F v Medical Practitioners Disciplinary Tribunal HC Wellington CP268/01

[2002] NZHC 94

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP268/01

UNDER the Judicature Amendment Act 1972

IN THE MATTER of a decision of the Medical Practitioners Disciplinary Tribunal

BETWEEN F
Plaintiff

AND THE MEDICAL PRACTITIONERS DISCIPLINARY TRIBUNAL
First Defendant

AND THE COMPLAINTS ASSESSMENT COMMITTEE
Second Defendant

Hearing: 11 February 2002

Counsel: A J Knowsley with K Bicknell for Plaintiff
B Corkill for First Defendant to abide decision
K P McDonald QC with J H Daniell for Second Defendant

Judgment: 18 February 2002

RESERVED JUDGMENT OF GENDALL J

Solicitors:
Rainey Collins Wright & Co, Wellington for Plaintiff
B Corkill, Barrister, Wellington for First Defendant
DFC Fuller, Wellington for Second Defendant

[1] The plaintiff (“the Doctor”) brings these proceedings for judicial review under the Judicature Amendment Act 1972 seeking review of a decision of the defendant (“the Tribunal”) in which it declined the Doctor’s application for stay of four disciplinary charges brought against him. Those decisions were made after a defended application on 26 October 2001. Of six disciplinary charges brought by the Complaints Assessment Committee (“the CAC”) stays were granted in respect of two but declined in respect of four and this application is directed at those four individual decisions. This judgment has had to be delivered with some degree of urgency and haste because the date for the hearing of the charges before the Disciplinary Tribunal is fixed at 4 March 2002 in Whangarei.

Essential Background Facts

[2] The plaintiff is a medical practitioner conducting a general practice in Whangarei. A number of complaints relating to consultations with several patients were made under the Medical Practitioners Act 1995 and were investigated by the CAC which, as a result, determined that charges be laid by it to be heard by the Tribunal. Those charges comprised three charges of conduct unbecoming a medical practitioner, two of professional misconduct and one of disgraceful conduct. They involved six individual patients, and related to events alleged to have occurred between 1971, in respect of one complainant, and 1992.

[3] The charges, and their outcome at this stage are as follows:

[a] Concerning patient JM - conduct unbecoming a medical practitioner on a date unknown in 1970 or 1971 of unnecessary, inappropriate examination of and inappropriate questioning towards a 15-16 year old female patient. The Tribunal permanently stayed that charge.

[b] In respect of patient W (formerly D) a charge of professional misconduct in that in or about December 1981/January 1982 the Doctor engaged in an unnecessary and inappropriate examination of, and inappropriate conduct towards that patient. The essence of the charge is an allegation that the doctor conducted a breast examination on a 15-16 year old female when such was not clinically necessary and such touching of her breasts was conducted in an inappropriate and fondling way, accompanied by an inappropriate comment.

[c] In relation to patient NM a charge of conduct unbecoming a practitioner in that on 12 April 1984 he conducted a breast examination on a 41 year old female (who had requested such examination) but the essence of the charge was the doctor did not offer the patient cover for the upper part of her body so as to embarrass her. This charge was permanently stayed.

[d] In relation to patient D a charge of professional misconduct that on a date unknown in 1984 the doctor performed an unnecessary and inappropriate breast examination on an 18 year old female patient who consulted him complaining of a persistent sore throat.

[e] In respect of patient R (formerly G) a charge of conduct unbecoming a medical practitioner in that in or about 1984 he performed an unnecessary and inappropriate examination of the breasts of a 16 year old female who had consulted him complaining of a sore throat, and further that he made inappropriate comments towards that patient.

[f] In respect of patient P, a charge of disgraceful conduct in that between 10 October 1989 and 20 May 1992 he inappropriately touched and made comments towards the patient (then aged in her 30’s) which had sexual overtones and insinuations and which conduct included touching her knee and lower thigh, brushing her breast with his hand, and sitting in a manner in which his knee was between her legs during consultation.

[4] In disposing of the applications the Tribunal permanently stayed the charges in relation to the patients JM and NM which had delays of 30 years and 16 1/2 years respectively. The applications for stay in respect of the other four matters were declined, and involved charges spanning a period of 7-19 years. For completeness I add there is a further charge in respect of another patient S which is to be heard and which was not the subject of an application for stay. That also concerns allegations relating to inappropriate or unnecessary sexual comments and breast or upper body examinations in or about November 1999.

