Purnell v Medical Board of Queensland
[1997] QCA 253
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Purnell v Medical Board of Queensland[1997] QCA 253
- Add to List
Purnell v Medical Board of Queensland[1997] QCA 253
Reported at [1999] 1 Qd R 362
Purnell v Medical Board of Queensland[1997] QCA 253
Reported at [1999] 1 Qd R 362
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane Appeal No. 4492 of 1996
[Purnell v. Medical Board of Qld.]
BETWEEN:
JAMES NORMAN PURNELL
Appellant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
CASE STATED PURSUANT TO SECTION 43 OF THE
MEDICAL ACT 1939
Appeal No. 6085 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Applicant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
Fitzgerald P.
Mackenzie J.
Helman J.
Judgment delivered 15/08/1997
Separate reasons for judgment of each member of the court; each concurring as to the order made.
APPEAL AND APPLICATION DISMISSED WITH COSTS TO BE TAXED.
CATCHWORDS: EVIDENCE - similar fact - applicable rules of admissibility and standard of proof - case stated: appeal from decision of Medical Assessment Tribunal and renewal of application to show cause concerning inclusion of paragraphs in the case stated - alleged misconduct in a professional respect.
Whether error allowing evidence of similar acts where directed verdict entered in prior criminal trial - applicability of double jeopardy, autrefois acquit or issue estoppel principles - nature of proceedings to determine charges under Medical Act.
Whether error allowing evidence of similar acts where counts stayed as abuse of process and where finding of fact and/or assessment of truthfulness of base allegations needed to determine whether evidence constituted similar acts - whether explanation consistent with innocence addressed and excluded, i.e. low doses of drug may cause erotic fantasy.
Renewal of application - whether grounds to interfere with Tribunal's decision because in its consideration and analysis of the evidence and in its findings it acted on extraneous considerations, unduly relied on or failed to take into account or give sufficient weight to other considerations.
Counsel: Mr N.M. Cooke QC with him Mr D.H. Tait for the appellant.
Mr R.V. Hanson QC for the respondent.
Solicitors: Flower and Hart for the appellant.
Gilshenan and Luton for the respondent.
Hearing date: 25 June 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Mackenzie J.
Helman J.
[Purnell v. Medical Board of Qld.]
Appeal No. 4492 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Appellant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
CASE STATED PURSUANT TO SECTION 43 OF THE
MEDICAL ACT 1939
Appeal No. 6085 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Applicant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 15 August 1997
On 8 February 1996, the Medical Assessment Tribunal ordered that the name of the appellant, James Norman Purnell, be erased from the register of medical practitioners because of his misconduct in a professional respect. Pursuant to s. 43 of the Medical Act 1939, a case has been stated by the Tribunal to this Court. The appellant also made an application to this Court which, if granted, would effectively require that the case stated be expanded.[1] While I am not persuaded that the procedure adopted is appropriate, in the circumstances of this case it is convenient to consider all arguable errors of law which the appellant complains were made by the Tribunal. With one exception, which relates to the order made by the Tribunal that the appellant’s name be erased from the register of medical practitioners, all errors attributed to the Tribunal concern its findings of misconduct in a professional respect against the appellant on counts 6 to 9.
The appellant was charged with 16 counts. Counts 1 to 9 alleged misconduct in a professional respect by unlawful and indecent assaults on separate occasions on 6 female patients during the course of a medical examination and/or consultation. Count 10 alleged an unlawful assault against another patient. Counts 11 to 16 alleged unnecessary intravenous administration of sedative drugs, unsafe methods of intravenous administration of sedative drugs, failing to maintain high standards of sterility, failing to include proper safeguards and procedures in the administration of drugs to counter allegations of the kind made by the patients involved in counts 1 to 10, failing to warn patients of the danger of driving under the influence of drugs, and failing to maintain adequate clinical notes recording particulars of drugs administered and treatment rendered.
The alleged unlawful and indecent assaults which were the subject of counts 1 to 5 before the Tribunal had earlier been the subject of criminal charges against the appellant in the District Court. The appellant was tried for the unlawful and indecent assault to which count 2 related, and, in the course of that trial, evidence was also given of the alleged unlawful and indecent assault to which count 3 related. The same woman was the complainant in respect of both of those alleged unlawful and indecent assaults. The prosecution case at the trial included evidence that the appellant had used a sedative, Midazolam, which is one of the benzodiazepine group of drugs in his treatment of that woman, and that, although there had been no appropriate scientific study, a report stated that, in one group of 86 patients, 10 had experienced erotic dreams[2] when sedated with Midazolam.
At the direction of the trial judge, the jury acquitted the appellant of the unlawful and indecent assault which was the subject of count 2 before the Tribunal. A nolle prosequi was entered in respect of each of the other criminal charges, which related to the alleged unlawful and indecent assaults which were the subject of counts 1, 3, 4 and 5 before the Tribunal.
Counts 1 to 5 were stayed by the Tribunal on 23 December 1994. Subsequently, on 2 February 1996, the Tribunal dismissed counts 11, 14 and 15, but found that counts 6, 7 (other than particular (c)), 8, 9, 10, 12, 13 and 16 were proven.
The Tribunal admitted evidence of the allegations the subject of counts 1 to 5 in proof of counts 6 to 9. Evidence of the allegations the subject of each of counts 6 to 9 was also admitted in proof of the other of those counts. Evidence by another female patient that she had been unlawfully and indecently assaulted by the appellant during the course of a medical examination and/or consultation after the period in which the alleged unlawful and indecent assaults referred to in counts 1 to 9 had occurred was also admitted in proof of counts 6 to 9. Evidence of allegations of unlawful and indecent assault by the appellant from two other female patients who came forward after the Tribunal proceedings attracted publicity was also admitted in proof of counts 6 to 9. All of the women who gave evidence of unlawful and indecent assaults by the appellant had at the time been sedated with Midazolam.
The appellant submitted that evidence should not have been admitted of the alleged unlawful and indecent assaults to which counts 1 to 5 had related because of what had occurred with respect to the criminal charges and because the Tribunal had stayed those counts. More broadly, the appellant further submitted that evidence of other alleged unlawful and indecent assaults by the appellant could not be used in proof of any of counts 6 to 9 unless the Tribunal had first determined that the evidence of the other alleged unlawful and indecent assaults was credible and reliable.
The appellant’s arguments, in relation to both his appeal and his application to expand the case stated, also contained criticisms of the reasons given by the Tribunal, in both a ruling on 29 December 1994 that the similar fact evidence would be admitted and its reasons for its findings on 2 February 1996. It is the latter reasons which are important. It would not matter if the earlier reasons were imperfect provided that the Tribunal’s ultimate findings did not rely on any inadmissible evidence and its reasons for its findings demonstrated that the Tribunal correctly understood and used only evidence which was properly admitted.
