Health Care Complaints Commission v Weinzettel

NCAT Occupational|2020-10-07

REASONS FOR DECISION

On 26 November 2018, the Physiotherapy Council of NSW (the Council) suspended the registration of Mr Andrew Weinzettel, a registered physiotherapist since 2003. Ten days earlier Mr Weinzettel had notified the Australian Health Practitioner Regulation Agency (AHPRA) that he had "sp[ied] on a female patient with a hidden camera without consent in the change rooms of my practice". At that time, Mr Weinzettel was one of three partners at the Greenfield Physiotherapy & Hydrotherapy clinic (the Clinic). Mr Weinzettel has remained suspended from practice to this day.
As required by s 150D of the Health Practitioner Regulation National Law (NSW) (the National Law), the Council notified the Health Care Complaints Commission (the Commission) of its decision to suspend Mr Weinzettel's registration. In August 2020, following an investigation, the Commission referred a complaint about Mr Weinzettel (the Complaint) to the New South Wales Civil and Administrative Tribunal (NCAT).
Set out at Annexure A to these reasons, the Complaint consists of four individual complaints: 1. Complaint 1 is that after entering a guilty plea, Mr Weinzettel was convicted of seven counts of the offence of filming a person's private parts without consent for the purpose of sexual arousal or sexual gratification under s 91L(1) of the Crimes Act 1900 (NSW). 2. Complaint 2 is that Mr Weinzettel installed a covert camera in one of the bathrooms of the Clinic, in circumstances where he: 1. "…did not advise any partners of the Clinic; 2. … did not obtain the consent of other partners of the Clinic; 3. … had knowledge that clients undress and/or shower inside the bathroom; 4. … was motivated by sexual arousal or sexual gratification." 1. Complaint 3 is that Mr Weinzettel engaged in unsatisfactory professional conduct by failing to notify the Physiotherapy Board of Australia within seven days of being charged with, and later convicted of, the offences the subject of Complaint 1. 2. Complaint 4 is that Mr Weinzettel is guilty of professional misconduct under s 139E of the National Law.

Complaint 1: filming without consent for purpose of sexual gratification

Background to Complaint 1

On 21 October 2019, after entering a guilty plea, Mr Weinzettel was convicted by the NSW Local Court of seven counts of offences under s 91L(1) of the Crimes Act. The Court sentenced Mr Weinzettel to 30 months' imprisonment to be served by way of an intensive correction order made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Section 91L of the Crimes Act makes it an offence to film a person's private parts without their consent in certain circumstances: 91L FILMING A PERSON'S PRIVATE PARTS (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person's private parts, in circumstances in which a reasonable person would reasonably expect the person's private parts could not be filmed-- (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence.
Section 91I defines "private parts" to mean "(a) a person's genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person… whether or not the breasts are sexually developed".
On the morning of 12 November 2018, Mr Bruce Vidaic, one of the three partners of the practice which operated the Clinic, informed NSW Police that a patient had reported a "suspicious looking" wall hook in one of the Clinic's change rooms. Police found the hook contained a covert camera and a memory card. The Police examined the card and found videos files of women in various stages of undress.
The following day, when interviewed by Police, Mr Weinzettel admitted: 1. installing the "hook camera" in the bathroom of the Clinic on 12 November 2018; 2. installing a "spy camera" in a bathroom at his home so he could "capture [Person A] naked", without her consent and for the purpose of "sexual gratification"; and 3. "a long time ago" installing a camera in one of the bathrooms of the Clinic.
Person A, an overseas secondary school student living with Mr Weinzettel and his family, was the victim of six of the seven offences under s 91L(1) of the Crimes Act for which Mr Weinzettel was convicted after entering guilty pleas. The Police have been unable to pinpoint the date on which each offence occurred but it is agreed that the six offences involving Person A took place sometime between January 2015 and December 2016. At the start of that period Person A was 16 years 5 months; at the end she was 18 years and 5 months.
The seventh offence relates to the filming of an unidentified patient in one of the bathrooms of the Clinic sometime between 1 January 2015 and 1 January 2018. The subject video shows a woman getting undressed and having a shower. Her breasts and genitals can be seen.

Is sub-particular 1(d) of Complaint 2 proven?

Mr Weinzettel denies sub-particular 1(d): being "motivated by sexual arousal or sexual gratification" in installing the covert camera in one of the bathrooms of the Clinic on or about 12 November 2018. He claims that the reason he installed the camera was to capture footage of the Clinic's cleaners whom he suspected were not properly cleaning the bathrooms and toilets of the Clinic.
Mr Weinzettel has not been charged with any offences relating to his actions in installing the camera on or about 12 November 2018.
The Commission bears the burden of proving, on the balance of probabilities, sub-particular (d). Where an allegation, if found proven, carries potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove it was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities.
The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 at [1].