Proceedings before the Tribunal

[5] After a two day hearing on 17 and 18 September 2001 the Tribunal delivered a lengthy (22 page) reasoned decision on 26 October 2001. As I have said, it granted permanent stays in respect of two charges and declining stays in respect of the other four charges. Counsel for the Doctor had argued that the delay in bringing the charges was such that it could not be the subject of a fair hearing or “fair trial” of the disciplinary charges against him. There was argument from counsel for the CAC that the Tribunal might not have the jurisdiction to stay charges, but the question was nevertheless dealt with as an application on its merits. The Tribunal noted that the Medical Practitioners Act 1995 sets out the functions of the Tribunal to adjudicate on proceedings brought to it and to exercise and perform such powers, functions and duties necessary to carry out its task. It could regulate its procedure and was required to observe the rules of natural justice. The Tribunal concluded that as it had the ultimate responsibility and discretion to regulate its own procedure and observe the rules of natural justice, it could, in order to prevent an abuse of its own process, order a stay of proceedings. I do not think there can be any quarrel with such a finding. In my view it was correct. In its decision the Tribunal referred to a number of well known decisions, although most related to forerunners of the present Tribunal under the earlier Medical Practitioners Act 1968, namely Herron v McGregor & Ors (1986) 6 NSWLR 246 (CA), Walton v Gardiner (1993) 112 ALR 289 (HCA) and Bonham v Medical Council of New Zealand (High Court, Wellington Registry, CP797/90, 21 September 1990, Gallen J) and [1990] 3 PRNZ 97 (CA), and Faris v Medical Practitioners Disciplinary Committee [1993] 1 NZLR 60 (HC).

[6] The Tribunal then set out the grounds upon which the doctor sought a stay of each charge, being “prejudice through delay”. Counsel argued that a fair hearing could not take place by reason of the prejudice, general as well as specific, and the proceedings would be an abuse of process. Specifically he argued that there were no clinical notes for two of the six patients, and he had no memory of four of the patients or of the consultations where improper practices were alleged to have occurred.

[7] The Tribunal sets out the legal principles which apply in applications of stay, and discussed these at length. They are widely known, and I refer to them later.

[8] The Tribunal considered the reasons for the delay in complaints being made. It was not contended that this was a case of prosecutorial delay. It was specifically noted that four of the six complainants were teenage females at the time of the alleged events, some of whom gave explanations as to their reticence to complain. The Tribunal then considered what is known as presumptive prejudice (prejudice inferred from the delay alone), accepting that cases where a stay will be granted on such a ground were rare. It said it did not regard any of the charges as falling clearly within that category. It approached the question of delay on the basis that it was a matter to be taken into account and weighed in the balance in each case in deciding whether prejudice arose to such an extent as to prevent a fair hearing. It then dealt with the submissions of counsel for the doctor on the matters of specific prejudice, observed that they had also been argued in relation to “presumptive prejudice”. Presumptive prejudice arises simply as an inference that prejudice occurs, by reason of long passage of time, without there having to be proof. In such a situation it follows without more that proof of the actual prejudice would not be required. But of course it is only in extreme cases that presumptive prejudice can arise.

[9] The Tribunal then went on to consider the charges arising from each of six specific complaints. In respect of two complainants it ordered a stay of charges but declined to grant stay of charges in relation to four complainants.

The charges stayed

[10] In respect of the JM complaint the Tribunal granted a stay on the basis that “in the circumstances” it did not think the Doctor could obtain a fair hearing noting that the charges arose out of a matter 30 years ago and where the complainant had originally described the doctor’s approach as “professional”. She had raised the matter initially only as a query as to what might or might not have been appropriate practice 30 years ago. No objection was taken by counsel for the CAC to that order for stay.

[11] In relation to the complaint of NM the Tribunal granted the stay because although the delay was 16 1/2 years (and there were longer delays with some other charges), this was the case of a mature woman aged 41 years, who consulted the doctor for a breast examination, during which consultation a vaginal smear was taken of which no complaint was made and the patient had consulted the doctor on three subsequent occasions. The tribunal said that the allegation, even if proved, was at the lower end of the scale and taking into account all relevant and surrounding circumstances, including delay, maturity of complainant and the merits of the case, “it is our overall assessment that this complaint should be stayed.” “Merits” here, I deduce, meant no more than a view that any adverse finding against the Doctor was unlikely as to warrant a stay. Essentially it acted in a similar way to a Court in ordering a s 347 Crimes Act discharge.

The charges not stayed

[12] In relation to the W complainant the Tribunal accepted to some extent that prejudice would exist by reason of the passage of time and loss of memory. There had been a delay of 18-19 years and the complainant was 15-16 years at the time. The Tribunal did not conclude that overall the doctor would be unable to obtain a fair hearing. It considered that, essentially, the issue came down to one of credibility to be dealt with at the hearing. Although this was the only case (of the four to proceed) where medical records were absent, the Tribunal expressed the view that it was arguable whether, because of the nature of the complaint, the existence of any medical records would have been likely to be of little assistance. I simply observe at this stage in respect of one other somewhat similar complaint (patient “D”), where medical records do exist in relation to what is claimed to be an inappropriate breast examination, the records simply state “breasts normal”. If there had been in earlier medical records in existence for patient “W”, it is likely that had a breast examination occurred and had any notation been made, any note would have not encompassed very much more.
[13] The complaints of patients “D” and “R”, which related to alleged events 16 and 14 years ago, involved patients who were then 18 and 16. The Tribunal noted in similar terms that each charge should go to a hearing as involving young complainants with very specific complaints, whose reasons for delay were understandable. The Tribunal said that whilst the doctor did not have memory of the consultation, medical records are available and practitioners could give evidence as to the general practice of the doctor. The Tribunal concluded that delay was not such as to prevent the doctor having a fair hearing.