At its broadest, the appellant’s argument proceeded on the misconception that the law with respect to the admissibility of similar fact evidence in criminal trials, as stated by the High Court in Pfennig v. R.,[3] can and should be directly transposed to proceedings (which are not criminal proceedings) in a court or tribunal in which a judge is the trier of issues of fact. There are significant differences between a criminal trial and a proceeding of the Tribunal. For example, in a proceeding before the Tribunal, the standard of proof of allegations of misconduct in a professional respect is the civil standard, varying according to the gravity of the fact to be proved, not the criminal standard.[4] It is only because proof beyond reasonable doubt is required in a criminal trial that similar fact evidence must be excluded if there is a reasonable view of the evidence, taken in the context of the prosecution case, which is consistent with the innocence of the accused.[5] Secondly, the need for the judge presiding at a criminal trial to hear similar fact evidence in the absence of the jury before admitting the evidence in the trial is related to the fundamental requirement that a jury should not hear inadmissible evidence which is prejudicial to the accused. There is no need for a two stage process when a judge must both determine whether evidence is admissible and make the findings of fact to which the evidence, if admitted, is relevant.
The present case, in which the possibility was raised that any individual woman who alleged unlawful and indecent assault by the appellant might have been mistaken because she had been given a sedative which could cause erotic dreams, hallucinations or fantasies, was suitable for use of similar fact evidence, provided that the evidence was properly understood and used. “The probative value of [similar fact] evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred”.[6] In determining whether the alleged unlawful and indecent assaults to which each of counts 6 to 9 related had been proven to the requisite standard, the Tribunal was required to take into account the possibility that not only the complainant in respect of that count but also the other witnesses who alleged unlawful and indecent assaults by the appellant might have been mistaken because of the sedative. There was therefore a risk of circularity of reasoning because of the impossibility of finding a firm starting point in the evidence of any one of the women who alleged unlawful and indecent assaults by the appellant. The evidence of each of the women was theoretically vulnerable to the same possibility, namely, that she was mistaken because of erotic dreams, hallucinations or fantasies caused by the sedative which she had been given. It was necessary for the Tribunal to be satisfied to the requisite standard that each of the complainants in respect of counts 6 to 9 was not mistaken in her evidence of unlawful and indecent assault by the appellant. A conclusion that it was sufficiently improbable that all of the women were mistaken would not, without more, support a conclusion that it was sufficiently improbable that a particular woman was mistaken. It was necessary for the Tribunal to consider the evidence of each of the complainants in respect of counts 6 to 9 and to consider the similarities and dissimilarities between her evidence and the evidence of the other women who gave evidence of unlawful and indecent assaults by the appellant. The nature and extent of the similarities was material to the possibility that the complainant in question might have been mistaken, and, conversely, the level of probability that she was not mistaken. Proof of each of the counts (6 to 9) to the requisite standard depended on the number of women who alleged similar behaviour by the appellant, the nature of the behaviour each described, and similarities and dissimilarities in their allegations and, perhaps, contextual circumstances. If the misconduct complained of by each of the complainants in respect of counts 6 to 9 was sufficiently similar to the conduct complained of by at least some of the other women who gave evidence of unlawful and indecent assaults by the appellant, the possibility that the allegations of the particular complainant were mistaken was obviously significantly reduced.
In a lengthy judgment, the Tribunal analysed the evidence of each of the complainants in respect of counts 6 to 9 and each of the other witnesses who gave evidence of unlawful and indecent assaults by the appellant and the evidence of the appellant in response to the various allegations. Matters raising possible concerns about the evidence of any of the complainants or other witnesses alleging unlawful and indecent assaults by the appellant were identified and discussed. The conclusion was reached that the complainants and other witnesses referred to were credible and reliable, provided that they were not mistaken because of the sedative. The appellant’s practices, including his “virtually ... routine” use of the sedative in question was discussed. Adverse comment was made upon the appellant’s demeanour. There was lengthy discussion of the medical evidence including that relating to the effects of the sedative. Although one of the expert witnesses, Dr Mulholland, a psychiatrist, concluded that each of the women who gave evidence that she was unlawfully and indecently assaulted by the appellant exhibited signs of having had her consciousness altered by the sedative used, the number of allegations of sexual misconduct made against the appellant was not apparently explicable by his extensive use of the sedative in his practice.
In considering the use of similar fact evidence, the Tribunal said:
“USE OF ‘SIMILAR FACT’ EVIDENCE
The High Court examined in detail the circumstances in which ‘similar fact’ evidence should be received in criminal trials in Hoch v. The Queen (1988) 165 CLR 292 and more recently, in Pfennig v. The Queen (1995) 69 ALJR 147. Pfennig in particular, demonstrates that the real problem with such evidence is its possible prejudicial effect and the associated possibility that it will be given greater weight that it deserves. Obviously, this concern applies with great force to a jury trial, but has little force when a Judge sits as the tribunal of fact. In the latter case, a more significant concern is that issues will be multiplied needlessly. In the criminal context, the cases have been mainly concerned with the balancing of prejudicial effect and probative value for the purpose of determining admissibility.
For present purposes, the more important question is the use to which such evidence may be put. From both Hoch and Pfennig, the proposition emerges that evidence of this kind may be used for different purposes in different cases. In particular, in Pfennig at pp. 157-8, a distinction is drawn between the situation in which 'similar facts’ are not in dispute and those in which they are. In the former situation, ‘similar fact' evidence may render it objectively improbable that a person other than the accused committed the act in question, or that the relevant act was unintended, or that it occurred innocently or fortuitously. Where the ‘similar fact' evidence is in dispute, it may be admissible because of the, 'improbability of witnesses giving accounts of happenings having the requisite degree of similarity unless the events occurred’. The present case is, to some extent, a mixture of the two categories. The evidence acquires its probative value by virtue of the similar accounts given by the various women of their treatment by the practitioner whilst they were affected by sedation. The evidence tends to exclude the possibility that the touching complained of was accidental, or an appropriate part of the treatment being undertaken, or the product of fantasy caused by the sedative. In the last-mentioned case, the evidence must be considered in light of the body of evidence concerning the observed effects of the sedative in question.
