1. The respondent is entitled to the presumption of innocence. It is for the Board to prove the allegations against the respondent to the reasonable satisfaction of the Tribunal. The respondent does not have to prove anything. The burden of proof remains at all times on the Board.
2. In Rajagopalan v Medical Board of South Australia,[6] the Full Court of the Supreme Court held that the correct standard of proof was proof on the balance of probabilities. Mulligan J (with whom Cox and Williams JJ agreed) stated:

It was contended before Debelle J that the appropriate standard of proof which should have been applied by the Tribunal was proof beyond reasonable doubt when making findings of fact. Debelle J rejected that contention and concluded that the correct standard of proof was the standard in civil proceedings as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which, of course, means that in deciding whether a fact has been proved on the balance of probability, the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequence of a particular finding, must affect whether the fact has been proved: see Dixon J at p. 362. > > ... In my view, Debelle J was correct in his conclusion.

3. The relevant passages from the judgement of Dixon J in Briginshaw v Briginshaw (Briginshaw) are as follows:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". [citations omitted] This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

4. We have approached this matter in accordance with those principles. We note the gravity of the allegations and the seriousness of the potential consequences for the respondent. We give weight to the presumption of innocence. We note that the respondent has an unblemished record. The conduct alleged is such that we should not find it proved without clear proof.

1. AB gave her evidence by video link as she is now located interstate. Some special arrangements were put in place for AB to give her evidence. We direct ourselves that no inference adverse to the respondent can be drawn from this and that it must not influence the weight to be given to the evidence.
2. The first allegation relates to an incident that occurred on 3 June 2010. The respondent was not notified of the allegation and interviewed by police until September 2019. We must have regard to any forensic disadvantage that may have been suffered by the respondent as a result of the lapse of time between the incident and the hearing.
3. The first allegation relates to circumstances where only AB and the respondent were present. The evidence of AB must be closely scrutinised. The competing accounts of AB and the respondent must be carefully examined in the light of the totality of the evidence. However, it is not simply a case of preferring one account over another. The evidence of a witness may be accepted in whole or in part. We must consider the truthfulness and the reliability of each aspect of the evidence. Rejection of part or all of the respondent's evidence does not mean that contrary evidence should be accepted. The truth may lie outside of the evidence given by either party. Even if the respondent's evidence was totally rejected, we must consider whether we are satisfied to the requisite standard by the remaining evidence in the case that the allegations have been made out.
4. As is common in matters of this nature, we had before us previous statements of AB concerning events on 3 June 2010. We remind ourselves that previous consistent statements from a witness do not add to the credibility of the evidence. An account of an event does not gain any additional force from being repeated. Conversely, however, any previous inconsistent statements do have the ability to adversely affect the credibility of a witness.
5. With those factors clearly in mind, we have reached a state of reasonable and comfortable satisfaction concerning the findings we now make.

1. Unfortunately, the transcript of evidence before the Tribunal commences at page 1 for each day of the hearing. Accordingly, we indicate that for the purpose of transcript references we will refer to the days of hearing by the day and month as follows:

1. The respondent was acquitted in the Adelaide Magistrates Court of the offence of indecent assault. This acquittal is not a bar to disciplinary proceedings based on the same or similar alleged conduct.[7]
2. Section 11(2) of the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Health Practitioner Act) provides:

In the course of any proceedings, the Tribunal may -

(a) receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of Australia, of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper, and

(b) adopt, as in its discretion it considers proper, any findings, decision, judgement, or reasons for judgement, of any such court, tribunal, or body that may be relevant to the proceedings.

1. Section 39 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) provides (inter alia) as follows:

On the hearing of any proceedings, but subject to the provisions of the relevant Act -

(a) the procedure will, subject to this Act, be conducted with the minimum of formality; and

(b) the Tribunal is not bound by the rules of evidence, may adopt, as in its discretion it considers appropriate, any findings, decision, or judgement of a court or other tribunal (insofar as may be relevant to the proceedings before the Tribunal), and may otherwise inform itself as it thinks fit; and

(c) the Tribunal must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.

1. We have before us the judgement of the Adelaide Magistrates Court.[8] In acquitting the respondent of the offence of indecent assault, the learned Magistrate stated:[9]

"I am therefore placed in a position as a finder of fact that I cannot be satisfied as to where the truth lies in [AB's] allegations and the defendant's denials, as I have found both to be credible. > > In that circumstance, I cannot say the prosecution have proved the charge beyond reasonable doubt."

2. The respondent invited the Tribunal to adopt the findings of the Court.[10] It was submitted that this approach would advance the statutory objectives of the Tribunal and that it was desirable in the interests of consistency of outcome. Carpenteri v Registrar of Firearms[11] (Carpenteri) was cited for the proposition that the findings should be adopted as findings in criminal proceedings are generally reliable. However, the relevant passage from the judgement of the Chief Justice in Carpenteri was as follows:

Plainly enough, findings made by a criminal court in criminal proceedings are generally reliable. However, it will not always be appropriate to adopt them in administrative decisions which are made under legislative schemes calculated to protect the public. The purpose of criminal proceedings is the conviction and punishment of offenders and the exoneration of the innocent. Convictions are generally based upon findings made beyond reasonable doubt. They may therefore constitute a sound basis on which to proceed in schemes calculated to protect public safety.

3. Plainly, the Chief Justice was observing that convictions based on findings made beyond reasonable doubt would generally constitute a sound basis on which to proceed in administrative proceedings. However, the same is not true of acquittals based on the existence of a reasonable doubt. To simply adopt such findings would be to ignore the difference in standard of proof and to put at risk the objective of protecting the public. Hence it will often be appropriate for a tribunal to decline to adopt a finding of acquittal and to hear and determine the matter according to the civil standard of proof (as previously discussed). This observation is implicit in the judgement of the Chief Justice and in his endorsement of the following passage from the judgement of Pritchard J in the Supreme Court of WA:[12]

First, ... the Commission is required to engage in a quite different task from that of a Court dealing with a prosecution. The Commission applies a different standard of proof and may have regard to evidence which would not be admissible in a Court where rules of evidence apply. Moreover it does so in order to decide if conduct which is alleged constituets [sic] a proper cause for disciplinary action. In that context, a conclusion that proper cause existed for disciplinary action on the basis that a licensee engaged in conduct which breached the LC Act would not be inconsistent with an earlier decision to acquit the licnesee [sic] of an offence in respect of that conduct. > > Secondly, as I have already observed, the purpose of disciplinary proceedings is quite different from the purpose of criminal proceedings. The object of criminal proceedings includes the punishment of those who disobey the law, while the object of disciplinary proceedings is to protect the public by maintaining standards of behaviour of persons permitted to work or carry on business in a particular industry or profession ...

4. The difference between criminal and disciplinary proceedings was further explained by the NSW Court of Appeal in Health Care Complaints Commission v Litchfield:[13]
5. We do not consider it to be appropriate in the circumstances to adopt the findings of the Magistrates Court. The Court, constrained by the requirement of proof beyond reasonable doubt, did not know where the truth lay. This Tribunal has to apply a different standard of proof. Whilst the issues are similar, they are not the same. We have had the advantage of an extensive examination of the evidence before this Tribunal. We do not find ourselves in a position where we do not know where the truth lies. Having due regard to the Briginshaw principles, we have been able to reach a comfortable and reasonable state of satisfaction concerning our findings.
6. The Tribunal does have before it the evidence taken in the Magistrates Court.[14] We have had regard to that evidence in our consideration of the matter.

1. It is convenient at this point to also address another submission made (but not ultimately pursued) on behalf of the respondent arising from the proceedings in the Magistrates Court.[15]
2. Reference was made to s 34(4) and (5) of the SACAT Act. It was suggested that this hearing before the Tribunal was in some sense a "rehearing" of the decision made by the learned Magistrate in the Magistrates Court proceedings. Thus, it was said that s 34 permitted the Tribunal in its discretion to receive further evidence (s 34(5)), but that the Tribunal must give appropriate weight to the decision of the original decision-maker (s 34(4)).
3. As was clarified at the time, s 34 applies to administrative reviews conducted in the review jurisdiction of the Tribunal. This proceeding is a proceeding in the original jurisdiction of the Tribunal. It is certainly not a review of the Magistrates Court judgement, something which of course this Tribunal would have no jurisdiction to embark on. It was ultimately accepted, as we understand it, that s 34 has no application to these proceedings.
4. The Tribunal is not considering whether to depart from the decision of the Magistrate. It has declined to adopt the findings of the Magistrate. It has heard the matter ab initio and must come to its own decision on the evidence before it and in accordance with the principles applicable to disciplinary proceedings.[16]

1. At the time in question, the respondent and AB worked in the Emergency Department of a Hospital (the ED). The respondent was a Registrar (Registrar). AB was a Resident Medical Officer (RMO). The respondent's position was more senior to that of AB.
2. On 2 June 2010 the respondent and AB both worked a shift in the ED that concluded at about midnight. They agreed to go after work for a hot drink at a bakery sometimes visited after work by staff from the Hospital.
3. They agreed to stop at the respondent's home on the way so that he could collect his wallet. AB followed the respondent in her own vehicle to the house. It was a cold night and AB went into the respondent's house. They decided to stay at the house rather than go to the bakery. At some stage they watched a movie.
4. AB was at the respondent's house for about three hours.[17] After leaving the house, AB drove a short distance away from the house and stopped. She telephoned her then boyfriend. On his evidence, she was highly distressed and complained that the respondent had thrown himself on her and kissed and groped her against her will. She then telephoned the police. This call was recorded, and the tape (and a transcript) is in evidence. The tape was played during the hearing. AB complained to the police officer in the course of the conversation that the respondent:

"tried to kiss me and then he got on top of me and then he wouldn't stop kissing me and he put his hand up my shirt"

"it was just, he wouldn't stop kissing me and touching me."

1. During the call AB sounds very distressed and appears at times to be crying.
2. AB and the respondent gave competing accounts as to what happened at the house in the early hours of the morning.

1. At the time of giving evidence, AB was practising as a specialist medical practitioner interstate.
2. AB deposed that in 2010 she was doing her rotations as a RMO at the hospital.
3. She had completed intensive care medicine and then moved to the ED on 5 May 2010.
4. On 2 June 2010 she worked a shift that finished at approximately midnight. A group of staff had discussed going to the bakery to get a hot chocolate after work. This was something that occasionally occurred.[18]
5. In the end, the others pulled out and it was only herself and the respondent who were going to the bakery. The respondent indicated that he would need to drop by his home to pick up his wallet which he had forgotten. She drove in her vehicle, following the respondent to his house. She was sitting in her car outside of the house. It was a cold night and he invited her in whilst he went to get his wallet.[19]
6. AB identified and adopted a sketch of the respondent's house that she had drawn during the Magistrates Court proceedings.[20]
7. The respondent suggested that they might as well stay and have a cup of tea or a drink at the house. AB did not drink alcohol. She did not think the respondent had any alcohol either.[21]
8. At some point they decided to watch a movie. It was called "Obsessed". They were sitting on the couch which faced the television.[22] During the movie the respondent started coming closer and then he attempted to kiss AB.
9. AB pulled straight away and told him that he had the wrong idea. She indicated that she was not interested as she had a boyfriend. She did not let him continue to touch her. She said something similar to wanting to leave.[23]
10. The respondent was apologetic and said that he did not know that she had a boyfriend. He said that she should not go because it would make it awkward at work. AB decided to stay.[24]
11. At some point the respondent said that he wanted to get something to eat. He went to the kitchen area and started making instant noodles with an egg. At some point, AB was in the kitchen area with the respondent. He made a comment about her weight and then he physically picked her up and carried her over to the couch. He sat down so that she was across his lap.[25] This was not the same couch that they had been sitting on to watch the movie. It was the other couch. AB's recollection was that the two couches were in an 'L' shaped configuration.
12. When the respondent had picked up AB in the kitchen area she had said, "Stop. Put me down. Stop. Put me down." She said this in a pretty direct manner. She was still saying "Stop" or "Put me down" when he was sitting on the couch with her.[26]
13. AB's evidence continued as follows:[27]

AB: So I can't recall how, but he then was on top of me. So he - I'm still on the couch; I'm now lying on the couch. He's on top of me, and my - I remember my arms were like this, so up near my head, um, and I - like, I specifically remember my wrists being up here. > > MR DUGGAN: Yes. > > AB: And then he's holding my wrist, he's kissing me and he's [cries] - sorry. He's kissing me and he's, like, licking and kissing and - just my face and my neck, and he's got his hand up under my shirt and on the outside he's just - he's groping me and it's [cries] (inaudible). > > MR DUGGAN: All right. Tell us - > > AB: Sorry. > > MR DUGGAN: That's okay. Tell us, do you recall what you were wearing? Were you wearing your same scrubs after work or had you changed? > > AB: I was wearing jeans and a top and I know I was wearing an overcoat that night, but I don't know if that coat was on or off at that point, um, on the couch, but I was wearing jeans and a top. > > MR DUGGAN: Okay. Um, and you described him kissing you and kissing your - below your neck; is that right? > > AB: Like, this kind of region. > > MR DUGGAN: Okay. I think the Tribunal Members can see that. > > AB: Sorry, it's like the base neck, upper - you know, where your shirt sits. > > MR DUGGAN: And what were you saying while he was doing that? > > AB: Um, so I started crying. I told him to stop. I said - > > "Please don't". > > Um, I might've said - > > "What are you doing?" > > but I was crying. And I said - > > "Stop." > > Um, and then at one point, um, he - I don't remember exactly how - he had a hand over my throat. Um, and I remember at that point asking him - > > "What are you doing?" > > [cries] and he said - > > "I'm choking you." > > AB: So he, at some point, was off me. I don't remember exactly, um, how it worked 'cause, at that point, I remember looking around and tried to, you know, I guess, process everything, but I - I don't remember exactly; I'm sorry. I know he got off me eventually, but I don't know what happened at that point. I remember being stunned, I guess. > > MR DUGGAN: What was your thought process at the time, if any? > > AB: Um, fear. There was a lot of fear. Um, there - I remember - I didn't know what else was gonna happen. I didn't know if I was about to get raped. I didn't know [cries] if I was gonna get hurt. Um, I knew that - I knew that I was, um - I was in a house and I remember, at one point, thinking [cries] - > > "I don't think anyone could hear me and I don't know who's around." > > Um, [cries] and I just wanted to get out. > > MR DUGGAN: All right. > > AB: So I was just really scared, and I just wanted to get out. > > MR DUGGAN: And, so, to that end, did you do anything? > > AB: [Cries]. Um, I distracted him. I think I asked him - I asked him to get me some water, um, and he went to the bit, and I remember just - I must've, at some point, put my jacket on or grabbed my stuff, and then I just went for the front door, um, and I just tried to leave. Front door was locked, and I - I tried, but I couldn't open it initially, but I got it open, but by the time I'd got the door open - as in, the lock - he'd come up behind me and he kind of steered me back into the main bit, saying - I can't remember exactly what he said, but saying - > > "Don't go", or something like that. Um, but - yep. > > MR DUGGAN: All right. Okay. So you're in - you're back in the main bit. You haven't successfully gone out the door. What then happened? > > AB: Um, I don't remember if that's when I asked for the water or before. I don't exactly remember, but at some point, I got to the door, got in my car, just - just drove. I just drove. At some point - 'cause the door was now unlocked - > > MR DUGGAN: Right. > > AB: - and I knew that I could leave, so I got out. > > MR DUGGAN: Just - I know it's difficult, but describe your state as you left his house. I want you to think about what state you were in and tell the Members of the Tribunal. > > AB: So I was crying, I was shaking, I was pretty distraught. I was - um, I was scared, and I also - I just needed to get away to a safe place that wasn't - I just drove. I don't remember exactly how long or - I just drove to a point where I was safe.

