Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to Register - Procedure, evidence and appeal - Tasmania - Not bound by the rules of evidence - Evidence improperly or illegally obtained - Discretion to exclude evidence.

Forensic Procedures Act 2000 (Tas), s46.

Evidence Act 2001 (Tas), ss3, 4, 8, 138.

Medical Practitioners Registration Act 1996 (Tas), ss50(12), 51(1), Sch5, cl 1(b).

R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228; Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482; Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82, referred to.

Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to Register - Procedure, evidence and appeal - Tasmania - Nature of proceedings.

Medical Practitioners Registration Act 1996 (Tas), ss49E, 51.

Dickens v The Law Society A42/1981; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN NSW 136; Johns v Law Society of New South Wales (1982) 2 NSWLR 1; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366, referred to.

Appeal and New Trial - Appeal - General principles - Admission of fresh evidence - In general - Appeal by way of re-hearing from a statutory tribunal - Counsel's failure to comply with client's instructions - Miscarriage of justice.

Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Fernando v Medical Complaints Tribunal (No 2) (2003) Tas R 337; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366; R v Birks [1987] NSWLR 667; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124; Nudd v R [2006] HCA 9; (2006) 80 ALJR 614, referred to.

Judgment Number: [2006] TASSC 73

1 The Medical Complaints Tribunal having heard a complaint against a medical practitioner, Ian Anthony Martin ("the practitioner"), referred to it by the Medical Council of Tasmania ("the Council") pursuant to the Medical Practitioners Registration Act 1996, s51(1), found the practitioner guilty of professional misconduct in that in or about January 2004, he formed, and thereafter maintained until 5 March 2004, a sexual relationship with a named female patient ("the complainant"). The Tribunal ordered that the practitioner's name be removed from the Register of Medical Practitioners and made other consequential orders. The practitioner has appealed against the Tribunal's finding and orders. The grounds raise two issues:

* whether the Tribunal erred in admitting evidence of the DNA profile of the practitioner; and

* whether the failure of counsel for the practitioner to put to the complainant that the DNA finding of cells in her high vagina was not a consequence of intercourse between herself and the practitioner, but was an artefact created by the complainant planting DNA of the practitioner in her vagina, warrants allowing the appeal.

2 The complainant's evidence was that the last occasion upon which she had sexual intercourse with the practitioner was on the evening of 5 March 2004. Later that night, the complainant attended the Launceston General Hospital where vaginal swabs were taken from her. The swabs were examined, the relevant findings being:

* spermatozoa were not detected on the high vaginal, low vaginal and vulval slides;

* the high vaginal, low vaginal and vulval swabs tested positive with a screening test for semen;

* the high vaginal swab was examined further and tested positive with a second screening test for semen. This result suggested the possible presence of aspermic semen.

3 A male DNA profile was obtained from a sample taken from the high vaginal swab. That profile did not match any of the profiles then held on the DNA database system ("the database") maintained pursuant to the Forensic Procedures Act 2000. Thereafter, in about April 2005, a DNA profile was obtained from a sample taken from the practitioner by Tasmania Police pursuant to the Forensic Procedures Act. That profile was entered on the database. It matched the male DNA profile obtained from the high vaginal swab that had been taken from the complainant on 5 March 2004. Evidence of this match was tendered to the Tribunal in an affidavit sworn by Cory Griffiths, who, as a forensic scientist with Forensic Science Service Tasmania, was an employee of the Commissioner of Police. On behalf of the practitioner, it was put to the Tribunal that the evidence of the DNA match should not be admitted as the disclosure of that evidence breached the Forensic Procedures Act, s63, the effect of which is that a person who has access to any information stored on the database must not intentionally or recklessly disclose or cause the disclosure of that information except as authorised by that section. The practitioner contends that the disclosure was not authorised by s63. As that contention was not challenged before the Tribunal or on this appeal, I proceed on the basis that the disclosure breached the section.

4 Before the Tribunal the challenge to the admission of the evidence of the practitioner's DNA profile proceeded on the basis that the Tribunal had a discretion to exclude the evidence and that the appropriate way for the Tribunal to approach the exercise of that discretion was by reference to the Evidence Act 2001, s138, which is as follows:

"138 Discretion to exclude evidence improperly or illegally obtained

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law -

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning -

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law."