I am satisfied that there is virtually no prospect that the evidence was concocted by the witnesses, acting in concert. Indeed, no such suggestion was put to them. With respect to the witnesses who were not complainants, it will be noted that they all claimed to have complained about Dr Purnell's conduct at some relatively early stage and before the current proceedings commenced. This was as a result of my excluding the evidence of other proposed witnesses where there had been no such ‘fresh' complaint. The evidence which has been assembled and the number of complainants from which it comes render it most improbable that the conduct complained of (if it occurred) was accidental or susceptible of some other innocent explanation (excluding the question of the effect of the sedative). Although some complainants were cross-examined upon the basis that the conduct complained of did not occur, there was no substantial suggestion that any of the ladies had consciously fabricated their evidence, except, perhaps, for Ms G. and Ms B. In the end, the primary thrust of the defence was that the allegations (except that of Ms G) were products of fantasies induced by the sedative. This assertion should be seen in the context of the chronology of events in which it has been raised.”
After referring correctly to the standard of proof required, the Tribunal continued:
“At the core of the problem is the fact that the evidence against [the appellant] comes ... from ladies who had been treated with one of the benzodiazepines, ... and it is said that such medication may have affected their recollections and may have caused sexual hallucinations. ...”
Later, after again referring to the fact that there was “evidence of a number of ladies complaining of sexual misconduct experienced whilst they were affected by a sedative drug”, the Tribunal went on:
“The capacity of benzodiazepines to cause sexual fantasies has been demonstrated only in a very small number of cases, and to the extent that the relevant dosages are known, those dosages have all been significantly higher than those used by Dr Purnell since 1988. Even the 'double dose' used before 1988 and occasionally thereafter, containing 3.75 milligrams of Midazolam, would only equate to a ‘high’ dose in Professor Dundee's terminology if the patient weighed less than 37.5 kilograms. There was no suggestion that any of the complainants was so light that the dosage was ‘high’ in this sense. In any event, the literature discloses a very low incidence of such fantasies even in the case of high dosages. Professor Dundee reported ten cases of fantasy in 865 cases of treatment where the dosages were high. In a later report, ... , he reported four fantasies in 745 cases. The relative rarity of the phenomenon is not only demonstrated by the literature. From the very substantial collective experience of the numerous medical practitioners who have given evidence, only one reported incident has been identified, excluding the allegations against Dr Purnell.
I have taken into account the suggestion that patients may be more susceptible to sexual fantasy in the comparative privacy of a doctor's surgery than in a hospital operating theatre. ... I have given careful consideration to all of the other matters going to credit to which I was referred in the course of argument. In the end, taking all of these matters into consideration, and having regard to the seriousness of the allegations, I am persuaded that in connection with charges 6, 7 (apart from particular (c)), 8 and 9, the complainants’ evidence is both truthful and reliable and that I should accept their evidence in preference to that of Dr Purnell. I must concede that two factors are decisive in leading me to that conclusion. The first is the improbability that so many ladies would have been affected adversely by benzodiazapines, having regard to the dosages and having regard to the reported frequency of such complaints from sources other than Dr Purnell’s practice. The number of complainants and the similarity of their evidence also effectively exclude the possibility of accident or misunderstanding. The second factor is Dr Purnell’s failure to take steps to minimise his use of Midazolam and to ensure an effective chaperone system after the 1988 District Court proceedings. In the circumstances, I find that charges 6, 7, 8 and 9 are made out. I should say that there is no dispute that the conduct alleged is misconduct in a professional respect.”
I do not think that it is necessary to refer in detail to each of the unlawful and indecent assaults alleged against the appellant which were the subject of evidence from the complainants in respect of counts 6 to 9 and the other material witnesses. Despite some variations in the sexual misconduct attributed to the appellant, I am satisfied that there was an appropriate degree of similarity to permit the Tribunal’s use of the other evidence and to be satisfied to the requisite degree of probability that the allegations to which each of counts 6 to 9 related had been proved.
The additional matters which the appellant sought to raise by an expansion of the case stated involved contentions that the standard of proof required was proof beyond reasonable doubt and that, even if that were not so and the Tribunal “included the appropriate verbal formula”, an “over-all reading of the Tribunal’s reasons show a failure correctly to apply” the standard required. The former submission is inconsistent with a series of decisions of this Court which, in my opinion, are correct and should be followed. The second submission, or rather assertion, finds no support in an “over-all reading of the Tribunal’s reasons”.
Nor do I consider that there is any substance in the appellant’s submission that the Tribunal was not concerned with the credibility or reliability of the similar fact evidence but only in the number of allegations of unlawful and indecent assault.
The other matters which the appellant sought to have included in an expanded case were contentions that the Tribunal had failed to give any sufficient weight to the unreliability of named witnesses, failed to give adequate weight to the evidence as to the properties of the material drugs and their effects on memory and the mind, failed to give adequate weight to the distinction between reported case studies and scientific surveys, failed to give adequate weight to the fact that all of the patient witnesses described the effect of the sedative cocktail on them and Dr Mulholland concluded that they all exhibited the effects of the received altering properties of the drugs, failed to give any or any adequate weight to the evidence which proved or tended to prove that patients could have sexual fantasies on the amount of sedative administered by the appellant, failed to subject the similar acts evidence to proper critical analysis to determine whether the allegations were true, gave undue weight to what the Tribunal regarded as the appellant’s failure to take steps to minimise the use of Midazolam and to ensure an effective chaperone system after his criminal trial as one of the two decisive factors determining guilt, and gave insufficient weight to the evidence of the appellant’s receptionists as to their vigilance after the appellant’s criminal trial. These perceived flaws in the analysis and consideration of the evidence were said to “raise points of law on the principle in House v. The King (1936) 55 C.L.R. 499", and attention was also directed to Norbis v. Norbis[7] and Craig v. South Australia.[8] The underlying premise was that, in its consideration and analysis of the evidence and in its findings, the Tribunal acted on extraneous considerations, unduly relied on other considerations, and failed to take into account or give sufficient weight to other considerations.
I see no reason to discuss the appellant’s various assertions on these matters in detail. It is not the function of this Court on an appeal from the Tribunal to embark upon a rehearing on the record of the Tribunal’s proceedings. Subject to the matters discussed below, the similar fact evidence provided the critical issue in relation to the determination of counts 6 to 9. The Tribunal was obviously aware of that circumstance, and understood the purposes for, and manner in, which such evidence might legitimately be used. It provides no justification for interference with the Tribunal’s decision if, in its lengthy reasons[9] it did not refer to each and every piece of evidence or consideration which was or might have been relevant, or if, in balancing the various factors, it did not weigh them as the appellant preferred or, for that matter, as some other judicial mind might consider appropriate. Value judgments, in respect of which there can be reasonable differences of opinion, are not interfered with by this Court on appeal from the Tribunal if a legitimate and reasonable decision has been reached and there is no demonstrated error of principle.
It remains to deal with specific points raised by the case stated.
