Zaidi v Health Care Complaints Commission
[1999] HCATrans 103
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S108 of 1998
B e t w e e n -
MANSOOR HAIDER ZAIDI
Applicant
and
HEALTH CARE COMPLAINTS COMMISSION
First Respondent
MEDICAL TRIBUNAL OF NEW SOUTH WALES
Second Respondent
Office of the Registry
Sydney No S109 of 1998
B e t w e e n -
MANSOOR HAIDER ZAIDI
Applicant
and
HEALTH CARE COMPLAINTS COMMISSION
Respondent
Applications for special leave to appeal
GLEESON CJ
McHUGH J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 10.10 AM
Copyright in the High Court of Australia
MR P.L.G. BRERETON, SC: May it please the Court, in each matter I appear with my learned friend, MS B.C. BOSS, for the applicant. (instructed by Morgan Ardino & Co)
MS A.J. KATZMANN, SC: If the Court pleases, I appear for the respondent. (instructed by D.M. Swain, Health Care Complaints Commission).
GLEESON CJ: Yes, Mr Brereton.
MR BRERETON: May it please the Court, in New Zealand, Canada and the United Kingdom it is accepted in professional disciplinary proceedings that the juxtaposition of allegations which, because they are not sufficiently strikingly similar, do not qualify as similar fact evidence but are sufficiently similar to cause prejudice, requires at least the strict warning to the disciplinary tribunal and the identification of the similar fact principles.
In New Zealand that has been most authoritatively stated by the High Court in Duncan v Medical Disciplinary Committee which is behind tab A in the bundle, particularly at page 547 in the judgment ‑ ‑ ‑
GLEESON CJ: Who gives the warning in New Zealand?
MR BRERETON: The legal assessor.
GLEESON CJ: Is that because there is no lawyer on the disciplinary tribunal?
MR BRERETON: Yes, your Honour. At page 547 in the judgment of the President, Mr Justice Cooke, speaking for himself and three other judges of the Court of Appeal ‑ ‑ ‑
GLEESON CJ: What tab is that?
MR BRERETON: That is tab A, your Honour, at 547, particularly at line 28:
If the principle of separation of evidence and findings is not scrupulously observed, difficulties will arise of the type illustrated by a line of Canadian cases –
and at line 39, acknowledging an exception:
where by analogy with the criminal law similar fact evidence has probative force –
The Canadian authorities which support the same view are set out by his Honour at that page.
GLEESON CJ: Where do we find the view?
MR BRERETON: Commencing at line 14:
When there are a number of separate charges, it will normally be the responsibility of the Council to consider the evidence relating to each separately, entirely uninfluenced by the evidence on others, and to make separate findings…..It will be a responsibility of the Council’s legal assessor, appointed under s 60, to make very clear to the Council…..that this is how the charges must be approached…..in the consideration of the evidence and the findings, the separate charges must normally be kept completely separate…..
If the principle of separate of evidence and findings is not scrupulously observed, difficulties will arise –
and then there is the exception for similar fact evidence which is “to a truly cogent degree” at line 40.
GLEESON CJ: Where is that?
MR BRERETON: Line 40, your Honour. In England the same view prevails.
GLEESON CJ: Why did not that exception apply in the present case?
MR BRERETON: One does not even get to that point, your Honour, because the starting point was that no attention was given whatsoever to the necessity for a warning and the similar fact principles.
GLEESON CJ: If attention had been given, would that exception have applied, assuming that these principles applied?
MR BRERETON: No, your Honour, at least on the basis on which the Court of Appeal was content to proceed, namely, that the evidence did not have the requisite similarity to justify admission, at least in a criminal trial.
GLEESON CJ: But these were a number of women each claiming to have been indecently interfered with by the practitioner in a similar way.
MR BRERETON: In what the original Tribunal described as a broadly similar way. What has to be remembered in that context is that the practitioner’s defence was that, although he did not remember the individual patients amongst a large number of patients, the defence was that of justifiable medical treatment; he was conducting a proper gynaecological examination. If one accepts that, then what was required for there to be a striking similarity in the alleged misconduct involves, as Justice Priestley showed in the criminal appeal in Dr Zaidi’s case, much more than was actually shown in this case.