Layout of change rooms: November 2018

In November 2018, the Clinic had a heated pool and a gym. Separated from the pool and gym by a corridor were treating rooms (2), change rooms (3) and separate toilets (3). (In these reasons the term "bathroom" and "change room" are used interchangeably.)
Mr Weinzettel installed the camera in Change Room 2, which had a shower and a sink but no toilet. It was used by both male and female patients to change and/or shower after using the pool. The camera (the hook camera) was concealed within a plastic clothing hook mounted on a wall in the change room.

Mr Weinzettel's explanation for installing the hook camera

In a statement prepared for these proceedings dated 15 July 2020, Mr Weinzettel gave an explanation for his actions in installing the hook camera.
In 2004 Mr Weinzettel became a partner of the Practice with brothers Bruno and Adrian Vidaic. Between 2004 and 2015, Mr Bruno Vidaic's mother and mother-in-law cleaned the Clinic. According to Mr Weinzettel, throughout that period there was never a problem or issue with the cleaning.
In 2015, when Mr Vidaic's mother and mother-in-law decided to stop work, the Practice engaged a cleaning firm, Cleantastic. According to Mr Weinzettel, after about six months, problems started to emerge. Mr Weinzettel stated that he recalled entering numerous comments in a book used by the partners and staff of the Clinic to record concerns about the cleaning of the Clinic and to request the cleaners to pay more attention to particular areas. According to Mr Weinzettel, the main problem was the smell of urine in the change rooms, caused by elderly clients exiting the heated pool into cold air and being unable to control their bladder.
In 2016, the Practice replaced Cleantastic with a cleaning firm, M & A Visal, whom Mr Weinzettel described as "sometimes very good and sometimes very bad". He claimed that he and Mr Bruno Vidaic regularly complained to M & A Visal about the quality of their work. He stated that at the weekly meetings of the partners, the problem with the cleaners was "always discussed".
Mr Weinzettel stated that throughout the period M & A Visal was engaged, the smell of urine was so bad at times that he, the Practice Secretary and Mr Vidaic, resorted to dousing the change rooms and toilets with Domestos, a household bleach product. In addition, they installed deodorizers and sprayed Glen 20 throughout the change rooms and toilets.
After about four months, the Practice replaced M & A Visal with Ramis Cleaning. According to Mr Weinzettel, Ramis proved to be little better than their predecessor and after a short period it was replaced by HCA Pest Control (HCA). He and the other partners met with HCA's principal, outlined the problems experienced with previous cleaners, and gave instructions for him to pay special attention to the rubber mats in the bathrooms and toilets. He claimed that notwithstanding these efforts, problems continued and he and the other partners complained to HCA about the urine smell emanating from the change rooms and toilets. On occasion, he and Mr Vidaic used Domestos to get rid of the smell.
Mr Weinzettel claimed that on 6 November 2018 at a partners' meeting, the problem of the urine smell was again raised, and it was agreed that HCA be reminded of the need to take the rubber mats used in the change rooms outside and to clean them with Domestos.

Installation of the hook camera

In a statement made on 15 July 2020, Mr Weinzettel stated that on Monday 12 November 2018 he arrived at the Clinic at about 8:15am, removed the pool cover and checked the toilets for cleanliness. The cleaners were scheduled to clean the next evening. (HCA cleaned the Clinic on Saturday and after hours on Tuesday and Thursday). He stated that he attached the camera to the wall of Change Room 2 at a height of about 140cm from the floor, or about 10cm above the chair which was placed against the wall. He stated he positioned the camera at this height: [W]ith the intention of videoing the rubber mat so that I could see whether or not the rubber mat was removed for cleaning as we suspected it had not. According to the manual for the camera, if placed at 180cm high, there would be a view of about 3 metres. Hence I put it at about 140cm to capture the rubber mats and upwards to about the average knee height of an average person.
Mr Weinzettel stated he did not turn on the camera and intended to turn it on "after hours" to capture footage of the cleaners. He claimed he had no intention of filming patients and that no footage was in fact taken as the camera was never turned on. He claimed that he selected Change Room 2 because it was "the most popular".

Police attend the Clinic

On the morning of 12 November 2018, following a report made by Mr Vidaic, who had been alerted to the covert camera by a patient, the Police arrived at the Clinic. The patient informed the attending officers that when she entered Change Room 2 she thought it "a bit strange" that a pair of male swimming trunks were hanging on the clothing hook in that room. She told Police that when she pulled on the hook, it fell to the floor and she saw a memory card and charge point. The patient told Police that the clothing hook was "at eye level on the tile wall facing the shower".
In a statement made on 29 December 2018, one of the attending officers, Constable Danny Nguyen, stated that after being shown the clothing hook by Mr Vidaic, Mr Weinzettel approached him and asked what was happening. He stated that when he told Mr Weinzettel that he would be taking the camera back to the Police Station to find out who installed it, Mr Weinzettel replied "Okay … can you please contact me first? My brother has enough on his plate." Constable Nguyen stated that on his return to the station he examined the memory card and discovered that it contained images of Mr Weinzettel.

