Joseph v A Professional Conduct Committee - [2013] NZHC 1131

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-47 [2013] NZHC 1131

UNDER The Health Practitioners Competence
Assurance Act 2003

IN THE MATTER OF an appeal pursuant to s 106(2)(b) against orders of the New Zealand Health Practitioners Disciplinary Tribunal

BETWEEN VIKRAM ABRAHAM JOSEPH Appellant

ANDA PROFESSIONAL CONDUCT COMMITTEE
Respondent

Hearing: 1 May 2013

Counsel: A H Waalkens QC for Appellant
D La Hood for Respondent

Judgment: 17 May 2013

JUDGMENT OF RONALD YOUNG J

JOSEPH V A PROFESSIONAL CONDUCT COMMITTEE HC WN CIV 2013-485-47 [17 May 2013]

Introduction

[1] Dr Joseph was sentenced to 300 hours community work in the District Court after he pleaded guilty to six charges of possession of objectionable material.1 The objectionable material was six videos of children between five and 14 years of age engaged in penetrative sexual conduct with other children and adults.

[2] Arising from these convictions Dr Joseph was charged with and admitted conduct which reflected adversely on his fitness to practice medicine.2 In December 2012 after hearing submissions and evidence, the Health Practitioners Disciplinary Tribunal suspended the appellant from practicing medicine for 12 months and imposed conditions which they said had the dual purpose of protecting the public and requiring rehabilitative effort by Dr Joseph. These conditions would
commence after Dr Joseph resumed medical practice and continue for a period of two years. Finally, Dr Joseph was ordered to pay 35 per cent of the costs overall of the prosecution (the prosecution and Tribunal costs).3

[3] Dr Joseph’s case is that the Tribunal made an error of fact about the extent of his culpability. This error led the Tribunal into imposing an unreasonable suspension and unreasonable conditions on Dr Joseph. However, irrespective of the alleged error the suspension and some conditions were unreasonable. Dr Joseph says the Tribunal was also wrong to require payment of 35 per cent of the costs given his personal circumstances.

Factual background

[4] The facts which gave rise to the prosecution in the District Court and the disciplinary hearing before the Tribunal are found in a combination of the Police
summary of facts in the District Court; the evidence of Mr Stewart, a digital forensic

1      Films, Video and Publications Classification Act 1993, s 131A(1) .
2      See Health Practitioners Competence Assurance Act 2003, s 100(1)(c).
3      Dr Joseph’s share was erroneously calculated as $12,173, it should be $12,160.75.

analyst with the New Zealand Police Electronic Crime Laboratory; and counsel’s

submissions.

[5] Dr Joseph’s offending came to light when a flatmate came upon material in Dr Joseph’s computer which she thought contained child pornography. She complained to the Police. A search warrant was executed which led to electronic examination of the computer’s hard drive. Six videos involving the exploitation of children and young people for sexual purposes were found. They formed the basis of the charges in the District Court.

[6] The videos were saved in various folders and subfolders on Dr Joseph’s

computer. The videos ranged in length from very short, 41…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1131
Decision Date: 17 May 2013

CaseChat Overview and Summary

In the matter of an appeal against orders of the New Zealand Health Practitioners Disciplinary Tribunal, Dr Joseph appeals the suspension of his medical practice for 12 months and the conditions imposed on his return to practice. The appeal also challenges the order that he pay 35 per cent of the costs of the prosecution. The court was required to decide whether the Tribunal made an error of fact about the extent of Dr Joseph's culpability, whether the suspension and conditions were unreasonable, and if the costs order was fair given his personal circumstances.

The court found that the Tribunal's factual findings were correct and that Dr Joseph deliberately accessed child pornography. The court considered that the 12-month suspension was within the range of reasonable penalties open to the Tribunal, taking into account the need to protect the public, set professional standards, and the risk of reoffending. The court also found that the conditions imposed on Dr Joseph's return to practice were reasonable and fair, except for the requirement to attend a rehabilitative programme. The court reduced the costs award from 35 per cent to five per cent of the prosecution costs, given the financial burden on Dr Joseph.

The court dismissed the appeal against the suspension order and the conditions imposed on Dr Joseph. The order for costs was quashed and replaced with an order for payment of five per cent of the costs of the prosecution by Dr Joseph.

Orders