In England the most useful case is that behind tab C, Reza v General Medical Council, particularly at page 202E in the judgment of Lord Lowry speaking for the Privy Council. His Lordship, having held that it would usually be appropriate for multiple charges to be heard together, said:
The inevitable consequence…..about procedure is that in cases like the present…..all the matters alleged will be heard and considered together. This leaves room for the juxtaposition of allegations which, though not qualifying as similar fact evidence, are like enough in character to cause prejudice. This will necessitate a strict warning to the committee and also, where appropriate, the identification of similar fact principles when the evidence has been given.
What happened in this case originally appears at page 12 of the application book in the judgment of the 1990 Tribunal. At line 27 it said that its decision was “fundamentally one of assessing the credibility of the witnesses”. At page 14 line 45 it said that amongst its principal reasons for preferring the evidence of the three patients over that of the doctor were that they:
impressed all members of the Tribunal as being truthful witnesses who had no common interest or motive in what was a broadly similar experience –
and there is a great deal of difference between “a broadly similar experience” and “a strikingly similar experience”. Then at page 15 at line 32:
Furthermore –
this is the third patient –
the conduct of which she complains does bear a degree of similarity –
“A degree of similar” is again far removed from “a striking similarity”. In the 1990 Tribunal’s judgment ‑ ‑ ‑
McHUGH J: This was an anal intrusion, was it not, as opposed to a vaginal intrusion?
MR BRERETON: Yes, your Honour. What is quite clear is that there is no advertence in that judgment to similar fact principles at all or to the need to keep the evidence in respect of each of the complaints separate at all.
McHUGH J: But how does this principle for which you contend work in practice? Is it the case that each member of the Tribunal is entitled to give a separate set of reasons?
MR BRERETON: Yes, your Honour, and it is often the case that there will be a dissenting – indeed, in this case at first instance, in the present application at first instance, two members of the Tribunal dissented. Their reasons were incorporated in the one set of reasons.
McHUGH J: Is this a responsibility on the part of the judge?
MR BRERETON: The responsibility of giving a warning is a responsibility of the judge, yes, your Honour.
McHUGH J: What is the statutory basis to this?
MR BRERETON: There is no statutory basis for it other than the obligation on the Tribunal to afford procedural fairness which is spelt out in the statute.
McHUGH J: But does the judge have any powers or responsibilities above that of other members of the Tribunal?
MR BRERETON: Yes, your Honour, he is responsible for decisions on questions of law, and necessarily decisions on questions of law involve the admission and rejection of evidence.
GLEESON CJ: Do the rules of evidence apply?
MR BRERETON: No, and that is one of the points that my learned friend makes. The rules of evidence do not apply and the Tribunal is entitled to inform itself as it sees fit. The rules of evidence do not apply except to a very limited extent in England either.
GLEESON CJ: On what basis does the judge make decisions about receiving or rejecting evidence?
MR BRERETON: It is expressed in different terms, but perhaps the best expression of it is in the Court of Appeal in Bowen-James: if it has rational persuasive power. That appears to be the state of the law in the Court of Appeal at the moment, that it ought to be admitted or it can be admitted if it has rational persuasive power.
GLEESON CJ: There is no doubt that this evidence had rational persuasive power. Indeed, similar fact evidence is often rejected in criminal trials because it has too much rational persuasive power.
MR BRERETON: With respect, your Honour, because it has prejudicial power as opposed to rational persuasive power. It has persuasive power but it is not rationally persuasive; it is prejudicially persuasive. To prove that X did something the day before the offence he is charged with is not at all rationally probative of the fact that he did it the following day. It is prejudicially probative of it but there is no rational connection save propensity between the fact that someone did something on one day and the allegation that he did it on another. The 1996 Tribunal which was asked to review the decision of the 1990 Tribunal held that the 1990 Tribunal had not used similar fact reasoning at all, adopting submissions made by the respondent at application book page 43, particularly at line 22 through to page 44, line 3. It adopts submissions essentially to the effect that the 1990 Tribunal had not used similar fact reasoning.