14. After driving to a nearby location in Mawson Lakes, she pulled over and telephoned her partner and then called the police.
15. She told her partner, to whom we will refer as BF, what had happened and where she was. She was very upset and crying. He said he would arrange for someone to come and get her. She did not think she was safe to drive.[28]
16. She then rang the police on the general communications number (131 444). She told the police officer what happened. Eventually, BF's friend (to whom we will assign the pseudonym YZ), arrived to pick her up.[29]
17. When asked what happened next, she deposed:[30]

I - honestly, past the point where he picked me up, I can't remember exactly how - who - where or - I know that I eventually went to the police station, but I think that was a fair period of time. Um, I think - he picked me up, he drove me, but at that point I was safe so - I'm so sorry; I can't remember the exact details.

18. AB attended the Holden Hill Police Station that same day to make a report (the HH report), but she was uncertain what time of day she did so.[31] A statement was not taken from her as she indicated that she did not wish further police action.
19. AB deposed that she filled out a form at the Holden Hill Police Station saying that she did not want to proceed with her complaint. She said:[32]

So there were a few factors. Um, when I went to Holden Hill, I left feeling - firstly, I was - this was immediately after. I was already very upset and very, very scared, and I was really worried about all the implications, and I also felt - I felt that they didn't care. Um, I felt that - I just - I - it - I didn't feel like I had an experience where I felt that I was gonna be supported, and I was really upset and I just - it was - I didn't want to proceed at that point.

20. On the form signed by her at Holden Hill on 3 June 2010,[33] AB explained her reason for wanting no further action as follows:

The other person involved is my senior doctor (ie superior to me) at work and I believe further action would cause him to make my work life difficult / cause me to lose my job. I also am uncertain what he may do if told about this incident report and don't want to risk any potential serious adverse effects.

21. AB deposed that she never went back to the ED to work. She advised the Senior Registrar that she would not be attending her next shift. She also informed the Administration Department and, ultimately, Hendrika Meyer, who was Head of the Department at that time, that she would not be coming back to the ED in the future. Later, in discussions with Dr Meyer, she explained to her exactly what happened.[34]
22. When AB indicated to Dr Meyer that she did not wish to go back to the hospital, Dr Meyer offered her access to an employee assistance counselling service. She also said "something along the lines of it not happening on work grounds, so, you know, she would be supportive, but that's - yeah".[35]
23. AB also deposed that at some later time[36] a part of her rotation involved her in going back to the Hospital. The respondent was working there at the time and so AB immediately made a meeting with the Head of Department, and explained to him the situation and that she would not be able to work with the respondent or in the same department as him. As a result, arrangements were made so that the respondent would be rotated away for his rotation so they would not be in same department.[37]
24. On 26 February 2011 AB attended the Norwood Police Station and requested that her complaint be re-instated. She gave a statement on that day to Constable Devitt (the Norwood statement).[38]
25. AB explained that, after giving the statement at the Norwood Police Station, she again later decided that she did not want to proceed with the complaint. She deposed that she was worried about the impact on her career. She said:[39]

Again, there were a number of different factors, but (sighs)- it's hard to explain, but I was worried about the impact of it on my career. I was worried about the impact of it full stop. I [sighs] - even now, this long afterwards, it's quite distressing to go through, so there was an element of emotion, and discussing it is hard. So there were lots of different factors that went into that decision, um, and I was worried about ramifications, as I still am.

26. AB signed a form on 28 October 2011 to the effect that she wanted no police action.[40]
27. In or about June 2018 AB reinstituted the police complaint and made a notification to AHPRA. She was interviewed by telephone on 30 June 2019 (as she was overseas) and signed the resulting statement on 17 September 2019 (the Munn Statement).[41]

1. AB was cross-examined about her evidence that there were originally a group of people intending to go for coffee. She accepted that her Norwood statement referred to the respondent suggesting a coffee and did not specifically mention a group. She suggested that the respondent may have suggested it to the group. She did not see any discrepancy.[42]
2. It was suggested to her that she had on a previous occasion attended the bakery alone with the respondent. She did not believe so.[43]
3. It was suggested that she had discussed aspects of her family and personal circumstances with the respondent, either on 3 June or an earlier date. She did not recall the details of any such conversations but confirmed the accuracy of information allegedly discussed.[44]
4. AB was cross-examined at some length about previous statements to the effect that the respondent was her supervisor. She stated:

...So in the Emergency Department, as a resident, you speak to your registrars or consultants as your supervisors[45]

So by virtue of being a registrar or a consultant in a department, one of your responsibilities is to supervise junior medical staff, as it is the responsibility of senior staff to supervise junior staff. So for example, a resident may supervise a medical student. That is common knowledge within medicine and common practice.[46]

1. AB agreed that there was usually a consultant on duty during the evening shift, but she clearly rejected the suggestion that it was inappropriate to describe the respondent as her supervisor.[47]
2. AB was asked about YZ coming to her aid after being requested to do so by BF. It was suggested that YZ had not driven her home and she responded: "I can't remember where we went immediately after".[48]
3. It was suggested that YZ did not drive her anywhere and she did not drive with YZ anywhere. She responded that she had not driven as she was "unsafe to drive". When asked where they went to, AB stated: "I can't remember because I'd just been under a traumatic experience and I can't remember the details once I was safe, so I apologise."[49]
4. She could not recall her conversation with YZ. When it was put that he had spoken to her through the window only and left her to drive herself, she disagreed and said that she didn't recall that happening.[50]
5. AB was asked about her evidence that she had distracted the respondent by asking for a glass of water. She stated that she could not recall exactly at what point she asked for water, but it was after the assault[51] had already ended. She asked for the water after the assault had ended as a way of attempting to leave the house.[52]
6. It was put to AB that she had not mentioned the glass of water in giving the Norwood statement. She stated that she could not remember what she told the police officer but agreed that it was not in the written statement.[53] She said that the statement does not contain all the details of that night. She had been asked questions and answered them. When she gave the Munn statement, she had been asked further specific questions and "we filled in the details, as it were". She stated that in later questioning (Munn), she was definitely asked for a more extensive account.[54]
7. The 131 444 call[55] was played in part to AB to establish that the police officer asked her during the call what made the respondent stop the assault. AB could not say - "He just stopped ...after a while he just stopped".[56] Presumably, the purpose of this questioning was to suggest that the glass of water was not mentioned as an answer to the question of what made the respondent stop. However, AB pointed out that she had never suggested that the glass of water had any connection to the stopping of the assault. She asked for the glass of water after the assault had ended. She did so to try to leave the house.[57]
8. She was referred to the Munn statement where she had said that she was still on the couch when she asked for a glass of water.[58] She refreshed her memory from that statement and said:

I remember looking around the room, taking notice of (inaudible) to go and knowing that I need to get out. I was still laying on the couch and crying. I asked him to get me a glass of water specifically to give me the chance to get to the door. Now, what you've asked me is about when the assault stopped, and I'm saying that assault had stopped at that point, and I'm trying to get to the door.[59]

9. It was put to AB that she had not mentioned the glass of water to any police officer before giving the Munn statement. She responded that she could not recall if she had mentioned it or not.[60]
10. AB was asked about her report to the Holden Hill police. It was suggested that she had stated in the Munn statement and in her evidence to the Magistrates Court that she gave that report to a male police officer. She accepted this but said that she could not now recall who she spoke to.[61]
11. AB denied a suggestion that she failed to mention during the HH Report that the respondent had held her by the wrist. She said that she recalled asking if they needed to take photographs and being told that there was no need.[62]
12. AB was referred to the Munn statement where she had said she remembered "being in the room with the police officer [at Holden Hill] and telling him about my wrist being sore and the pain to my neck". She confirmed that she had told the police officer that.[63]
13. AB agreed that she had felt that the police officer [at Holden Hill] didn't really care about what she was saying.[64]
14. It was put to AB that she had not told the officer that the respondent had grabbed her wrist. She responded: "My recollection is that I did tell her".
15. It was put that she had not told the officer that the respondent had grabbed her around the throat. She responded: "And I recall that I did tell her".[65]
16. AB could not remember whether she had told the police officer at Holden Hill that the respondent had carried her from the kitchen to the lounge.[66] She was cross-examined as to whether she had told the officer at Holden Hill other details concerning the incident at the respondent's house. She stated that she could not recall the details of her conversation with the officer. She said:

I remember some details, such as the photography, but I don't remember the exact words I used. I don't remember the exact person I spoke to or any of those very specific details.[67]

17. AB confirmed that she asked whether photographs were needed and was told no. She did not think that she had bruising at that point.[68]
18. AB was asked about the allegation that the respondent put his hand on her throat. She deposed:

He definitely said: "I'm choking you" after I asked "What are you doing?" 'cause I remember the extreme fear that came with that statement. So he definitely did that.[69]

19. She was referred to her evidence in the Magistrates Court[70] to the effect that she was having difficulty breathing and was concerned that she was being choked. She agreed that she had not mentioned being grabbed around the throat or choking in her call to the 131 444 number.[71]
20. As to whether she told the officer at Holden Hill that she was grabbed around the throat, AB stated that she could recall telling the officer about the wrist and neck being sore, but otherwise could not say what exactly she had said to the officer.[72]
21. AB was asked whether the officer at Holden Hill had told her that there was no point in making a report as there was no possibility of a conviction due to a lack of witnesses or CCTV footage. She stated:

I'd like to reiterate., I can't remember the exact discussion that I had, but I remember that I felt that the police officer didn't care, that the impression I was given was that it would not be useful, to paraphrase, to proceed. I can't recall the exact details of the conversation, and I still don't remember the exact details of the conversation.[73]

22. AB confirmed that she had told Hendrika Meyer that she had been assaulted by a colleague. She remembered clarifying that it had occurred "off work grounds" but could not recall whether she had told her it was at the respondent's home. She could not now remember whether she had identified the respondent as the assailant, but she believed that she had done so.[74]
23. AB could not remember what other details were discussed with Dr Meyer.[75]
24. AB was asked about the Munn statement in which she had stated: "I was completely disheartened that my workplace took no action". In response, she referred to paragraph 26 of that statement in which she had said:[76]

I told her [Hendrica] exactly what happened and the first thing she asked me was if it had happened on work grounds. She was being nice about it but she told me that there wasn't anything that she could do about it because it hasn't happened on work grounds.

25. It was put to AB that she would not tell Dr Meyer who the staff member was, and she responded: "I can't recall". It was put that Dr Meyer had conveyed to her that she couldn't do anything because she did not know who the staff member was. AB responded: "I don't recall that being conveyed to me.[77]
26. AB was asked about email communications she had with Kirsteen Knevitt, an administrative officer at the Hospital in the period 4-7 June 2010.[78] She agreed that Ms Knevitt was supportive of her. The emails suggest that Ms Knevitt was very supportive in offering to arrange alternative work placements and in encouraging AB to take the matter further. In an email on 6 June, AB stated that she had spoken by telephone with Dr Meyer and arranged to meet with her.
27. AB was shown exhibits from the Magistrates Court (MC) hearing (contained in Tribunal Exhibit C3). In MC exhibit D2 she had drawn two couches touching and forming an L-shape. She said that she had drawn them as she remembered them at the time.[79] It was put to her that the couches were as depicted in MC exhibit D4. She said she could not remember.[80]
28. The critical aspects of the respondent's account were put to the witness.[81] AB firmly rejected the respondent's version. She denied that she was "leaning into" the respondent as they sat on the couch and watched the movie. She denied he had his arm around her. She denied saying "You have to say the magic words first" when he tried to kiss her. She denied standing close to him, leaning into him, or putting her hand on his back whilst in the kitchen. She said that at no point did she initiate any physical contact with him. She denied saying: "Say the magic words" in response to him again trying to kiss her. She denied that the respondent said words like: "I don't know what you're asking or what you want". She denied that she (in that context) grabbed her jacket and went to the front door. She denied that the respondent assisted her to open the door.
29. AB had stated in the Munn statement that she had not left after the respondent's attempt to kiss her because she "was so worried about pissing him off to the point that he would make my life difficult as my supervisor". It was suggested that he could not make her life difficult as her supervisor. AB disagreed.[82]
30. Reference was made to a passage of evidence from the Magistrates Court hearing:

HH: I understand that Madam. If you were involved - assume if you were involved in a kiss in a private situation with Dr Qazi that didn't end well in a non-criminal way, you've been asked to assume, do you agree that would make the situation awkward at work from then on? > > AB: Yes.

It was suggested to AB (as we understand the cross-examination) that the situation on Dr Qazi's account of events did not end well and would have caused awkwardness at work. AB responded:

I had a boyfriend, and I was assaulted by a senior member of my department. So I'm not sure what you're asking me to assume, but those are the facts. So I'm not sure what question you're asking.

1. The Tribunal heard evidence (by video link from interstate) from BF. We also listened to the taped telephone call to police. The statements made by AB to BF and the police officer are not evidence of the truth of what was said. The evidence is called to demonstrate that AB acted immediately after the incident in a way that was consistent with what she says had occurred. It is important evidence of AB's emotional state at the time.
2. The evidence may also be relevant, of course, if it is suggested that her accounts to BF and the police were inconsistent with her present testimony. Such inconsistency can be used to undermine her credibility. We will refer in due course to submissions concerning this.

1. BF gave evidence before the Tribunal of the call he received from AB in the early morning of 3 June 2010. He stated that AB

... was really distressed. Uh, I couldn't make out initially what she was saying. Um, she was crying very, very heavily. Um, she'd been - I think it was to a dinner at a colleague's house who, um, was senior to her, um, and she said that he groped her on the couch and was kissing her chest, um, and she didn't consent to it and, yeah, she was extremely upset ...[83]

2. When asked to further describe her state, he said "I would say traumatised". He could not make out a lot of the words she was saying. She was crying very heavily. "Um, her speech was muffled by, I assume, build-up of saliva. She was wailing a bit as well. Um, yeah, uh, and stumbling over words."[84]
3. BF did not have a car, so he arranged for a friend, YZ, to go to where AB was.
4. BF confirmed that AB subsequently drove to his house and stayed there for the remainder of the night.[85]

1. The tape recording[86] of the call to the police 131 444 number is, in our view, a very important item of evidence. MC Exhibit P9a (part of Tribunal Exhibit C3) is an attempted transcript of the call, but not every part of the conversation can be deciphered. Furthermore, the transcript does not in any adequate way convey the emotional state of AB during the call. The tape recording is the primary evidence.
2. The call was made at 3.55am.[87] Relevantly, AB told the police officer:

I've just been over at a .. well, I'm a doctor and I fin, finish work - a late shift and I went to a work mate's place just to you know, we were going to watch a movie or something and he, he just, during it he, I don't, he... I have a partner but he, he tried to kiss me and then he got on top of me and then he wouldn't stop kissing me and he put his hand up my shirt and I don't know what, like yeah.

