Walton v Richter

[1993] HCATrans 385

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl09 of 1993

B e t w e e n -

MERRILYN WALTON

Applicant

and

MARTIN BRUCE RICHTER

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1993, AT 4.29 PM

Copyright in the High Court of Australia

Walton 1 10/12/93

MR M.G. SEXTON: If Your Honours please, I appear with my

learned friend, MR R.K. WEAVER, on behalf of the

applicant. (instructed by D. Swain, Complaints

Unit, New South Wales Health Department)

MR I. McC. BARKER, OC:  I appear with MR M.G. LYNCH for the

respondent. (instructed by Edson Pike)

BRENNAN J: Yes, Mr Sexton.

MR SEXTON: If Your Honours please, this is an unusual

application for special leave. We do not say that

it raises a novel point of law or a disparate

series of judgments between courts of the

jurisdictions that needs to be settled by this

Court. What we say is, in the terms of section 35A

of the Judiciary Act, is that it involves an
important aspect for the interests of the

administration of justice in New South Wales.

Your Honours, we accept that this Court would

also need to be satisfied not only that this

application raises a question concerning the
administration of justice in New South Wales but

also that the decision of the Court of Appeal below

is open to serious challenge if it were to be

persuaded to grant leave to appeal. On that basis,

I will deal first with the question of the administration of justice and then I will come to the decision of the Court of Appeal and what we say

is the challenge that it is open to.

As Your Honours will appreciate, the

jurisdiction created by the Medical Practice Act in

New South Wales, which is a 1992 piece of

legislation, and its predecessor under which this

appeal was brought to the Court of Appeal, the

Medical Practitioners Act, is a protective

jurisdiction.	One of the primary functions of the
Medical Tribunal, through the orders that it makes,

in our submission, is to maintain the standards of

the medical profession in New South Wales and to
maintain public confidence in the operation of that

profession.

In this particular case the Medical Tribunal,

in making the order for deregistration that it did in relation to the medical practitioner, said that

the protection of the public included maintaining
the standards of the profession and public

confidence in the profession. It is set out in the

application book at page 18, Your Honours, lines 19

to 21. The Tribunal went on to say that the

deregistration order was appropriate in this case
because it was necessary in order to protect the

public and to maintain the standards of the medical

Walton 10/12/93

profession and .to maintain public confidence in the

medical profession, and that is in the application

book at page 21, lines 15 to 18.

Now, Your Honours, the heart of our case is that the decision of the Court of Appeal - and I take it Your Honours are familiar in terms of its

substitution of a reprimand with certain conditions

attached for the deregistration order that was made

by the Tribunal. It is our case that the decision

of the Court of Appeal is very likely to affect

public confidence in the medical profession in New

South Wales, given that a practitioner who has

engaged in a series of serious sexual assaults on a

patient has been reprimanded rather than being

deregistered as the Tribunal originally ordered.

It is also true, in our submission,

Your Honours, that the orders of the Tribunal are a

public signal, as it were, to the medical
profession itself concerning the consequences of

conduct that is in contravention of the

legislation.

McHUGH J: But has any of this got anything to do with the

real issues of the case? The Medical Tribunal

found that there was a real risk of the respondent

reoffending even though it was small. If they had

not found that then obviously they would not have

made an order for his deregistration. The Court of

Appeal held that they were wrong, but they could

only interfere if the finding about a real risk was

an error of law. Now, that is the beginning and

end of it, is it not?

MR SEXTON:  Not an error of law but an error, perhaps, in reasoning, Your Honour.

McHUGH J: Error in reasoning is not sufficient. There is

only an appeal on a question of law, is there not?

MR SEXTON:  No, Your Honour. Under the Act which I think

the relevant section is set out in the Court - - -

MCHUGH J: It is at page 33.

MR SEXTON: - - - of Appeal's judgment. There is an appeal

on a decision of the Tribunal with respect to a

point of law. That was not so here. It was

brought under section 32U(l)(b), that is, the

exercise of one of the Tribunal's powers under what

was then section 32R of the Act, in this case, the

order for deregistration. So, it was, in effect,

an appeal against penalty only.

Walton

10/12/93

McHUGH J: 

What is the $ituation in respect of the findings

of the Tribunal? What jurisdiction has the Court
of Appeal got to interfere with the findings?

MR SEXTON: 

Only if there has been, as Your Honour po~nts

out, an error of law. Otherwise, it has to accept

those findings of fact as given.