That was wrong and the Court of Appeal recognised it was wrong and that the Tribunal had proceeded in part on a similar fact reasoning basis. The Court of Appeal recognised that in the headnote which the court itself published at page 90, line 2:
Various reasons were given –
for preferring the women over the doctor –
including a form of similar fact reasoning.
At page 104, line 55 the President, who spoke for the court, was “content to assume that the criminal law’s requirement” for the admissibility of such evidence was not satisfied. So the Court of Appeal proceeded on a quite different basis from the 1996 Tribunal. At page 105, line 50 the Court of Appeal, having been referred to the cases which I have just mentioned, said that the principles relevant to similar fact reasoning:
do not apply in relation to disciplinary proceedings before the Medical Tribunal.
His Honour then gave three points of difference or distinction at pages 106 and following for that view. The first distinction at page 106, line 15 was that the civil standard of proof applied in New South Wales in disciplinary proceedings, whereas the criminal standard applied or was thought to apply in the United Kingdom and New Zealand. So far as New Zealand is concerned, what his Honour ‑ ‑ ‑
McHUGH J: That is wrong, is it not?
MR BRERETON: That is wrong so far as New Zealand is concerned. I must immediately correct something in the written summary of argument. I said there that his Honour referred to these decisions and that they had not been referred to in argument. It has been drawn to my attention that, though they were not referred to in oral argument, the decisions which I say are wrong were referred to in my learned friend’s written submissions on the appeal. They were not referred to in oral argument. His Honour found that on them, Re A Medical Practitioner, referred to by his Honour at line 25, was overruled in the same volume of the New Zealand Law Reports and the decision overruling it is behind tab D in the bundle.
In that judgment the Court of Appeal of New Zealand held distinctly that disciplinary proceedings were not criminal but civil proceedings - that appears in particular at page 800, line 17 – and that the standard of proof might be different, although the application of Bhandari v Advocates Committee meant that it was not all that different. Bhandari v Advocates Committee is the Privy Council’s version of Briginshaw in this Court. It stands for exactly the same proposition as Briginshaw stands in this Court. So that what the Court of Appeal in New Zealand held, overruling the case on which his Honour relied, was that the same standard of proof applied there as applies in Australia.
His Honour also found that on Re Shumiatcher, a Canadian decision, as standing for the proposition that where an allegation of a crime is involved in a disciplinary matter, the criminal standard should apply. The appellate division of the Alberta Supreme Court showed that that was wrong in Re Ringrose behind tab E in the bundle, particularly at page 691. At the foot of that page the court adopted the proposition that there were only two standards of proof. At page 692, about the sixth line, the court said the application was to strike the name of the practitioner off. Then in the citation from Justice Martin:
The cogency of the evidence required to satisfy the burden of proof by a preponderance of probability may vary, however, according to the nature of the issue –
At page 693 the conclusion reached by Justice Martin as enunciating the right approach to the burden of proof was adopted at point 5 and below that Re Shumiatcher was said not to justify the heavier burden of proof on the Law Society than in respect of the Medical Tribunal and that all the earlier judgment does – that is the judgment in Shumiatcher – is “emphasise one matter to be taken into account”, namely, the fact that a criminal offence forms the basis of the disciplinary allegation.
So the law in Canada is not that the criminal standard of proof applies. The distinction on which the President relied was wrong. Even in England the very case on which I relied, Reza, itself doubted the analogy with criminal procedure. At tab C, page 192E:
Mr Coonan’s arguments relied on an assumed analogy with a criminal trial, the validity of which, to put it no higher at this stage, was seriously called in question by the decision of the House of Lords in –
a number of earlier cases –
Their Lordships will, however, first review the arguments on the basis on which they were presented.
So the first distinction was not a sound one. The second distinction was that the New Zealand and the United Kingdom committees were constituted by medical practitioners assisted by a legal assessor or adviser, like a court martial with a board and a judge advocate. Unlike New South Wales, they are not chaired by a judge. As a matter of fact that is a correct distinction but it is an irrelevant distinction. What is important is that there are lay members on the Tribunal and for present purposes doctors are lay members.
GLEESON CJ: I am looking at the second paragraph of the holding in Reza on page 183 behind tab C. Is that an accurate summary of the reasoning?