Mr Weinzettel tells his wife about the hook camera

In a statement provided to Police dated 14 November 2018, Mrs Weinzettel stated that on the evening of 12 November 2018 it appeared something was wrong with her husband. When questioned he said, "I have destroyed the family. I don't know how to face you." He asked whether she remembered the cleaner, "I always talk about the toilet cleaner", and then said: The toilet is always smelling. So I put the camera to chase him. And then one of the ladies went to the toilet and saw the camera and went to Bruno and he called police.

Mr Weinzettel attends Wetherill Park Police Station

At Mrs Weinzettel's urging, Mr Weinzettel attended Wetherill Park Police Station on the evening of 12 November 2018 to report installing the hook camera. He was accompanied by Mrs Weinzettel. She overheard her husband telling an officer at reception about "putting the camera in the toilet to catch the cleaner".
After consulting Police records, the officer informed Mr Weinzettel that no report had been received, took his details and told him to ring the next day if he hadn't heard anything.
In a statement made on 19 November 2018, Senior Constable Croucher confirmed that Mr Weinzettel attended Wetherill Park Police Station on the evening of 12 November 2018 and disclosed "I am responsible for putting the camera in the toilet". When asked why he did, Mr Weinzettel replied: Someone was urinating all over the floor repeatedly, I wanted to find out who it was. I also wanted to know if the cleaner was doing his job properly.

Mr Vidaic's account

In a statement made on 13 February 2018, Mr Vidaic stated that when he informed Mr Weinzettel that morning that he had been contacted by Police and asked to attend the Police Station, the following exchange took place: Mr Weinzettel: I'm the one who put the hook up Mr Vidaic : Why? Mr Weinzettel: I'm an idiot, I wasn't happy with the cleaners and I didn't think they were doing a good job and wanted to catch them out. Mr Vidaic: You are an idiot, you can see if it's clean or not. It's obviously clean. Mr Weinzettel: I'm sorry, I don't [know] what I was doing.
In a second statement made on 18 April 2019, in response to questions from Police, Mr Vidaic stated that: 1. He was aware of complaints being made by patients about "the state of the rooms"; 2. It was assumed that patients were urinating on the floor of the change rooms; 3. He had discussed those complaints with Mr Weinzettel; 4. While patients did urinate on the floor, it was a "rare occurrence" and in the past 4.5 months he had cleaned the floor twice "due to the smell of urination". 5. "We told the cleaners to do a better job".
In a third statement dated 14 August 2019, provided in response to further questions asked by Police, Mr Vidaic confirmed that before Mr Weinzettel's arrest there had been "some issues with cleaners doing a good job" and there were "occasions when it appeared someone had urinated in the disabled toilets on the floor and the cleaners did not clean it properly". He stated that the current cleaners had been working for the Clinic for about two years and when they neglected some aspects of the cleaning it was pointed out to them. He stated that when it came to the bathrooms, "we were more pedantic", emphasising the need for them to be "especially clean".
In addition, in that statement Mr Vidaic stated that on driving Mr Weinzettel to the Police station on the day of his arrest, Mr Weinzettel had said to him he was "sorry and had a sickness and needed help".
Mr Vidaic confirmed as claimed by Mr Weinzettel, that from time to time he and the Clinic secretary threw Domestos on the floor of the bathrooms, specifically on the rubber mats. In addition, he confirmed, that on several occasions he had said to Mr Weinzettel "no-one had ever cleaned the practice as well as his mother and mother-in-law".
However, Mr Vidaic disputed Mr Weinzettel's claim of there being a particular problem with Change Room 2 and it being the room most popular with patients. He stated that the main problem was with Change Room 1, the "disabled bathroom", which had a toilet. He disagreed that it was used less that Bathroom 2.
When questioned about the account of his conversations with Mr Weinzettel, he insisted it was accurate and that Mr Weinzettel had said to him:

"I don't know what I'm doing" after apologising for installing the camera, on the morning of 12 November 2018;
"I've got a sickness" when accompanying him to the Police station on 13 November 2018.

Mr Vidaic agreed that between making the second statement (prepared in April 2019) and the third statement (prepared in August 2019) he had a falling out with Mr Weinzettel over the amount offered to Mr Weinzettel for his share of the partnership and that negotiations had "broken down" by the end of July 2019.

Mr Weinzettel's response to Mr Vidaic

Mr Weinzettel stated that the reason he did not forewarn Mr Vidaic of his intention to install the camera to capture footage of the cleaner was that he would probably oppose the decision. He disagreed with Mr Vidaic's claim that Change Room 1 was the change room most popular with patients and asserted that Change Room 2, was the preferred room.
Mr Weinzettel claimed it had been his intention to show the footage to the cleaners in the hope they would "get their act together". He stated he had become frustrated with his efforts over two years to improve the performance of the cleaners.
Mr Weinzettel admitted saying "I'm sorry" to Mr Vidaic on 12 November after disclosing he had installed the camera but denied saying "I don't know what I was doing". In addition, he denies Mr Vidaic's claim that on the following day when travelling to the Police Station he said, "I've got a sickness".