[14] Complainant “P” was a mature patient in her 30s, and the Tribunal concluded that the doctor had medical notes; the allegations were specific; some particulars in the charge related to matters of practice upon which the doctor and others could give evidence; and other matters could be assisted by clinical records. The practice nurse was available to give evidence as to the general style or manner or practice at the time.

Submissions in this Court

[15] I heard lengthy submissions on behalf of the doctor which encompassed 297 paragraphs (in two sets of submissions), spanning many typewritten pages; and counsel referred me to in excess of 35 decided authorities. In addition I received 29 pages of submissions from the second defendant. No criticism can be made of counsel for the thoroughness of submissions and argument and it is clear that no stone has been left unturned. But in the context of my delivering a reasoned decision in the time available, it is not possible to analyse in detail all the cases, but for the purpose of decision such an exercise is not necessary. That is because the law is well settled as it relates to applications for stay, whether of criminal charges before a Court, or disciplinary charges before the professional disciplinary bodies which exercise jurisdiction over a member of that profession.

Jurisdiction to review

[16] Of course, these are judicial review proceedings. Whilst counsel for the CAC accepted, for the purpose of these proceedings, that the Tribunal had jurisdiction to order a stay, she argued that this Court could not, pursuant to the Judicature Amendment Act 1972, exercise its power of judicial review over such order or any refusal to order a stay. Ms McDonald QC argued that, accepting for the purpose of argument that the Tribunal was exercising or refusing to exercise a statutory power (the power being the hearing of disciplinary charges, to regulate its own procedures and ensure there was no abuse of its disciplinary process), nevertheless the power to grant or refuse a stay by its very nature was immune from judicial review. It was argued that the Doctor would not be entitled to relief by way of the prerogative of writs and accordingly could not satisfy the second requirement of s 4 of the Judicature Amendment Act 1972, that is:

“. . . any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorori or for a declaration or injunction . . .”

[17] She relies upon the authority of Daemar v Gilliand [1979] 2 NZLR 7 (SC), Saywell v Attorney General [1982] 2 NZLR 97 (HC) and the approach taken in the Australian case of Clyne v Attorney-General (1984) 55 ALR 92 (FCA).

[18] I do not consider that the power to stay is always something which by its very nature is immune from interim judicial review. It will depend on who exercises that power. If that power is vested in a Tribunal or Court by reason of the statutory authority given to a Tribunal to regulate its own procedures, or by inherent jurisdiction, it is not the same as the exercise of a prerogative power. Whilst the power to stay might have its origins in common law, the jurisdiction for judicial review, in this context, is dependent upon the exercise of a statutory power. Cases relied upon by the CAC seem to me to relate to actions of, for example, the Solicitor General, Attorney General, Crown Solicitor or Governor General who exercise their power to stay not as a Tribunal, but as individual officers, or representatives, of the Crown. Stays entered on their direction arise from the powers of such law officers, on behalf of the Crown, and are immune from review because of their “omnipotence”; see the discussion by McMullin J in Daemar v Gilliand (supra) at 27-29.

[19] In any event the Court of Appeal in Daemar v Gilliand [1981] 1 NZLR 61 (CA) resolved the point where it said (at 63-64):

“It is correct therefore that an application for review under the 1972 Act cannot succeed unless the applicant could have been granted, apart from the Act, some remedy by way of mandamus, prohibition, certiorari, declaration or injunction. But this is no severe limitation, especially in the light of the wide scope accorded at the present day to certiorari and prohibition (see for instance R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720; [1974] 2 All ER 643; H W R Wade, Administrative Law (4th ed, 1977) 536-537) and to declaration (see Gouriet v Union of Post Office Workers [1978] AC 435, 501-502; [1977] 3 All ER 70, 99-100, per Lord Diplock, 513-515; 110-112, per Lord Edmund-Davies).

. . . .

It is implicit in R v Hertfordshire Justices, ex parte Larsen [1926] 1 KB 191 that an invalid refusal to discharge after a preliminary hearing may be redressed by mandamus. Like McMullin J we have found no case in which a refusal to commit for trial and a discharge have been challenged in mandamus proceedings; but we see no adequate reason in principle why the writ would not lie, if only to require the right test to be applied.”