MR BRERETON: That is the first leg of the reasoning, that it was appropriate to hear all the complaints together, but that concluded and that purports to be a summary of what concludes at page 202C to D. The relevant reasoning is that at G on the same page, your Honour.
GLEESON CJ: I am looking at paragraph (2).
McHUGH J: Paragraph (2), about “underlying unity”.
MR BRERETON: Yes, that is an accurate summary of the reasoning. The second distinction, as I said, was the presence in the Tribunal of a judge as the chairperson. The problem with that is that the doctors, just as the lay member, are not trained in the law of evidence or the reasoning process. The doctors are just as lay as the lay member from that point of view and just as vulnerable to the prejudicial errors which flow from similar fact reasoning. The fact that a judge is a member of the Tribunal as opposed to an assessor makes no difference to the necessity to observe the principle.
The third distinction on which the Court of Appeal relied was that the Medical Tribunal was not bound to observe the rules of law governing the admission of evidence. There are two answers to that. One is that neither, contrary to what the President said at application book page 112, line 20, is the English committee. If one goes to Reza and the very last page of the report, page 211, the rules governing the English committee as to evidence are set out. It can receive anything which appears to it to be relevant, provided that if it would not be admissible in criminal proceedings, it must first consult with the legal assessor before allowing it in. So it is not bound by the rules of evidence. To the extent that his Honour at page 112, line 20 said that there is no reference to any such provision in the legislation considered in the United Kingdom decisions relied on by me, that statement was wrong.
For those three reasons then, the three distinctions advanced by his Honour are not valid distinctions. His Honour also relied on the circumstance that the reason for excluding similar fact evidence in criminal cases is that it must be excluded if there is a reasonable view of the evidence consistent with innocence, but that overlooks the fact that similar fact rules apply as much to civil proceedings as they do to criminal proceedings, although perhaps the test is a little lower. The judgment of Justice Gummow in D.F. Lyons v Commonwealth Bank illustrates that.
Might I have an additional three minutes?
GLEESON CJ: Yes.
MR BRERETON: Disciplinary proceedings, as the Court knows, have a very major impact on the potential career, livelihood and reputation of a
practitioner. In the rest of the common law world the application of similar fact principles is recognised. In disciplinary proceedings the juxtaposition of a number of charges or complaints is commonplace. This issue will arise time and time again in proceedings in the Medical Tribunal and the Legal Profession Disciplinary Tribunal. The Court of Appeal has held that those principles do not apply. If that be wrong and it is not corrected, then we can look forward to a large number of matters in the Medical Tribunal in which similar fact evidence will be used.
Can I briefly touch on two subsidiary matters. Although subsidiary, they are still important. The Court of Appeal said that the Tribunal had not erred by constraining itself by Abalos principles. At page 124 of the application book the court held that the Tribunal had not regarded itself as fettered by the stringencies of Abalos, but at the bottom of page 123 and the top of 124 Mr Justice Mason set out what the Tribunal has said, namely, that it:
is subject to the same judicial restraint as an appellate court…..The limitations of this restraint are set out in Abalos.
The Tribunal has said that it is restrained by Abalos and the same restraint as an appellate court. The Court of Appeal has, in the face of the Tribunal’s own reasons, effectively said it did not mean what it said. That was a live issue before the Tribunal. It meant that the applicant did not have the review that he ought to have had.
The final matter is that which the court then deals with at page 125. The Tribunal said, in a passage which the court sets out at page 128, line 38, that the applicant’s continued claim to be innocent:
must be rejected in the background of the proved complaints and is either fraudulent or an indication he has no insight –
The Court of Appeal accepted the argument put to it that there was no requirement for the appellant to admit his guilt as a precondition to reinstatement but held that it was not an error in an individual case to reject a protestation of innocence. But that is not what the Tribunal did. The Tribunal said that, given the proved complaints, the claim to be innocent must be rejected as fraudulent even though this man had been acquitted or no billed in respect of all the criminal allegations brought against him.
GLEESON CJ: Thank you, Mr Brereton. Yes, Ms Katzmann.