McHUGH J:  The finding that there was a real risk is a

finding of fact, is it not, on which the Court of

Appeal was bound unless there was some error of law

on the part of the Tribunal?

MR SEXTON:  Yes, and indeed we would also say, Your Honour,

that the findings of the assaults were again

something which was given in the Court of Appeal

and was accepted, of course, by the Court of

Appeal.

MCHUGH J:  What I am just putting to you is that this is the

real issue, is it not? If the Tribunal had not

found there was a real risk, well, it would appear

from their reasons that they would not have

deregistered the doctor but they did find that

there was a real risk so they deregistered him.

The Court of Appeal said that was wrong, but they could only interfere if there was a question of law

involved.

MR SEXTON:  Or, as Your Honour says, some error in reasoning

between the findings that they made and the penalty

at which they arrived, yes, Your Honour.

McHUGH J:  I do not follow this last point. If they are

bound by the facts, was the finding of real risk a

question of fact?

MR SEXTON:  We would say so, Your Honour, yes.

McHUGH J: Well now, what was the error of law on the part

of the Tribunal which would allow the Court of

Appeal to interfere?

MR SEXTON:  We said in the Court of Appeal there was no

error, Your Honour.

McHUGH J: Well, that is your case, is it not?

MR SEXTON: It is, Your Honour, but

DEANE J:  But the Court of Appeal held there was. They held

there was no foundation for the finding of the real

risk and that the evidence before the Tribunal

compelled a conclusion that threy was no such real

risk. Would that not be a mistake of law?

Walton	10/12/93
MR SEXTON:	Not in our submission, Your Honour, but can I

put this in two ways: what we said in the Court of

Appeal, and we say now, was that there was no error

revealed by the Tribunal's reasoning. The Tribunal

had open to it certain expert evidence. It drew

certain conclusions from that as it was entitled to

do. It relied more heavily on some aspects of it

than on others as, again, the authorities would
suggest it is entitled to do. Therefore, we would
say, no error was demonstrated in the reasoning of

the Tribunal.

Even if we were wrong about that, we would say

that the simple findings of fact as made by the Tribunal of the circumstances of the assault in

this case would amply justify the orders that were

made of deregistration.

DEANE J: What if the Court of Appeal had said - and I forget

names. What was the name of the expert that they

most relied on in relation - - -

MCHUGH J:	Dr Mcclean.
DEANE J:	What if the Court of Appeal said, "Dr Mcclean

said, 'There is a probability' and, in fact,

Dr Mcclean had said, 'There is no real risk'" and

the Tribunal had acted on the basis that since

Dr Mcclean said there was a probability, they would

accept that and make a disbarment order? Would you

say they had made no mistake of law?

MR SEXTON: It is not a mistake of law. It would be an

error in reasoning, Your Honour.

DEANE J: Where does the stage come when a demonstrable

error in reasoning is such that a court entitled to

interfere in a case of error of law can interfere?

Never?

MR SEXTON:  Your Honour, under this legislation it probably

operates at two levels. One needs a point of law

if one is, as it were, going to challenge one of

the findings of fact, as it were the findings, for

example, that a complaint has been made out on the

part of the Tribunal. On a penalty appeal only it

may be that, as Your Honour suggest, what can be

shown is, as it were, a failure of reasoning so

that there is not a proper nexus between the

findings that have been made by the Tribunal and

the orders that it has made, the penalty that it

has imposed.

McHUGH J: But that is not the way the Court of Appeal

approached this case.	They did not agree there was
a real risk.

Walton 10/12/93

MR SEXTON: That is so, Your Honour.

McHUGH J: So, they can only interfere with that finding if

there was an error of law.

MR SEXTON:  Your Honour, it may be that if - - -

McHUGH J: It does not matter if it was a perverse finding

of fact, the Court of Appeal has got no

jurisdiction of interfering with findings of

fact, perverse or otherwise. They can interfere on

an error of law or they can accept the findings of

fact and say a power should not have been

exercised, having regard to those facts.

MR SEXTON: But, Your Honour, what His Honour Justice Deane

has put to me is a situation where - - -

McHUGH J:  I understand what Justice Deane was putting to

you and I am suggesting to you that you were giving

away too much.