Although it might initially appear incongruous that evidence should have been admitted of the allegations which had been the subject of counts 1 to 5 when those counts were stayed, I am satisfied that that evidence was admissible.[10] The Tribunal’s determination that findings of misconduct in a professional respect should not be based on those allegations because of the history of events did not of itself make evidence of those allegations inadmissible for the purpose of determining whether the misconduct in a professional respect alleged in counts 6 to 9 was proved when the evidence of the allegations to which counts 1 to 5 had related was relevant for that purpose. Given the nature of the Tribunal’s jurisdiction,[11] it was open to it, and appropriate for it, to admit the evidence concerning the subject matter of counts 1 to 5 despite staying those counts.[12]
The evidence of the alleged unlawful and indecent assaults which had been the subject of counts 2 and 3, especially count 2, raises additional considerations. The evidence which the complainant in respect of those counts gave to the Tribunal concerning the allegations to which count 2 had related was evidence of the precise offence[13] of which the appellant had been acquitted. While no order could have been made against the appellant by the Tribunal on count 2, which it had stayed, it made adverse findings against the appellant in relation to the alleged offence of which he had been acquitted, in that it effectively accepted the evidence of the complainant who alleged that he had committed that unlawful and indecent assault. Indeed, that was the only conceivable purpose of admitting the evidence of that complainant.
It is necessary to consider whether that course was legally objectionable. The appellant argued that the admission of evidence of the alleged unlawful and indecent assault which had been the subject of count 2 undermined the appellant’s acquittal of that offence. Reference was made to Kemp v. R.[14] The appellant’s argument with respect to count 3 was that, because of its “close factual connection’” with count 2, evidence of the alleged unlawful and indecent assault which had been the subject of count 3 indirectly undermined the appellant’s acquittal of the unlawful and indecent assault which was the subject of count 2.[15] These issues fall to be decided by reference to the common law, not the Criminal Code.[16]
A number of different principles, and conflicting decisions, exist in this area of the law. I referred to some of them in Carne, which was, however, concerned with two criminal charges and fell to be decided by reference to the provisions of the Code, not the common law.[17]
I propose to start with the assumption, favourable to the appellant, that Kemp was correctly decided. It was there held that similar fact evidence of events which had been the subject of criminal charges of which the accused had been acquitted was not admissible at a subsequent criminal trial for a different offence. Dixon J., who delivered the judgment of the Court,[18] said:[19]
“... The decision of the Privy Council in Sambasivam v. Public Prosecutor, Federation of Malaya [(1950) A.C. 458, at p. 479] is decisive to show that the prisoner must be taken to have been innocent of the charges covered by the two first counts of the indictment for such a purpose as that for which the evidence was tendered. As to the effect of issue estoppel based upon acquittal see also R. v. Wilkes [(1948) 77 C.L.R. 511, at pp. 518, 519]. ...”
Perhaps the sharpest contrast with Kemp is to be found in Helton v. Allen.[20] It was there held that, in a civil proceeding in which it was material whether one of the parties, Helton, had unlawfully killed a testatrix, evidence was admissible that he had done so despite his acquittal of her murder. In a joint judgment, three members of the Court[21] said:[22]
“... His acquittal cannot operate as an estoppel. The plaintiff in the present proceedings is not bound by it as decisive of his innocence. Nor indeed do we think that it would be admissible against her as an evidentiary fact.”
After referring to Helsham v. Blackwood[23] for the distinction between the effect of an acquittal and the effect of a conviction,[24] their Honours continued:
“The only ground upon which the acquittal of Helton could exclude the operation of the rule[25] is that, the rule being one of public justice, it ought not on grounds of public justice to be extended to a case where the claimant has been absolved in the criminal jurisdiction from the material crime. In other words, it may be said that to retry as a civil issue the guilt of a man who has been acquitted on a criminal inquest is so against policy that a rule drawn from public policy ought not to authorize it. There is, however, no trace of any such conception in the history of the principle that by committing a crime no man could obtain a lawful benefit to himself. ...”
In the other decision on this aspect of the matter to which our attention was drawn by the appellant,[26] the House of Lords held that a person who had been acquitted of an offence on the basis of his sworn evidence denying an element of the offence could be convicted of perjury in respect of that evidence. It was held that the doctrine of issue estoppel has no place in English criminal law, and that the determination at a criminal trial of an issue in favour of the accused was no bar to the admission at a second trial of evidence given at the first trial directed to establish perjury at the first trial even though that evidence, if accepted at the second trial, would lead to the inference that the accused was guilty of the offence of which he had been acquitted at the first trial.
Viscount Dilhorne cited[27] Sambasivam v. Public Prosecutor, Federation of Malaya,[28] and in particular a passage in the judgment of Lord MacDermott.[29] That passage is as follows:
“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim ‘Res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.”
Viscount Dilhorne also cited,[30] with apparent approval, G. (An Infant) v. Coltart[31] which is consistent with the decision in Kemp. In G. (An Infant), the prosecution, having elected or consented to the dismissal of a summons for theft, sought on another summons for theft, in order to negative an intention to return the property, to prove the guilt of the accused of the theft of which he had been acquitted. It was held that such evidence was inadmissible. Viscount Dilhorne stated[32] that the decision in G (An Infant) was “in line with Lord MacDermott’s observations in Sambasivam ...”.
Humphrys was discussed by Mason J., with whom the other members of the High Court[33] agreed in Weaver v. Law Society of New South Wales.[34] It was held in Weaver that, after the Statutory Committee of the Law Society of New South Wales had dismissed charges of professional misconduct against a solicitor under the Legal Practitioners Act 1898 (N.S.W.) by reason of the Committee’s having accepted the solicitor’s testimony, the charge of misconduct could be reconsidered and a new charge of knowingly giving false evidence before the Statutory Committee could be entertained when it was subsequently found that the solicitor’s testimony which had been accepted by the Committee had been wilfully false. Weaver is of little present assistance save insofar as Mason J. stated[35] that:
“... in criminal proceedings an earlier acquittal cannot be re-litigated [Reg. v. Storey (1978) 140 C.L.R. 364], though a prosecution for perjury may be maintained in respect of the giving of false evidence which secured that acquittal.” (emphasis added)
The authorities mentioned to this point, which include the cases to which the appellant referred us, are not authority for his submission. There are at least two obstacles to be overcome, even assuming that the appellant’s acquittal negatived each and every element of the unlawful and indecent assault which had been the subject of count 2.[36] One is that the respondent Medical Board of Queensland was not a party to the criminal trial.[37] The other is that the Tribunal proceeding was not punitive but protective of the public in its character.