Mr Weinzettel is interviewed by Police

On 13 November 2018, Mr Weinzettel was interviewed by Police. In that interview he gave this account of the reason that he installed the "spy camera": A What I wanted to know is why this person is telling me that he cleans the toilet all the time - Q Uh-huh. A - when he's actually not doing it. And I get the complaints off all the Customer[s] coming and saying, hey, why [don't] you look after your toilets a little bit better. We have a hundred people a day calling to have a shower and it's not a question of filming a hundred people. Q Yeah. A You know. You, you're not, you don't do that, but I, what I wanted to do is on Tuesday night, I put it on Monday, and I wanted to put [it] on Tuesday night, which is the night that he comes to clean, and then see what he actually doing. How, how long he spend on that toilet that he tells me that he cleans. That was my real intention.
Later he stated that the problem was with older patients urinating on the floor: A But that's where most of the problem happen because old peoples just, they cannot control their bladder, and they start to wee, and that's where my problem start, and that what I, my judgement was solely, there you are. Q OK. So you said that with a, the recent, um, device that was put up there, the hook, was to, was to, um, figure out about this urinating problem. A Yep. Q Or if the cleaner was cleaning it. A Yeah. Q Um, did you understand that it would, could capture anything else? A I, I thought about it, but I didn't, I, I, I thought, look, if I can only see what's going on at, on one day, if he tells me that he's cleaning the toilet and I come and I look at the footage and he a spend 2 and a half minute in the toilet, I know that he's not cleaning.
In the course of that interview, Police showed Mr Weinzettel images contained on the memory card of the camera, including images of Person A and other women in various state of undress.
He identified the room where the filming of the women occurred (other than Person A) as one of the change rooms at the Clinic. He said he did not recall when the images were taken, it was "a long time ago", "easy 3 to 4 years" and later in the interview "probably 5-6 years". He admitted that he knew when he placed the camera in that room that "women would be there … without clothes". When questioned about the reason for filming, he said: A: …ah, I found them attractive, but I just stupidity basically Q: Yeah. Was it sexual gratification? A: Not really. Q: No? A: Not really, no, not really. Q Did you know any of the, the, um ladies personally? A: No I don't remember…
Later in the interview he said that most people who came to the Clinic were elderly: Not young people. So it's a, it's really occasional that you see a good-looking woman that you want to see something about her, and I'm not, I'm not doing anything else.
Mr Weinzettel told Police that the camera he had previously used in the Clinic was not a hook camera, like the type he installed in November 2018. Rather, it was "like a key ring … like one … used to open and close the doors of a car".
In addition, Mr Weinzettel admitted to Police that he installed a camera in both bathrooms in his home to film Person A. When asked about the reason for doing so, he said: A She's very good looking to me. Q OK. A That was it. Is, um, just wanted to see how she looks naked I guess. Q So, was your intentions to record her naked? A Yes. Q And did she consent to that? A Nah. Q Or give you permission to do that? A No, of course not. Q Ah, is she aware that that even took place? A No, she's not aware. Q And, um, did you do that for sexual gratification? A I guess so, yes.
When questioned about her age, Mr Weinzettel told Police that Patient A was "probably 20, in her 20's". Later in the interview when asked if Person A was more than 20 years, he said she was "in middle 20's" … "24".

The hook camera

The image below is a photograph taken by Police of the hook camera installed by Mr Weinzettel. The lens of the camera sat behind the small hole at the top of the hook, directly above the larger of the two hooks.
According to Mr Weinzettel he purchased the hook camera on eBay on 17 October 2018 for $11. He claims he did so with the intention of placing it "in the change rooms after hours to catch out the cleaner" and to prove the cleaner was not rolling up the rubber mats and cleaning the bathrooms and toilets with Domestos.
In the course of the interview, Police questioned Mr Weinzettel about how the camera worked: Q Yeah, how do you make that spy, that, that camera work? A Well, I, I place it, I place it, I place it at the face of the person doesn't see, I just wanted to see the action on the floor actually. So actually the hook is not actually high, it's actually low. Q Uh-huh. A All right, because I wanted to see the floor. Q OK. A And, y, yeah, … I didn't intend to see the face of the person, all I want to see what they're doing on the floor, how they do it on the floor. Q It, but how do you make it activate? A I, it has a button, but I don't even know how to, how it work, because I didn't even read the instruction. I, I pressed a couple of times and then, and if you can see, ah, I don't know if you can see that, the, oh, or if you have the device, I think you have to press for 2 seconds, and then you press 1 second more. But it never worked. Q So the, so there's buttons on the device? A It's a, it's a small little, ah, out, e, there is, there is a camera on the top. It's a hook, and then in between the two hooks is a, is like a, like a, like a place that you can press your finger in there, but it's not really, ah, visible. Q Yeah.
Later in that interview, when questioned about the placement of the camera, Mr Weinzettel said he had not turned the camera on, therefore was unable to say what part of the room would be captured by the camera. He said he had made "a guess".
In cross-examination, Mr Weinzettel claimed that apart from being able to turn the camera on and off the user had no control over the camera. He asserted that the angle of the camera was fixed at 45 degrees and could not be adjusted by the user. He claimed that he obtained that information from the instruction manual of the camera, which was not produced in these proceedings. Mr Weinzettel stated that positioned at 1.4 meters above the ground, the camera would capture footage of the floor and up to about the knee of a person of ordinary height.
Mr Weinzettel disagreed with the proposition that if, as claimed, the camera angle was 45 degrees, it would be obscured by the clothing hook.
In a statement made on 20 November 2018 (at Tab 21 of the HCCC's evidence), Senior Constable Kylie Hazelton, who attended the Clinic on 12 November 2018, wrote that the camera was mounted on the wall "in clear view of the entire room and would capture clients who were using the shower and getting changed". The Senior Constable did not elaborate on the basis for her opinion.