MS KATZMANN: Special leave should be refused. Neither question raises any issue suitable for the grant of leave. There is no question of general importance involved here, nor is this a suitable vehicle because the Court of Appeal decision was correct. No question of general principle arises because this is in essence a question relating to the procedure adopted in the New South Wales Medical Tribunal which is governed by a statute, at the relevant time the 1938 Medical Practitioners Act, and the Medical Practice Act 1992.
McHUGH J: But what is put against you is that as a matter of law the judge is required to give the lay members of the Tribunal a warning of a particular kind when this sort of evidence is adduced.
MS KATZMANN: There is nothing in the statute to indicate that that is so. The basis for my learned friend’s argument is that cases in other jurisdictions are cases in which it has been said that it is appropriate to give such a warning. There is no authority in New South Wales to support that proposition. The Queensland Court of Appeal considered the matter in Purnell v Medical Board of Queensland and there, where the rules of evidence actually applied, the Court of Appeal held that the similar fact principles did not apply.
GLEESON CJ: Ms Katzmann, this concept of the judge as a member of the Tribunal giving a warning to other members of the Tribunal is one that I would just like to explore for a moment. In the overseas jurisdictions to which we have been referred, who delivers the warning and to whom?
MS KATZMANN: It depends on the constitution of the particular disciplinary committee, and they are all differently constituted having regard to the statutes that apply.
GLEESON CJ: Just take one. Is any of them constituted in such a way that actually includes a judge?
MS KATZMANN: None of the ones upon which my learned friend relied.
GLEESON CJ: Under our system with a judge on the Tribunal, does the judge give any warnings of any kind to the other members of the Tribunal publicly, as it were, or does the judge just participate with them when they make their decision?
MS KATZMANN: I believe the latter to be the case, your Honour.
GLEESON CJ: Presumably, if you start thinking about matters about which warnings might be given, there is no particular reason to stop at this one.
MS KATZMANN: Quite. The judge rules on questions of law and procedure as and when they arise. The important thing in the present case is that no application was ever made to the 1990 Tribunal to exclude this evidence, to deal with it in the way in which my learned friend suggests it should have been dealt with.
GLEESON CJ: I do not think it has been suggested the evidence should have been excluded. What I understand to be suggested is that, by some procedure that I just do not entirely understand at the moment, at some stage, presumably publicly, the judge should have delivered some caution to the people with whom he was sitting about this evidence. Is that the idea?
MR BRERETON: Not necessarily, your Honour. It could be done privately but, if it is done privately, it should be divulged in the reasons, just as in the case ‑ ‑ ‑
GLEESON CJ: That is what I meant by “publicly”. It should be on the record.
MR BRERETON: Yes, your Honour.
GLEESON CJ: Thank you.
MS KATZMANN: It would be inappropriate to grant leave in a case such as this, however, where no application was ever made to the 1990 Tribunal that the judge give a warning to the other members. This issue was first raised in the context of the second of two review applications brought in 1995. No appeal was lodged from the 1990 decision in the time required for an appeal. The nature of the proceedings appears from page 99 of the application book. There was an appeal lodged from the 1996 Review Tribunal’s decision. That appeal was incompetent. Consequently an application for orders in the nature of certiorari and mandamus was issued and for the first time it was sought then to quash the 1990 decision. This complaint concerns a grievance about what happened in 1990 brought at the earliest five years later. In those circumstances, where the issue was never agitated in the original Tribunal, we would submit that it is inappropriate for it to be dealt with here.
One of the other problems is, we would submit, that certiorari is a discretionary remedy and, because of the lateness of the application, the Court of Appeal would probably not have granted it anyway. The Court of Appeal did not specifically deal with that because it felt it was not necessary to do so in its reasons. We would submit that there is no reason in principle to support the approach urged by my learned friend, no reason in principle because in the first place these are civil proceedings, they are not criminal proceedings. The reason for the similar fact principles – and by that I mean the criminal principles because of my learned friend’s insistence on the notion of striking similarity, which is not a precondition even in the criminal law now. There is no basis for importing criminal law proceedings into civil disciplinary proceedings.
GLEESON CJ: Was the applicant legally represented at the 1990 proceedings?
MS KATZMANN: Yes, he was.
GLEESON CJ: And you say his legal representative made no point about this to the Tribunal at the time?