Although the point might be considered to have been left open by the High Court in Walton v. Gardiner,[38] the balance of authority supports the view that the evidence to the Tribunal that the appellant had committed the offence of which he had been acquitted was admissible.[39] It was not argued that the admission of the evidence constituted an abuse of process.
Two further points should be noted on this aspect of the matter.
Firstly, the “double jeopardy” principles cannot be fully applicable in a situation such as this because of the terms of the Medical Act. See, for example, paras. (h) and (o) of the definition of “misconduct in a professional respect” in sub-s. 35(1), and sub-s. 37(1)(c) which includes among the matters which the Medical Board may refer to the Tribunal the fact of a medical practitioner’s conviction.[40]
Secondly, if the Tribunal erred, its error was confined to a comparatively small portion of the evidence, and its findings plainly would not have been affected.[41]
The appellant also sought to challenge the Tribunal’s order that his name be erased from the register of medical practitioners on the basis that the Tribunal erred “by over-emphasising the punitive and exemplary aspect and by not balancing the aspect of public protection sufficiently”. A perusal of the Tribunal’s reasons for the order made gives no basis for that rather jumbled complaint. Having regard to the findings made, it is inconceivable that any other order might have been made.
In my opinion, the appeal and the appellant’s application should be dismissed with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Mackenzie J.
Helman J.
[Purnell v. Medical Board of Qld.]
Appeal No. 4492 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Appellant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
CASE STATED PURSUANT TO SECTION 43 OF THE
MEDICAL ACT 1939
Appeal No. 6085 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Applicant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
REASONS FOR JUDGMENT - MACKENZIE J.
Judgment Delivered 15 August, 1997
These appeals arise from proceedings in the Medical Assessment Tribunal against the appellant. There is a case stated pursuant to s. 43 of the Medical Act 1939 and included what Mr Cooke described as renewal before the Court of Appeal of an application for an order that the judge constituting the Tribunal show cause why certain paragraphs which he had declined to include in the case stated be included. Section 44(2) of the Medical Act permits an application to be made to the Supreme Court or another judge thereof for an order to show cause if the judge constituting the Tribunal has refused to state a case. An application under s. 44(2) had been made to and refused by the Chamber Judge. No appeal has been made against that order. It is convenient to deal first with the case stated itself.
The proceedings before the Medical Assessment Tribunal were protracted. The appellant was charged on 30 August 1994 with 16 counts of misconduct in a professional respect. Counts 1 to 9 alleged misconduct in a professional respect by unlawfully and indecently assaulting female patients during the course of a medical examination and/or consultation. Each count in this group relates to a separate occasion. Count 1 relates to an incident on 10 May 1985 concerning patient S. Counts 2 and 3 relate to incidents on 27 March 1987 and 27 November 1987 in relation to patient I. Counts 4 and 5 relate to incidents on 14 August 1987 and 21 August 1987 in relation to patient E. Count 6 relates to an incident on 7 December 1989 in relation to patient McL. Count 7 relates to an incident on 12 July 1990 concerning patient W. Counts 8 and 9 relate to incidents on 28 March 1991 and 5 April 1991 in relation to patient B. Count 10 alleged an unlawful assault against patient G on 3 March 1993.
Counts 11 to 16 alleged misconduct in a professional respect between 10 May 1985 and 3 March 1993 in various respects. These included unnecessary intravenous administration of sedative drugs, unsafe methods of intravenous administration of sedative drugs, failing to maintain highest standards of sterility, failing to include proper safeguards and procedures in the administration of the drugs to counter allegations of the kind made by the patients, failing to warn patients of the dangers of driving under the influence of the drugs, and failing to maintain adequate clinical notes recording particulars of drugs administered and treatment rendered.
On 23 December 1994 a ruling was made on the application of the applicant for counts 1 to 5 to be dismissed. The allegation of assault in count 2 had been the subject of criminal proceedings in the District Court in 1988 but had been terminated by a directed verdict of not guilty. Evidence was also given in that trial of events on the occasion alleged in count 3. The assaults alleged in counts 1, 4 and 5 were also the subject of separate criminal charges in the District Court but were not proceeded with. At the trial relating to count 2 evidence had been given that a significant number of a group injected with the drug administered to patient I, which was one of the benzodiazepine group, had been reported to have erotic dreams while under its influence. The Medical Board was aware of the prosecution proceedings but decided following the directed verdict of not guilty that it was inappropriate for the Board to consider the complaints further. However, following the receipt of further complaints after the trial the Board sought to ventilate all complaints.
The judge constituting the Tribunal stayed counts 1 to 5. Elements in his decision to do so were the Board's previous decision not to proceed with investigation of the complaints, prejudice flowing from the delay and double jeopardy in the sense of unfairness involved in having to defend oneself twice. He held that these factors outweighed the protective function of the Tribunal. However, the ruling did not preclude the calling of the evidence as to the incidents comprising counts 1 to 5 for the purposes of assessing post-1988 conduct and the reliability of witnesses as to later incidents. On 29 December 1994 a ruling was delivered under which the Board was allowed to lead in evidence, in relation to counts 6 to 9, the incidents comprised in counts 1 to 5 and another incident of a similar kind allegedly committed on female patient V in 1996. Patient V had read about the proceedings in a newspaper and had come forward. There was evidence that although she had not made a formal complaint to the authorities she had complained to her GP and her husband shortly after the incident.
Following that ruling similar fact evidence was also led from two other female patients N and C, who also came forward after the proceedings were publicised and who were proved to have made relevant complaints before that time. The judge constituting the Tribunal delivered a ruling allowing evidence of these patients who had belatedly come forward to be given because there was evidence of contemporary complaints sufficient to exclude the possibility of the complaint having been manufactured as a result of learning of proceedings from the media. The transcript suggests that there were further complaints which did not comply with these criteria of which evidence was excluded.
Against this background it is necessary to return to the case stated. It states, in conformity with s. 43(1) of the Medical Act that the appellant desired to appeal from the decision of the Tribunal. The grounds upon which the Tribunal is alleged to have erred in law are the following:-
(a) allowing evidence to be given concerning counts 2 and 3 as similar acts evidence where a directed verdict had been entered in a previous criminal trial;
(b) allowing evidence to be given concerning counts 1, 4 and 5 as similar acts evidence in circumstances where the Tribunal had stayed the counts on the basis of abuse of process and where a finding of fact was necessary in each case to determine whether the evidence amounted to similar acts;
(c) allowing evidence to be given by witnesses V, N and C and as similar acts evidence in circumstances where it was necessary to determine the truth or otherwise of their allegations before their evidence could be regarded as similar acts.