[20] So, too, if there be reviewable error of law in applying the right test on a stay application where there is the exercise of a statutory power, an applicant may be entitled to relief by way of declaration or mandatory injunction. For example, if a professional Disciplinary Tribunal capriciously and wrongly granted a stay application, that could be subject of review at the suit of prosecution authority if circumstances warranted it. Likewise, as I observed in K v Psychologists Board & Ors (High Court, Wellington Registry, CP59/98, CP133/98, 10 December 1998) a complainant to a disciplinary board may have relief available by way of declaration or even mandatory injunction in circumstances where a Complaints Assessment Committee refused to inquire into a patient’s complaint or inquired into it under the handicap of legal bias. A respondent in a disciplinary inquiry should have access to the judicial review jurisdiction of the Court where the requirements of the principles of fairness, in appropriate circumstances, will be imposed on those exercising administrative discretion if the interests of justice make it apparent that fairness is to be required. This view is reinforced in the decision in E v The Medical Practitioners Disciplinary Tribunal (High Court, Wellington Registry, CP190/99, 12 April 2001) where Goddard J noted that (at p 5):

“There is no dispute as to the applicable legal principles, nor challenge to the jurisdiction of the Court to protect the proceedings of the MPDT against abuse of its process by way of judicial review; Faris v Medical Practitioners Disciplinary Committee [1993] 1 NZLR 60; Herron v McGregor (1986) 6 NSWLR 246.”

[21] I do not uphold the contention of counsel for the CAC on this point. At the very least, if there be errors of law by the Tribunal in the exercise of its powers to stay, or not as the case may be, Courts can provide prerogative relief by way of injunction and/or declaration. Jurisdiction exists.

Principles for stay orders on the grounds of delay

[22] These are well known and the proper approach is that identified in R v Accused (CA291/90) [1991] 3 NZLR 405 (CA) and T v Attorney General (CA175/97, 27 August 1997), namely whether there is likely to be any prejudice to an accused or respondent arising out of the delay so that they could not obtain a fair trial. In cases where there has been a long delay it may be possible to infer prejudice from the fact of delay alone, without proof of specific prejudice. Whether that inference can be drawn, or whether in all the circumstances of a particular case it would be unfair to place a person on trial or jeopardy by facing charges, must depend on the particular circumstances; R v Accused (CA260/92) [1993] 2 NZLR 286 (CA). There is no general principle that unreasonable delay will preclude a fair trial: Jago v District Court of New South Wales (1989) 168 CLR 23 (HCA); and an order for permanent stay on the grounds of delay is only to be made in exceptional cases and not to be lightly granted, R v The Queen [1996] 2 NZLR 111 (HC); S v R (1994) 12 CRNZ 78 (HC).

[23] Whilst there is distinction between abuse of process through delay by the authorities after receiving a complaint, and the situation where a defence relies on the total lapse of time between alleged offending events and hearing (see R v D (1995) 13 CRNZ 306 (HC) per Fisher J at 308-309), in the present case no complaint is made concerning prosecutorial delay by the CAC after receiving the complaints.

[24] In W v R (1998) 16 CRNZ 33 (HC), at 36-37 the principles are itemised by Randerson J and need no further refinement or restatement by me. Whether it is fair to put an accused person on trial, or in jeopardy of a hearing at all through general prejudice arising through long delay, requires a balancing of the person’s interests with those of the public and the complainant. The starting point is one of no statutory time limitation and a case must be extreme before the inherent jurisdiction should be invoked on this basis of general prejudice.

[25] In considering delay and whether prejudice can be inferred, or whether it arises so that a person should not be brought on trial or subject to hearing, arbitrary time limits of course cannot be met, but there will come a point in time where the delay is simply too long. So for example in R v W [1995] 1 NZLR 548 (CA) the delay was up to 29 years and it was acknowledged to be lengthy, but not regarded by the Court of Appeal to have led to a miscarriage of justice; whereas in C v R [1994] 2 NZLR 621 (HC), Smellie J stayed a prosecution of a 71 year old man where the delay had been between 28 and 41 years. It is very much a question of individual assessment and degree bearing in mind the particular circumstances of each case and the Court or Tribunal has to exercise its discretion in a flexible manner so as to secure the overall objective of ensuring that the accused, or respondent, receives a fair trial or hearing despite the delay. Whether you speak of “general prejudice” (inferred from long delay) or “specific prejudice” established through disappearance of evidence unavailability of witnesses and the like, the test remains the same: can a fair hearing be obtained despite the delay?

[26] The apparent merits of a case may be relevant in rare cases to an overall assessment (so for example in J v The Police (1995) 13 CRNZ 398 (HC), Hammond J did not stay counts arising out of events of 34-47 years distant but that decision was largely based on the fact that the accused had confessed to the offences) but the Court of Appeal emphasised that questions of merits are likely to be rare; see T (CA175/97) v Attorney General (supra). In that case the District Court Judge had conducted a voir dire, and focused not upon whether a fair trial was possible but rather the veracity of allegations of a complainant. The Court of Appeal said:

“Such approach indicates that the focus of the Judge was not the prejudice in the delay, but the reliability of the complainant on the substance of the complaints.