MS KATZMANN: Yes, your Honour. He was represented by counsel. There is one interlocutory judgment which is reproduced in the application book and that was on an application to introduce additional evidence at the heel of the hunt. That judgment appears commencing at page 18 of the application book.
GLEESON CJ: We have no idea what the judge might or might not have said to the lay members of the Tribunal about these similar fact principles, but the complaint is that the reasons for decision do not record the judge as having administered a warning to himself and his colleagues.
MS KATZMANN: That is quite so, but there are two things that we would say about that. In the first place, the matter never having been complained of at first instance by or on behalf of the doctor, it is, we would submit, too late to complain about it now. No unfairness was considered to arise in the context of the 1990 Tribunal hearing. That inference must be the only inference that can be drawn from the way in which the hearing was conducted and the absence to any reference to any application for special consideration to be given to how the complaints of the other women ought to be dealt with.
The other point is this, that in the first Tribunal the Tribunal considered each complaint separately in the manner, we would submit, contemplated in the New Zealand case of Duncan. At pages 14 and 15 it is clear that the Tribunal looked separately at the evidence of each of the women and, having accepted their credit by looking at the evidence individually, then made an observation that they had no common interest or motive to present a similar type of allegation. May I say this, that there is certainly a degree of similarity, whether it be striking or not, about the nature of the allegations as the Court of Appeal observed in the present case. These were allegations brought by women against a doctor who purported to carry out internal medical examinations that he had conducted prolonged sexual stimulation of sexual organs. The only difference was that in one case the stimulation was of the anus rather than the vagina. The Court of Appeal, and indeed the original Tribunal, thought that that was most probably because the woman was a virgin.
So there is indeed a strong degree of similarity and it is not certain by any means, we would submit, had the criminal law principles been applied, that the similar fact rules would have been offended. My learned friend referred to Justice Priestley’s decision in the Court of Criminal Appeal. He also referred to it in argument in the Court of Appeal upon which Justice Priestley happened also to sit.
GLEESON CJ: Could you just remind us of the chronology, Ms Katzmann. The 1990 Medical Tribunal proceedings were before the criminal trial, were they?
MR BRERETON: No, after it but before the appeal.
GLEESON CJ: Before the appeal?
MS KATZMANN: Yes. Indeed, there were convictions before the 1990 Tribunal that the 1990 Tribunal expressly refused to take into account.
GLEESON CJ: At the time of the 1990 Tribunal hearing, was there a pending appeal to the Court of Criminal Appeal?
MS KATZMANN: Yes.
MR BRERETON: No, I am sorry, that is not quite right. He had not yet been sentenced, so he was awaiting sentence but an intention to appeal had been foreshadowed.
GLEESON CJ: Was one of the foreshadowed grounds of appeal concerned with similar fact evidence?
MR BRERETON: All I can say to that is ultimately one of the grounds of appeal was concerned with similar fact evidence. I honestly do not know whether that had been foreshadowed at that time.
GLEESON CJ: Thank you.
MS KATZMANN: The 1990 Tribunal made quite plain that it would not take into account the convictions at all and it would proceed on the basis that they had never been ‑ ‑ ‑
GLEESON CJ: I am just looking at the context in which the 1990 Tribunal did not receive any submissions about the matter of similar fact evidence, although it may well be that similar fact material was a live issue at the time.
MS KATZMANN: We would submit that the obvious inference is that those representing the doctor at the original hearing did not perceive that there was any unfairness about the way in which the Tribunal was conducting the proceedings and made no complaint or made no request about any of the matters of which my learned friend complains. Indeed, a similar course was adopted in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, a decision in which your Honour the Chief Justice participated in the New South Wales Court of Appeal. That was not a dissimilar case of a doctor against whom allegations of sexual misconduct had been made by three patients. Proceedings were heard together. No issue was taken that any similar fact principles ought to have been applied and he had in fact been acquitted in criminal proceedings as well. That was a case in which the court effectively put to rest the notion of any “unpalatable inconsistency” arising from the acquittals and the determinations of the Medical Tribunal, another matter about which my learned friend complains in the present proceedings.