5 Pursuant to s138(3)(e), a matter to be taken into account in assessing whether the desirability of admitting evidence outweighs the undesirability of admitting it is "whether the impropriety or contravention was deliberate or reckless". In addressing this matter the Tribunal said that the wrongful disclosure of the practitioner's DNA profile appeared to have been made in good faith and concluded that it could not be said that it was a deliberate or reckless contravention. On behalf of the practitioner it is contended that this conclusion was erroneous and vitiates the Tribunal's decision to admit the evidence.

6 The approach taken by the parties, both before the Tribunal and on this appeal, assumes that the Tribunal had a discretion to reject the DNA evidence and that it was appropriate to consider its admissibility by reference to the Evidence Act, s138. I address those assumptions.

7 The Tribunal is a statutory body that is required to hold a formal inquiry into complaints referred to it about medical practitioners, the Medical Practitioners Registration Act 1996, s51(1).

8 The Evidence Act, s4, provides that it applies to all proceedings in a "Tasmanian court", which encompasses both criminal and civil proceedings; Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 158 A Crim R 546 [21]. The term "Tasmanian court" is given an expanded meaning by the Evidence Act, s3, and includes "a body (other than a court) that in exercising a function under the law of the State, is required to apply the laws of evidence." The effect of the Medical Practitioners Registration Act, s50(12), is that the powers and procedures of the Tribunal are as contained in Sch5, cl 1(b) of which provides:

(b) is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate; ..."

9 Accordingly, as the Tribunal is not required to apply the laws of evidence in the exercise of its functions, it is not a Tasmanian court and the Evidence Act does not apply to it. (In any event it would not apply to the Tribunal as the Evidence Act, s8, provides that the Act does not affect the operation of the provisions of any other Act, so, in the face of the Medical Practitioners Registration Act, Sch5, cl 1(b), it could not impose rules of evidence on the Tribunal.) That the Evidence Act, s138, does not apply to the Tribunal may not dispose of this issue. It is well established that at common law a criminal court has a discretion to reject evidence that was obtained illegally, unfairly or improperly. As to that discretion, in R v Ireland [1970] HCA 21; (1970) 126 CLR 321, at 334 - 335, Barwick CJ, with whom the four other members of the court agreed, said:

"Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion : or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

10 This passage was quoted in Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 72 by Stephen and Aickin JJ, who described it as representing the law in Australia. In Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 at 30 - 31, Mason CJ, Deane and Dawson JJ said:

"At least since Bunning v Cross , it has been 'the settled law in this country' that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police. ... In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of 'high public policy' relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty."

11 The genesis of this discretion is the need to protect the integrity of the criminal justice system (Ridgeway at 33 and Nicholas v R [1998] HCA 9; (1988) 193 CLR 173 at 210) and for many years its application was confined to the criminal jurisdiction of the court. As observed by Underwood J, as he then was, in National Mutual Life Association of Australasia Ltd v Chris Poulson Insurance Agencies Pty Ltd [1997] TASSC 65; (1997) 7 Tas R 10, par5:

"The common law of evidence is that there is no discretion in civil proceedings to exclude relevant evidence of an excessively prejudicial kind or evidence improperly obtained. See Ibrahim v R [1914] AC 599 at 610; Hurst v Evans [1917] 1 KB 352 at 358; Manenti v Melbourne and Metropolitan Tramways Board [1954] VicLawRp 19; [1954] VLR 115."

However, as noted by Underwood J, in Pearce v Button (1985) 8 FCR 388, Pincus J, at 402, cast some doubt on the proposition that in civil cases there is no discretion in the court to exclude evidence improperly obtained.

12 In Miller v Miller [1978] HCA 44; (1978) 141 CLR 269, a family law case, Gibbs J, at 277, cited Bunning v Cross as authority that the court had a discretion to exclude evidence that had been unlawfully obtained. He did not advert to the notion that the discretion did not apply to a civil court. In Mazinski v Bakka (1979) 20 SASR 350, Wells J, agreed with by White J, at 381, expressed the view that a civil court's residual power to prevent an abuse of process gave it authority to exclude evidence that was obtained by means of criminal conduct and added:

"But it would, in my view, require a strong case to warrant a court's taking such a course - for example, cases where acts of torture or extortion had been employed."

"It is therefore unnecessary to decide whether a judge in a civil case has a discretion to reject admissible evidence, particularly evidence which has been unlawfully obtained, and the extent of any such discretion. There has been a marked development of the law in recent years as to the basis and extent of the discretion in criminal cases: viz The Queen v Ireland; Bunning v Cross. Perhaps a parallel development is to be looked for in relation to civil cases."