Submissions: the Commission

The Commission contends that the "inherent implausibility" of the explanation proffered by Mr Weinzettel for installing the hook camera in Change Room 2, the admissions made by Mr Weinzettel on the day of his arrest, together with evidence of his having previously installed covert cameras both at the Clinic and at his home, supports a finding that Mr Weinzettel installed the covert camera in circumstances where he was "motivated by sexual arousal or sexual gratification".

Circumstantial evidence

The Commission contends that the following pieces of evidence, taken together, support an inference being drawn that in installing the camera in November 2018, Mr Weinzettel was "motivated by sexual arousal or sexual gratification": 1. The apology given to Mr Vidaic on 13 November 2018 when Mr Weinzettel disclosed it was he who installed the covert camera. The Commission describes this as a "moment of authenticity". 2. The further statements made by Mr Weinzettel to Mr Vidaic on that day: "I don't know what I'm doing", and the following day, "I have an illness". 3. The notification made by Mr Weinzettel to AHPRA on 16 November 2018: "I did spy on a female patient with a hidden camera without consent in the change rooms of my practice."

Explanation proffered by Mr Weinzettel

The Commission contends that the explanation proffered by Mr Weinzettel "defies logic", arguing if, as he claimed, the reason he installed the camera was to capture footage of the cleaners not removing rubber mats and cleaning the floors, he could have achieved the same result by simply installing the camera outside the bathrooms, without the attendant risk of violating patient privacy.
Second, if as Mr Weinzettel claimed, the camera had a 45-degree angle, the Commission asserts that it is apparent from the position of the lens that it would have been obscured by the hook immediately below it. Notably, the first time Mr Weinzettel mentioned the camera having a 45-degree camera angle was in oral evidence given in these proceedings.
Third, if, as claimed, Mr Weinzettel had become increasingly frustrated with the cleaners' failure to "lift their game" he had available the option of simply terminating their contact, which the partners had previously done with cleaners whose work was considered to be unsatisfactory.

Inconsistency between evidence given by Mr Weinzettel and Mr Vidaic

The Commission contends that the innocent explanation given by Mr Weinzettel for installing the camera is implausible and should be rejected for the following reasons.
First, Mr Vidaic's evidence that Mr Weinzettel said to him, "I'm sorry, I don't know what I was doing", and the following day, when accompanying him to the police station, "I'm sorry. I have a sickness and need help", is inconsistent with the proffered explanation. The Commission urges the Tribunal to reject Mr Weinzettel's submission that in making the second of those statements, 10 months after Mr Weinzettel's arrest, that Mr Vidaic was being vindictive because he had a falling out over the price to be paid to Mr Weinzettel for his share of the practice. The Commission argues that it could not be said that Mr Vidaic was acting vindictively as the Police had gone to him to obtain the third statement; he had not gone to Police. Further, Mr Vidaic's evidence should be preferred given the many examples of Mr Weinzettel giving untruthful evidence. For example, claiming in the Police interview that Person A was "in her 20's", or in her "mid-20's", when in fact she was 16 and 17 years of age and attending high school when the filming occurred; the claim made to the Police on 12 November 2018 that "someone was urinating all over the floor repeatedly, I wanted to find out who it was" (he confirmed in these proceedings he did not believe that there was any particular offender); the statement made to Community Corrections Officer, Mr Donald Logo, in October 2019 in the context of preparing his sentencing assessment report, that he had filmed Person A because he suspected she was using illicit substances and needed evidence to confirm his suspicions.
Second, the evidence given by Mr Vidaic which reveals that while there had been a problem with the cleaners, Mr Weinzettel's account of the problem was grossly exaggerated.

Tendency evidence

The Commission contends that the offences for which Mr Weinzettel was convicted establish a tendency of Mr Weinzettel to covertly install cameras to record women naked for the purpose of sexual gratification. The Commission points out that while convicted of only one offence of filming a patient at the Clinic (which occurred sometime before October 2016, when the bathrooms were renovated), he admitted to Police and confirmed in these proceedings, that this was not the only occasion, and that he had installed cameras in the change rooms on "three maybe four occasions".
The Commission submits that this tendency is highly probative of a key fact in issue in these proceedings: that Mr Weinzettel installed the covert camera for sexual gratification. That tendency must be considered in the context of the circumstantial evidence to which Mr Weinzettel has admitted: namely, that he did not notify the other partners at the Clinic and knew that females would be undressing in these rooms.