The decision that the Court of Appeal reached on the question of whether or not similar fact principles ought to apply to Tribunal hearings was the correct one; whether the President was right in his conclusion that the decisions in New Zealand and Canada were based on the criminal standard of proof. He was right because what the President said in fact was that it would appear from the decisions in the other jurisdictions that where similar fact evidence had been dealt with in accordance with the principles applicable in criminal proceedings, the courts either applied the criminal standard or they believed the criminal standard applied rightly or wrongly or the rules of evidence applied.
My learned friend says that it is wrong to say that in the UK the rules of evidence applied but, when one looks at the decision in Reza and sees the reference to the particular rules that obtained in the General Medical Council which appear at page 211 - my learned friend took your Honours to that earlier – they provide that the Professional Conduct Committee can receive relevant evidence but:
where any fact or matter is tendered as evidence which would not be admissible as such if the proceedings were criminal proceedings in England, the committee shall not receive it unless, after consultation with the legal assessor, they are satisfied that their duty of making due inquiry into the case before them makes its reception desirable.
The provision in New South Wales is entirely different from that. My learned friend bases his submissions on a notion that procedural fairness dictates that the principles of similar fact evidence apply. We say that the rules of procedural fairness do not dictate that and there is no authority that supports that proposition. The way in which the rules of procedural fairness operate in the Tribunal were set out by the Court of Appeal in Bowen‑James in a passage adopted by the Court of Appeal in the present case. Perhaps the best exposition of how they apply appears, we would submit, in the two judgments in the Pochi Case, first of all Justice Brennan’s judgment in the AAT at 26 ALR 247 at 256, and Justice Deane in the appeal at 31 ALR 666 at 688 to 691. That was a case in which the statute under consideration was in identical terms to the Medical Practice Act and the Medical Practitioners Act:
“the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”.
Almost identical. His Honour said this:
How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.
The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that “this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force” –
Later on his Honour cites with approval the dictum of Lord Justice Diplock in Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488 where his Honour said:
These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.
We say that they are the principles which govern the determination of the issue in the present proceedings.
The point was similarly made by Justice Mackenzie in Purnell in a passage quoted by the Court of Appeal in the present case commencing at page 110 of the application book. There can be no doubt in the present case that the so‑called similar fact evidence was logically probative of the facts in issue. They were admissible, we would submit, on that basis and there is no error in the manner in which either the 1990 Tribunal dealt with it or it was considered by the 1996 Tribunal or the Court of Appeal. Incidentally, the 1996 Tribunal made it expressly clear in considering the review that it was not going to do what the 1990 Tribunal did, and that is take into account at all the evidence of one woman in support of a complaint relating to the evidence of another.
We say that the essential basis for the need for caution in similar fact cases, which was emphasised by the High Court in Pfennig, is missing from proceedings in the Medical Tribunal. There is no jury. The distinction between medical practitioners and lay members is in fact made in Reza itself. But the basis for the principles were set out in Pfennig at pages 482 to 483 and 487 to 488 and by your Honour Justice McHugh at 512 and they relate to the presumption of innocence which is the basis for any proceedings in a criminal case. The criminal standard of proof does not apply in the Medical Tribunal; the civil standard does.
As for civil proceedings where similar fact evidence is admitted, it is emphasised in all the cases that the question is whether the evidence is logically probative or relevant. The only other issue is whether or not there is a discretion to reject evidence notwithstanding that it is logically probative or relevant if it is somehow unfair to receive it. There is no
relevant discretion at common law to exclude evidence on the basis that the prejudicial effect exceeds the probative value.
GLEESON CJ: Thank you, Ms Katzmann. Yes, Mr Brereton.
MR BRERETON: It is not quite correct that we do not know what, if anything, the judge in 1990 said to the Tribunal. The reasons themselves show and the reference to “broadly similar” or “degree of similarity” show that advertence was not given to similar fact principles.
GLEESON CJ: But according to what is put against you, this just was not raised as an issue in the 1990 hearing. Now you are complaining that the reasons for judgment should have contained a record of some kind of admonition that the judge administered to himself and his colleagues.
MR BRERETON: Quite so, your Honour. Just as is required from a judge sitting alone without a jury in a criminal case, his or her reasons are required to set out the principles and the warnings which would have been given to a jury.