Whilst absence of excuse for delay and the strength of the Crown case may in some circumstances be relevant to an assessment of whether the accused has been prejudiced by delay, such cases are likely to be rare. The sufficiency of reasons for a delay in complaint are not to be elevated too highly. Unless relevant to prejudice suffered by the accused as a result of the delay, deficiency in excuse will not amount to abuse of process in itself although it may in some cases be critical of the jury’s assessment of a complainant’s credibility. That is not a proper matter for the Judge, except in truly exceptional circumstances in exercise of the s 347 jurisdiction. In most cases the course here adopted of conducting a voir dire on the reasons for delay will not be appropriate. Indeed, the dangers of such approach are illustrated by the findings made by the District Court Judge which go to the merits of the complaint, rather than the question of delay.”

[27] The Court of Appeal said that the view formed by a Judge of a complainant’s evidence relating to the substantive charge was not relevant at all.

[28] In R v The Queen (supra) Tipping J observed that merits are not legally irrelevant, but I adopt the view of the Court of Appeal that it will be only in rare cases that they become truly relevant in a stay application. For example, if the case is frivolous or vexatious or if on any view of the matter the combination of factors such as delay, opportunity to complain, minor or insubstantial nature of allegations or their general rather than specific nature, are all matters, when viewed in the round persuade a Tribunal to enter a stay, then a Court may do so very much as it does in the exercise of its criminal jurisdiction under s 347 of the Crimes Act.

[29] In the present case there are arguments that the delay was general or presumptive arising solely from its duration in respect of each case, but counsel for the plaintiff also submitted to the Tribunal that specific prejudice arose. He argued that this arose because of the absence of any memory, the absence of medical notes (in one case) and, despite the continued availability of practice nurses, they were said to be unable to recall anything truly relevant in relation to these patients.

[30] The Tribunal in its decision was mindful of the many cases dealing with stay principles referring to many cases in New Zealand and Australia which set out in full relevant principles identified by Randerson J in W v R (supra) and those of Tipping J in R v The Queen (supra).

[31] In this Court, counsel for the doctor contended that the Tribunal erred in not admitting character evidence; erred in not finding by way of inference that general presumptive prejudice arose solely by reason of the periods of delay; and was wrong in not finding that specific prejudice existed so as to jeopardise a fair hearing.

As to the disregarding or rejection of character evidence

[32] In support of the application for stay the doctor filed a 13 page affidavit of himself, and in addition sought to file five affidavits made by practice nurses that he had employed covering the period from 1974 until the present.

[33] Those affidavits contained extensive passages which related to their opinion as to the doctor’s character, manner, demeanour and general behaviour to the effect that they when or if present during any consultations, did not observe any untoward behaviour, nor had they heard of any complaints made by patients.

[34] Before the Tribunal, counsel for the CAC objected to the admission of those parts of the affidavits which expressed opinions as to the doctor’s character. She maintained that such opinion evidence was irrelevant to an application for stay based on delay and that (from the transcript):

“If you allow evidence of his good character to come before you at this stage, without opportunity from me to respond about character issues, and I would want to do that, then you are getting in irrelevancies which/may not be relevant for you to determine at the ultimate hearing, where we are hearing about character at that stage but not now.”

[35] The Tribunal was advised by its legal assessor that relevancy was the test, and that factors as to the effect of delay were plainly relevant but issues affecting merits or the strength of a prosecution case, whilst they may be relevant, such cases were likely to be rare; and the character evidence was very peripheral.

[36] The Tribunal in the end excluded from its consideration a number of passages in the affidavits of the practice nurses. I have had the opportunity of seeing those passages which the Tribunal did not regard as relevant to the stay application. They relate solely to questions of the Doctor’s good character and the nurses’ opinions, and observations of the Doctor, which enabled them to form such opinions. I do not consider the legal assessor erred in the manner in which he directed the Tribunal. Nor did the Tribunal itself fall into error of law by choosing to disregard those character opinions.

[37] Questions of good character are relevant (whether in criminal or disciplinary proceedings) when determining whether or not allegations made against an accused or respondent have been proven. Such evidence is primarily relevant to the doctor’s credibility, but it may also be taken into account as part of the evidence as a whole in deciding whether he had the propensity to act in the way alleged. But once evidence of good character is admitted then, as is well known, a person puts his whole character in issue, and questions of evidence relating to bad character then arise. But usually such questions relate to the final issue. If a stay application the inquiry had drifted into that area, with the CAC itself tendering evidence of bad character (as counsel said she wished to do), a Tribunal could well find itself in difficulties. It would be involved in the consideration of irrelevant matters (at this stage) and as a consequence fail to focus squarely on the real issue, namely whether the delay was such that a Doctor or respondent could not obtain a fair hearing of the charges. It is for that very reason the Court of Appeal in T (CA175/97) v Attorney General (supra) warned of the dangers of an approach that goes to the merits.