One issue is whether the fact that a directed verdict of acquittal had been entered in the criminal trial relating to the allegations in count 2 precluded the calling of evidence relating to those allegations in the proceedings in the Tribunal. Although count 3 was not the subject of a directed verdict, presumably it is included in ground (a) because it involved the same complainant and was the subject of evidence at that trial. Another issue is whether it was proper to allow evidence in relation to counts which had been stayed to be given as similar fact evidence. These two issues may be put aside for the moment.
After refinement in argument the third issue, which was common to grounds (b) and (c), was that the evidence of similar facts should not have been admitted because before it became admissible the Tribunal must exclude any explanation consistent with innocence. It was submitted that it was wrong in this case to concentrate solely on the fact that a number of complaints had been independently made because there was evidence that the making of complaints of sexual misconduct may have resulted from or have been contributed to by some property of the drug which may cause an erotic fantasy. It was submitted that the Tribunal had failed to advert to the need to exclude any explanation inconsistent with guilt and had assessed the value of similar fact evidence solely by the number of complaints.
This is a case where identification of the person who allegedly did an act is not in dispute. The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions.
Ultimately the question is whether the inference that the act complained of was committed upon the complainant can be properly drawn having due regard to the standard of proof applicable to the kind of case before the court or tribunal. Where credibility of a complainant's evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant's evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant's own account.
A number of medical practitioners gave evidence as to the properties and effects of drugs of the kind administered to the complainants. The Tribunal analysed the evidence on the subject in a passage of the judgment covering 13 pages. It then addressed on an individual basis the credibility of each of the women who had complained of interference. The review of the medical evidence was prefaced with the following comments:-
"My impression of all of the ladies who complained about Dr Purnell's conduct was favourable, both at the time they gave evidence and when I came to review the transcript. I do not make this observation lightly. There were some aspects of the evidence, of Ms B and Ms G which initially caused me some concern. I will deal with those matters specifically at a later stage. Nonetheless, I saw no reason to believe that any of the ladies was inherently unreliable in what she said or that any of them was motivated by ill-will towards Dr Purnell. As I have said, in most cases, the defence suggested not that they were untruthful, but that they had experienced drug-induced fantasies. Some of the complaints are supported by other objective evidence, and it is appropriate that I identify that evidence. I will also mention any areas of concern in the complainants' evidence and any other matters especially relevant to their complaints."
Later in expressing the Tribunal's conclusions the following is said:-
"At the core of the problem is the fact that the evidence against him comes, in all but one case, from ladies who had been treated with one of the benzodiazepines, either Valium or Hypnovel, and it is said that such medication may have affected their recollections and may have caused sexual hallucinations. One can understand why, in the face of evidence of this kind, the learned trial Judge in the District Court took the line which he did and why the Crown chose not to proceed with the other charges. Where the onus of proof is proof beyond all reasonable doubt, and particularly where the counts before the jury related only to complaints by one woman, it is very difficult to see how a jury could have been satisfied of his guilt.
I am, however, in a different position. My function is primarily to protect the public, and the onus of proof is the lower onus to which I have referred. Further, I have the benefit of the evidence of a number of ladies complaining of sexual misconduct experienced whilst they were affected by a sedative drug. Dr Purnell's conduct of his practice since 1988 is also of some importance.
The capacity of benzodiazepines to cause sexual fantasies has been demonstrated only in a very small number of cases, and to the extent that the relevant dosages are known, those dosages have all been significantly higher than those used by Dr Purnell since 1988. . . . . . . In any event, the literature discloses a very low incidence of such fantasies even in the case of high dosages. . . . . . The relative rarity of the phenomenon is not only demonstrated by the literature. From the very substantial collective experience of the numerous medical practitioners who have given evidence, only one reported incident has been identified, excluding the allegations against Dr Purnell.
I have taken into account the suggestion that patients may be more susceptible to sexual fantasy in the comparative privacy of a doctor's surgery than in a hospital operating theatre. I have given careful consideration to all of the other matters going to credit to which I was referred in the course of argument. In the end, taking all of these matters into consideration, and having regard to the seriousness of the allegations, I am persuaded that in connection with charges 6, 7 (apart from particular (c)), 8 and 9, the complainants' evidence is both truthful and reliable and that I should accept their evidence in preference to that of Dr Purnell. I must concede that two factors are decisive in leading me to that conclusion. The first is the improbability that so many ladies would have been affected adversely by benzodiazepines, having regard to the dosages and having regard to the reported frequency of such complaints from sources other than Dr Purnell's practice. The number of complainants and the similarity of their evidence also effectively exclude the possibility of accident or misunderstanding. The second factor is Dr Purnell's failure to take steps to minimise his use of Midazolam and to ensure an effective chaperone system after the 1988 District Court proceedings."
In connection with this aspect of the matter Mr Cooke referred to evidence that patient G had given evidence that on an occasion when she was not alone with the appellant she had experienced a false recollection that she had been touched in the genital area. He submitted that the absence of reference to this incident in the reasons demonstrated that the Tribunal had not properly addressed the evidence supporting the proposition consistent with innocence, that fantasies could occur when only low doses were involved. The fact that a judgment does not specifically refer to a particular part of the evidence does not necessarily lead to the conclusion that it has been overlooked. The passages quoted above show that the Tribunal gave consideration to the evidence of the effects of the drug and the rarity of reports of fantasy when it was used in the kind of quantities used by the appellant. The Tribunal had formed a favourable impression of all of the patients who had given evidence and had concluded that none were inherently unreliable or motivated by ill-will. Their evidence was found to be truthful and reliable and was accepted in preference to that of the appellant. One factor in reaching that conclusion was the improbability of so many patients being adversely affected by drugs having regard to the dosages used and the abnormally high frequency of complaints from the appellant's practice compared with the reported frequency in the medical evidence.
It is true that during the course of argument and in one passage of the judgment, if taken in isolation, the judge constituting the Tribunal placed some emphasis upon the notion that the relevant fact was the fact that numerous complaints had been made. Mr Cooke submitted that this overlooked the necessity to prove that the act complained of by the witness actually occurred and to exclude any reasonable possibility consistent with innocence (e.g., as in this case, that the evidence might have been the result of drug induced fantasy). He submitted that the emphasis on the fact that the complaint had been made resulted in the Tribunal failing to properly consider whether similar fact evidence ought to be admitted and relied on.
In a trial by judge alone the ordinary course would not be to conduct a voir dire but to allow the evidence to be given and to rule on its admissibility in the course of the judgment. The position may be different if it is apparent that the proposed evidence is on its face unreliable or of no probative value for some other reason. That is not the case here. It was therefore open to the Tribunal to hear the evidence of the witnesses and to deal with admissibility, reliability and weight in the judgment.