13 In Sheldon v Sun Alliance Ltd (1988) 50 SASR 236, at 247, von Doussa J commented that there may be a discretion in civil proceedings to exclude evidence that has been obtained by a serious and deliberate infringement of legal rights of another. In The Duke Group Ltd (In liq) v Pilmer (1994) 63 SASR 364, Mulligan J said, at 377 - 378, that he did not accept that there was a discretion in a court to reject admissible evidence in civil proceedings excepting perhaps in two circumstances. One being where the evidence would result in procedural unfairness, and the other being where the evidence had been obtained by a serious and deliberate infringement of the legal rights of another.

14 It is understandable that there is uncertainty about the circumstances in which the common law rules of evidence apply to a civil court constituted by a judge without a jury. The common law rules of evidence are a product of the jury system and were developed because of the perceived need to prevent particular classes of evidence being submitted to the jury; Wigmore on Evidence, 3rd ed, 1940, 4b. There is no uncertainty about the circumstances in which the common law rules of evidence apply to a statutory tribunal, it depends upon the terms of the legislation governing the particular tribunal. Wigmore (supra) at 31 cautioned, "that any attempt to apply strictly the jury-trial rules of Evidence to an administrative tribunal acting without a jury is an historical anomaly, predestined to probable futility and failure". It is perhaps with admonishments of this nature in mind that legislation which governs a statutory tribunal commonly includes a provision to the effect that the tribunal is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate. That a tribunal is not bound by the rules of evidence means that it may have regard to evidence that is logically probative regardless of whether it is legally admissible under the rules of evidence; R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 and Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, Brennan J at 493. It is perfectly consistent with concepts of procedural fairness to apply a provision that a tribunal is not bound by the rules of evidence so as to admit evidence that may not be legally admissible but is logically probative; Bowen-James v Walton NSW CCA 5 August 1991 unreported at 6 and Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82 at 90. This does not mean that the rules of evidence are to be ignored as being of no account; Bott (supra) at 256 and Pochi (supra) at 492. That a rule of evidence would apply to exclude otherwise logically probative evidence may be a guide as to its reliability and weight.

15 When the Forensic Procedures Act came into force on 1 January 2001, it was well established that a court exercising criminal jurisdiction had a discretion to exclude illegally, unfairly or improperly obtained evidence. As has been mentioned, the existence or scope of such a discretion in a court exercising civil jurisdiction was less clear. More pertinently it was notorious that many statutory tribunals and the like that dealt with evidence were not bound by the rules of evidence and had no discretion to refuse to admit relevant evidence. As noted in Cross on Evidence, 7th Australian edition, LexisNexis Butterworths, 2004, par11120, at 352:

"It is interesting to note in proceedings where the general exclusionary rules of evidence do not apply, for example in some tribunals, there is no room for an exclusionary discretion. Where statute has sought to extend the range of material available to the tribunal, it is not for the tribunal to cut it down as it chooses by the exercise of any such discretion. Rosedale Mouldings Ltd v Sibley [1980] ICR 816 at 822."

16 It is against this background that the Forensic Procedures Act was enacted, s46 of which provides:

"The rules of evidence relating to illegally, unfairly or improperly obtained evidence apply to evidence obtained under this Act."

17 Little detailed attention was given to this section in the hearing before the Tribunal or the appeal to this Court. I do not read the section as extending the application of the rules of evidence relating to illegally, unfairly or improperly obtained evidence beyond the courts to statutory tribunals that are not bound by the rules of evidence. As to bodies bound by the rules of evidence, the purpose of s46 is to make express that which would otherwise only have been implicit. To my mind there is nothing ambiguous or obscure about s46, however, if there is, the construction I place on it finds support in the clause notes furnished to Parliament in relation to the Forensic Procedures Bill 2000. The notes provide as to cl 46 (s46 as enacted) that:

"This clause states that the ordinary rules of evidence relating to illegally, unfairly or improperly obtained evidence apply to evidence obtained under the Bill. The courts already have a general discretion in relation to the exclusion of evidence which is illegally, unfairly or improperly obtained. This provision ensures that these rules continue to apply."

Section 46 ensures that a court's general discretion to exclude illegally, unfairly or improperly obtained evidence applies to evidence so obtained under the Forensic Procedures Act. The section does not purport to extend that discretion to a tribunal or body that is not bound by the rules of evidence.