MR SEXTON:  I was going to say that I do not, for a moment,

concede that the Court of Appeal would be able to

interfere with that but what we say is that that is

not this case, that in fact what the Tribunal did

was to select from certain expert evidence or rely

on certain parts of the expert evidence, as it was

entitled to do. It did not, as it were, when

confronted with one piece of evidence, make a

finding in contrary terms to it.	So we say that is
not the case that is present here.	We do say that

no error was revealed in the reasoning of the

Tribunal, that there was no basis therefore for the

Court of Appeal to intervene.

Although, if one takes the basic question as

the nexus between the orders that were made and the findings of fact that were made, one is left with a

series of sexual assaults, on the one hand, and a

finding of deregistration with the possibility or

the opportunity to reapply for registration within

12 months on the other. In our submission, one

cannot say that - - -

DEANE J:  One could well understand if the Tribunal had

said, "These facts are so serious that it is

irrelevant whether there is going to be a

reoffending or not, it only calls for one result."
But that is the very thing the Tribunal did not
say. Well now, why is the position not this, that
if, as the Court of Appeal has held, there was an

error in the reasoning process in that the Tribunal

expressed the conclusion about real risk that was

contrary to the evidence - now, assume that is

right, and I know you say the Court of Appeal was

wrong - I simply do not follow why, in exercising

Walton 6 10/12/93

its power to review the penalty which is conferred

in general terms, it is not open to the Court of

Appeal to say, "But the penalty was based on an

obvious mistake of fact which was not supported by

the evidence. Therefore, we will renew the penalty

and fix the penalty on the correct basis of fact

founded on the material before the Tribunal".	Why
can it not do that?

MR SEXTON: If there is an error, Your Honour, yes, it can

do that.

McHUGH J:	What sort of error?
DEANE J:	An error of fact.

McHUGH J: Speaking for myself, that is a proposition I

could not agree with.

MR SEXTON:  In our submission, Your Honour, it cannot be an

error

DEANE J:  A finding of fact which they say is simply wrong

and in the face of the evidence on which it is

purportedly based.

MR SEXTON: That it cannot square, Your Honour is saying,

with the evidence that is in the - - -?

DEANE J: Yes. Well, that is what they said. They may have

been wrong when they said it but that is what they

said.

MR SEXTON:  Your Honour knows that we reject that

conclusion.

DEANE J: I appreciate that. That raises a different

question as to whether we should get involved.

MR SEXTON:  In answer to what Your Honour says, we would

say - if it were true that the Tribunal had made a

gross error in its reasoning that was so obvious on	its face that it, as it were, vitiated its orders,
would then be a question for the Court of Appeal to decide what was the appropriate penalty and in
those circumstances we would say that, again, counterpoising the findings made by the Tribunal,
putting the question of reoffending to one side and the orders that were made, that one would simply
come to the same conclusion. In other words, it is
not true, in our submission, to say that the findings concerning the risk of reoffending were necessary to the Tribunal's order. It canvassed the question because it has been raised in the
course of the proceedings. The point of its
judgment, in our submission, was the protection of

and that had been found by the Court of Appeal, it

Walton 7 10/12/93

public confidence and the maintenance of standards

and it seems to us that both of those would

require, on the part of the Tribunal, the order

that it came to, whether there was any risk of

reoffending or not.

The time fixed for the opportunity to reapply

for registration is something that, for example,
may be well affected by the question of the risk of
reoffending, and other factors as well.

Your Honours, I had been submitting that the

orders of the Tribunal are, in our submission, a
public signal to the profession itself. In our

submission, there is a real danger that the Court

of Appeal's decision may be taken by some members

of the profession as indicating that sexual

assaults on patients do not warrant a severe

penalty.

DEANE J: But there is nothing that supports that. I mean,

the problem that might arise from this is surely
the Tribunal's decision, namely, that when you get

this sort of assault on a female patient it only

warrants disbarment if there is a real risk of

repetition. That was not the matter where the

Court of Appeal and Tribunal disagreed. The

disagreement between the Court of Appeal and the adopting the Tribunal's approach that notwithstanding what is involved, the critical

thing is whether there is a real risk. The finding

that there was was simply contrary to the

evidence."

MR SEXTON: But, Your Honour, in our submission, the

Tribunal did not make, as it were, the risk of reoffending a precondition to deregistration.

DEANE J:  As I read the judgment or the decision, it turned

on whether or not there was a real risk of

reoffending.

MR SEXTON:  Your Honour, it canvassed that question because

it had obviously been argued before the Tribunal on

behalf of the practitioner.