Submissions: Mr Weinzettel

Mr Weinzettel urges the Tribunal to avoid the temptation of concluding that because he had installed covert cameras to film women for the purpose of sexual gratification in the past, that he had a tendency to do so, and that it is likely that because of that tendency, he did so in November 2018.
While acknowledging that the Tribunal is not bound by the rules of evidence, Mr Weinzettel urges the Tribunal against giving disproportionate weight to the tendency evidence adduced in these proceedings, pointing to the "significant hurdle" imposed by ss 97 and 101(2) of the Evidence Act 1995 (NSW) in admitting such evidence.
Mr Weinzettel contends that his explanation for installing the camera should be accepted for the following reasons.
First, from the outset he has been full and frank in his dealings with Police. On the day before his arrest, he voluntarily attended the Police Station and admitted responsibility for installing the camera. Consistently with his claim "I'm here to come clean", when interviewed by police, he made full and frank admissions about matters adverse to him, including having previously filmed Person A for sexual gratification and patients because he wanted to look at "good-looking women". Significantly, he volunteered to Police the exact location within his home where the memory cards used to store the footage of Person A and those patients were located, at a time when he was unaware that Police had executed a search warrant and were searching his home.
In response to the Commission's argument that Mr Weinzettel attempted to bolster his explanation for installing the hook camera by repeatedly referring throughout the interview with Police to the camera being installed in "the toilet", Mr Weinzettel argues that nothing turns on this and that it is abundantly clear that he was referring to Change Room 2. Further, he contends that his estimate of Person A's age should be understood in the context that when the interview was conducted, she was 20 years of age.
Second, the objective evidence is that the problem with the cleaners was long standing and significant, had been noticed by patients, and was the source of annoyance not only to Mr Weinzettel but the other partners. While there are some differences in their respective accounts about the severity of the problem, Mr Vidaic corroborated Mr Weinzettel's claim that there had been a problem with the smell of urine emanating from the change room area. The differences in their evidence, for example, Mr Weinzettel's claim that Change Room 2 was the change room most commonly used by patients and Mr Vidaic's claim that it was Change Room 1, is one of degree.
Third, while much was made by the Commission of Mr Weinzettel's statement that the camera would only capture the floor of the bathroom - "all I want to see what they're doing on the floor, how they do the floor" "I just wanted to see the action on the floor" "I wanted to see the floor" - he admitted he had not reviewed what footage the camera was capable of capturing and he had made "a guess".
Fourth, Mr Weinzettel's claim that the reason he did not inform the other partners of his intention to install the camera was because he apprehended that they would object, is entirely consistent with Mr Vidaic's evidence that "whatever the reason for installing the camera he would not have permitted it occur".
Fifth, Mr Weinzettel's claim that his explanation is consistent with the objective evidence that the camera had not been turned on and he intended to do so before leaving work on Tuesday evening before the cleaners arrived.
Finally, Mr Vidaic's claim that when accompanying him to the Police Station, Mr Weinzettel said, "I'm sorry and have a sickness and need help", was only mentioned in the third statement given to Police by which time he and Mr Weinzettel had a falling out over the price payable to Mr Weinzettel for his share of the Practice. It is implausible that Mr Vidaic would have omitted to mention a statement of such significance in his two earlier statements.

