1. The parties have come together to seek directions about the use or otherwise of certain context relationship evidence in a formal hearing fixed for 17 December 2013.
2. The therapeutic relationship between the notifier and the practitioner is longstanding.
3. The allegations levelled against the medical practitioner are as follows:

During a consultation on 19 October 2010 he kissed his patient, CB;

During a consultation on 19 October 2010, he fondled her breasts; and

During a consultation on 19 October 2010, he made inappropriate comments to her.

1. On 20 October 2010, CB gave a statement to Victoria Police arising out the events alleged to have occurred on 19 October. She stated she had been the doctor's patient between 1990 and 2010 and that during various consultations in that time the practitioner had cuddled her, kissed her in the lips, cheek and neck, fondled her breasts, grabbed her bottom and grabbed her around the waist.
2. Ultimately CB decided she did not wish her allegations to proceed in the criminal law forum and on 9 November 2010 she submitted a notification to the applicant Board with an account similar to that made in her police statement. The account referred to sexualised conduct by the practitioner over a period of time.
3. The Board referred the allegations to a Performance and Professional Standards Panel which for one reason or another was unable to reach a conclusion. The matter was then referred to this Tribunal.
4. On 10 November 2012 CB provided the Board with a statement relating only to the events of 19 October 2010.
5. By a document entitled "Amended Table of Uncharged Acts" the Board advised that it proposed to rely on evidence of acts occurring in consultations between CB and the practitioner prior to 19 October 2010 as context relationship evidence.
6. The respondent objects to this course. There have been sensible and productive negotiations between the parties about much of the proposed evidence and what remains in contention (omitting details of the particular evidence) is described as follows:

1. It is agreed, as Dr Freckleton put it, that the Evidence Act 2008 (Vic) does not apply to proceedings in VCAT by reason of section 98(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It is acknowledged that it is appropriate to draw upon evidence law generally and for decisions to be made on the basis of evidence with probative force when the allegations are essentially criminal in nature. In circumstances where the stakes for the practitioner are high and his or her livelihood and professional reputation are at risk, the principles in Briginshaw v Briginshaw[1] apply , as does the statutory encapsulation of similar principles set out in section 104 0f the Evidence Act. Of course, pursuant to section 97 of the VCAT Act, the Tribunal is bound to act fairly in all proceedings and pursuant to section 98(1)(c) may inform itself on any matter as it sees fit.
2. Relevantly Dr Freckleton's submissions (supported by relevant authorities) were as follows:

Uncharged acts can be adduced in a criminal trial to establish either an improper 'sexual interest", also known as "guilty passion" (most often between an adult and a child), or in the context of a relationship in which the evidence of the complainant and the accused is to be assessed and evaluated.

Context relationship evidence is evidence that provides background information allowing a fact-finder to assess and evaluate the other evidence in a case in a true and realistic context. It can be relevant to the credibility of the complainant in that her account of a particular incident may be seen to be more capable of belief when seen in the context of what the complainant says was her relationship with the accused. It may explain on the complainant's version why the accused and the complainant acted in the way that they did where, without the context of the relationship, the acts may be inexplicable and therefore seen as implausible. It can prevent the fact-finder from forming a wrong impression that the complainant's allegations arose "out of the blue".

1. Dr Freckleton was at pains to emphasise that the Board does not rely upon the uncharged acts as evidence of improper sexual interest or as tendency evidence. Rather the evidence of uncharged acts is relied upon as context relationship evidence. He submits that the evidence is relevant and admissible because:
   • (a) in the case against the respondent the particular contextual relevance of the uncharged acts is that is goes to the Notifier's credit and allows a proper evaluation of her admitted uncertainty as to events on the occasion of the 19 October 2010 consultation. In the statement obtained by the Board from the notifier dated 10 November 2012, she states that "unrelated matters" had confused her recall of the events of 19 October. It seems clear that she is referring to the earlier occasions on which she says the respondent behaved inappropriately; and
   • (b) without the uncharged acts, evidence of the events of 19 October might be regarded as anomalous - the inference might be drawn otherwise that they were an inexplicable spontaneous sexual assault.
2. Dr Freckleton's written submissions concluded that any evidence that is probative of the Board's case can be said to be "prejudicial" to the interests of the practitioner. However, he submitted that it is only unfairly prejudicial evidence that will be excluded. No finding or determination can be made against the doctor for matters other than the 19 October 2010 allegations referred to the Tribunal by the Performance and Professional Standards Panel.
3. Mr Clements, appearing for the practitioner, prefaced his submissions by emphasising three points. First, the allegations against the doctor relate only to events on 19 October 2010. Second, the doctor denies that he behaved inappropriately during that consultation and also denies that he behaved inappropriately towards CB on any previous occasion. His third point was that no charges have been laid against the doctor in relation to prior matters, and that, he submits, is because the evidence about them lacks the necessary specificity to support a charge. As he put it "that is tantamount to saying the evidence about the alleged prior misbehaviour is too vague ever to lead to a finding that the prior misbehaviour occurred. So, on the one hand [Dr Freckleton] concedes that the evidence about the alleged prior acts is insufficient to ever lead to a finding being made about them, but on the other hand, wants to have it all placed before the Tribunal so that it can colour to the disadvantage of [the doctor], the evidence that relates to the consultation on 19 October 2010. If the evidence about the alleged prior episodes of misbehaviour is too weak to lead to a finding that they occurred, it shouldn't be allowed in to colour the evidence about what happened on 19 October 2010."
4. He submitted that it is not necessary to know about the assertions of prior misbehaviour which, as he puts it, are not sufficiently specific to lead to an allegation, to understand the context. If I understand him correctly that is because the context is that of a longstanding doctor/patient relationship.
5. Properly he submitted that the evidence could not be said to be entirely without probative value but his submission was that the probative value was insufficient to outweigh the significant prejudice that might flow to his client. Such evidence, he submitted, was of insufficient probative weight to justify its admission given the evidence would be prejudicial to the doctor's defence because it carries with it the danger that the Tribunal might form the view that such evidence made it more likely that the respondent engaged in the alleged professional misconduct on 19 October 2010. This would be an impermissible use of that evidence.
6. Mr Clements also expressed a fear that, were the impugned passages to be allowed, it could lead to problems at the eventual hearing with time spent challenging witnesses' assertions and thus necessitating substantial cross- examination and leading to an inefficient hearing. That might be so but with the exclusion of the hearsay evidence, the chances of such difficulties are in my view minimised. It is my understanding that, with the exception of item 55, all the hearsay items originally listed have been excluded by arrangement.
7. The subject of context relationship evidence and its use was aired comprehensively by the Victorian Court of Appeal in WFS v R[2]. Both counsel helpfully referred me to this case. The accused in that case was charged with, and found guilty of one count of committing an indecent act and one count of incest by a parent following a trial in which evidence of prior sexual misconduct by the accused towards the complainant was led by the prosecution and expanded on in cross-examination by the defence as part of an attack on the complainant's credibility.
8. Robson AJA (with whom Buchanan JA and Whelan AJA agreed) dealt with the principles relating to the admission and use of relationship evidence in order to identify the use to which the evidence may or may not be put, along with setting out obligations of the trial judge. The authorities he reviewed established the following:

(1) The relationship evidence must satisfy the admissibility tests under s 55 and s 56 of the Evidence Act 2008. It must be relevant to some issue in the case.

(2) Relationship evidence of conduct with a sexual connotation between the complainant and the accused, other than that which is the subject of the offence or offences charged, may be relevant in two different ways:

(a) the relationship revealed may place the events which give rise to a particular charge into their true context, as part of the essential background against which the evidence of the complainant and of the accused necessarily fall to be evaluated; and

(b) the guilty passion of the accused revealed - or, in less inflammatory terms, the sexual desire or feeling of the accused for the complainant - is directly relevant to proving that the offence charged was committed.

3. The first category of evidence is usually described as context relationship evidence and the second as 'guilty passion' or tendency or propensity relationship evidence.

(4) The 'guilty passion' evidence, if admitted, may be used to establish that the accused is more likely to have committed the sexual acts he is charged with.

(5) The context relationship evidence must not be used to establish that the accused is more likely to have committed the sexual acts he is charged with.

(6) The context relationship evidence may be used to assess and evaluate the evidence of the complainant and the accused about each version of the alleged offences.

(7) The trial judge should identify the relationship evidence and must instruct the jury on the use to which the relationship evidence may and may not be used.

(8) Ordinarily, the trial judge must direct the jury that:

(a) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; (the substitution direction) and

(b) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have so on the occasions charged (the propensity direction).

(9) Simply because the evidence is said to disclose the relationship of the accused and the complainant, it does not necessarily follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potentiality to prejudice the fair trial of the accused.

1. What is particularly relevant to this present matter is the emphatic statement of the Court of Appeal that context relationship evidence cannot be used to establish that the accused (in this case the doctor) is more likely to have committed the acts he is charged with; that simply because evidence is said to disclose the relationship (in this case that of doctor and patient) it does not necessarily follow that it is either relevant or has sufficient probative weight to justify its admission having regard to its potential to prejudice the doctor's fair hearing; and that it may be used to assess and evaluate the evidence of the notifier and the doctor about each version of the allegations.
2. There are a number of factors to be considered. I have already touched on the Briginshaw standard, on the fact that the Tribunal is not bound by the rules of evidence but sensibly pays heed to them, that the Tribunal is bound to observe the rules of natural justice, bound to ensure a fair hearing and to make such enquiries as it sees fit. The regulatory framework for health professionals is designed to provide protection of the public and to ensure the maintenance and upholding of appropriate professional and ethical standards.
3. The Tribunal is of course acutely aware that these hearings are stressful for the participants and on occasions calamitous for the professionals and notifiers concerned. But is also acutely alive to its responsibility to act fairly to all parties and to ensure the public protection objective of the legislation is not lost.
4. Whilst on a casual glance at the materials one might agree with Mr Clements' submissions that the evidence sought to be utilised is of limited probative value, I do not (save for item 55) consider it is outweighed by any significant prejudice or manifest unfairness to the doctor. The Tribunal well understands the constraints on the use of such context evidence and the limitations attached thereto but such evidence might well provide background information that would assist in the evaluation of other evidence in, as Dr Freckleton put it, a true and realistic context. This is particularly so in relation to items 10-20 (being extracts from the statement made by CB) and of course this colours the approach to the remaining items numberer 57-61, 64, 69 and 70 each of which can be admitted also.
5. I am not persuaded that the words in paragraph 10 of item 55 can remain, given that all the other evidence of a hearsay nature from that witness has already (and with good reason) been excluded by agreement.
6. It will be necessary for the tribunal books already filed to be retrieved and altered and for the appropriate clauses to be blacked out.
7. The Tribunal's ruling is that, with the exception of item 55, the evidence referred to in the items described in the table in paragraph 9 is admissible in these proceedings.
8. Of its own volition the Tribunal orders pursuant to section 101(3) of the VCAT Act that any information that might enable a person to identify the notifier in this referral is not to published or made available to the public in general.

[1] [1938] HCA 34; (1938) 60 CLR 336

[2] [2011] VSCA 347