18 If, contrary to my view, the Tribunal has a discretion to exclude evidence which is illegally, unfairly or improperly obtained, a significant factor to be taken into account in the exercise of that discretion is the function performed by the Tribunal. The Tribunal is not called upon to address considerations of "high public policy" relating to the administration of criminal or civil justice. The Tribunal's function is to hold a formal inquiry into a complaint about a medical practitioner and dependent upon its findings, take action as authorised by the Medical Practitioners Registration Act ("the Act"), s52, that being:

* ordering the removal of the practitioner's name from the Register of Medical Practitioners;

* ordering the suspension of the registration of the practitioner;

* imposing conditions on the registration of the practitioner or requiring that the practitioner refrain from specified action;

"9 The Council must perform its functions and exercise its powers under this Act so as to -

(a) ensure that medical services provided to the public are of the highest possible standard; and

(b) ensure that persons practise medicine according to the highest professional standards; and

(c) guard against unsafe, incompetent and unethical medical practices."

20 An important means by which the Council achieves these objectives is the reference of complaints it receives in relation to practitioners to the Tribunal for investigation.

21 Proceedings before bodies such as the Tribunal, that are required to investigate complaints against members of a particular profession, trade or calling, are commonly referred to as disciplinary proceedings, see for example the Act, ss37(1)(f), 49(1)(b) and 49B and Parnell v The Medical Board of Queensland [1999] 1 Qd R 362 at 384. However, to so describe the proceedings can mislead. There is high authority for the proposition that the powers given to bodies such as the Tribunal are entirely protective in character and no element of punishment is involved. The powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the particular vocation that will continue its good reputation, and so protect, not only the future of those involved in the vocation, but also protect those who deal with them; Dickens v The Law Society A42/1981, Cosgrove J at 15 and 16. Proceedings before the Tribunal are not conducted as if the Council is the prosecutor in a criminal cause or as if the Tribunal is engaged in the trial of a civil cause. The jurisdiction is a special one and it is not open to a practitioner called upon to provide an explanation in relation to a complaint to lie by and engage in a battle of tactics; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN NSW 136 at 142 - 143. The Act, s49E, details the circumstances in which the Council is "required to institute a formal inquiry into a complaint" by referring it to the Tribunal and the Act, s51, requires that "[t]he Tribunal is to hold a formal inquiry into each complaint referred to it". The characterisation of the proceedings as an inquiry places upon a practitioner the obligation to assist an inquiry into his or her conduct, rather than adopting a stance, as in adversary criminal litigation, that no obligation lies on the practitioner to assist the inquiry. The obligation to inform and assist has always been regarded as resting upon a practitioner in these circumstances; Johns v Law Society of New South Wales (1982) 2 NSWLR 1 at 6. In citing these authorities, I did not ignore the reality that in terms of the nature of the allegations that are often brought before bodies such as the Tribunal and the possible consequences for a respondent, in some ways the investigation is closer to a criminal proceeding than a civil proceeding; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366 [67].

22 The practitioner denied having sexual intercourse with the complainant. In those circumstances a crucial issue before the Tribunal was whether the male DNA profile derived from the high vaginal swab taken from the complainant matched the DNA profile of the practitioner. It might be said that consistent with the practitioner's obligation to inform and assist the Tribunal, he should have provided the Tribunal with his DNA profile or at least the means of establishing it. It may also be that his rejection of a formal request to do so could have resulted in the suspension of his registration until he complied. That he did not volunteer evidence of his DNA did not convert the inquiry into a criminal prosecution in which the role of the Council is equated with that of a prosecutor. A prosecutor of a criminal trial who received illegally, unfairly or improperly obtained evidence of an accused's DNA profile might be expected to decline to tender the evidence, but take steps to obtain the evidence by alternative means. For example, police could be requested to place the accused under surveillance until he or she discarded a cigarette or the like from which a DNA profile could be extracted. R v Kane [2004] NSWCCA 78 is authority that it is not improper to obtain DNA evidence in this way and that such evidence is admissible. Whilst the Council may have resorted to similar means in order to obtain evidence of the practitioner's DNA profile, surveillance of this nature, at the behest of the Council, could bring it into disrepute, an outcome that would undermine its capacity to maintain the standards and standing of the medical profession. There is a public interest in maintaining the integrity of the Council as well as the integrity of the medical profession. In all the circumstances, if the Tribunal had a discretion to exclude the evidence of the practitioner's DNA profile, I am satisfied that it should not have been exercised against admitting the evidence. The first issue raised on the appeal fails.