DEANE J: But is it not obvious that if they had found there

was no real risk of reoffending the result would

have been different in terms of disbarment?

MR SEXTON:  Not in my submission, Your Honour. If

Your Honour reads the Tribunal's decision in its

entirety, it is one of a range of factors that it

refers to - if Your Honour looks at, for example,

page 20 of the application book where it says the:

Walton 10/12/93

Tribunal particularly bears in mind the

following -

and that is one of five factors that it takes into

account. But, in our submission, any of the others

would justify the same conclusion.

Your Honours, I wonder if I could hand up a

one-page table which goes to the final point that I

want to make on this question of the administration

of justice.	I will hand up four copies,
Your Honour.	Your Honours, that table is one of

decisions in cases of proven sexual misconduct
before the Medical Tribunal over the last six
years. Some of those cases went to the Court of

Appeal as Your Honours will see in the Tribunal, and it has been divided into those where the

conduct was consensual and where it was not, this

being, of course, a case where it was not.

Its importance, in our submission, is that

this is a decision that will, in addition to the

effects that we have already made submissions

about, have an effect in future proceedings in the

Tribunal because it will undoubtedly be relied upon

in cases involving sexual misconduct and,

particularly in cases, which this is not, of

consensual conduct because it is one of the most

striking aspects of this case that the penalty for

what was an assault was, in general terms, less

than would be expected and has been determined for

medical practitioners who have involved in

consensual sexual conduct with patients.

Your Honours will see in those two columns

that in the consent category there are nine cases,

eight of which have resulted in deregistration.	Of
the nine in the column indicating lack of consent,
six have resulted in deregistration; three have

not. This is one case - and I will put that to one

side for a moment - the other two: one - you will

see the case of Chew, the penalty might suggest

that it was relatively minor and the other case,

that of Kleiner, the first one in the table. Now,

Kleiner was a case relied upon by the Court of

Appeal by the majority in the decision that they

came to. The important thing about Kleiner, in our

submission, is that it was not a case of sexual

assault. There was no assault on the patient. So,

to that extent it really does not bear any

comparison with the present case.

BRENNAN J: Sexual misconduct without consent but it was not

an assault.

MR SEXTON:  We put it in the table, Your Honour, because it

was relied upon by the Court of Appeal and we

Walton 9 10/12/93

thought it ought not to be left out. It involved

sexual misconduct, in the sense that the doctor

engaged in masturbation before a child patient but

there was no assault. That is why it is there,

Your Honour.

Now, Your Honours, that is our argument

concerning the - - -

BRENNAN J: What exactly is the point? Are you contesting

the jurisdiction of the Court of Appeal to

interfere?

MR SEXTON:	Yes, we did, and we do, Your Honour.
BRENNAN J:	On what basis, precisely?
MR SEXTON:	On the basis that there was no error shown in

the reasoning of the Tribunal and that the Tribunal

had made a finding concerning the evidence - it can

be, for the purposes of the argument, confined to

Dr Mcclean. It had made findings or drawn a

conclusion from that evidence that it was entitled

to do. It did not need to give equal weight to

every aspect of Dr McClean's evidence. It could

rely on some of it and reject some of it if it

wished to.

BRENNAN J:  What is it that limits the jurisdiction of the

Court of Appeal under section 32U(l)(b)?

MR SEXTON:  The principles, in a sense, Your Honour,

established in such cases as House v R where a Court

of Appeal can only interfere with a finding where

there is some demonstrable error. It cannot simply
substitute its own discretion, in other words.

There is a different limitation in (a) which is the limitation in relation to, as it were, the findings

on the complaints but (b) is obviously concerned

with appeals on penalty because it refers to the

orders that are made by the Tribunal following on

those primary findings.

BRENNAN J: So, what you say is this is not a House v R

case?

MR SEXTON: That is right, Your Honour, yes. Of course, the

Tribunal's entitlement to approach the matter in that way is, in our submission, particularly so

where you have got an expert body composed of a

judge of the district court, two medical

practitioners and a lay person. There are medical practitioners on the Tribunal and, in terms of the consideration of expert evidence, in our

submission, that provides an additional reason why

the principles of House v R, for example, would be

particularly applicable in these circumstances.

Walton 10 10/12/93

The other aspect, Your Honours, that is

important, in our submission, is that the Court of

Appeal's decision was based to some extent on, we

would say, serious factual errors.