3. She said that she didn't know what to do. The police officer asked whether she wanted to report him and she answered:

I don't know, I have to work with him he's a senior to me. I'm a junior doctor. [crying] > > I don't know what I'm meant to do like

4. Later in the conversation she mentioned the intention to go to the bakery and the wallet and the decision to watch a movie because it was cold. However, her account was disjointed and largely inarticulate, consistent with her obvious distress.
5. She told the police officer that she didn't know where she was. They were able to work out her location. She stated that she had already called her partner and that a friend was coming to find her.
6. She told the police officer that her partner had said she should report the incident but added:

I was like "no [indecipherable] I just want to ask him [indecipherable] cos I don't want to report, I just want him to go away and I don't want to work with him and I just want him to not be a creep".

7. Listening to the tape recording, we find that AB's presentation appeared to be that of a person who had been severely traumatised by a recent event. We have no doubt that AB's presentation (during the telephone call) was of deep distress and that such distress was genuine.

Respondent's submission about complaint evidence

1. It is convenient to deal at this point with a submission made by the respondent as to the evidence of BF.[88] The submission is based on s 34M of the Evidence Act 1929.
2. The submission appears to suggest that the evidence of complaint to BF is not admissible to demonstrate consistency of conduct by AB as this complaint does not qualify as an "initial complaint" which is admissible under s 34M.
3. It is submitted that knowledge on the part of the alleged perpetrator of the alleged victim's lack of consent was an element of the offence of sexual assault, and without an allegation to that effect in the content of the complaint, the complaint could not be a "complaint of an alleged sexual offence" and was therefore not admissible under s 34M.
4. With respect, we consider these submissions to be misconceived. Firstly, s 34M on its own wording applies only to the trial of a criminal charge. This is a disciplinary proceeding, and it is not a trial of a criminal charge.[89] Section 34M has no application.
5. Secondly, this Tribunal is not bound by the rules of evidence.[90] The guiding principle is that evidence may be admitted if it has logically probative of the matters in issue.
6. Thirdly, the allegations as set out in the referral document do not allege an offence of sexual assault. They allege professional misconduct, namely making unwanted sexual advances towards a junior work colleague (AB) and engaging in unwanted sexualised contact with AB.[91] A sexual offence is not alleged and proof of the elements of an offence under the criminal law is unnecessary. Professional misconduct can be established without proof of the elements of a criminal offence.[92]
7. In saying this, we should not be understood as in any way diminishing the seriousness of the allegations in this case. Conduct may be proved in a disciplinary proceeding which may also amount to a criminal offence. Findings may be made in such proceedings about the absence of consent and about the practitioner's knowledge of such lack of consent. They are relevant matters, but the ultimate issue is one of professional conduct. This Tribunal does not determine criminal charges.
8. By words and demeanour, AB conveyed to BF that the respondent's conduct was unwanted and that she did not consent to it. She verbalised complaints consistent with her evidence before the Tribunal. She did not relate a complete account of the incident, but that is perfectly understandable in the circumstances.
9. The evidence of BF is admissible to demonstrate the emotional state of AB shortly after she left the respondent's house in the context of a complaint made to BF concerning the respondent's alleged unwanted conduct. This evidence can demonstrate the degree of consistency between AB's presentation and behaviour shortly after leaving the house with her evidence as to what had occurred. The evidence is probative and admissible for that purpose.
10. As previously stated, the evidence was not proffered as proof of the truth of what AB said to BF. Nor do we use the evidence in that way.

1. YZ did not give evidence before the Tribunal, but his affidavit was received by consent in the Magistrates Court proceedings.[93]
2. YZ stated that he drove to AB's location after being asked to do so by BF. He got out of his car and spoke to AB through the driver's window of her car. He could see that she was quite upset as she was crying. He asked what he could do to help her and offered to sit in the car with her. She said that she did not need that. He deposed:

I asked her if she needed the police and she told me she had called them but she seemed to say she was ok. She was quite upset so it was really hard to get much information from her. > > I can't recall how we resolved it that night., I think she calmed down enough to be able to drive. At that time I went back to my home address. > > I have no knowledge of what occurred that night but I did see her and see how visibly distraught she was.

1. At the time of giving her evidence, Detective Brevet Sergeant Woodroofe (BS Woodroofe) was an investigator attached to the Anti-Corruption Branch of SAPOL.
2. She indicated that she had done training in relation to the interviewing of sexual assault victims and had a special interest in that area.[94]
3. She deposed that in June 2010 she had been a constable stationed at Holden Hill Police Station. She was a "general duties member", embracing patrols, responding to reports of crime, station duties and taking reports from the public.[95] She had joined the police force in 2008.[96]
4. She had taken the HH Report from AB. She had no recollection of doing so but knew that she had done so by recourse to police records.
5. She identified exhibit C10 (the Shield entry) as the report she had taken.[97]
6. She was asked about the "PIMS narrative" she had entered on that form at 8.55pm on 3 June 2010. She stated that "PIMS" was the police incident management system. The PIMS narrative was "the initial narrative we put on any police incident report when we raise it with a brief synopsis of what the allegation or the incident is."[98]
7. AB would have been present with her in an interview room as she made that entry. As to the purpose and nature of the entry, she gave the following evidence:

BS WOODROOFE: Uh, it's to give, um, - input the time, date, location, the - what's briefly occurred, and usually the element of the offence, um, within that narrative, so - so whoever opens it can see basically what's happened in a brief synopsis without going and trawling the whole report. > > MR DUGGAN: Okay, I take it it's different from a statement. > > BS WOODROOFE: Yes. Very different. > > MR DUGGAN: And you said "very". How is it different. > > BS WOODROOFE: Uh, nowhere near as much detail. It would just be very brief. A statement you'd be looking at going into a lot of detail covering the whole incident.[99]

8. She also confirmed that a statement would be provided to the witness for checking and signature whereas a report would not be.[100]
9. The second entry made by BS Woodroofe was made 24 minutes later at 9.19pm. It recorded that crime scene investigation was not required, that AB had signed a Form 207A (no police action) so no statement was taken from her, and that the report was recommended for filing. She identified the Form 207A as being the document within exhibit C3 which had been Magistrates Court Exhibit P6.
10. BS Woodroofe stated that she thought she had taken the details from AB between 8.55pm and 9.19pm.[101] She thought the Form 207A was also signed during that period.[102]
11. We observe that the exhibit C10 contains no reference to the identities or details of AB or the respondent, but that information must have been recorded. The exhibit also contains no reference to the time or location of the alleged offence. The evidence suggests that this was also recorded elsewhere.
12. It is convenient at this point to set out the PIMS narrative as recorded by BS Woodroofe:

THE VICTIM IN THIS MATTER STATES THAT AT ABOVE T/D/L SHE AGREED TO GO OUT FOR A DRINK WITH HER CO WORKER FROM THE [HOSPITAL]. THEY ARE BOTH DOCTORS. THE ACCUSED THEN STATED THAT HE HAD LEFT HIS WALLET AT HOME AND REQUESTED THAT THE VICTIM FOLLOW HIM TO HIS HOUSE AT MAWSON LAKES SO HE COULD GET IT. SHE DID. ONCE AT HIS HOUSE HE SAID "DO YOU WANNA JUST WATCH A MOVIE. THE VICTIM AGREED. ONCE INSIDE THE ACCUSED KISSED THE VICTIM. SHE SAID "NO I HAVE A BOYFRIEND. THEY THEN BEGAN WATCHING THE MOVIE AND THEN HE FORCED HIMSELF ON TOP OF THE VICTIM AND BEGAN KISSING HER AND FONDLED HER BREASTS, STOMACH AND BUTTOCKS. ALL UNDER HER CLOTHES. THE VICTIM WAS SAYING "STOP I AM SCARED. I DON'T WANT TO DO THIS." HE EVENTUALLY STOPPED AFTER A FEW MINUTES. NO PENETRATION OCCURRED. THE VICTIM THEN LEFT. NIL PERMISSION GIVEN TO ASSAULT.

13. In her second entry made at 9.19pm she recorded the following "Extra Narrative":

THE VICTIM IN THIS MATTER WORKS WITH THE ACCUSED. THEY ARE BOTH DOCTORS. SHE DOES NOT WANT ACTION AT THE MOMENT AND JUST WANTED A REPORT DONE IN CASE FURTHER INCIDENTS OCCUR.[103]

14. Under cross-examination, BS Woodroofe agreed that her training and practice in 2010 was to be empathetic to victims and to indicate that she believed their story. She could not recall this report at all, but her practice was to comfort the victim and assist them to tell their story.[104] Reference was made to her evidence in the Magistrates Court where she had expressed disbelief at the suggestion that she did not care about AB's report.[105] She said that was not how she treated victims. She confirmed that she would have given AB ample time to tell her story.[106]
15. She also agreed that she had to be very accurate ("completely accurate") in the way she recorded the report.[107] She agreed that she had to be accurate as to how she recorded the physical contact between two people.[108] She agreed that, for a sexual offence, she had to accurately record the lead-up events because consent might become an issue. She agreed that she had to accurately get the sequence right and the surrounding circumstances. She agreed that she also had to accurately record how the incident came to an end. She agreed that in a police incident form, she would try to get as much detail as she could.[109]
16. Having accepted that she had all these responsibilities as a police officer taking the report, she was then asked to answer, on the basis of her usual practice in 2010, a number of questions as to what she would have done in various circumstances that were put to her.
17. She agreed that she would have recorded the fact if told that AB had been grabbed by the wrist and suffered pain. Hence, she did not believe AB had told her that.[110] If that allegation was made, it would have been her responsibility to ascertain if any injury was suffered. She would have had to consider follow-up enquiries. She would have made arrangements for photographs to be taken.[111]
18. An allegation of choking would be more serious.[112]
19. The cross-examination continued:

Mrs Shaw: So if you'd been told there was strangulation or, sorry, a grabbing around the throat, a choking mechanism, or a grabbing of the wrist causing pain, you would then put in place arrangements for, first of all, photographs to be taken at an appropriate time. > > BS Woodroofe: Yes > > Mrs Shaw: And secondly, potentially if the allegation is of holding around the throat, would you potentially have looked at considering a medical examination for that kind of allegation. > > BS Woodroofe: Possibly. Yes. Yes, it depends on the, um, details. If it was just a, "I was touched on the throat", then probably not, but if it's a strangulation, then definitely we would be recommending medical treatment. > > Mrs Shaw: And would you note that in your report > > BS Woodroofe: Yes. > > Mrs Shaw: And the fact that you haven't noted anything about choking or reference to further investigations does that indicate to you that there was no report of choking at that time. > > BS Woodroofe: That's correct.[113]

20. If AB had told her that a group of people had agreed to go out (rather than just the two of them), she thought she would have recorded that.[114] If AB had said that the respondent carried her to the couch, she would have included that in her report.[115] If AB had said that she asked for a glass of water to get away from the respondent, she would have recorded that.[116]
21. In re-examination, the following question was asked:

Mr Duggan: ...I want you to assume that what you're told is there's an indecent - facts which constitute an indecent assault, that that indecent assault comes to an end, and that, say, five minutes later, you're told as part of the report, that a request for a glass of water was made, and the purpose of the request for the glass of water was simply as a basis to distract the person who was doing it so that the victim could leave. Would that necessarily end up in the PIR report. > > BS Woodroofe: If it was me now, yes, but I don't know if in 2010 whether I would have put that in there, um, because to me it shows that the person has asked for something to, I guess, get out of that situation. So I probably would have - I think I would have made a note of that part.[117]

22. It is convenient to refer at this point to one other passage from the evidence given by BS Woodroofe in the Magistrates Court proceedings:

Prosecutor: And are you able to tell the Court why you didn't take a statement on 3 June 2010. > > BS Woodroofe: Can't recall however often when a 207A is signed depending on the circumstances we won't take a statement but it just depends I'm not sure what she said to me at that point but generally you don't do a statement if they don't want further action at that point in time. [118] > > HIS HONOUR: One because you don't want the alleged victim, him or her, to recount probably distressing details unless it's absolutely necessary. > > BS Woodroofe: Yes it can be lots of things one would be that yes for sure.

23. BS Woodroofe was of course unable to give any evidence as to AB's presentation or apparent mental state when she attended at the police station. She had no memory of such attendance.

1. Mr Devitt did not give evidence before the Tribunal. However, we have his evidence from the Magistrates Court proceedings[119] and his affidavit prepared for the purpose of those proceedings.[120]
2. He is a retired police officer, having served for 44 years. He retired at the rank of Senior Constable First Class. He deposed that he had worked in "traffic enforcement" for most of his career.
3. In February 2011 he had been stationed at the Norwood Police Station as an officer on the front counter. He had taken a statement from AB on 26 February 2011. He had no recollection of doing so.[121]
4. He explained that his usual practice in such a case was to take the person into an interview room and type the statement as he talked to them.[122] He would not take a verbatim statement. His evidence was:

Devitt: Yes, given the topic in hand, I would only include information on the statement that I deemed to be relevant to the matter in hand but again I was relatively new at the game, at the station game in that time and my career was in traffic. I wasn't wholly confident or wholly aware of what was relevant or what was not in this sort of matter,[123] under what I'd - > > HH: But you would get the person, whoever he or she was, to check the statement at the end. > > Devitt: For sure. You could check it on the screen to read it and make any amendments the person deemed fit and then I would print that off and have it signed. > > HH: That was your routine > > Devitt: Yes.[124]

5. Under cross-examination, Mr Devitt agreed that, if he had been told that the respondent had put his hands around AB's throat and said, 'I'm choking you', he would have included that in the statement.[125]
6. If AB had told him that a group of people were going for coffee, he would "possibly" have included that.[126]
7. He was asked:

Mrs Shaw: Now, is it the case that, for example, if she said to you, "I couldn't leave until I said I wanted a glass of water and I then bolted when he went to get one", you would have recorded that. > > Devitt: I would have thought so.[127]

8. A scenario was then put to Mr Devitt which involved the respondent grabbing her coat lapels and pulling her back into the room. "Where he's actually assaulted her?", he asked, and received an affirmative answer. This scenario does not fairly reflect the evidence of AB and the resulting answers do not assist the Tribunal.[128]
9. Mr Devitt confirmed that, if told that the respondent had put his hand around her throat, he would have recorded that.[129]
10. He deposed that he would have encouraged her to tell the story in her own words and would have been in no rush. The witness would have checked the document on the screen. Once printed, it was his practice to get them to read the whole document and he would give them an opportunity to make any further changes.