23 In the course of its detailed reasons for finding against the practitioner, the Tribunal understandably placed significant reliance on the DNA evidence, as to which it concluded:

"We are satisfied that the forensic testing carried out on (the complainant) on the evening of 5 March 2004 resulted in the detection of semen from which male DNA was extracted and which in turn was ultimately shown, well nigh conclusively, to be that of Dr Martin's. Aspermic semen is consistent with a vasectomised male, as is Dr Martin. Even if the swabs were not semen, the fact remains that there was some substance present in the high vaginal swabs from which his DNA was extracted."

24 In the course of explaining its reasons for reaching the above conclusion, the Tribunal said:

"It was not suggested to (the complainant) that she had in some way orchestrated the presence in her vagina of some material from which Dr Martin's DNA was extracted. There was no evidence, or any suggestion at all, as to how such material could have found its way into that position, other than the sexual intercourse as asserted by (the complainant)."

25 The second issue raised on the appeal relates to these matters. The issue is expressed in the following terms in the amended grounds of appeal:

"The Appellant had instructed his legal advisers that the DNA findings of a cell in the high vagina of the Complainant was not a consequence of intercourse between himself and the Complainant but was an artefact created by the Complainant by planting the DNA of the Appellant in her vagina. Counsel for the Appellant failed in accordance with these instructions to put this case. Counsel was instructed by the Appellant as to matters relevant to the knowledge of the Complainant as how to so plant his DNA in her vagina. The failure by counsel for the Appellant to put these aspects of his case caused the proceedings to miscarry as the acceptance by the Tribunal of the presence of the Appellant's DNA in the vagina of the Complainant was central to its findings."

26 It is to be noted that this ground does not (and indeed could not) assert error on the part of the Tribunal. An appeal against the decision of the Tribunal is an appeal by way of re-hearing on the evidence before the Tribunal; Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337. As explained in Adamson v Pharmacy Board of Tasmania [2004] TASSC 32 [21]:

"Ordinarily, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. This is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors ((2000) [2000] HCA 47; 203 CLR 194), Gleeson CJ, Gaudron and Hayne JJ, 203 [14], see also Kirby J, 224 [75]. Error is not demonstrated by putting before the appellate court additional evidence which shows that a primary decision-maker made a decision in ignorance of relevant evidence which was not before that decision-maker; Cleaver v Powell [1979] Tas SR 134, Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 and Webster v White A58/1991."

However, as recognised in the above decisions and by the members of the Full Court in Fernando v Medical Complains Tribunal [2004] TASSC 130; (2004) 12 Tas R 366, in appropriate circumstances evidence that was not before a tribunal can be received on appeal and may result in the appeal being allowed, notwithstanding that no finding of error is made on the part of the tribunal. Pursuant to the legislation governing appeals from criminal trials, such an outcome is dependent upon whether the appellant establishes that there has been a miscarriage of justice; see, for example, the Criminal Code Act 1924, s402(1). The drafting of this ground of appeal reflects this criterion (the failure of counsel is said to have "caused the proceedings to miscarry"), as do, not surprisingly, the authorities relied upon to support the ground, they being authorities referable to criminal trials.

27 The evidence before the Court as to the practitioner's instructions to his counsel before the Tribunal is contained in the affidavit of Amber Cohen, who was the practitioner's solicitor for the purposes of the Tribunal's investigation. Paragraphs 3 and 4 of her affidavit are as follows:

"3 AT all times Dr Martin maintained that he had not had sex with the complainant, as alleged or at all. His instructions to me, in relation to the match of the complainant's vaginal swab and his DNA, were that the complainant saw him on the day the swab was taken. He claimed that she must have obtained a sample from him in some way. Whilst he had little recollection of the complainant's short consultation upon him on the 5th March 2004 he instructed me, after refreshing his memory from his file, that the complainant was very upset on that day since her cat had died. Dr Martin recalled that she cried and that he tried to console her. He believed that she tried to hug him and claimed that she could have lightly scratched him on the neck, arm or wherever thereby obtaining a sample of his DNA. Or he claimed she might have touched his toothbrush from his basin in his rooms, or somehow obtained his DNA sample from his home (she knew where he lived and had apparently visited there). Or, he said, in some other way [s]he may have obtained his DNA sample as seen on one of the many forensic shows on television. Dr Martin maintained that the complainant must then have inserted the sample into her vagina, then went to the Police and volunteered the sample. He instructed me that the complainant was familiar with DNA sampling having previously provided a DNA sample to the Police in a case where she alleged she had been raped by one [X].