Conclusion

There is no direct evidence to support the claim that Mr Weinzettel installed the camera to film patient for reasons of sexual gratification. To establish that claim, the HCCC must establish that the available material supports that inference being drawn.
In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (Seltsam), Spigelman CJ explained at [88] that the test to be applied to whether it is permissible to draw inferences from the evidence is whether, "on the basis of the primary facts, it is reasonable to draw the inference". At [87], Spigelman CJ quoted from the following passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722 at 169-170 about the distinction between inferences and conjecture or speculation: Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
Those principles apply to our consideration of the contested issue concerning Complaint 2.
Section 97 of the Evidence Act renders inadmissible evidence of "conduct of a person, or a tendency that a person has or had" to prove that a person "has or had a tendency … to act in a particular way" unless two conditions are satisfied: the party seeking to adduce that evidence gives reasonable notice to their opponent of their intention to adduce that evidence and that evidence has "significant probative value": 97 THE TENDENCY RULE (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless-- (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Section 101(2) imposes a further restriction on the admissibility of tendency evidence adduced in criminal proceedings by the prosecution and provides that it cannot be used against the defendant "unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant".
In Hughes v The Queen [2017] HCA 20 (Hughes) at [70]-[73], Gageler J explained the problem to which the tendency rule is directed: … The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue. The cognitive process is that mapped out in the statement of the tendency rule itself. Tendency evidence - be it of character or reputation or of conduct other than an occasion in issue in a proceeding - is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind. The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to "postdict" the action or state of mind of the person on the occasion or occasions in issue in the proceeding. Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue. Tendency reasoning, as courts have long recognised, is not deductive logic. It is a form of inferential or inductive reasoning. What it involves is "admeasuring the probability or improbability of the fact ... in issue ... given the fact or facts sought to be adduced in evidence". In the admeasurement of that probability or improbability, as courts have again long recognised, there inheres a very real risk of attaching "too much importance" to the tendency evidence - of giving tendency evidence "too much weight" . The common law traditionally took an extremely conservative approach to managing that risk, at least in criminal proceedings. The problem that inheres in tendency reasoning has come to be exposed by social science research and explained in social science literature in more precise terms. The problem is one of cognitive bias, amounting to an inclination observable on the part of most persons to overvalue dispositional or personality-based explanations for another person's conduct and to undervalue situational explanations for that conduct. The bias is towards overestimating the probability of another person acting consistently with a tendency that the person is thought to have - of treating the person as more consistent than he or she actually is. That problem of cognitive bias in tendency reasoning is separate from any added danger which might arise from the potential for a tribunal of fact to make some improper use of tendency evidence. The potential for a tribunal of fact to make improper use of tendency evidence is readily accommodated within an evaluation of the prejudicial effect of the evidence. Cognitive bias can perhaps be thought of as a form of prejudice, but it really is a problem of a different sort from the problem of a tribunal of fact making improper use of evidence. The problem is of a different sort because it inheres in the process of reasoning involved in the tribunal of fact making entirely proper use of evidence. (Footnotes removed)
In Hughes, commenting on the meaning of the term "significant probative value", the majority (Kiefel CJ, Bell, Keane and Edelman JJ) stated at [41]: there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
At [88], Gageler J added a third consideration: The connection between the two, however, lies in the particular tendency that is alleged. That is to say, whilst the focus is on the connection between the tendency evidence and the probability of the existence of the fact in issue, the particular tendency is the lens through which the focus occurs.
The majority at [42] described the enquiry into whether "the court thinks" that the probative value of the evidence is "significant" as: [An] open-textured, evaluative task … by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant.
In this case, the Commission seeks to prove that Mr Weinzettel's planting of a spy camera in the dressing room of his clinic was for the purposes of sexual gratification. In The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, the High Court stated at [58] that where a person is charged with a sexual offence (or offences) against one person, for evidence of sexual offences against another (or others) to be used for tendency reasoning purposes, there must be "some feature of or about the offending which links the two together".
Mr Weinzettel admitted, and has been convicted of, offences of a sexual nature which have not one but a number of striking similarities with the misconduct which the Commission seeks to prove against him. The first is his admitted interest in the bodies of "good looking" women. The second is that he operated a disguised or concealed camera. The third is the use of that camera for the purposes of spying. The fourth is the secretiveness of the admitted conduct and the conduct in issue. Mr Weinzettel did not inform anyone, much less Person A or the users of the change room at the Clinic, of his surveillance activities while he was carrying them out. The fifth is the failure to obtain consent from any person under surveillance. The sixth is his planting of spy cameras in rooms where Mr Weinzettel knew that women undressed in private. These similarities demonstrate a modus operandi applied in both sets of circumstances - Person A's bathrooms and the clinic change room.
Circumstantial evidence has been described as "strands in a cable" (see for example, Seltsam at [91]) - the more strands, the stronger the inference. The same effect can be observed in relation to tendency evidence. The more similarities between the facts in issue of a case in dispute and the facts of another case or other cases said to demonstrate a relevant tendency, the more probative the tendency evidence is likely to become.
In our view, because of the striking similarities between the admitted case and the facts in issue in this case, there is a high degree of probative value in the conduct admitted by Mr Weinzettel in the Local Court for which he was convicted. His spying on Person A, and the way he carried it out, which he admitted was for sexual gratification, very strongly suggests that his motive for setting up the disguised spy camera in the dressing of the clinic was also for the purposes of his own sexual gratification and not for the purpose of catching out the cleaners.
The tendency evidence alone renders it highly probable that the secreting of the hook camera in the clinic change room was for the illicit purpose of spying on women for sexual purposes. When other aspects of the evidence are also taken into consideration, the inference becomes overwhelming.
First, when the police arrived at the Clinic, Mr Weinzettel did not tell them that he had installed the camera or explain that it had been used to detect poor cleaning. His reaction was to ask Police to contact him about the camera because "his brother" had "enough on his plate". That response implies that his brother could not assist Police with their inquiries. That was untrue.
Second, his wife stated that Mr Weinzettel had told her that he had "destroyed the family". He then related his story about trying to detect the cleaners with the spy camera. That explanation, on the face of it, was consistent with his innocence. Why then did he believe he had "destroyed the family"? In all the circumstances as we now know them to be, including the spying on Person A, that statement can only be rationally interpreted as the product of a guilty conscience.
Third, Mr Vidaic's evidence of admissions to him by Mr Weinzettel is plausible, consistent with the known facts and also consistent with Mr Weinzettel having a guilty conscience. In his statement of 13 February 2018, Mr Vidaic related that Mr Weinzettel had admitted installing the hook camera but had claimed it was to catch out the cleaners. According to Mr Vidaic, he responded by telling Mr Weinzettel that he was "an idiot" because "you can see if it's clean or not". That was a statement of fact and demonstrated the implausibility of Mr Weinzettel's story. There was no need for a camera to detect poor cleaning. All that anyone had to do was to examine the rubber mats and the floors of the changing rooms. Mr Weinzettel tried to deal with that problem by self-deprecation but it was an unconvincing response.
Mr Vidaic's evidence in his statement of 14 August 2018 that, during the drive to the police station, Mr Weinzettel had apologised and told him that he, Mr Weinzettel, "had a sickness and needed help" is an admission that is consistent with his confession to his wife that he had "destroyed the family". It is evidence of a guilty conscience. It is also broadly consistent with a desire "to come clean" and with his admissions to Police and his pleas of guilt in respect of offences relating to Person A. We reject the submission that, because of a partnership dispute, Mr Vidaic falsely manufactured Mr Weinzettel's admission of being sick and needing help, cannot be accepted. Against the background of all the other proven evidence, that admission has a ring of truth. It may be that, under stress, Mr Weinzettel has forgotten making this admission to Mr Vidaic. In our view, however, wherever the evidence of Mr Vidaic and Mr Weinzettel are in conflict, for the reasons outlined, we prefer that of Mr Vidaic.
Fourth, Mr Weinzettel's claim that the hook camera installed was angled so as to capture images of the floor and could not record images of human beings above knee height is so implausible as to verge on the preposterous. He asserted for the first time at the hearing that the camera angle was 45 degrees and he had learnt that from its instruction manual. The claim is criticised by the Commission as recent invention. He has produced no evidence to support the contention. That, in itself, makes the claim problematic.
But it is also inherently unconvincing because the hook camera was intended to place persons (the cleaners according to Mr Weinzettel) under surveillance and to capture their activities. Surveillance cameras are common. They are designed for security purposes to capture and record activity in whole spaces, such as railway platforms, entrances to buildings, shops, bank chambers and the like. They can also be used secretly by, for example, law enforcement agencies to record criminal activity. It would defeat the purpose of such cameras and recording devices if they only recorded floors and persons under surveillance from the knees down.
All this evidence, taken together, leads inevitably to the conclusion that Mr Weinzettel has not been truthful about the purposes for which he installed the spy camera in the changing room. We reject his explanation and find that the purpose of installing the camera was for his own sexual stimulation or gratification.
We find particular 1(d) of Complaint 2 proven.