1. Dr Meyer gave evidence before the Tribunal[130] which was essentially consistent with her affidavit sworn for the criminal proceedings.[131]
2. She confirmed that she met with AB shortly after the 3 June 2010.[132] She could not recall what AB told her about the incident but had the impression that she had been sexually assaulted in some way. AB had told her that the incident occurred outside of the work environment. AB would not tell her who the assailant was, but said it was a current member of the ED staff. She thought that AB had indicated that the matter had already been reported to police. She recommended to AB a counselling service available to all staff. Dr Meyer obtained advice from the Human Resources Department because she was relatively inexperienced in matters of this nature.[133]
3. Dr Meyer confirmed that AB advised her she was not going to continue working in the ED. This evidence is corroborated by the email stream contained in Exhibit C9 wherein the hospital was clearly exploring other options.[134]
4. Dr Meyer was asked in cross-examination whether she had said that she couldn't do anything as the incident did not happen in the workplace. She said she could not recall saying this. She said there was no significance to where the incident occurred because the advice would have been the same.[135]
5. Dr Meyer returned at her own request to clarify aspects of her evidence. She said:

... The first is just clarifying the point about whether or not I said, um, there was nothing further I could do if something happens, whether it happened in the hospital or out of the hospital. I don't recall saying that, but I think that if I did, it would be referring to the fact that if this occurred, or if the alleged incident occurred outside the hospital, the only thing I could feel could be done at that point was to report to the police, especially as, um, there was no name given to the, um alleged assailant. If that had happened in the hospital, even in that circumstance, would have been to, um, - whether we actually held our own investigation, and that's where I would have sought advice from HR. Um, clearly, I was advised that there wasn't anything further to do at that point. Um, if [AB] had actually, um, named her alleged assailant, then, either way, that would have been reported to the Medical Board, and I know that is what I would have done ...[136]

6. We note the suggestion in the above passage that an internal investigation might only be considered if the alleged incident occurred "in the hospital". If that was Dr Meyer's understanding at the time, given her (then) inexperience with such matters, she might well have given AB the impression that the location of the incident might affect what the Hospital could do.
7. Dr Meyer also made the point that her usual approach would have been to be supportive in such a situation and she believed she would have been so on this occasion.[137]

1. Dr Meyer deposed to the progression of medical students to internship, then RMO status, then to Registrar. She stated that in the ED department the term "senior registrar" was used to describe the "most senior" non-consultant doctors in the department as indicated by years of experience and ability to perform a number of competencies. At least one such doctor would generally be rostered at night when there was no consultant at the hospital (as distinct from on call). That person would be the senior person on site and report to the consultant on call as necessary.[138] She said that the term, "supervisor", has several meanings.
2. The rosters for the relevant period appear to identify "registrars" but not "senior registrars".[139]
3. Further evidence on this point appears in the affidavits of Kirsten Knevitt[140] and Sandra Wilkinson.[141] Ms Wilkinson, a Human Resources Manager at the Hospital, also gave evidence in the Magistrates Court.[142] She deposed concerning the respondent:

He was employed as a medical practitioner and was working under the role description of a Registrar. A Registrar is a senior doctor within the unit and is required to provide support, supervision and education to junior medical personnel. His role description states: > > "A Registrar is responsible for supervision of medical students and Resident Medical Officers in consultation with Senior Registrar and consultants."[143]

4. Ms Wilkinson gave evidence that the ED did not have "Senior Registrars".[144] She confirmed that the role description of "Registrars" required them to provide supervision and education.[145]
5. Ms Wilkinson confirmed that the respondent held limited registration until August 2010, presumably as an overseas trained doctor. However, she also confirmed that the type of registration held by the respondent did not have any relevance to the position he occupied in the ED or his seniority in the ED. She opined that the respondent would have "been considered as a Senior within the Department".[146]

1. Mr Male is a personal friend of AB, who coincidentally is a Detective Brevet Sergeant of Police. He swore an affidavit for the purpose of the criminal proceedings.[147]
2. At some stage (which must have been between 3 June 2010 and 26 February 2011), AB contacted him and told him of the alleged assault. She later contacted him again to discuss the matter. He made no notes of the conversations, and his evidence is vague in some respects. In the second conversation, AB told him she had attended the Holden Hill Police Station. He deposes that she told him that the police officer there had advised her there was no point in making a police report as there was no possibility of a conviction due to the lack of witnesses or CCTV footage. She had told him that the officer had not taken a report or statement from her.
3. He recommended that AB attend the Norwood Station and make a report.

1. The respondent gave evidence in the Magistrate Court proceedings[148] and again before the Tribunal. He confirmed that his evidence in the Court was true.
2. Although the respondent is obviously an intelligent man, we are conscious of the fact that English is his second language. We have taken that into account in our assessment of his evidence.
3. The respondent stated that he was not a Senior Registrar at the time of the alleged incident. He was a Registrar.[149] He held limited registration under the National Law. This required him to be under supervision for the purpose of acquiring full registration. He later conceded (under cross-examination) that his position was more senior to that of AB, but then suggested that this was not "straightforward".[150] He supported this by saying:

Because we are working in emergency department, I was on limited registration, whereas [AB] was on full registration. I was on training. Um, yes, I had spent, uh, more time in emergency than her; that would make me senior to her.[151]

He conceded that he was several years older than AB and had more experience in the medical profession.[152] However, he did not accept that he had "any advantage or any edge over her". He stated that he was not in a position of doing AB's appraisals.[153] He was reluctant to accept that the medical profession was hierarchical.[154]

1. The respondent deposed that he had previously (prior to 3 June 2010) gone for a drink with AB at the bakery. It had been just the two of them. This was their only contact socially outside the hospital prior to the alleged incident.[155]
2. He had given some further evidence about this aspect in the Magistrates Court. He there deposed to an occasion in May 2010 when he was working on the same night shift as AB. He was told that she had been upset due to an interaction with a patient and he was asked to speak with her to comfort and support her. He did so. He deposed that he was probably approached to do this as he was the senior person in the Department actually on duty at the hospital at that time. Providing such support was part of his role.[156]
3. Subsequent to this incident, there was an occasion when he arranged to go for a drink at the bakery with AB. They conversed at the bakery for about half an hour.[157]
4. In his evidence to this Tribunal, the respondent denied that there was a group going to the bakery on the day of the incident. He stated that he and AB met in the carpark, and he suggested going for a drink. She agreed and suggested the bakery. He then suggested that he needed to go home to change from his scrubs and to get his wallet.[158]
5. When they got to his house, he drove into his garage, and she parked on the street in front of his house. He went inside, changed, and picked up his wallet. He went outside and AB was standing outside her car. He invited her into the house. She said it was cold outside and accepted his invitation. They went into the lounge area of the house, as shown in the photographs.[159]
6. The respondent confirmed that the photographs tendered in the Court proceedings accurately represented the inside of his house as it appeared on 3 June 2010. He did not have an L-shaped lounge. There were two lounges as depicted in the photographs.
7. They sat on the lounge facing the TV.[160] They were talking. The respondent was hungry and asked if they were still going out to eat. AB responded, "I'm ok", so the respondent suggested he would make some two-minute noodles. He cooked noodles and they both ate.[161]
8. They then returned to the lounge and watched a movie. They were sitting on the lounge facing the TV, next to each other. He had his right arm around her shoulders. They were both leaning into each other. He was stroking her right shoulder with his right hand.[162] The respondent's evidence continued:

R: So while watching a movie, we were also, uh, uh, regularly look at each other and, uh, we were quite cosy and at some stage, I, uh, turn to, uh, kiss her. > > Mrs Shaw: And what did she - now, what was her reaction? > > R: Um, she put her right hand on my chest and asked me to say the magic words first. > > Mrs Shaw: And did you understand what she meant by that? > > R: No, I did not. > > Mrs Shaw: And how did you - or what - how did you react to that? > > R: I get confused by what she meant by 'magic words'. > > Mrs Shaw: And so what did you do? > > R: I left the couch and went to the kitchen to have a cigarette[163]

9. The respondent deposed that AB followed him to the kitchen. She came close to him and put her arm around his back. They were "cosy" again. He went to kiss her again. She asked him to "say the magic words". He was confused and did not know what she meant by "the magic words". He said:

I don't know what are your expectations of me, and what do you mean by magic words?[164]

Mrs Shaw: And how did she react to that? > > R: Um, she got angry > > Mrs Shaw: And what did she do? > > R: She, uh, picked up her jacket from, uh, one of the bar stools and, uh, started walking towards the - a door - the door.[165]

11. He could see from her face and the way that she reacted that she was clearly angry. She just continued walking towards the door. He heard her struggling to open the door. He walked to the entrance and opened the door for her.[166]
12. AB's account was put to the respondent. He denied that he picked her up and carried her from the kitchen to the lounge.[167] He denied that he lay on top of her or held her by the wrist. He denied grabbing her by the throat and choking her. She did not complain at any stage that he was choking her. She did not ask for a glass of water at any stage in terms of leaving the house. He did not touch her breasts. He did not do anything without her consent.[168]
13. He was first spoken to by the police on 19 September 2019. He was asked to go to the Elizabeth Police Station for an interview.[169]
14. This evidence was essentially consistent with his evidence in the Magistrates Court.
15. Under cross-examination, AB's account was put to the respondent. He essentially adhered to his earlier evidence.
16. The respondent deposed that he had never gone out with a group after evening shift. He was cross-examined about his evidence in the Magistrates Court where he had said:

Q: Can I then come to 2 June, was it the case that there was a practice of sometimes going out for a drink after the shift? > > A: Yes, it wasn't very common but after the finishing evening shift, I would go out for a drink or for a meal with some of my colleagues.[170]

He said that he had gone out with individual doctors but not in a group.

1. The respondent was cross-examined about the occasion that he attempted to kiss AB whilst sitting on the couch. She had said, "Say the magic words". He did not recall saying anything in response. His response was to get up from the couch and go to the kitchen for a cigarette. He agreed that AB was smiling when she said, "Say the magic words". She said it in a light-hearted manner.[171] He was sitting at the time with his arm around her. He said he was confused by the reference to "magic words" and didn't know what she meant. However, he did not ask her what she meant. He deposed, "So, just to get my head around it, what she actually meant, I just left at the place and went to the kitchen".[172]
2. With respect to the respondent's evidence that he again attempted to kiss AB in the kitchen, he stated that she again said, "say the magic words". He deposed that she was smiling as she said this. He was confused. He said words to the effect, "I don't know what you mean, I don't know what your expectations of me are". The cross-examination continued:

Mr Duggan: What was her response? > > R: She was angry. She got angry. > > Mr Duggan: Did she answer your question? > > R: No, she did not. > > Mr Duggan: Was your state of mind, were you a bit confused as to why she didn't answer your question? > > R: I was. > > Mr Duggan: Mm. And then you say the next thing is, she became angry. ... > > R: Oh, yes. > > Mr Duggan: How quickly after you asked the question did she become angry? > > R: When I raised that question, she got angry. > > Mr Duggan: Do you say straight away? > > R: Pretty much. > > Mr Duggan: And what was it about her that indicated that she was angry? > > R: Her demeanour, the way she reacted. > > Mr Duggan: She didn't say anything? > > R: No, she didn't say anything. > > Mr Duggan: In fact, on your case, the last thing that was said was that question that you asked? And nothing was said from that point of time until she left the house, is that right? > > R: Yep, I don't remember hearing anything else, no.[173]

3. The respondent deposed that it did not occur to him to ask why she was angry. He thought her behaviour was strange. He considered that AB appeared "frustrated", but she was not crying.[174]
4. It is convenient to mention some aspects of the evidence given by the respondent in the Magistrates Court.
5. At the time of giving that evidence, the respondent was employed as the Director of the Emergency Department at the Mt Gambier Hospital. He confirmed that he had no convictions of any type.
6. He had obtained his medical degree in Pakistan in 2004 and subsequently completed a PLAB exam in England in 2006. He came to Australia and started in the ED at the hospital as a RMO in April 2007. He had limited registration as an overseas trained doctor and was subject to supervision. He progressed to the status of Registrar in 2009 after passing an exam in emergency medicine.[175] He met AB when she started as an RMO in the ED in May 2010. He was 30 years old in 2010.[176]
7. After he had attempted to kiss AB on the couch, he deposed that he was more concerned to ascertain what she meant by the "magic words" than he was to pursue his interest in kissing her. However, when she came into the kitchen whilst he was smoking, he again attempted to kiss her without first asking her what she had meant.[177]
8. He deposed that his height was about six foot[178] and his weight in 2010 was about 100kg. He accepted that AB weighed about 65-70 kg and was much shorter.[179] Yet when asked in cross-examination whether he was physically capable of picking her up, his response was: "I don't know".[180]
9. The respondent denied that he wanted to establish a romantic or sexual relationship with AB[181] but later admitted that if they had kissed it may have led to intercourse.[182] He agreed that he found her "attractive".[183]

1. Counsel for the respondent made a comprehensive attack on the credibility of AB. The oral and written submissions are lengthy and framed in such a way that they are difficult to summarise. We indicate that we have carefully considered all submissions put to the Tribunal orally and in writing. The main thrust of the submissions was as follows:

(1) There are inconsistencies across the various accounts of the incident given by AB and inconsistencies between AB's evidence and that of other witnesses. These inconsistencies are significant and render her evidence highly unsatisfactory and highly unreliable.

(2) The late emergence of the "choking allegation" is of major concern.

[We take this submission to refer to AB's allegation that the respondent placed his hand on her throat (or grabbed her throat) and applied some slight pressure, and responded to her enquiry as to what he was doing by saying, "I'm choking you". (See T6/12, page 96; MC transcript C4 page 45).[184] We will refer to these assertions collectively as "the choking allegations". They are first documented by police in the Munn statement.[185]

(3) It was submitted, based on the evidence of the various witnesses, that these allegations were not made in the phone call to BF, in the 131 444 call, to BS Woodroofe, to Mr Male, or to Mr Devitt.

(4) BF's evidence as to what AB told him about the incident in the phone call on 3 June 2010 did not include any mention of the respondent pinning her down by holding her wrist, carrying her from the kitchen, the choking allegations, or the request for a glass of water.

(5) In the 131 444 call, AB did not mention the respondent pinning her down by holding her wrist, carrying her from the kitchen, the choking allegations, or the request for a glass of water.

(6) The evidence of BS Woodroofe demonstrates that AB did not mention the respondent pinning her down by holding her wrist, carrying her from the kitchen, the choking allegations, or the request for a glass of water.

(7) These allegations are embellishments or recreations or lies.

(8) BS Woodroofe's evidence suggests that AB did not mention any plan for a group to go out for coffee.

(9) BS Woodroofe's evidence contradicts the evidence of AB that she told the officer at Holden Hill about her wrist being sore and pain to her neck and asked whether photographs were needed.

(10) BS Woodroofe's evidence suggests that she would have been supportive and caring whilst taking AB's statement. AB's perception that the police officer at Holden Hill did not care and that she was not going to be supported was a distorted perception which did not accord with reality or alternatively it was an embellishment.

(11) AB believed and initially deposed in the Magistrates Court that she spoke to a male police officer at Holden Hill rather than a female (BS Woodroofe). This is another example of her perceptions being distorted and false. AB "obfuscated" in her evidence about this.

(12) BS Woodroofe's evidence contradicts the statement by AB (to Munn) that she was told that there was no possibility of a conviction as there were no witnesses and no CCTV footage. It also contradicts what AB allegedly told AHPRA about this.

(13) AB's evidence that she was not fit to drive and was driven from Mawson Lakes by YZ is contradicted by the evidence of YZ and BF.

(14) Dr Meyer's evidence is to the effect that AB did not identify the respondent to Dr Meyer as her alleged assailant and AB's belief that she did do so is incorrect. It demonstrates that Dr Meyer could do nothing about the allegation because the respondent was not identified. Dr Meyer did not say that nothing could be done as the incident occurred outside of the Hospital. AB's perception that she was not supported by her employer is at best a distorted view.

(15) The statement taken by Mr Devitt supports the view that the arrangement to go to the bakery was instigated by the respondent and does not mention any involvement of a group.

(16) The Norwood statement makes no mention of AB requesting a glass of water and then rushing to the door or of the respondent grabbing her coat lapel and "steering" AB back into the room.