4 WHILST acting for Dr Martin he provided me with information (see paragraph 5 infra) regarding the contamination and planting of DNA samples. I passed that information on to Mr Read, his counsel either by on-forwarding the materials provided to me by Dr Martin, or by verbally advising him of my instructions."

28 The information referred to in par4 of the affidavit is comprised of a substantial number of documents, none of which contain what can be categorised as an emphatic instruction that counsel put to the complainant that the DNA found in her high vaginal area was artificially planted by her. The documents include a letter written by the practitioner to Ms Cohen dated 14 September 2004, which is some time after it was known that a male DNA profile had been obtained from the high vaginal swab, but before it was known that the profile matched that of the practitioner. Relevant paragraphs from that letter are as follows:

"Now as a bit of a flight of fancy I wish to explore the following speculation:

She might have had some knowledge of forensic procedures, remembering that she had been involved in the drug rape case of some notoriety [X]. Vasectomised sperm fluid is often very difficult to profile for DNA since there is no sperm and not much genetic material therein. Any of her doctor friends would have told her this if she asked. In fact this seems to be the case here since the Police report states that a sample was sent for profiling but no mention is made as to whether there was any success with it. (Incidentally, as no mention is made of successful profiling there is no reason for me to provide my sample for matching, which is fine by me. It might be best to leave it as it is).

What if the whole episode of 5/3/04 was a set up to nail me? The phone calls at lunch time may have been aborted due to her realization that what she was about to do was pretty monstrous. Then she phoned up again and made the arrangements (to obtain medications which she could have got on her appointment on 1/3/04), arriving as late as possible when she knew I would still be in attendance. Unfortunately for her (and/or any potential witnesses who might have been accompanying her) I did not give her much time and saw her out of the door. She was very emotional which she explained to me by having to put down her cat, but in fact because she was feeling guilty about what she was doing. She then spends 2 hours God knows where, possibly dosing herself up with something and then obtaining her vasectomised sample. Then she goes home, puts on her hysterics, the caring Father takes her to the Police and the Hospital where samples are taken, all according to her plan. That would explain the timing of her complaint very well. And then she suddenly stops attending me, phones me a few days later that I am out of her class and I will never marry her and it is too traumatic for her to attend, possibly giving me one more chance to change my mind. But all this is just speculation."

In a subsequent letter dated 27 October 2004, which was also written before it was known that the DNA profile obtained from the high vaginal swab matched that of the practitioner, he wrote:

"There is, therefore, no reason why I should be giving any samples since there is no chance of the Tribunal actually having anything to compare it to. I would then be on the Police database without disproving anything in the way you suggested.

Also, since there is so little male genetic material in the high vaginal swab there is possibility of deliberate contamination. Just as a flight of fancy; say, for instance, that the female would stand up, feel faint and start falling and in the process scratches the man and gets a bit of blood behind her sharp nails. Then she inserts the scrapings into her vagina and bingo!! There is some DNA in the sample. I am not saying that she would have done this, but we must remember the constant stream of forensic shows on the telly."

29 Further documents attached to Ms Cohen's affidavit include notes of conversations she had with the practitioner after the DNA profile match was established. They include a reference to the possibility that the complainant might somehow have gained the practitioner's DNA cells and planted them and a reference to the need to obtain expert evidence as to the possibility of a sample from which a DNA profile was obtained being contaminated. In order to establish that evidence of the latter could be elicited before the Tribunal, Ms Cohen apparently spoke to Cory Griffiths, the forensic scientist who swore the affidavits tendered to the Tribunal in relation to the DNA evidence. Subsequent to that discussion, Ms Cohen sent an email to the practitioner's counsel to the effect that Cory Griffiths agreed that the DNA evidence could have been planted, but that it was a "very, very long shot".