Unsatisfactory professional conduct

The conduct particularised in Complaint 2 is proven or admitted. We find that conduct to be both "improper" and "unethical" conduct relating to the practice of physiotherapy. It follows Mr Weinzettel is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

Complaint 3: failing to report being charged with, and convicted of, offences under s 91L of the Crimes Act

Complaint 3 is admitted. It relates to Mr Weinzettel's failure to report to the National Board within seven days of being charged with and convicted of offences under s 91L of the Crimes Act.
On 13 November 2018, Mr Weinzettel was charged with several offences under the Crimes Act. On 21 October 2019 he was convicted of seven counts of offences under s 91L of the Crimes Act.
By s 130(1) of the National Law, Mr Weinzettel was required to notify the National Board in writing within seven days of being charged and/or convicted of offences "punishable by 12 months imprisonment or more". Each of the offences for which Mr Weinzettel was charged and convicted was so punishable. Mr Weinzettel failed to notify the National Board that he had been charged with offences under the Crimes Act. In addition, while he telephoned the National Board on 16 November 2019 to report being convicted of offences under the Crimes Act, he failed to notify the National Board in writing and within seven days of being convicted as required by s 130(1) of the National Law.
It is agreed that these failures amount to "unsatisfactory professional misconduct" as defined by s 139B(1)(b) of the National Law.

Complaint 4

Complaint 4 is that Mr Weinzettel is guilty of professional misconduct under s 139E of the National Law. Section 139E defines professional misconduct to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In support of Complaint 4, the Commission relies upon Complaint 2 (individually) and Complaints 2 and 3 together.
Section 139E of the National Law requires us to evaluate whether the conduct the subject of Complaint 2 individually, and/or together with the conduct the subject of Complaint 3, is "sufficiently serious to justify suspension or cancellation" of Mr Weinzettel's registration: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19]. In referring to the definition of professional misconduct in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, Basten JA emphasised in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 that the definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: [67].
In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct.
It almost goes without saying that installing a covert camera for the purpose of filming patients, without their consent, in circumstances where the practitioner is motivated by sexual arousal or sexual gratification is conduct of a serious nature. We find the conduct particularised in Complaint 2 to be of a sufficiently serious nature to justify suspension or cancellation of Mr Weinzettel's registration. While serious, the conduct particularised in Complaint 3 is not sufficiently serious to justify suspension or cancellation.

Summary

Complaints 1 and 3 are admitted. Complaints 2 and 4 are proven.

Orders

The Tribunal, having found Dr Weinzettel guilty of unsatisfactory professional conduct, orders that: 1. The proceedings are listed for directions in respect of the conduct in Stage 2 of the matter on 12 February 2021.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 January 2021

Medical Practice Act 1992(NSW)

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