(17) The statement does not mention the choking allegations and Devitt's evidence is to the effect that they were not mentioned.

(18) The documentation concerning AB's notification to AHPRA is at odds in some respects with her evidence.

(19) To the extent that AB believes that she did tell, or may have told, BS Woodroofe or Devitt about aspects of the incident they have not recorded, her evidence is contradicted by those witnesses.

(20) AB's evidence was inaccurate as to the configuration of the couches. Furthermore, the photo of the respondent sitting on the small couch[186] suggests that he was too large to be on top of AB on the other couch as she described.

(21) There were no photographs taken of the alleged injuries and no medical examination. There was no crime scene investigation.

(22) AB's evidence as to whether the respondent was her supervisor was highly unsatisfactory.

1. In assessing the evidence in relation to allegation 1 we have looked at the combined effect of the various issues raised by the respondent and have examined the evidence in its totality. We will now proceed to make observations on some of the issues raised. Of necessity, we will address the issues seriatim but we wish to stress that we have not considered them in isolation. We have looked at their combined effect and considered each issue in the context of the whole of the evidence.

1. The credibility of AB was attacked due to her statements to the effect that the respondent was her "supervisor" and could adversely affect her career. She was challenged for suggesting that he was her "senior" and could make her life difficult. It was suggested that he was in no position to affect her adversely. Her claims to the contrary were said to reflect adversely on her credibility.
2. The respondent deposed (contrary to what was stated in his own response)[187] that he was not a Senior Registrar. He was reluctant to concede that the medical profession within the hospital was hierarchical.[188] He was very reluctant to concede that his duties as a Registrar included the mentoring or guidance of RMOs.[189] He denied that it was part of his duty description to provide supervision to RMOs.[190] He sought to use the fact of his limited registration (as an overseas graduate) to suggest that the issue of their respective seniority was "not straight-forward".[191]
3. The respondent did not accept that there was any imbalance of power between him and AB. He suggested that he did not "have any advantage or any edge over her".[192]
4. We do not accept that this was the case.
5. The limited status of the respondent's registration was irrelevant, as Ms Wilkinson deposed, to his seniority or status within the ED.[193]
6. The medical profession within the hospital was hierarchical. Dr Meyer deposed to the progression from medical student to RMO, then to Registrar and then to consultant. The respondent described how he passed an examination in emergency medicine in April or May 2009 to progress from a RMO to a Registrar.[194] He had more training and experience than AB and a higher status. She was a young RMO, not quite 23 years of age, and he was aged 30.[195]
7. Evidence of the respondent in the Magistrates Court is telling. He was cross-examined about the occasion during a night-shift when he had been requested by a nurse to speak to AB because she had become upset following a patient interaction. The evidence continued:

A: Look after midnight the consultant is off-site. > > Q: Yes. > > A: And one of the registrars can be a senior registrar to overlook that department and to provide support to the junior staff if needed. So if the nurse has approached me most likely I was the senior on that night as the consultant would have gone home. > > Q: Yes. > > A: So the nurse approached me, "one of your staff member is upset can you please speak to her and address her issues". > > Q: And you didn't know the full details about the patients she was upset about as she explained in the trial but that was part of your accepted role that night. > > A: Yeah > > Q: That sort of issue > > A: Yes.[196] > > (Emphasis added)

8. Dr Meyer deposed, and we agree, that the word "supervisor" can bear different meanings. It does not strain the meaning of the word in the slightest to conclude that the respondent (on his own evidence) acted as AB's supervisor on this occasion.
9. We accept, of course, that the respondent was not responsible for conducting AB's formal assessments, although it is entirely likely that his opinions might be sought and valued by the consultants who did so. The term, "supervisor" is not limited in its scope to this formal context. It can embrace anyone who provides a degree of supervision.
10. The evidence of Ms Wilkinson establishes that the respondent was formally employed under the job description of "Registrar". The ED did not have "Senior Registrars" at the time.[197] However, the evidence of Dr Meyer establishes that the term "Senior Registrar" was used in the ED at the time to describe the "most senior" non-consultant doctors in the department as indicated by years of experience and ability to perform a number of competencies.[198] We are satisfied that the description "senior registrar" was used within the ED to describe the respondent and other Registrars of equivalent seniority. This is confirmed by the respondent's own evidence cited above. We note that the respondent claimed in his evidence to the Tribunal that he was not a "senior registrar"[199] (which was technically correct), but without clarifying that the term was used loosely in the ED to describe him and others. The true situation was described by Dr Meyer and confirmed by the Magistrates Court evidence cited above.
11. The respondent's job description as a Registrar included the statement: "A Registrar is responsible for supervision of medical students and Resident Medical Officers in consultation with Senior Registrar and consultants".[200]
12. Ms Wilkinson confirmed that the respondent was required "to provide support, supervision and education to junior medical personnel".[201]
13. We reject the evidence of the respondent insofar as he attempted to suggest otherwise.
14. We accept the evidence of AB when she stated:

...So in the Emergency Department, as a resident, you speak to your registrars or consultants as your supervisors[202] > > and > > So by virtue of being a registrar or a consultant in a department, one of your responsibilities is to supervise junior medical staff, as it is the responsibility of senior staff to supervise junior staff. So for example, a resident may supervise a medical student. That is common knowledge within medicine and common practice.[203]

15. We find that there was a sense in which the respondent could properly be described as one of AB's supervisors. He was clearly senior to her in status, training and experience, and was required to provide her with guidance, education, supervision and support. We find that there was a clear power imbalance between the respondent and AB. If so minded, he could make her life in ED difficult and at least indirectly he could damage her career. We find these propositions to be so as a matter of fact.
16. The credibility issue, however, depends more on the genuineness of AB's claimed perceptions than on the actual situation. We have no doubt that AB honestly perceived the respondent to be her supervisor. We have no doubt that she honestly perceived that he was in a position if so minded to make life difficult for her in the workplace and to damage her career. We consider these perceptions to be reasonable and understandable. We do not consider her descriptions of the respondent as "my supervisor" or her expressed concerns that he might damage her career as any basis at all to impugn her credibility.
17. Indeed, we consider that it is the respondent's evidence on this topic which reflects adversely on his credibility. He would not concede what he must have understood to be the truth of the situation.

Was there originally a group going to the bakery?

1. AB did not mention a group in the 131 444 call, and it is not mentioned in the HH Report. More particularly, the Norwood statement signed by AB states with respect to 2 June 2010:

Umair Qazi was also working in the emergency department as a senior registrar on the same shift. I had known him for a few months[204] and was on friendly terms with him. > > During the shift he had suggested going out for a coffee afterwards which I agreed to. I was walking to my car in the staff car park at the end of the shift when I met Dr Qazi. He told me he had left his wallet at home...".[205]

This contradicts the respondent's evidence that there had been no discussion earlier in the shift before they met in the car park. However, there is no mention in this statement of a group plan. Perhaps AB was not asked for that level of detail and did not think it was sufficiently significant to volunteer the information. Be that as it may, the Munn statement in 2019 is the first police record of AB's contention that a group were originally going out.[206] She then said that three or four staff members were planning to go out, but the others cancelled. She said:

I wasn't overly concerned about it being just the two of us as during the previous couple of shifts I had a significantly traumatic case which required me to debrief one on one with Qazi and as a result I felt quite comfortable with him.[207]

1. The respondent's evidence on this issue was not without its own difficulties. He agreed in the Magistrates Court that at the end of a shift finishing at midnight it was the practice that people would go out after that shift on occasions.[208]
2. He deposed in this Tribunal that "I have never been out with a group after an evening shift",[209] but was cross-examined about his evidence in the Magistrates Court where he had deposed as follows:

Mrs Shaw: Can I then come to 2 June, was it the case that there was a practice of sometimes going out for a drink after the shift? > > Respondent: Yes, it wasn't very common but after the finishing evening shift, I would go out for a drink or for a meal with some of my colleagues.[210]

His response was to the effect that he had not done this in a group. It is a fine distinction, and we find the claim that he only ever went out "one-on-one" to be not entirely convincing.

1. A further curiosity arises from his evidence in the Magistrates Court. He stated that he approached AB in the car park and asked her if she wanted to go out for a drink. There was no other staff member present. The evidence continues:

HIS HONOUR > > Q: Just remind me doctor by that time had the general plan, sorry firstly had the general plan for the ...Bakery collapsed? > > A: No. > > Q: It was still possible? > > A: The plan was still to go to the bakery > > XXN > > Q: And that had been discussed earlier in the night hadn't it? > > A: Yeah that was discussed. > > Q: And that discussion had taken place whilst you were still on duty with yourself and other staff wasn't it > > A: No > > Q: You were still on duty, that discussion had taken place while you were still on duty > > A: That discussion happened in the carpark > > Q: You just told the Court that had happened earlier on in the night so now your contradicting yourself > > A: No, I'm not contradicting myself as I said before I asked her if she wants to go for a drink in the carpark.[211] > > (Emphasis added)

It may be that the respondent simply did not listen properly to the bolded question or understand accurately what he was being asked, but the evidence is slightly puzzling.

1. The respondent was also asked during the Magistrates Court cross-examination:

Q: So it's possible then that during the shift staff did speak about going to the ...Bakery and you just don't remember it. > > A: I don't think that's possible.

We bear in mind that the respondent was not alerted to AB's allegations until 2019. This is a bold claim as to the infallibility of his memory on a very peripheral issue.

1. We are left with an issue that we cannot resolve with any confidence. The more significant consideration is how the issue may reflect on the credibility of AB. In that regard, even if we were to accept the respondent's evidence that the two of them had attended the bakery previously and that he initiated the request on this occasion in the carpark, we would not regard this matter as one which impugns the honesty of AB's evidence. Even if we were to assume that there was no group plan to go out, AB may genuinely have had a mistaken memory about this several years later. It is a peripheral issue and we do not consider that AB has deliberately lied about it. We do not consider that it calls into question her reliability on more crucial issues.

1. There is a dispute on the evidence as to how exactly how it came about that AB entered the respondent's house. AB deposed that he invited her in whilst he went to get his wallet. This would have been a polite thing to do as it was a very cold night (especially if he we getting changed as well). The respondent deposed that he entered the house through his garage door without speaking to AB and changed his clothes as well as getting his wallet. It was only when he came outside again that he saw AB standing outside of her car in the cold and invited her inside.
2. AB's version is recorded in the Norwood statement, but that was taken some 8 months after the event. The respondent was not spoken to by police until 2019. The memory of either party on this type of peripheral detail might not be accurate months or years after the event. AB's account appears slightly more likely, given that it was a very cold night, but we cannot resolve this issue with any confidence. It does not assist us in assessing the credibility of AB or the respondent.

1. The two couches were situated roughly as depicted in Magistrates Court Exhibit D4 (part of Tribunal Exhibit C3). They were two separate couches rather than one L-shaped couch. They were at right-angles to each other and thus together roughly formed an L-shape (but with a "void" at the juncture). The couch facing the kitchen was a longer couch than the one facing the TV.
2. AB drew the diagram which was Magistrates Court Exhibit D2 (again part of Tribunal Exhibit C3). She described an "L-shaped couch". Her memory of the precise configuration of the couches does not appear to be completely accurate. We do not find this surprising; nor does it cause us to doubt her account of the critical events.
3. Photographs can be deceptive as to the respective sizes of objects or spaces. The photograph of the respondent sitting on the smaller couch[212] shows him sitting forward on the front edge of the couch. Furthermore, the other couch, where AB alleges that the respondent pinned her down was, on the evidence, a longer couch. We see no reason why the events as described by AB could not have occurred on the longer couch.

AB's emotional state after the alleged incident

1. The respondent submitted that AB's "apparent distress in her call to the police and her evidence given with tears and emotion do not inform the truth".[213]
2. In support of that submission the respondent cites the well-known passage from the judgement of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy:[214]

It is true, as McHugh J has pointed out, that for a very long timer judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [47]. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana")[48]: > > "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." > > Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances[49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

3. The submission seeks to apply these comments without discrimination to the evidence of AB's emotional state on the day in question as well as her evidence before the Tribunal. Clearly, the learned justices were directing their remarks specifically to the assessment of witnesses giving evidence and to the ability of a court or tribunal to assess whether the evidence was truthful or not.
4. The evidence of BF and the tape of the 131 444 call were not proffered to prove the truth of what AB said on those occasions. They were put forward to demonstrate that AB's conduct and emotional presentation on those occasions was consistent with what she said (in her evidence) had occurred.
5. BF provided evidence of AB's emotional state during the telephone call. We accept that his evidence as to AB's emotional state is both honest and reliable. It is consistent with the Tribunal's assessment of her emotional state as apparent in the 131 444 call. We must of course consider whether AB's presentation to BF and the presentation apparent from the 131 444 call was genuine, as distinct from being a performance put on by AB. We conclude without any doubt that the presentation described by BF and evidenced in the 131 444 call was entirely genuine. It was not in any way a performance or charade put on by AB.
6. The evidence suggests that AB was highly distressed at that time, consistent with having suffered a significant trauma. We accept the evidence of YZ and BF and conclude that AB must have driven her own car from Mawson Lakes to BF's home. She has no recollection of doing so and believes that she was driven by YZ. She has no recollection of where she drove / was driven to. She has no recollection of her conversation with YZ. She cannot recall when on that day she attended the Holden Hill Police Station.[215] She subsequently believed that her report had been taken by a male police officer, whereas that was not so.[216] It is likely that AB was still in a highly distressed and traumatised condition when she attended the Police Station. This would not be at all surprising if her account of what happened at the house was true. She perceived that the police did not care about her situation. She perceived that she was being discouraged from proceeding with her complaint. These are unlikely to be accurate perceptions but, given her highly distressed condition at the time, we regard them as perceptions she genuinely formed either at the time or very soon thereafter.
7. During the 131 444 call AB expressed grave concern as to the possible effect on her career if she was to report the respondent and he became aware of that fact. We have no doubt that this was a prominent feature of her presentation at the Police Station. She signed a Form 207A in which she expressed those concerns. She expressed similar concerns in 2011 when she signed a further Form 207A. We accept that these concerns were genuine and profoundly held.
8. AB never returned to the ED. She immediately determined that she would not do so. If her account was true, AB was now dealing with the trauma of the incident and a major upheaval in her work and career situation.
9. AB met with Dr Meyer on or about 7 June 2010. It is her stated belief that she identified the respondent to Dr Meyer as her alleged assailant. We consider this to be unlikely. AB had already told police that she did not want action taken. We accept Dr Meyer's evidence that the respondent was not identified and that is why no report was made to the Medical Board. We accept that the hospital was proactive in supporting AB and attempting to find her an alternative placement. While stating that Dr Meyer was "supportive", AB formed a perception that her employer had failed to support her by taking any action. This perception was again not balanced or accurate. It presumably arose from AB's false belief that she had identified the respondent. It may also have been influenced by Dr Meyer's admitted desire to establish whether the incident occurred "on hospital grounds.[217]
10. We do not consider that AB was dishonest when she stated that she believed she had identified the respondent during her meeting with Dr Meyer. We consider it far more likely that she was mistaken. She did not remember that she had refused to identify the respondent. In normal circumstances, we would expect an intelligent person to remember a significant fact such as this. However, that is not necessarily so if a person is recalling a meeting that happened whilst they were suffering from a significant traumatic reaction and upheaval in their life. AB's inaccurate perception as to the lack of support from her employer is explicable in that same context.
11. In short, we consider it likely that AB was in such a distressed and traumatised state in the period that followed the alleged incident that her memory of that period is poor and some of her perceptions are askew. This would not be surprising, in our view, if her account of the incident was true. Individuals react in different ways to traumatic events and there is cogent evidence that AB's reaction to what had occurred was profound.
12. We have given careful consideration to whether AB's poor recall of events which occurred in the hours and days after the alleged incident indicates that her evidence as to the incident itself cannot be regarded as reliable. We do not consider that to be so. It is one thing for a person to recall details of a frightening event to which they were subjected. It is another thing again to recall more mundane details about what happened in the aftermath. If we assume for the moment that AB was subjected to the conduct which she describes, we do not find it unusual that she can recall the details of he incident but has poor memory of interactions occurring in the period immediately thereafter. When questioned about her conversation with YZ on the night in question, AB made this very point. She said that by the time of that conversation, she was "safe", and she cannot recall what happened thereafter.[218]
13. In the Munn statement, AB referred to YZ coming to assist her and said:

Everything from this point is a complete haze. I just remember knowing that I was safe at that point and that I was ok. I don't remember driving myself and I can't remember how I got to the Holden Hill Police Station.