[38] Counsel for the Doctor argued that if merits were taken into account in respect of the stay orders for the JM and NM complaints then they should have been taken into account in respect of the matters upon which there was a refusal to grant stays. I do not think that that necessarily follows. In any event the question of “merits” for JM and NM related not to an assessment of the guilt or otherwise of the Doctor based upon “good character” but rather on the admitted facts and history with a proper balancing of all considerations.

[39] I am satisfied that the Tribunal did not err in law in accepting the legal assessor’s advice to ignore character evidence sought to be adduced through the affidavits of the practice nurses. It does not bear upon the essential issue.

[40] However, separately, I have seen and considered all the evidence contained in those affidavits and take the view that none of the evidence is in any way sufficient to have led the Tribunal, as well as this Court, to a different view on the stay applications.

Presumptive Prejudice

[41] Counsel for the Doctor argued that the Tribunal’s decision that “presumptive prejudice” did not arise in relation to the charges that were not stayed was wrong. The essence of his argument was that proof of specific prejudice was not required, and that the Tribunal erred in failing to infer presumptive prejudice. It is pleaded that the Tribunal required that for there to be presumptive prejudice, there had to be proof of special or actual prejudice. A careful reading of the Tribunal’s decision in its entirety makes it clear that the Tribunal did not conclude as counsel submits. Inferred prejudice arises out of such a long passage of time that actual prejudice may be inferred in some rare circumstances. But where that line should be drawn is not easy and cannot be imposed in an arbitrary way as the Tribunal correctly observed. I observe that (which has been often said) stays on the basis of presumptive prejudice are rare but can occur. It may well be that a time period of 30 years in some circumstances will give rise to presumptive prejudice. Indeed a stay was granted in respect of the JM complaint and although not specifically on the grounds of 30 years delay, it obviously was a major factor. The Tribunal simply said delays were matters to be taken into account and weighed in the balance in determining whether or not there was specific or actual prejudice. It did not stay the NM charge based upon presumptive prejudice from 16 1/2 years delay.

[42] It is not an error of law for the Tribunal to decline to infer prejudice simply by reason of the delays in respect of which stays were declined. The drawing of legitimate inferences is very much a jury fact based exercise. The Tribunal was entitled to not draw the inference that such a delay gave rise to prejudice as a matter of presumption. I too would not draw such inference solely on the basis of time that passes.

As to absence of memory, notes or witnesses

[43] As earlier said, the doctor contended he was prejudiced to the extent that a fair hearing of the charges could not take place because he had no memory of two of the patients; no medical notes of one of them; had no memory of consultations where improper actions were said to have occurred. So too it was argued that his practice nurses had no memory of relevant patients or consultations.

[44] In cases such as this, where a complainant alleges certain actions took place in the privacy of the doctor’s consulting rooms with no one else present, then defences to charges of this kind must amount to general denials. But it is quite open to the doctor to maintain a stance that the examinations were clinically appropriate but misunderstood by young female patients. A claimed inability to remember any of the consultations would no doubt exist whatever the delay after say 5 or 6 years but a doctor can call and give evidence as to his usual practice in conducting such procedures; and to whether certain examinations might have been appropriate or desirable for patients presenting, for example, with certain complaints, infections or symptoms. So too evidence can easily be led as to acceptable medical practice in 1981-82 in relation to complainant W when prescribing a contraceptive pill.

[45] Whilst it was argued that the Doctor was prejudiced by the absence of clinical notes, the fact remains that notes exist for three of the four patients, and in respect of the patient W she attended on one occasion only for the prescription of a contraceptive pill. As I have observed it is unlikely that such would have said very much more than that which existed in respect of patient D where a breast examination was conducted and the notation was “breasts normal”. Mr Knowsley argues that the absence of notes hamper the doctor in denying that a breast examination occurred in respect of patient W. But this overlooks the doctor’s own affidavit evidence where he says that:

“I cannot defend my actions in relation to the breast examination other than to say that a breast examination for a patient going on the pill was normal in 1981/1982.”

[46] The patient says that that occurred, and the doctor says that it was a normal occurrence, so the issue would seem to be quite simply whether such an event was proven to be unacceptable medical practice at that time, or within the bounds of permissible examinations, or was it performed for an improper purpose.