In any event, in ruling on admissibility, the judge constituting the Tribunal made it clear that the basis of receiving the evidence was that it was improbable that there would be complaints, in a case where there was no evidence of concoction or collaboration, unless the complaints were true or possibly produced as the result of the same drug induced hallucination, or were coincidental. This passage demonstrates that the judge constituting the Tribunal was aware of the factors to be taken into account in dealing with similar fact evidence from the outset. The treatment of it in the judgment reflects this understanding. To summarise this aspect of the matter, there is no basis for concluding that the judge constituting the Tribunal did not address all the factors relevant to admission of and reliance on the similar fact evidence. The grounds of appeal, to the extent that they rely on the proposition that the Tribunal erred in law in allowing similar fact evidence to be given "where a finding of fact was necessary in each case to determine whether the evidence amounted to similar acts" are not sustainable.
I turn next to the question whether the fact that a directed acquittal was entered in relation to the offence referred to in Count 2 precludes the calling of evidence relating to those allegations in the present proceedings. Count 2 is not one of the counts in respect of which the appellant was found guilty by the Tribunal. It forms part of the similar fact evidence along with a number of other similar allegations not all of which were formally charged against the appellant as misconduct in a professional respect. If the concept of double jeopardy involves the concept that a person has previously been acquitted of an offence and that offence is substantially the same as he is later charged with, with the consequence that he is put at risk of suffering a second finding with adverse legal consequences to him because the second charge has been proved that is not the situation here. Once the charge was stayed the appellant was not at risk of a finding of guilt in respect of it. At worst, he was at risk that evidence relating to Count 2, would, along with other bodies of similar evidence, be used to establish the commission of charges in respect of which he was in jeopardy.
The particulars of misconduct in a professional respect in Count 2 are identical to the elements of the offence of unlawful and indecent assault under s. 350 of the Criminal Code as it was at the time of the alleged offence, with the addition of an allegation that it occurred during the course of a medical examination and/or consultation. The Board therefore undertook to prove as some of the elements of Count 2 the same elements as were comprised in the criminal prosecution, and another element relating to the circumstances in which the conduct alleged as misconduct in a professional respect occurred.
Under the Medical Act 1939 the Medical Board is a body corporate capable of suing and being sued (s. 10). It has legislative (s. 16) and registration (ss. 17 to 32B) functions. It may refer to the Tribunal for investigation and determination any question as to the conduct of a medical practitioner which, in the opinion of the Board, requires investigation in the public interest (s. 36(1)). Any such reference is deemed to be a charge made by the Board (s. 36(2)).
The Tribunal is constituted by a judge of the Supreme Court (s. 33(1)). Two assessors sit with the judge (s. 33(3)) with the duty to advise the judge what in their opinion is the proper determination of any question of fact arising before the Tribunal (s. 33(4)). However, the judge determines all questions of fact and law, but in determining questions of fact may give such effect as he thinks just to the opinion of the assessors (s. 33(5)). The Tribunal is a superior court of record (s. 33(1A)) and the judge has all the powers, jurisdiction and authority of a judge of the Supreme Court with respect of his powers, authorities and jurisdiction under the Medical Act (s. 33)(2)). The Tribunal has power and authority to determine charges under the Act (s. 34(1)). Two things are apparent from this. The first is that the complication whether a Tribunal exercising this kind of disciplinary function is a court does not arise, in the context of double jeopardy and autrefois acquit. The second is that the Board and the Director of Public Prosecutions are distinct parties, with the result that a finding in proceedings adverse to the Director does not amount to a finding against the Board.
Proceedings to determine charges under the Medical Act are not criminal in nature. Nor are they proceedings by way of punishment. The object is protection of the public and of the integrity of the profession. They are proceedings sui generis in which the standard of proof is not the criminal standard but one which varies according to the gravity of the fact to be proved. These principles were recently affirmed by this court in Ooi v. Medical Board of Queensland (Appeals no. 4491, 5931 and 6092/1996) and notwithstanding Mr Cooke's submission that the question of standard of proof should be reopened on the basis of the High Court decision in Witham v. Holloway 183 CLR 525, Ooi should be taken to represent the applicable principle. Witham v. Holloway is distinguishable since it regards contempt proceedings as "realistically ... criminal in nature" (534).
Analysis of the question whether evidence relating to Count 2 should have been admitted must proceed on the basis that the first proceedings were criminal proceedings and the present proceedings are neither criminal nor civil but are disciplinary proceedings, sui generis. Cases where the principles relating to the use which may be made in subsequent criminal proceedings of evidence tending to show that an accused was guilty of an offence of which he has been acquitted are not determinative of the issue in these proceedings. In such a case evidence tending to show that the accused was guilty of an offence of which he has been acquitted may be admitted if it is otherwise relevant but it cannot be interpreted in such a way as to deny the acquittal (R v. Storey (1978) 140 CLR 364). Evidence given in earlier proceedings can be given in subsequent proceedings where it is relevant to the later charge for the purpose of proving the charge but may not be used to reconsider the guilt of the accused of the earlier offence or question or discount the effect of the acquittal.
The appellant did not cite any authority which decides that, where a disciplinary Tribunal is exercising a protective function, the principle in R v. Storey applies. Indeed there are authorities where evidence of an offence in respect of which a medical practitioner had previously been acquitted of a criminal charge based on the same acts as the disciplinary proceedings has been held to be properly admitted (e.g. In re a Medical Practitioner (1959) NZLR 784; re Phillips (1964) 81 WN (Pt1) (NSW) 179. Helton v. Allen (1940) 63 CLR 691 decided that the fact that there had been a prior acquittal for murder did not preclude a court finding in civil proceedings, where an issue was whether an unlawful homicide had been committed, that such a homicide had occurred on the civil standard of proof. In the present case there is a different standard of proof from that in criminal proceedings. The distinction between such standards of proof is real (Refjek v. McIlroy (1965) 112 CLR 517, 521-522.) Walton v. Gardiner (1992-3) 177 CLR 379 was concerned inter alia, with the power to stay proceedings. Complaints had been stayed as an abuse of process because of a long delay in instituting them after the facts were known but some years later fresh complaints were laid in respect of the same pattern of professional conduct although not for the same incidents that were the subject of the stayed complaints. The decision turned to some extend upon the extent of the Court of Appeal's jurisdiction to stay proceedings in the Tribunal on abuse of process grounds. In the course of considering that issue there was discussion of the applicability of the principle of double jeopardy to the case. The proper definition of double jeopardy received some attention but in my opinion Walton v. Gardiner does not resolve the question of admissibility of evidence adverse to the view expressed in the cases referred to above. In my opinion the evidence in relation to Count 2 was admissible as similar fact evidence. However, if I am wrong, I am satisfied that the appeal should not be allowed on this ground. It is not necessary to decide whether s. 230 of the Supreme Court Act 1995 or the common law rule discussed in Balenzuela v. De Gail (1958-9) 101 CLR 226 is applicable since I am satisfied that even if the evidence was wrongly admitted it could not reasonably be supposed to have influenced the result. The complaint in issue was only one of a number of similar complaints made by women against the applicant. The findings as to credibility of the complaints are such that I am satisfied that the admission of the evidence relating to Count 2 for the limited purpose for which it was admitted did not lead to a substantial wrong or a miscarriage of justice.