1. The respondent points out that AB did not mention during the 131 444 call that the respondent had "pinned her down". However, she did say that "he got on top of me and then he wouldn't stop kissing me".
2. She did not mention her request for a glass of water in order to facilitate leaving the house.
3. She did not mention that the respondent had placed his hand to her throat and applied some pressure and said, "I'm choking you" (collectively, "the choking allegations").
4. We also note that she did not mention that he had carried her from the kitchen.
5. We would point out that AB was not during the call purporting to give a complete account of the incident. She was primarily expressing her distress and her confusion about what she should do. The account she did give was jumbled and disjointed. She was greatly distressed at the time, and we consider that she was in no state to completely and accurately describe the event. We do not think it at all surprising that various aspects of the incident were not mentioned. Of itself, we do not consider that the failure to mention such matters during this call necessarily provides any basis for impugning AB's credibility or reliability.
6. However, the respondent also submits that some of these matters were not mentioned in later reports or statements. What was and was not said in the 131 444 call may have some relevance in that context. We will discuss those matters in due course.

1. We would make similar comments as to the call to BF. This call, of course, was not recorded and we have only BF's subsequent[219] recollection of the conversation. He was first asked to give a statement many years after the event. It is clear that AB was distressed, wailing, and largely incoherent during the relevant phone call. She was expressing her distress and seeking help. She was not attempting to give a complete description of the event. The evidence of BF as to what she said is to be considered as part of the overall picture, but it does not, of itself, provide any substantial basis for the impugning of AB's credibility.

1. BS Woodroofe presented as a confident witness. She appears to be a diligent, competent, and experienced police officer. She spoke of her training and experience in the investigation of sexual offences. However, she was giving evidence about a report that she had taken over 10 years previously. She had no actual recollection of doing so.
2. At the time of taking that report, she was an inexperienced police officer with the rank of constable. She was assigned to the Holden Hill Police Station as a "general duties member". She had not yet acquired the specialist training or expertise in the investigation of sexual offences.
3. BS Woodroofe's evidence was primarily based on what she believed her usual practice would have been as an inexperienced constable over 10 years earlier. We consider that it would not be an easy task for her to divorce her present knowledge and experience from any consideration of what she would have done in 2010. In short, and without suggesting any criticism of her, we consider that she claimed too much in her evidence to the Tribunal. In a sense, that was understandable as she had been led in cross-examination to accept a "very high bar" in relation to what her responsibilities would have been when she took the report. We doubt that she was focussed at the time of taking the report on the need to meet all of the responsibilities put to her by counsel. Rather, as a relatively inexperienced constable, she was likely to have perceived it as the need to take a brief report upon which no action was sought. This is consistent with her description of a PIMS report as a "brief synopsis" which would have "nowhere near as much detail" as a statement.[220] The accuracy of the report was not regarded as sufficiently important to have AB check it.
4. We think it very likely that AB was still highly distressed and in a traumatised state when she attended the police station on 3 June 2010. We doubt her ability to have given a coherent and complete account of the incident at that time. We would not be surprised if she omitted important details or did not convey them coherently. We think it likely that her distressed mental state would have been obvious to BS Woodroofe. We consider it likely that a prominent feature of AB's presentation would have been her fear about the potential consequences of taking the matter further. We are not convinced that BS Woodroofe would necessarily have seen the need to record a complete and sequential account of the incident, given AB's distressed state at the time. She readily agreed in her evidence in the Magistrates Court (albeit in the context of discussing a formal statement) that "you don't want the alleged victim ... to recount probably distressing details unless it's absolutely necessary".[221] We doubt that BS Woodroofe would have thought it necessary to go beyond the details AB volunteered, to probe further to ensure that she had understood the events accurately and in sequence, or to arrange follow-up such as photographs, even if told of a "sore neck and wrist".
5. The resulting report is brief and appears to have been taken in a very short period of time. It was not shown to AB for checking or signature. It is in no way a complete report of the alleged incident obtained after careful enquiry by the officer. We doubt whether it necessarily records all of what AB said or that it records it in an accurate way. For example, although their accounts were quite different, both the respondent and AB deposed that the respondent first attempted to kiss AB whilst they were watching the movie. That is consistent with what AB said to the police officer in the 131 444 call. It is consistent with what she said in each of her statements and in evidence. However, BS Woodroofe has recorded AB as asserting that the respondent kissed AB before they started to watch the movie. We think this is more likely an inaccuracy in BS Woodroofe's understanding or recording of the allegation than an inconsistency in what AB actually said. The report makes no reference to the cooking of noodles, an event attested to by both the respondent and AB, and of relevance to the context of AB's allegations. Further, the report records that the respondent fondled AB's buttocks "under her clothes", which is an allegation not made by AB in her evidence or any of her statements. Again, we think it likely that was a misunderstanding by BS Woodroofe of what AB reported. The report contains no reference as to whether AB sustained any injury or not. It contains no detail as to how AB left the house. It contains no reference to what AB did after leaving the house. It contains no reference to her telephone calls to her boyfriend or police communications, two events that clearly occurred and were obviously highly relevant to any complete report of the incident.
6. We consider that considerable caution is required in coming to any conclusions as to what was or was not communicated to BS Woodroofe by AB on the basis of BS Woodroofe's evidence as to what would have been her usual practice as a constable in 2010. We repeat that BS Woodroofe has no recollection of taking the report and therefore no appreciation of the circumstances in which she did so or the factors that may have influenced her approach.
7. Nonetheless, there are matters of significance that need to be carefully considered in the context of AB's credibility and reliability. BS Woodroofe has not recorded that the respondent carried AB from the kitchen to the lounge. She has not recorded that he held AB's wrist, although she does note that he "forced himself on top of her". BS Woodroofe has not recorded any allegation that the respondent applied pressure to AB's throat and said, "I'm choking you" ("the choking allegations"). BS Woodroofe does not record anything about a request for a glass of water.
8. We are not persuaded that AB necessarily failed to mention the grabbing of her wrist. That aspect of the incident may well have been summarised by BS Woodroofe in the words, "He forced himself on top of her". If, however, AB failed to mention the grabbing of the wrist, we would not find that surprising in the light of her profound distress at the time of giving the statement. Her focus was on the unwanted sexual contact that she described.
9. BS Woodroofe was not certain whether she would have recorded a report that AB asked for a glass of water in order to facilitate her departure. We do not share her view that she "probably would have".[222] The report says nothing about what happened after the alleged "assault" ended, except, "The victim then left". This suggests to us that BS Woodroofe paid little attention to how that occurred and may not have recorded what AB told her. In the alternative, if the glass of water was not mentioned by AB, we again do not find this surprising, given her state of distress.
10. The allegation of being carried from the kitchen is somewhat different. It is an integral part of AB's account and part of the physical conduct that AB alleged occurred without her consent. We would have expected that this allegation would have been recorded if it was clearly and coherently conveyed to BS Woodroofe. BS Woodroofe's evidence suggests that it was not. We must consider the significance of this, given our findings as the way in which the report was taken, AB's profoundly distressed state at the time, and the likely effect on her ability to give a complete and coherent account of the event.
11. It is important to have a proper understanding of the "choking allegations". They have two components. First, AB alleges that some pressure was applied to her throat by the respondent's hand. Second, she says that the respondent replied to her enquiry as to what he was doing by saying, "I'm choking you".[223] Counsel for the Board directed our attention to the way in which AB described the first aspect.
12. In the Munn statement, she said:[224]

What happened next was as written in my first statement. I do also recall feeling his hand grab around my neck and squeezed only a little bit. It wasn't hard enough to cut of (sic) my air supply but it was hard enough not to be a mistake. I had been saying stop before this and he wasn't listening and I remember being shocked when he grabbed my neck and I recall saying to him "what are you doing". I specifically remember him saying "I'm choking you". > > At this point I was in full panic. I was already crying by this point.

13. In her evidence-in-chief in the Magistrates Court, AB said:[225]

... I was saying stop, I don't want this. I was crying then at one point, like, he's still doing this and at one point he puts his hand around my neck and I'm like and I remember 'cos I was like what are you doing? and he said "I'm choking you" and he's still, you know, he's still going.

14. In her evidence in this Tribunal, AB deposed:[226]

Um, then at one point, um, he - I don't remember exactly how - he had a hand over my throat. Um, and I remember, at that point asking him, "What are you doing?" [cries] and he said "I'm choking you".

15. These statements do not describe an actual serious attempt at choking AB. Without more, these alleged actions would not be of great significance. They take on a more sinister tone, however, when coupled with the statement, "I'm choking you". Such a statement, however intended, is liable to intimidate and terrify. It is very likely to profoundly affect how the physical actions are perceived and described.
16. In her evidence in the Magistrates Court, AB adopted the respondent's alleged wording and referred to choking. However, we do not consider that it is fair or helpful to describe the respondent's alleged actions (as described by AB) as choking. Despite what he is alleged to have said, and assuming for the moment that AB's evidence is generally accepted, we are not of the view that the respondent ever attempted to choke AB or had any intention of doing so. We consider it far more likely that the alleged statement, if it was made, should be understood as an attempt to assert power and dominance.
17. In her evidence to the Tribunal, BS Woodroofe drew a distinction between an allegation of "I was touched on the throat" and an allegation of "strangulation". The latter would lead to a recommendation for medical examination and would be included in a report.[227] It is consistent with BS Woodroofe's evidence that contact to the throat as described by AB in the passages cited might not be recorded. However, we consider it far more likely that a record would have been made if there was also an alleged statement of "I'm choking you". We would expect that the choking allegations were likely to have been recorded if AB had given a clear and coherent account of both aspects of those allegations.
18. In summary, BS Woodroofe's evidence must be treated with caution for the reasons previously stated, but it does suggest that some aspects of AB's allegations were not reported to her by AB. These are important matters for the Tribunal's consideration.

1. AB told Mr Male that she had been indecently assaulted. The evidence does not suggest what, if any, further detail she provided.
2. The significance of his evidence is in relation to AB's alleged claim that the police officer at Holden Hill appeared not to be interested and told her that there was no point in making a police report as there was no possibility of conviction due to lack of witnesses or CCTV footage.
3. If AB did say this, it is likely to represent a distorted and inaccurate perception of what occurred at Holden Hill and what she was told. In her evidence before the Tribunal, when asked about this, AB stated:

I'd like to reiterate, I can't remember the exact discussion that I had, but I remember that I felt like the police officer didn't care, that the impression I was given was that it would not be useful, to paraphrase, to proceed. I can't recall the exact details of the conversation and I still don't remember the exact details of the conversation.[228]

4. This is consistent with our view that AB's memory of the events in the period after the incident is poor, and her perceptions of events at that time were clearly distorted. We regard her statements as mistaken, but not dishonest.

1. Mr Devitt appears (on our reading of the Magistrates Court transcript) to have presented as an honest witness. Although a long-serving police officer, he volunteered the fact that he was inexperienced in 2010 with respect to the taking of statements of this nature and "wasn't wholly confident or wholly aware of what was relevant or what was not in this sort of matter".[229] He made this point twice in his evidence.[230]
2. He had no recollection of taking this statement from AB. He could only depose to his normal practice in taking statements. His evidence suggests that he was diligent in doing so. He would type the statement and then ask if the witness wished him to make any amendments. He would then print the statement for the witness to read and sign. He would offer to make any further amendments that were required. He would take as much time as required.
3. A comparison between the statement taken by Mr Devitt[231] and that subsequently taken by Detective Munn[232] illustrates Mr Devitt's inexperience in the taking of such a statement. It illustrates the accuracy of AB's observation that she was definitely asked for a more extensive account by Munn.[233] As one example, the statement taken by Mr Devitt deals very briefly, and in a very summary way, with events after the alleged assault ended. It fails to detail AB's actions after leaving the house. It makes no mention of the call to BF. It states that she "contacted police" but fails to clarify that this was by call to the 131 444 number and not simply by attending the Holden Hill Police Station later that day. These are very important evidentiary matters in relation to the allegations, which have not been included. They tend to demonstrate that Mr Devitt was not proactive in seeking details of what happened after the alleged assault concluded and did not regard such matters as important.
4. The statement signed by AB[234] does not contain any reference to the request for a glass of water. We do not regard this fact as necessarily reflecting adversely on AB's credibility or reliability. She may well have been given the impression by Mr Devitt that events after the conclusion of the alleged assault were not important. She may not have been asked to describe them in any detail. Alternatively, she may have told Mr Devitt about the request for a glass of water. We do not consider that he would necessarily have regarded it as a matter he should include in the statement. We are not satisfied that she did not tell him. We do not consider that AB would necessarily have understood the importance of including this detail in the statement. We are not surprised that AB did not ask for the statement to be amended to include it.
5. It is more significant, however, that the statement contained no reference to the choking allegations. We refer to our previous comments about the two aspects of those allegations. One would normally expect that those allegations would be included in the statement if AB had conveyed both aspects clearly to Mr Devitt. His evidence suggests that AB did not do so. This is a significant matter to be considered by the Tribunal particularly in the context that the choking allegations were not mentioned during the 131 444 call and were not recorded in the HH Report. These are important matters for the Tribunal in its consideration of AB's credibility and reliability.

1. Exhibit C1 contains documents relating to the notification by AB to AHPRA. She appears to have lodged this notification by telephone call whilst overseas. There is a document by an unidentified author, purporting to be a "Summary of Notification".[235] It purports to summarise information provided by AB on 14 June 2018. There is a note of a further telephone call the following day between AB and an AHPRA officer.[236] These documents were not referred to during the evidence before the Tribunal.
2. The respondent submits that some detail in the "Summary" is inconsistent with AB's evidence. Specifically, the Summary refers to an "allegation of attempted rape" (although there is no suggestion of rape in the details which follow). The summary speaks of AB fighting the respondent off when he first tried to kiss her. It suggests that the police officer at Holden Hill informed AB that because the respondent had not succeeded in raping her and there were no witnesses, there was nothing that could be done.
3. We note that there is at least one aspect of the Summary where AB has been misunderstood and her statements summarised inaccurately. There are other errors as to peripheral details which could relate to confusion on AB's part but are more likely due to inaccurate summarising.
4. AB was not cross-examined about the statements in these documents. We do not have confidence as to whether her notification has been accurately recorded. We do not know whether the impugned wording is that of AB or the unidentified person who took the notification. We do not consider it appropriate to accord any weight to this notification evidence.