[47] Mr Knowsley says that the notes might have contained other matters which would assist the doctor, such as history given by a patient about other concerns or things that she might have said to the doctor. That is quite speculative. As the doctor has said in his affidavit “consultation notes do not usually record what is said by either Doctor or patient”. Likewise consultation notes are hardly likely to record matters which are not related to proper medical treatment or diagnosis. Mr Knowsley submits that the medical records, if such existed for patient W, might have shown that she returned to see the doctor which, he says, would then suggest that she was not concerned about what she says happened to her at the one consultation. But this is purely hypothetical and speculative because at the moment she says that she did not return and she could be cross-examined and tested on that. To say that notes, which are absent, might have established that she did return when there is no evidence whatsoever that that was the case, falls into the realm of pure speculation.

[48] On the question of notes I do not consider that the Tribunal erred in concluding that the absence of notes in relation to the complainant W was such as to, along with other features, lead to serious prejudice.

[49] Counsel submitted that the absence of memory on the part of the Doctor, together with the absence of any memory on the part of the practice nurses as to the consultations, and to the patients in general, leads to unacceptable prejudice in defending the allegations.

[50] Yet each of the patients allege that the events about which they complained occurred in the privacy of the doctor’s surgery without a nurse being present. It is of essence to the CAC case that the acts of the doctor were improper and not such as would be conducted in the presence of others especially female nurses. If, as the complainants contend, no nurse was present it cannot be the case that unfair prejudice arises if the nurses cannot remember if they were present (so as to be able to confirm it or not).

[51] There is one complainant (“S”) whose complaints were not the subject of a stay application where a practice nurse said she was present and issues arise as to the accuracy or otherwise of the complainant’s statements. Mr Knowsley says that if the other practice nurses had memory of the other patients then they might be able to say they might have been present when the alleged events occurred, but such is pure speculation, and insufficient to satisfy a test of real unfairness.

[52] Counsel for the doctor relied on the authority of the decision of R v Davis (1995) 57 FCR 512; 81A Crim R 156 (FCA) a decision of the Federal Court of Australia which involved an order for permanent stay of criminal proceedings against a retired Doctor against whom a number of historical complaints had been made. There it was held that special prejudice arose (apart from delay) by the destruction of medical records, and the Court described it as an unusual case which met the demanding tests for a stay of criminal prosecution having regard to the particular nature of the allegations in the surrounding circumstances. That, however, was a case dealing with criminal charges and not disciplinary charges before a professional body. Indeed the charges before the disciplinary body were not stayed and the Court said this (at p 519; p 162-163):

“It is true that both proceedings [criminal and disciplinary] arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioner’s name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner.”

Consistently with this distinction, a different standard of proof applies. . . . The point was made by Mason CJ, Deane J and Dawson J in Walton v Gardiner (1993) 177 CLR 378 at 396:

“The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.””

[53] I do not regard the authority of R v Davis (supra) as assisting the doctor’s arguments in the circumstances of this case.

General comments

[54] The Tribunal concluded that the complaints of the four complainants were specific and not of a general nature and the doctor’s defence was firstly complete denial of improper actions and, in relation to complainant W, that at the time he conducted the breast examination such was appropriate and acceptable medical practice. Those are matters upon which evidence can well be given. The Tribunal is an expert Tribunal containing medical practitioners including general practitioners who would well have general experience of medical matters and what is appropriate or not. They can hear and assess the evidence based on the credibility of the complainants and the doctor, together with any medical supporting evidence from other practitioners as to the appropriateness of any admitted or accepted actions. They can hear and assess the character evidence. The Tribunal is chaired by a legally qualified person and contains a lay person. A Disciplinary Tribunal so comprised is very much a different type of body to a jury of lay persons.

[55] Although it is not a decisive feature it is to be noted that charges in respect of patient S are to proceed, irrespective of the others. Those include allegations of improper breast examination, which are denied. Evidence as to the consultation being proper and the like will inevitably be called. But the evidence of other complainants, even if charges concerning them did not proceed, may well be led as similar fact evidence so that the credibility of those other complainants, as well as complainant S, can be assessed. In RIS (CA108/97, 30 June 1997) the Court of Appeal was concerned with the admission of what is labelled as “similar fact” evidence in a sexual violation case where such evidence (not arising out of family circumstances) related to an offence 27 years earlier. There the Court of Appeal said (at p 4-5):

“Although it is axiomatic that there may be some problems with the passage of time, it is difficult to see how the fact that it is 22 years rather than 10 years or perhaps 30 years, will be determinative of the central issue which is whether there can be a fair trial. The historical nature of similar fact evidence will not in itself deprive an accused of a fair trial.

. . . .

The passage of time without more is not sufficient to create illegitimate or improper prejudice. The fact that memory may be dimmed would be a factor to be weighed in determining the credibility, reliability and weight to be given for such evidence, and will, if pertinent, no doubt be touched upon by the trial Judge in his or her summing up.”

[56] Of course those remarks relate to the admissibility of “similar fact” evidence, whereas the matter before me concerns whether the Doctor should be even required to face charges in respect of those deponents or complainants.