With respect to the more general complaints concerning the admission of evidence on Counts 1-5 even though those Counts had been stayed, I have had the opportunity of reading the draft reasons for judgment of the President and can add nothing usefully to his reasons. I have also read his draft reasons with respect to what was described by Mr Cooke as a renewal before the Court of Appeal of an application for an order that the judge constituting the Tribunal show cause why certain paragraphs which he had decline to include in the case stated be included. I agree with those reasons. I also agree with his reasons why the appeal against the order that the appellant's name be erased from the Register of Medical Practitioners should fail. I agree with the orders proposed by the President.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND Appeal No. 4492 of 1996
Brisbane
Before Fitzgerald P.
Mackenzie J.
Helman J
[Purnell v. Medical Board of Qld.]
BETWEEN:
JAMES NORMAN PURNELL
Appellant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
CASE STATED PURSUANT TO SECTION 43 OF THE
MEDICAL ACT 1939
Appeal No. 6085 of 1996
BETWEEN:
JAMES NORMAN PURNELL
Applicant
AND:
MEDICAL BOARD OF QUEENSLAND
Respondent
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 15 August 1997
I agree with the orders proposed by the President and with his reasons.
Footnotes
[1] See s. 46 of the Medical Act.
[2] Sometimes reference is made to hallucinations or fantasies in addition, or as an alternative, to dreams.
[3] (1995) 182 C.L.R. 461.
[4] See, for example, Ooi v. Medical Board of Queensland [1997] 2 Qd.R. 176.
[5]Pfennig, at pp. 482-483, per Mason C.J., Deane and Dawson JJ.
[6]Pfennig, at p. 482. Cf. Hoch v. R. (1988) 165 C.L.R. 292, 295.
[7] (1986) 161 C.L.R. 513, at pp. 517-518.
[8] (1995) 184 C.L.R. 163, 180.
[9] 87 pages.
[10] Subject to the appellant’s remaining argument with respect to counts 2 and 3.
[11] The jurisdiction exists for the protection of the public: New South Wales Bar Association v. Evatt (1968) 117 C.L.R. 177, 183; Skinner v. Beaumont [1974] 2 N.S.W.L.R. 106, 107, 113; Bowen-James v. Walton (N.S.W. C.A. unreported, 5 August 1991); Richter v. Walton (N.S.W. C.A., unreported, 15 July 1993).
[12] Cf. Weaver v. Law Society of New South Wales (1979) 142 C.L.R. 201, 207.
[13] The respondent pointed out that the appellant’s conviction of unlawful and indecent assault required proof that the complainant did not consent or that her consent was obtained by fraud: Code, ss. 245 and 337. However, the material counts against the appellant in the Tribunal also alleged assaults which were not only indecent but unlawful.
[14] (1951) 83 C.L.R. 341. See also Li Wan Quai v. Christie (1906) 3 C.L.R. 1125, 1131; In re Mulligan, ex p. Isidoro [1979] W.A.R. 198.
[15] Reference was made to Chia Gee v. Martin (1905) 3 C.L.R. 649, 653; and Connelly v. D.P.P. [1964] A.C. 1254, 1295, 1305, 1340-1341, and 1364.
[16] See ss. 16, 17, 598(2) and 602 of the Code; R. v. Carne (C.A. 553 of 1996, unreported, 24 June 1997).
[17] Nonetheless, a number of common law cases were referred to.
[18] Dixon, Williams and Webb JJ.
[19] p. 342.
[20] (1940) 63 C.L.R. 691.
[21] Dixon, Evatt and McTiernan JJ.
[22] p. 710.
[23] (1851) 11 C.B. 111, at pp. 121-124 [138 E.R. 412, at pp. 416-418].
[24] It is unnecessary on this occasion to consider the effect of a conviction on further criminal proceedings for the same conduct: Saraswati v. The Queen (1991) 172 C.L.R. 1, 13 per Dawson J., with whom Deane J. agreed; Falkner v. Barba (1971) V.R. 332, 337; R. v O'Loughlin, ex p. Ralphs (1971) 1 S.A.S.R. 219, 225, 229; Australian Oil Refining Pty Ltd v. Cooper (1987) 11 N.S.W.L.R. 277; R. v. Dodd (1991) 56 A.Crim.R. 451, 457; Environment Protection Authority v. Australian Iron & Steel Pty Ltd (1992) 28 N.S.W.L.R. 502, 507; Parramatta City Council v. Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 N.S.W.L.R. 500, 510; State Pollution Control Commission v. Tallow Products Pty Ltd (1992) 29 N.S.W.L.R. 517, 533.
[25] The rule of public policy excluding a person who unlawfully killed the testator from the office of executor and from benefits under a will.
[26]D.P.P. v. Humphrys [1977] A.C. 1.
[27] p. 17.
[28] [1950] A.C. 458.
[29] p. 479.
[30] p. 19.
[31] [1967] 1 Q.B. 432.
[32] p. 19.
[33] Barwick C.J., Gibbs, Stephen and Aickin JJ.
[34] (1979) 142 C.L.R. 201.
[35] pp. 206-207.
[36] Cf. R. v. Storey (1978) 140 C.L.R. 364, 370-374, 380.
[37] See, however, Davern v. Messel (1984) 155 C.L.R. 21, 67; Gill v. Walton (1991) 25 N.S.W.L.R. 190.
[38] (1993) 177 C.L.R. 378.
[39]Re Salwey (1894) 15 L.R. (N.S.W.) 147, 151; 10 W.N. (N.S.W.) 209; Re Crick (1907) 7 S.R.(N.S.W.) 576, 590-591, 602-603, 606; Re Phillips (1963) 81 W.N.(Pt. 1)(N.S.W.) 179-182; Re a Medical Practitioner [1959] N.Z.L.R. 784; Re Stinson and College of Physicians and Surgeons of Ontario (1911) 22 O.L.R. 627.
[40] See Law Society of New South Wales v. Bannister (1993) 4 L.P.D.R. 24, 27.
[41] cf. Supreme Court Act, 1995, s. 230; Balenzuela v. De Gail (1959) 101 C.L.R. 226.