1. AB deposed to making the HH report and giving the Norwood and Munn statements. She was cross-examined about what she told the respective police officers. She essentially deposed that she could not now recall exactly what she had told each officer. For example, she was asked whether she had told Mr Devitt about the request for a glass of water. She responded:

I don't remember what I spoke to him about, um, when I gave the report, so I can only go by what was documented, but I know that we (inaudible) of that night, but whatever's written down is what I have a record of, so I'm not sure if I mentioned it and it wasn't recorded or I didn't mention it. I can't remember.

2. She was asked whether she had mentioned the glass of water to any police officer before the Munn statement. She stated that she could not recall whether she mentioned it or not.[237]
3. AB gave a similar response to whether she had told the officer at Holden Hill about being carried from the kitchen to the lounge. She could not recall what was covered in the conversation.
4. It was suggested to AB in cross-examination that she had not told the officer at Holden Hill anything about being held by the wrist. She disagreed, saying: "I remember asking whether they needed to take photographs, um, and they said there was no need". The cross-examination continued:

Q: ... I think it's fair to say that you told Detective Munn in your statement of 17 September 2019... that you remembered - > > "being in the room with the police officer and telling him about my wrist being sore and the pain to my neck". > > Is that right? > > A: Yep > > ..... > > Q: And so you were saying that you did tell the police officer at Holden Hill about your wrist being sore and the pain to your neck, is that right? > > A: Yes.[238]

5. AB was asked whether she told the officer at Holden Hill about the hand on her throat. She replied:

Uh, yeh, so my statement in 2019 says - > > I remember being in the room and telling him about my wrist being sore and the pain to my neck.

6. As we understand her evidence, AB took issue with the suggestion that she had not told the officer at Holden Hill about the holding of her wrist or the hand on her throat but did so on the basis that she recalled a conversation about photographs and relied on her 2019 statement that she could then recall telling the officer about her sore neck and wrist. The evidence continued:

Q: I'm putting to you specifically that you did not tell the police officer at the Holden Hill Police Station that he grabbed you around the throat. > > A: And I'm telling you I can't say the detail of the words I used. However, I remember telling the police officer about my wrist and neck being sore on one of the occasions that we've already discussed, but I still won't be able to recall, 11 years after the fact, the exact words I used to the Holden Hill police officer.[239]

7. It was submitted that AB's evidence as to the above matters was contradicted by the evidence of BS Woodroofe and that this reflected adversely on AB's credibility and reliability. We agree that these are submissions to be considered in the broader context of matters relevant to AB's credibility. However, we have already made observations about AB's emotional state when she attended the Holden Hill Police Station. It would not be at all surprising if her memory of what happened on that occasion was very poor and her perceptions were askew. We do not regard AB's evidence on such matters as persuasive evidence of dishonesty on her part. Nor do we consider that it provides any convincing reason to doubt her reliability with respect to the critical issues in this case.

1. Although it is not simply a matter of the Tribunal preferring one account over the other, nonetheless it is instructive to examine the accounts of AB and the respondent as to the central incident and to consider the inherent plausibility of those respective accounts. It is also instructive to examine how each account fits with other evidence.
2. AB's account appears inherently plausible and consistent with her subsequent demeanour and actions on that day.
3. There are aspects of the respondent's account which appear implausible. We have no doubt that he was hoping to have a sexual encounter with AB. On his account it appeared to be going well. He was sitting with his arm around her, and they were leaning into each other. He was stroking her right shoulder with his right hand. They were "cosy". When he tried to kiss her, she responded playfully. She asked him to "say the magic words first". She was smiling at him. It was not a rejection. They were still sitting cosily together with his arm around her. We consider it very strange that he would get up at this point, leave the area and go for a smoke. We consider it even stranger that he would do so without even asking her what she meant by the "magic words". We appreciate that people do sometimes act in ways that are unpredictable or illogical, but we consider this aspect of his account to be unlikely to be true.
4. He deposed that at this point his priority was to ascertain what AB had meant by "the magic words" rather than to pursue any desire to kiss her. However, on his own account he attempted to kiss her again without having made any such enquiry of her.[240]
5. He deposed that AB came to the kitchen and put her arm around him. They were again "cosy". However, when he attempted to kiss AB for the second time, she again asked him to say the magic words. He then asked what she meant and what her expectations were. He says that AB immediately became "angry" and "frustrated". She grabbed her coat and headed for the front door. No further words were spoken. He described his immediate response as follows:[241]

Q: What did you do? > > A: I didn't do anything., I just stayed where I was. > > Q: Then what was the next thing that happened? > > A: Then I heard her struggling to open the front door so I walked down there and opened the door for her. > > (Emphasis added)

He does not suggest that he asked why she was angry or why she was suddenly leaving.[242]

1. This account does not strike us as plausible. Surely, he would have endeavoured to ascertain why AB had suddenly become angry and wanted to leave. Surely, he would not have wanted the night to end like that, without at least attempting to understand why. His description of his own behaviour is very strange. More particularly, his account portrays AB as behaving in an extremely strange way. After giving every indication that she was interested in him, she is said to have suddenly become angry for no justifiable or apparent reason and stormed out. We acknowledge again that people sometimes act unpredictably but having regard to the totality of the evidence before the Tribunal, we consider it very unlikely that AB would have acted in this way. We note again that the respondent was a senior colleague to AB and there was every reason not to do so.
2. The Tribunal is of the view that the tape recording is a very significant item of evidence. We are left in no doubt that AB was highly distressed immediately after leaving the respondent's home that morning. Something had occurred that had produced a profound effect on her. She was crying and very emotional.
3. The events as described by AB would readily explain the distress to which we have referred. The same cannot be said of the respondent's account.
4. The respondent does not claim that AB was distressed or crying when she left his house. To the contrary, he describes her as frustrated and angry. His account of events does not appear at all consistent with her distress or emotional state a very short time later.

1. The respondent is obviously a successful and well-regarded medical practitioner. He has an unblemished record both before the incident of 2010 and since. He provided character evidence in the Magistrates Court from the Emergency Department Nurse Unit Manager at the Mt Gambier Hospital.[243] She stated that the respondent was held in high regard by members of the ED medical and nursing teams. He was regarded as a kind and supportive manager and colleague. His reputation was that he was honest and forthright as well as respectful of colleagues.
2. Affidavits were tendered in the proceedings before the Tribunal from Prajact Kumbhare,[244] a general practitioner in Mt Gambier and Naveed Mustaq,[245] a finance manager. We have considered the contents of those affidavits carefully. By way of summary, Dr Kumbhare states that the respondent is considered in high regard for his professional conduct and good manner with patients. He has a general reputation as a hard-working, honest and competent specialist. He also has a reputation for being respectful towards women. Mr Mustaq states that the respondent has a general reputation for being respectful and polite towards women. He has an extremely good name and a reputation as an honest, trustworthy and hard-working man and a respectful supportive husband. Both deponents indicate that the respondent has always been respectful of women in their presence. Both suggest that they were shocked to hear of the allegations and consider the alleged conduct to be contrary to the respondent's character.
3. The Tribunal has regard to this evidence in considering the credibility of the respondent and in determining whether the allegations have been proved to the appropriate standard to the Tribunal's satisfaction.

1. The respondent pointed to the findings of the learned magistrate in the Magistrates Court proceedings as to the matter of forensic disadvantage. Although the provisions of s 34CB of the Evidence Act 1929 are only directed to criminal proceedings, it is relevant for the Tribunal to nonetheless have regard to any disadvantage suffered by the respondent as a result of the passage of time between the incident and the hearing.
2. The forensic disadvantage claimed by the respondent in the criminal proceedings was identified as follows:[246]
   1. The recollections of other staff members on shift regarding the plans after work could have been established in more detail rather than the respective memories of the respondent and AB.
   2. Call charge records and copies of messages for both AB and the respondent's mobile phone services could not be retrieved.
   3. The respondent's memory of what was said at the front door of his premises upon AB's departure was now imprecise.
   4. The respondent's memory about the exact clothing that AB was wearing was imprecise.

We accept that the respondent suffered significant forensic disadvantage in relation to these matters and generally in relation to the memories of witnesses. We note that no photographs were taken and there was no medical assessment. There was no crime scene investigation. We have regard to the disadvantage identified. In doing so, we also note that both AB and the respondent claimed to have good memories of the critical events inside the respondent's house.

1. The respondent was essentially unshaken in his evidence on critical issues. However, even when we make allowance for the fact that English is his second language, we are of the view that he was not an impressive witness. We find that he was reluctant to concede matters where concession would have been the appropriate response. One example is in relation to the respective roles of a Registrar and an RMO. The evidence establishes that a Registrar was required to provide supervision, guidance, support and education to RMOs and that the respondent did so. His attempts to suggest that this was not part of his role did him no credit. The respondent's attempt to suggest that there was no imbalance of power between AB and himself ("no advantage or any edge over her") reflects poorly on his credibility, in our view. He must have been aware that such was not the case. His contention that he was in no position to adversely affect her working life or her career does not withstand examination.
2. More specifically, we find (as indicated in the balance of this Statement of Reasons) that the respondent gave deliberately untruthful evidence concerning his interactions with Ms Buchanan. This causes us to have serious concerns regarding his credibility generally. The respondent submitted that it would be unfair to use adverse findings in relation to other allegations in assessing his credibility on allegation 1. We do not accept this submission. A finding that the respondent lied to the Tribunal in relation to one matter cannot be ignored in assessing his credibility generally. A fortiori, where a respondent calls evidence of his good character and unblemished record, he can hardly assert that the Tribunal should overlook its own finding that he has given untruthful evidence to the Tribunal.
3. We have already pointed out various aspects of the respondent's account which we find implausible. The respondent admitted that he found AB attractive. We have no doubt that he was hoping to have a romantic or sexual encounter with her. From the time that she agreed to stay at the house rather than go out, we find that he was keen to advance his desire for sexual or romantic contact. He was initially reluctant to admit this under cross-examination in the Magistrates Court[247] but it was undoubtedly so. He attempted to kiss her, and on his account she responded playfully. We find it implausible that he would then, without further enquiry, have got up and gone to the kitchen and had a smoke. He asserts that his priority at that point was to understand what she meant by the "magic words" rather than to pursue her for a kiss. However, when she joined him in the kitchen, he again tried to kiss her without first asking what she meant. Further, when she responded to his perfectly appropriate enquiry by becoming angry, grabbing her coat, and heading for the door, he initially remained where he was and did nothing. He made no effort to discover why she was angry or to rectify the situation.
4. On his own account, the respondent behaved very strangely. AB behaved in a manner which was even stranger. After giving every indication that she was attracted to the respondent, she became angry for no ascertainable or good reason and walked out on her senior colleague without explanation. We consider it highly unlikely that AB would have acted in that manner. The respondent's account is implausible.
5. Further, the respondent's account appears at odds with the evidence (and our findings) as to AB's emotional state shortly after leaving the respondent's house. It provides no adequate explanation as to why she was so distressed immediately after leaving.
6. We do not have confidence in the credibility of the evidence of the respondent. We reject his evidence where it conflicts with the findings in this Statement of Reasons. We note again that rejection of a respondent's evidence (in whole or in part) does not mean that evidence to the contrary should be accepted. It is necessary to consider whether the allegations are proved to the necessary standard by the remaining evidence in the case.
7. We consider that AB gave her evidence impressively. We did not gain the impression at any stage that she was being untruthful with the Tribunal. She answered questions carefully and acknowledged the limits of her memory. She was clear in maintaining the key aspects of her evidence and in refuting the respondent's version of events. Her account was inherently plausible and consistent with the emotional distress that she exhibited immediately thereafter. There was nothing in her presentation that suggested that she was likely to have acted as suggested by the respondent. She was subjected to a thorough and searching cross-examination and we do not consider that she was shaken in relation to the critical allegations. We formed the view that her evidence was given truthfully and reliably.
8. However, the truthfulness and reliability of her evidence was subjected to a substantial challenge by the respondent. As indicated, there were many aspects to this challenge, some minor and others more substantial. We have carefully considered each of the matters raised. We have considered the combined effect of those matters. We have particularly considered the strong submission of the respondent that AB did not raise the choking allegations in the call to BF, in the 131 444 call, the Holden Hill report, or the Norwood statement, and that those allegations were not made to any police officer until 2019. We have had regard as previously indicated to the evidence of good character and to the forensic disadvantage.
9. We have considered whether there are any alternative explanations for AB's profound distress immediately after leaving the house, assuming for the moment that events did not occur as deposed to by AB. We have considered whether such profound distress might have been caused by some event not disclosed by the evidence. We have considered whether it might represent a totally disproportionate and abnormal response to the possibility of some awkwardness between the respondent and AB. We have considered whether it may represent the manifestation of some undisclosed psychological or mental health condition. All of these "explanations" require the conclusion that AB's evidence was untruthful. It must either have been deliberately untruthful or the product of delusion, distorted perception or some similar fundamental aberration of memory. Having regard to the totality of the evidence before the Tribunal, including the respondent's submissions concerning AB's credibility and more generally, we consider all of the alternative explanations to be extremely unlikely, if not entirely fanciful. We consider it far more likely that AB was subjected to a frightening attack as described in her evidence.
10. We have carefully considered the respondent's submissions. We have had regard to the respondent's good character and unblemished record, to the forensic disadvantage as previously identified, the presumption of innocence and the Briginshaw principles. On the totality of the evidence before the Tribunal, we are comfortably satisfied that AB's evidence is an honest and reliable account of what occurred at the respondent's house on 3 June 2010. We do not consider that she has lied about what occurred, or that she was mistaken or in any way deluded as to the central events.