[57] It is well known that in matters involving sexual allegations young complainants may delay for a considerable period before summoning the courage to make a complaint, and it is not only in matters involving young children in a family setting when this occurs. As was observed in T v Attorney General (supra), the Supreme Court of Canada recognised that for the victims of sexual abuse to complain often takes courage and emotional strength to reveal personal secrets and open old wounds. Where it is alleged that events occurred towards female patients in the sanctity of a doctor’s surgery, a patient may be left embarrassed, confused or even uncertain (given the absolute position of trust with which a woman patient submits her body to a doctor) and the fact that there are delays in complaining likewise is not altogether unheard of, or may not be surprising. In the present case three of the women the subject of the decisions sought to be reviewed were teenage girls when the events about which they complained occurred. Indeed in R v Fahey (High Court, Christchurch Registry, T75/99, 17 March 2000, John Hansen J), where allegations ranged from delays of 3 to 34, years the Judge accepted that failure to make complaint for many years by female patients in the circumstances that they had presented to the Doctor was understandable. The submission by Mr Knowsley that the nurses, if they had any memory of the patients, might have been able to say that, when they left after the consultation, they were not distressed or upset, has to be viewed in light of that.

[58] Of course, as has been highlighted, reasons for delay ought not be elevated and necessarily used as a matter for granting a stay, or for that matter refusing to grant a stay. But they may be factors to take into account in determining where the overall public interest lies and in balancing the rights and needs of an accused or respondent/defendant to have a fair hearing with the public interest and ensuring proper investigation of disciplinary complaints.

[59] Although it is often the case that delay may lead to some prejudice and some difficulties I am satisfied that this is not a case where the delay or events occurring in the interim is such that the Doctor could not receive a fair consideration by his professional body of the charges against him. This is not such an exceptional case where the protective inherent jurisdiction, whether of the Court or the Tribunal, requires an order for permanent stay. I have no doubts that the overall objective in ensuring the accused has a fair hearing, despite the delay with the inquiry “permeated with the necessary integrity” (R v Steedman (High Court, New Plymouth Registry, T9/97, 14 November 1997, Robertson J) would be met.

[60] Directions to the Tribunal comprising a legally qualified chairperson, a lay member, and members with medical expertise (who have a special understanding of how patients present and respond and how Doctors behave or ought to behave in a clinical setting), will of course assist. Directions on issues such as character evidence and its relevance to propensity, credibility, burden and standard of proof, similar fact evidence and collusion (if such should arise), cautions and opportunity for mistake, confusion or misinterpretation and through blurring of memories will all be squarely before the Tribunal. This will assist in answering a fair hearing.

Conclusions

[61] Having reviewed the transcript of the hearing before the Tribunal, its findings and all the evidence before it, I am satisfied that it did not err in law in any way in declining to stay the charges in respect of the four complainants, so as to provide the doctor with grounds for judicial review. It has not been shown that the Tribunal applied any wrong principle or acted upon any erroneous or mistaken view of the facts as presented to it. There is a public interest in ensuring that those charged with criminal and disciplinary offences not be subject to the jeopardy of trial or adverse results if they are prejudiced in the defence of the allegations to such an extent that a fair hearing could not be obtained. But there is a balancing public interest factor. The disciplinary provisions of the Medical Practitioners Act 1995 are designed to protect the public and maintain proper professional standards and ensure that medical practitioners are accountable to their patients and the public. Members of the public (and members of the medical profession are also members of the public) are entitled to expect that doctors who are charged with offences have those charges heard after proper inquiry before what is, in the context of this case, an expert Tribunal assisted by a legal assessor. The Court has to balance the interests of the public ensuring that professional persons are required to answer disciplinary charges properly brought by their professional body or whether the doctor’s personal, private or professional interests require that they be exempted from such a hearing through a failure or prompt adjudication. As was said in R v Morin [1992] 1 SCR 771 at 810 per McLachlin J:

“The task of a Judge in deciding whether proceedings against an accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication.”

In the final analysis the Judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interests of society in bringing the accused to trial.

The factors to be considered include the length of delay . . . reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma the trial Judge faced with an application for a stay on the grounds of delay. What is important is how those factors interact and what weight is to be accorded to each. In this connection, we must remind ourselves that the best test will be relatively easy to apply . . . .”

[62] I am unpersuaded that the Tribunal failed to take into account relevant considerations or correspondingly took into account any irrelevant considerations in reaching its decisions in declining to grant stays in respect of the four complainants. There was no error of law on its part. Judicial review is declined. Separately to the judicial review issues, which obviously relate to reviewable error of law, I have independently come to the same view as the Tribunal. That is, had the stay applications been heard by me on a de novo basis I would have declined them certainly in respect of the four complainants with whom this application is concerned.

[63] It follows that the proceedings for judicial review are dismissed. The second defendant is entitled to costs which I fix in the sum of $3,000.