark requested an opportunity to address the Tribunal in relation to its proposed orders. On the basis of that request, the following orders are proposed:
Proposed Orders
- 1.The name of Dr Peter Allan Howe be removed from the register of veterinary surgeons. Dr Howe may apply for restoration of his name to the register after two years from the date this decision comes into effect.
2. Dr Howe to pay the costs, as agreed or taxed, of the VSIC in relation to these proceedings.
3. The orders made under s 75(2)(b)(i) and (ii) of the Administrative Decisions Tribunal Act 1997, in relation to Dr Howe and all witnesses are revoked.
206 If either party wishes to address the Tribunal on the appropriateness of these proposed orders, we direct that they contact the Tribunal within 14 days of the date of these reasons. If no contact is made, the proposed orders will become final orders on that date. If contact is made, then arrangements will be put into place for the Tribunal to hear further submissions on the appropriateness of the proposed orders.
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