GLEESON CJ: Why would you stop at a warning about this? Presumably there are all sorts of warnings that the judge ought to give the other members of the tribunal, if you get into this area.
MR BRERETON: If there are, and they do not immediately occur to my mind ‑ ‑ ‑
GLEESON CJ: Well, identification evidence, for example. If that comes up, does the judge have to, in his reasons, record that he has warned the other members of the Tribunal about the dangers of identification?
MR BRERETON: Whether or not a warning is set out or a record is made that a warning has been given, the reasons at least need to show that advertence has been given to the relevant principles and that the reasoning has proceeded on a permissible basis.
McHUGH J: But why? Issues of prejudice are not relevant in civil proceedings. If you had a jury in a civil case and similar fact evidence, a judge is under no obligation, in fact is not entitled, to direct the jury to consider questions of prejudice or warn them about the evidence.
MR BRERETON: Whether that be so in respect of ordinary civil proceedings, questions of prejudice are relevant in disciplinary proceedings. A related, although not on all fours, example is the view that this Court has taken in cases such as Walton v Gardiner, and the Court of Appeal took in your Honour’s judgment in Herron v McGregor where questions of prejudice are rated very highly in decisions in disciplinary proceedings.
GLEESON CJ: Then all manner of warnings would have to be recorded in the reasons for judgment, depending on the circumstances of the case.
MR BRERETON: Depending on the circumstances of the case, the reasons must show that the Tribunal has proceeded on a permissible basis of reasoning. One way of doing that may be saying, “We have taken into account” and set out the warning, but even if these reasons had simply said that these women had had a strikingly similar experience or something to that effect, that would have shown that advertence had been directed to the relevant principles.
GLEESON CJ: In the case of a criminal trial before a judge alone, there is a statutory requirement that the judge record the warnings that have been self-administered, but there is no corresponding requirement here, is there?
MR BRERETON: The statutory requirement here is simply to record the reasons. With great respect – and I could easily be wrong on this point – it was my recollection that the Criminal Procedure Act required the judge to set out his reasons and to take into account the warnings which were ‑ ‑ ‑
McHUGH J: That is so. We dealt with it in HG recently. We gave judgment a few weeks ago.
MR BRERETON: Now, can I deal with the matter that this was not – the proposition that this was not dealt with in 1990? The doctor, the respondent, is entitled to proceed on the basis that the evidence that will be used against him in respect of any particular complaint will be the evidence adduced on that complaint and not that adduced in some other complaint. It was not for him to take the point in 1990 in any event. It was for the complainant and, if necessary, the Tribunal to address whether it was permissible to do so and give the respondent an opportunity of dealing with it.
True it is an appeal was not brought in 1990. In the proceedings in the Court of Appeal the doctor swore an affidavit on which he was not cross‑examined, explaining that he was impecunious, that he wanted to clear his name, as he eventually did in respect of the criminal convictions. He was not entitled to make a review application to the Tribunal until a period of three years expired because the Tribunal fixed that time. In 1994 he made that application but he was refused the right to challenge the correctness of the original decision and was told he had to accept it. After that decision was made, Rohatgi was decided in the Court of Appeal which
held that on a review application the original decision could be challenged. In 1995 he challenges the original decision.
Our principal complaint now is that he did not have the review he was entitled to have in 1995, 1996. The Medical Tribunal, in 1996, in dealing with the similar fact point, went off so to speak by missing the point.
GLEESON CJ: Thank you, Mr Brereton. We will adjourn for a short time to consider the course we will take.
AT 11.00 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.01 AM:
GLEESON CJ: The Court is of the view that special leave to appeal should be refused in this matter for two reasons. The first is that the Court is not persuaded that there are sufficient prospects that if special leave to appeal were granted the Court, on an appeal, would make an order different from that made by the Court of Appeal. The second is that the present is not a suitable vehicle for considering the questions of principle sought to be agitated by the applicant.
Do questions of costs arise in a matter of this kind?
MS KATZMANN: Yes, we apply for costs, your Honour.
MR BRERETON: Yes, they do arise, your Honour. There is nothing I can say.
GLEESON CJ: Very well. The applicant must pay the respondents’ costs of the application.
AT 11.02 PM THE MATTER WAS CONCLUDED
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