BRENNAN J:  What is it that makes the case a special leave

one though? If it is a House v R case and you say

that here the Court of Appeal misunderstood the

nature of the evidence, well be it so. What is the general public importance which justifies the grant

of special leave? You have got the Tribunal saying

one thing, you have got the court saying another,

both of them regarding sexual misconduct of the

patient as being a grievous matter?

MR SEXTON:  Your Honour, I said it had to be done in two

parts. We had to show that the Court of Appeal

decision is open to real challenge and doubt and,

secondly, that it is important to the

administration of justice in New South Wales, and I

put that on the basis of the impact of such a
decision on public confidence on the profession
itself which, of course, is particularly attuned to

such decisions and also to its effect in future

proceedings before the Tribunal and, perhaps,

before the Court of Appeal as well.

Your Honours can see from the table that this

is, as it were, a discrete jurisdiction.	One can
Medical

think of the jurisdiction of the of it which those cases reflect and, in our

submission, it is that jurisdiction on which this

decision has the potential to make a very serious

impact.

BRENNAN J:  Does not this table in itself indicate that a

great deal depends upon the nature of the

misconduct in question? In the case, for example,

of Dr Kleiner that you mentioned it was thought,

evidently, that the significance of it was

relatively less than that of, let us say,

Dr Spence.

MR SEXTON: But, Your Honour, what that table indicates is

that for cases involving sexual assault,

non-consenting conduct - this is a case where there

were probably, and revealed by the complaint, to be

perhaps six separate sexual assaults and that in

all of those cases, except for the one of Chew

which, on the face of it, one can assume was

relatively minor, there has been a deregistration.

One particular concern is the impact of this

decision in the area of cases of consensual conduct

which, up until now, have normally received the

penalty of deregistration because it is an obvious

argument for the practitioner to make that, in the

Walton 11 10/12/93

case of consensual sexual relationships, if this

conduct is not to be visited with deregistration,

then why would one logically do so in the case of a

doctor who has struck up a relationship with a

patient. I~ does have, in our submission, a wide-

ranging potential in this area and that is

why - - -

BRENNAN J:  What you say is the Court of Appeal is

undermining the disciplinary regime in New South

Wales?

MR SEXTON: Unconsciously, of course, Your Honour, but we do

say it has that potential, yes, and we say that

that is a very likely effect of the decision.	It
is not brought lightly, the application,
Your Honours.

Your Honours, there is just one further point

that I wish to make which is that - - -

DEANE J: But if that is so, does it make any difference to

your argument whether there was or was not a real

risk of reoffending, because are you not really
saying, when you point us to this table, that the

Tribunal was off on a quite irrelevant exercise

when it placed such critical importance on whether

or not there was a risk of reoffending?

MR SEXTON:  As Your Honour appreciates, we do not agree,

with respect, that it placed such a critical

importance. As Your Honour appreciates, we say

that the orders that were made would have been

amply justified by the findings of fact in relation

to the sexual assault, so that to that extent that

risk is perhaps an academic question. The

importance of the Tribunal's findings on that

question is that that was what was used by the
Court of Appeal to overturn the orders made by the

Tribunal.

Your Honours, I did want to refer finally to that question of fact, because in the judgment of

the Court of Appeal, on its very first page, that

is page 31 of the application book, line 25 and

following, the majority say:

that the whole of the assault occupied a short

time, something more than a minute but

probably not more than a few minutes at most.

Now, as I have said, if one looks at the complaint

which is set out in the application book at

pages 66 and 67, but particularly at page 67, which

contains the relevant paragraph, it will be seen

that there were a number of separate assaults but

Walton 12 10/12/93

that the last and perhaps the most significant in

(f) lasted between 5 and 7 minutes.

Now, the terms of that paragraph were admitted

in the Tribunal by the practitioner and, in our

submission, that statement of the facts by the

majority in the first page of the judgment does not

really capture the terms of the complaint and what

occurred and what was conceded to have occurred.

Also, the Court of Appeal refers to the assault in
question - and this is at page 39 of the

application book - the majority refer to is as -

this is at lines 2 and 3:

of this event of a few moments.

Well, again, in our submission, that does not in

any way capture the facts of the complaint that

were without dispute. It really underlines, in our

submission, the problems with this decision of the

Court of Appeal and the difficulty for my client,

who is concerned with the administration of the

disciplinary side of this legislation, is that it

is a decision that can only be reviewed by this

Court. In our submission, it is a decision that ought to be reviewed, and as it can only be

reviewed by this Court, this is the forum to which
my client comes. Those are the submissions on

which the application is based, Your Honour.