30 When Cory Griffiths was cross-examined before the Tribunal, he agreed that a problem with DNA profiling was that the sample from which the profile was obtained could have been contaminated at the crime scene or in the laboratory. He further agreed that the DNA of a person could be planted by an alleged victim to frame that person and he said that this was a particular possibility where the sample from which the profile was obtained was portable. So, to this extent, counsel for the practitioner placed before the Tribunal evidence of the possibility that intentional or unintentional contamination could explain the practitioner's DNA profile being obtained from the high vaginal swab. However, the practitioner by his ground of appeal says that his counsel should have taken this matter further. Before this Court Mr Hore-Lacey QC on behalf of the practitioner has contended that the practitioner's counsel before the Tribunal should have cross-examined the complainant in relation to the possibility that she had planted evidence of the practitioner's DNA in her vagina. In advancing this contention, Mr Hore-Lacey acknowledged that as the complainant had stood by the veracity of her evidence of having had sexual intercourse with the practitioner, there was very little chance of her admitting that she had planted the DNA evidence. Mr Hore-Lacey contended that whilst the complainant was never going to admit planting the DNA evidence, counsel for the practitioner could have cross-examined her about such matters as opportunities for her to obtain DNA material from the practitioner which she could have planted in her vagina. Mr Hore-Lacey properly acknowledged that there is sometimes a fine line to be drawn between the appropriateness of counsel following an instruction and the rule that it is for counsel to determine the way in which a case is run. Accepting, for present purposes, that counsel for the practitioner was instructed to put to the complainant that she had planted evidence of the practitioner's DNA in her vagina, the decision of counsel as to whether that course was in the interests of the practitioner was a difficult one. There was no realistic possibility that the complainant would admit planting the DNA evidence and there was little advantage to be obtained from exploring with her the opportunities she had of obtaining DNA material from the practitioner. There was ample evidence before the Tribunal of her having contact with the practitioner in circumstances where she might obtain such material. The attachments to Ms Cohen's affidavit show that the practitioner recognised that his speculation that the complainant had planted the DNA evidence in her vagina was a flight of fantasy. It is perhaps pertinent that the practitioner did not air this speculation, or more particularly provide any basis for it, in the affidavit he swore for the purposes of the hearing before the Tribunal or in the course of giving evidence before the Tribunal.

31 This ground of appeal has been carefully drawn so as to confine the practitioner's complaint to an allegation that his counsel failed to comply with an instruction. The ground has properly not been embellished by a claim as to the incompetence of counsel; see McKenzie v Edmondson (1996) 15 WAR 391 at 402. As to appeals based on the conduct of counsel in the course of a criminal trial, in R v Birks [1987] NSWLR 667, Gleeson CJ, agreed with by McInerney J, said at 684 - 685:

"It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.

The relevant principles, may be summarised as follows:

1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

32 The reference in principle 3 above to the "flagrant incompetence" of counsel must not be permitted to distract attention from the core issue which is whether there has been a miscarriage of justice; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124, Gaudron J [31] and McHugh J [97] and Nudd v R [2006] HCA 9; (2006) 80 ALJR 614, Gleeson CJ [2] Gummow and Hayne JJ [24] and Kirby J [64 - 68].

33 The fact that a decision of counsel was made without, or contrary to, instructions will not, of itself, attract appellate intervention; R v Birks (supra) and TKWJ v R, McHugh J [79]. A great deal of latitude must be accorded to counsel and the discretion retained by counsel in relation to a hearing is extremely wide; TKWJ v R and Nudd v R, Kirby J [79]. Putting aside subsidiary considerations, a decision will only be set aside if there is a significant possibility that the acts or omissions of counsel of which complaint is made affected the outcome of the hearing; Nudd v R, Gummow and Hayne JJ [24] and TKWJ v R, McHugh J [74] and [97]. Where it is claimed that a miscarriage of justice was the result of a course taken in the hearing, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question; TKWJ v R, Gaudron J [33].

34 A note attached to Ms Cohen's affidavit of a conversation between her and the practitioner's counsel as to his reason for not putting to the complainant that she had planted the practitioner's DNA, records counsel's explanation as being to the effect that there was no chance of the complainant agreeing she had planted the evidence or of establishing a claim that she had planted the evidence, and to have adopted that course would have vilified the complainant and been viewed harshly (to the disadvantage of the practitioner) by the Tribunal. This explanation is consistent with that which I infer from all the circumstances of the case. The advantage of the course adopted by counsel is not slight compared to the disadvantage of confronting the complainant with the proposition that she had planted the DNA evidence. There was no real disadvantage to the practitioner in the course that was taken. There is no significant possibility that counsel's failure to put the planting proposition to the complainant affected the outcome of the Tribunal's investigation. This ground of appeal fails.