BRENNAN J: Yes, Mr Sexton. Yes, Mr Barker?

MR BARKER:  Your Honours, whether or not section 32U(l)(b)

attracts the decisions of this Court in cases such

as House and Cranssen, the Tribunal was manifestly

wrong and it clearly misapprehended the evidence.

The Court of Appeal found there was error. Now,

whether it be categorized as an error of law or a

misapprehension of the facts which led to a basic defect in the reasoning, the result was the same, that is, it was open to the Court of Appeal to find

error and it was open to the Court of Appeal, on

the state of the evidence before the Tribunal and

on new evidence put before the Court of Appeal, to

make the order which it did.

McHUGH J: But it could not reach the new evidence until it

found error, could it?

MR BARKER:  No, it could not, Your Honour.

McHUGH J: Where is the error? The Court of Appeal seized

on the statement about there being a real risk and

at pages 34 and 35 they said that they:

Walton 13 10/12/93

translateq the remote possibility and the

minimal risk referred to in the evidence into

something which was significant.

MR BARKER:  Yes.

McHUGH J: Surely the Tribunal, when they used the words

"real risk" were contrasting it with a risk that

was fanciful or remote.

MR BARKER:  A risk which was minimal. The evidence was that

it was minimal.

McHUGH J: There was evidence that if the doctor - if an

episode of severe qepression occurred again, he was

likely to reoffend.

MR BARKER:  He may.

McHUGH J: He might. Well, why is that not a real risk?

MR BARKER: Because the same doctor said it was minimal.

McHUGH J:  It may be minimal but that does not mean that it

is not a real risk.

MR BARKER:  You see, all of this evidence was accepted.

None of it was rejected. There is no indication

anywhere in the Tribunal's judgment that they did

not accept everything that was put before them by

the doctors.

McHUGH J: Well, they made findings and one of the findings

they made was that although the risk of reoffending

was small, nevertheless, it was a real risk.

MR BARKER:	Yes, and that was not supported by the evidence. That is the argument. That is where we get to in
the Court of Appeal.
McHUGH J:	I know that is the argument but having regard to the various passages in the evidence that is set
out in the Tribunal's judgment, if you look at
page 14:

Until the underlying factors that led to the depression are resolved, would you see the

Doctor at risk as it were of further bouts of depression?

Look, yes. There is that possibility, seeing

it in the long term - - -

MR BARKER:	Yes, Your Honour.
McHUGH J:	And he said, further down the page, that he:

Walton 14 10/12/93

could imagine him becoming depressed -

for example -

If there was a disappointment in a personal

relationship.

Well, why was not the Tribunal entitled to conclude as a fact that there was a real risk, as opposed to

a fanciful or a remote risk?

MR BARKER:  One reason is, Your Honour, that they found that

it was what they described as a "one-off isolated

aberration".

McHUGH J:  I know you relied on that in your submissions but

that does not seem to be inconsistent at all. This

may have been the first time it happened but that

does not mean there is not a real risk of it

happening again.

MR BARKER:  If it was aberrant, the word itself suggests it

was not going to happen again. Having regard to
the totality of the evidence before them, including
the use of the word "minimal" which does not find a
place in the Tribunal's judgment, it was picked up

in the Court of Appeal's judgment at page 34,

line 20, where, on the one hand they talk about,
and accept evidence which describes the risk as

"minimal" and "remote", that it was an isolated

one-off aberration and then they say that in spite
of all that there is a real risk, that is, a danger

that he might reoffend. There is clearly, in my

respectful submission, as the Court of Appeal

described, an internal tension in the evidence

which led them to re-examine it.

McHUGH J:	I must say I do not see it, Mr Barker.
MR BARKER:	I omitted to give Your Honours an outline of

submissions before we launched into the -

BRENNAN J:  To help us to understand what you have been

saying, Mr Barker.

MR BARKER:  It may say it a little more clearly. One of the

difficulties, I submit, in the way of this grant of

special leave is that this happened on 28 May 1992

and the doctor has practiced since for most of the

time, subject to the conditions, firstly, self-

imposed, and then imposed by the Tribunal when the

matter was stayed, and then imposed by the Court of

Appeal. Had the evidence before the Court of

Appeal been before the Tribunal, it is tolerably

clear that the Tribunal would have found the same

way.

Walton 15 10/12/93

McHUGH J:	Not necessarily, because as Mr Sexton pointed out, the question of real risk was just one of the
series of factors that they referred to.

MR BARKER: It was pivotal, Your Honour, with respect. That

is what swung them that way in the end. If one

looks at the matters they discussed on page 20 - I

am sorry, could I take you back to page 16

firstly - where a great deal of attention was paid

to this question of whether there was

premeditation, whether it was an isolated one-off

aberration. They found that the Tribunal was

comfortably satisfied that the sexual assault was

an isolated one-off aberration. Page 17 at line 20

they then looked at the question whether the

respondent was likely to reoffend as being more

difficult to answer. Then if one goes to page 20

it seems to be that at the bottom of page 20 and

what follows on page 21 contains the material which

led to the Tribunal finding as it did.

So the real question then becomes, given the

error, whether the public interest requires this

doctor to be banned from practicing medicine or

whether the public interest lies the other way in

permitting him to be of service to the public. If,

on the evidence, the likelihood of him offending

again is remote, it is really saying of him that he

is in no different position to most of us.	I
suppose we all have the remote capacity for

offending. But what is suggested here, and my and time again in the barristers' cases, I think
learned friend has used the word more than once,
that we are concerned with the matter of penalty.

last in Bar Association v Smith, that the

jurisdiction to be exercised is entirely protective

and if penalty is thought to be necessary or

appropriate, of course we have the criminal law to

deal with it which is an entirely different issue.

In my submission, we have the error; you have

the new evidence; you have a proper appraisal of

the old evidence - - -

McHUGH J:  Do you, in relation to the statement that it

occupied a short time, probably not more than a few

minutes.

MR BARKER: That is consistent with the Tribunal's own

finding at page 17 of the appeal book.

McHUGH J:	What about the statement "for a few moments"?
MR BARKER:	They said at page 17, line 15, it must have

extended over some few minutes. Your Honour, in my

respectful submission it is unlikely that a special

Walton 16 10/12/93

leave application would turn on a concept as vague

as that.

McHUGH J:	I agree with that.
MR BARKER:	My submission is there is no special leave point in it all and it would be very awkward indeed if,
having been permitted to practice by the Court of
Appeal, in the light of evidence which clearly supported such a finding, he would then have to
defend his position in this Court. In my respectful submission, the application should be dismissed.
BRENNAN J:	Mr Sexton.
MR SEXTON:	I will just say two things if I may,

Your Honours. One is I used the term penalty, and

my friend is quite right to say that it is not a

penalty in this jurisdiction, but I use it as a

term of shorthand. Our point is that the orders of

the Tribunal send a signal to the public and the

profession and that is why this case is important

in terms of the special leave application.

The other point goes to the question of the

risk of reoffending and the evidence on which the

Tribunal relied. I cannot put the matter any

better than Mr Justice Priestley did in his

judgment, which is on page 53 of the application

book. He says, at line 15 and following:

The Tribunal accepted, as in my opinion it was

entitled to do, the opinions expressed by

Dr Mcclean about the underlying causes of the appellant's behaviour, and then, as it was

equally entitled to do, drew from those

premises somewhat different conclusions from

those which Dr Mcclean expressed as being his

opinion about future possibilities. I do not

see any error in this.

In our submission, Your Honours, there was no error

in it and it was very much the function of an

expert Tribunal to arrive at a conclusion in that

way. If Your Honours please.

BRENNAN J:  The decision which I am about to announce is a

decision of the majority of the Court.

This application turns on the propriety of a

conclusion by the Court of Appeal that the Medical

Tribunal had misapprehended the significance of certain evidence placed before and accepted by the

Tribunal. Whether or not the Court of Appeal ought to have intervened, the view of the facts taken by the Court of Appeal was materially different from

Walton 17 10/12/93

the view taken by the Tribunal and thus warranted a

of the powers conferred by section 32R of the	reconsideration of the order to be made in exercise appropriate to grant special leave to appeal in order to consider the propriety of the formation by
the majority of the Court of Appeal of their view
of the facts.

Accordingly, special leave will be refused.

MR BARKER:	Would the Court make an order for costs?
BRENNAN J:	Do you have anything to say? Special leave will

be refused with costs.

AT 5.20 PM THE MATTER WAS ADJOURNED SINE DIE

Walton 18 10/12/93