1. With due regard to the Briginshaw principles, we are comfortably satisfied of the following findings which we now make.
2. AB and the respondent decided to stay at the respondent's house and to watch a movie. They sat on the couch facing the TV whilst they watched the movie. The respondent did not have his arm around her shoulder. They were not "leaning into" each other. AB did not initiate any physical contact with the respondent.
3. During the movie, the respondent started to edge closer to AB. Finally, he attempted to kiss her. She pulled away and stated that he had that he had the wrong idea. She indicated that she was not interested as she had a boyfriend. She said something about leaving. The respondent apologised and said that he had not realised that she had a boyfriend. He persuaded her to stay.
4. At some point, they were both in the kitchen. AB did not initiate or invite any physical contact. Without warning, the respondent made a remark about AB's weight and picked her up. He carried her from the kitchen area to the second couch. She responded immediately by saying words to the effect, "Stop. Put me down. Stop. Put me down".
5. The respondent sat on the couch with AB across his lap. She was still protesting in a direct manner. The respondent manoeuvred so that AB was lying on the couch with the respondent on top of her. He held one of her wrists up near her head and was licking and kissing her face and neck. He put his other hand up under her shirt and groped her in the area of her breasts and upper body. She was crying and told him to stop. She said, "Please don't". His hand also groped her lower body on the outside of her clothes.
6. At one point, he placed his hand over her throat and applied some slight pressure. She asked, "What are you doing?" and he replied, "I'm choking you." This caused AB to experience extreme fear.
7. At some point, the respondent asked, "Do you want me to stop?". AB replied, "Yes", but he did not stop. She was crying.
8. Eventually the respondent did stop and got up off AB. AB was stunned and frightened and just wanted to get out of the house. She asked the respondent for a glass of water. As he went to get it, she grabbed her coat and went to the front door. It was locked but she eventually got it unlocked. By this time, the respondent approached and steered her back into the house. He tried to persuade her to stay. However, she got to the door, left and got into her car. She drove until she felt she was safe. She then stopped and telephoned her partner and the police.
9. Given the professional relationship, it was at best inadvisable for the respondent to attempt to kiss AB without first ascertaining whether that conduct would be welcomed.
10. The respondent's subsequent actions, from the time when he picked AB up and carried her to the couch, were clearly inappropriate. AB had made clear, and continued to make clear, that his attentions were not welcomed and that she did not consent to his actions. It was undoubtedly very clear to the respondent that she was not consenting and that his actions were not welcome. She was protesting and crying. He continued despite her protestations.
11. The definition of "professional misconduct" in s 5 of the National Law is as follows:

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience; and

(C) conduct of a practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. This is an inclusive definition rather than exhaustive. The common law understanding of professional misconduct still has a role to play.
2. The respondent submitted that paragraph (a) of the definition requires a connection with the practitioner's practice of the profession. There are authorities that suggest that it is a sufficient connection that the conduct (otherwise unconnected to practice) reflects seriously and adversely on the practitioner's suitability to practice.[248]
3. In this case, however, there is a clear connection with the respondent's practice of his profession. The respondent and AB were colleagues. They were socialising after work, albeit not on work premises. The respondent was professionally obliged to treat his colleague with courtesy and respect and to refrain from any conduct that might damage the professional relationship. His responsibilities were even greater as AB was a junior colleague and there was an imbalance of power (though the respondent would have had similar obligations to any colleague). The result of the respondent's conduct was to destroy the professional relationship and make it impossible for AB to continue to work in the ED with the respondent.
4. Such conduct towards a junior colleague (or indeed any colleague) clearly comes within paragraph (a) of the definition of "professional misconduct". It is conduct that is substantially below the standard reasonably expected of any registered medical practitioner.
5. The proven conduct also comes within paragraph (c) of the definition as it is conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. The respondent submitted[249] that paragraph (c) requires an assessment as to whether the respondent is a fit and proper person to be registered at the time of the hearing. We do not agree that this is a correct interpretation of the section. Paragraph (c) directs attention to whether the "conduct" is inconsistent with fitness to be registered. This is to be ascertained as at the time of the conduct and the answer cannot vary due to subsequent events.[250] The conduct we have found to be proved is clearly inconsistent with the requisite fitness and propriety.
6. Dealing with the respondent's conduct (as described in paragraphs 315-318 above) as one course of conduct, we make a formal decision under s 196 (1) of the National Law that the respondent has behaved in a way that constitutes professional misconduct.

1. Allegation 2 asserts that the respondent provided false and/or misleading and/or incomplete information to his employer, Limestone Coast Local Health Network (LCLHN). Allegation 3 asserts that he provided incomplete and/or misleading information to the Board/AHPRA and/or failed to provide accurate information to this Tribunal. These are serious allegations and the potential consequences for the respondent are also serious. The respondent has an unblemished record and has provided evidence of good character. The Briginshaw principles call for clear and cogent evidence if the Tribunal is to be satisfied of these allegations.
2. Allegation 4 asserts that the respondent failed to comply with s 130 of the National Law in that he failed to notify the Board within 7 days of the fact that he had been charged with the offence of indecent assault. Section 130 provides that such a contravention does not constitute an offence but may constitute behaviour for which disciplinary action may be taken.[251]
3. The Board's case in respect of allegations 2-4 largely rested on documentary evidence. Ms Ngaire Buchanan, CEO of the LCLHN, was the only witness required for cross-examination.
4. The respondent swore an affidavit on 7 December 2021 which set out his position in relation to these allegations. He also gave evidence and was cross-examined. He called his former solicitor, Mr Caldicott to give evidence.

1. It is important in proceedings of this nature to understand the chronology of how the matter unfolded. This is made more difficult by the fact that the documentary evidence is not presented in a chronological or logical order. The Books of Documents contain over 1200 pages, and it is necessary to flit backwards and forwards between the various volumes to ascertain what has happened.[252] Furthermore, much of the documentation consists of affidavits with voluminous exhibits that are not indexed in any way, making it very difficult to locate documents.
2. We have had regard to all of the documentary evidence, but it is not necessary to traverse it all in these Reasons. We are comfortably satisfied that the documentary evidence establishes the following chronology of events relevant to allegations 2-4:

April 2007: The respondent commenced work as a medical practitioner in the public sector in SA.[253]

3 June 2010: AB reported to police that she had been indecently assaulted by the respondent earlier that day, but signed a form requesting no police action.

22 March 2018: The respondent signed a new employment contract with LCLHN for the position of consultant, acknowledging his responsibilities as a public sector employee to comply with relevant codes, policies and procedures.[254]

14 June 2018: AB made her notification to AHPRA.[255]

18 June 2018: AB advised AHPRA that she had asked police to proceed with investigation of her report.[256]

25 June 2018: The Board decided to investigate the notification but determined that the respondent should not be notified until such time as SAPOL advised that it would not prejudice their investigation.[257]

19 September 2019: The respondent was interviewed by police. He was informed of the allegations and told he would be reported for the offence of indecent assault.[258]

1 October 2019: Police advised AHPRA that the respondent had been reported for the offence of indecent assault.[259]

7 October 2019: The Board decided[260] that it would propose immediate action, namely suspension of the respondent's registration.

8 October 2019: The Board wrote to the respondent concerning the notification. It advised the respondent of its decision to propose immediate action and invited his submissions. It also advised the respondent of a "separate" decision to refer the notification for investigation.[261]

8 October 2019: The respondent sent a text message to Ms Buchanan and then spoke with her concerning the proposed immediate action.[262] The respondent sent an email to Ms Buchanan, thanking her for speaking to him.[263]

14 October 2019: The Board heard a verbal submission made on behalf of the respondent. It was submitted (inter alia) that the respondent had not been charged with any offence at this stage. The Board decided to not proceed with the proposed immediate action at this time as it was unable to form the requisite reasonable belief for the taking of such action.[264]

18 October 2019: The Board advised the respondent that it had "decided not to take immediate action at this time" (Emphasis added). The Board advised the respondent that he would receive further correspondence concerning the ongoing investigation, which had not been finalised.

He was advised that the Board had placed the investigation on hold until such time as advice was received from SAPOL as to "the outcome of the criminal investigations (and any associated proceedings)".[265]

19 November 2019: The respondent made a routine application to the Central Assessment Unit of the Department of Human Services (the CAU) for a Working with Children Check (WWCC).[266]

20 November 2019: The respondent's application was "cleared", meaning he was free to work with children.[267] A WWCC check is valid for 5 years.[268]

13 December 2019: The respondent applied for a position as Clinical Lead, Emergency Services.[269] In this application, the respondent answered "No" to the question "Have you ever been the subject of allegations of conduct by you of a violent and/or sexual nature towards or in relation to an adult person (over 18 years of age)".[270] By submitting the application, the respondent declared that the information provided was true and correct in every detail and that he understood that any false statement would amount to misconduct and render him liable to disciplinary action.[271]

13 January 2020: Police charged the respondent with the offence of indecent assault.[272]

16 January 2020: The respondent received notification of and was served with the charge.[273]

20 January 2020: AHPRA wrote to the respondent, under the heading of "Notice of Investigation Progress",[274] advising that the Board's investigation continued to be on hold until advice was received from SAPOL as to "the outcome of the criminal investigation (and any associated proceedings)".[275]

24 January 2020: Having been advised of the charge, the CAU wrote to the respondent, enclosing a notice under s 26A of the Child Safety (Prohibited Persons) Act 2016 (the Child Safety Act).[276] The notice referred to the pending charge of indecent assault in the Elizabeth Magistrates Court and stated that this was a "presumptive disqualification offence". Hence the CAU was required to determine that the respondent be prohibited from working with children unless he satisfied the CAU that:

• The circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether you pose an unacceptable risk to children; or
• Such exceptional circumstances exist in relation to you that you do not appear, or no longer appear, to pose an unacceptable risk to children.

The respondent was given 7 days to make a submission in response.

29 January 2020: The respondent through his then solicitor replied to the letter dated 24 January from the CAU and appears to have secured an extension of time until 7 February.[277] The letter asserted that: "AHPRA is currently aware of the proceedings and has agreed for Dr Qazi, in the circumstances to continue to practise".

31 January 2020: The respondent's then solicitor wrote to the respondent concerning discussions with the CAU. He indicated that a CAU officer had suggested that he get a "reference from your supervisor indicating that you have had contact with children and are of no concern to them".[278]

31 January 2020: Later that day the respondent emailed his solicitor and attached a draft letter in the terms suggested. The draft was in the name of Dr E Pretorius, who was the Executive Director of Medical Services for the LCLHN and the respondent's immediate superior. The respondent asked his solicitors "Do I need to tell her about the case. If it is not necessary, I would prefer not give her the details".[279]

5 February 2020: By email to Ms Buchanan, CEO of LCLHN, the respondent advised: "In order to renew my working with children, DHS wanted a letter from CEO stating that I am a Director Emergency Department, had contact with children and of no concern to them".[280] He attached a draft letter for Ms Buchanan to sign.[281]

6 February 2020: Ms Buchanan signed a letter in the terms of the draft (but with grammatical changes) and provided the signed copy to the respondent.[282]

7 February 2020: The respondent's solicitor provided submissions on behalf of the respondent to the CAU.[283] The solicitor's letter stated that the respondent intended to plead not guilty. It stated: "My client has informed his superior Dr Ngaire Buchanan, Chief Executive Officer where he is currently working and I enclose her letter dated 6 February 2020 for your information. Based on that, I request that he not be disqualified from carrying out his exceptional work in the emergency department in a country hospital."

10 February 2020: The CAU emailed the solicitors and sought written confirmation from AHPRA that that the pending criminal charge would not affect the respondent's registration.[284]

10 February 2020: The solicitor responded the same day, attaching the letter from AHPRA dated 18 October 2019. (This letter pre-dated the charging of the respondent).[285]

14 February 2020: The CAU determined that the WWCC issued on 20 November 2019 would stand.[286]

20 February 2020: On this date, SAPOL first advised AHPRA that the respondent had been charged with the offence of indecent assault.[287]

26 February 2020: SAPOL provided a copy of the information and Summons to AHPRA.[288]

2 March 2020: The Board decided that it would propose immediate action to suspend the registration of the respondent.[289]

3 March 2020: The Board wrote to the respondent, advising that it proposed the immediate action, and inviting the respondent's submissions.[290]

10 March 2020: The solicitors provided submissions to the Board.[291] The submissions advised that the respondent's supervisor was aware of the matter and enclosed the letter dated 6 February from Ms Buchanan to the CAU, suggesting that the LCLHN had no concerns.[292]

11 March 2020: The respondent submitted an application to the Credentialling Committee for renewal of his accreditation.[293]

16 March 2020: The Board wrote to the respondent, advising that it had decided to take immediate action by suspending the respondent's registration.[294]

16 March 2020: As required by s 206 of the National Law, AHPRA advised LCLHN (Ms Buchanan) of the immediate action.[295] The letter provided no reason for the immediate action and no information about the nature of the notification. Ms Buchanan forwarded the letter to the Executive Director of Medical Services (Dr Pretorius) and the Director of People and Culture (Ms France).[296]

16 March 2020: The respondent received a text message from Dr Pretorius at 8.35pm.[297]

19 March 2020: The respondent's solicitor asked AHPRA to reconsider the decision.[298]

20 March 2020: The respondent filed an application for review of the suspension by SACAT.

26 March 2020: Ms France of LCLHN telephoned AHPRA and asked that the decision be reconsidered due to the exigencies of the Covid 19 epidemic and the respondent's role at the Hospital. [299]

1 April 2020: In response to email correspondence from AHPRA, LCLHN (Dr Pretorius) provided further information concerning the respondent's role at the hospital.[300]

1 April 2020: The respondent's solicitors made further submissions to AHPRA.[301]

6 April 2020: The Board decided pursuant to s 36 of the SACAT Act to stay the operation of its decision to suspend the respondent until 2 May 2020.[302] The respondent was advised of this decision.

7 April 2020: AHPRA wrote to SACAT and the respondent to advise of the above decision.[303] The document sets out the basis of the decision to stay.

7 April 2020: The respondent emailed Ms Buchanan and Dr Pretorius to advise that his suspension had been "lifted".

14 April 2020: AHPRA wrote to LCLHN to advise it of the reasons for the initial suspension and the stay decision.[304] In doing so, the Board utilised specific statutory powers to provide detailed confidential information about the allegations against the respondent, including details of the criminal charge.

16 April 2020: Dr Pretorius emailed AHPRA to say that she was horrified to see the details of the allegations and would not have supported the respondent's return to practice if aware of them.[305]

16 April 2020: LCLHN (Ms Buchanan) wrote to the respondent and put him on notice that he was to be investigated for an alleged failure to notify his manager of a criminal charge. The respondent was invited to make submissions as to why he should not be suspended by his employer pending the outcome of that investigation. He was directed to remain absent from the workplace.[306]

21 April 2020: The respondent's solicitor responded[307] to this letter, stating (inter alia):

As soon as my client was charged, the matter was reported to the appropriate authorities.

It was reported to you by telephone on 8 October 2019. On 9 October 2019 AHPRA was notified, and the credentialling Committee was notified on 3 March 2020.

21 April 2020: LCLHN (Ms France) wrote to AHPRA, stating that LCLHN had not been aware prior to receipt of the letter dated 14 April 2020 that the respondent had been charged with a criminal offence and the nature of that charge.[308]

24 April 2020: LCLHN wrote to the respondent, suspending him from duty.[309]

22 September 2020: Evidence in the Magistrates Court trial was completed, and judgement was reserved.

22 September 2020: LCLHN wrote to respondent concerning allegations of misconduct and invited a response.[310]

7 October 2020: A response was provided by the respondent's solicitor.[311]

8 October 2020: LCLHN gave the respondent notice of termination of his managerial appointment. He retained his clinical position.[312]

26 October 2020: The respondent was acquitted of the criminal charge.

17 November 2020: LCLHN wrote to the respondent providing further evidence relied on in relation to the previously conveyed disciplinary charges. Further submissions were invited.[313]

3 December 2020: A further response was provided by the respondent's solicitor.[314]

1. The Board relied upon the respondent's responsibilities as a medical practitioner within the public sector and his agreement to the stated terms and conditions of his employment. He had agreed to be bound by the various Codes of Conduct and policies applicable to him.
2. The respondent was interviewed by police on 19 September 2019 concerning the indecent assault allegations. He was advised of the detailed allegations and advised that he would be reported for the offence of indecent assault. In allegation 2, the Board asserts he provided false, misleading, and/or incomplete information to his employer during the period from 19 September 2019 to 14 April 2020 (the latter date being when detailed information about the matter was first provided to LCLHN by AHPRA).
3. The Board's case is that no relevant information was provided to LCLHN by the respondent from 19 September 2019 to 8 October 2019. On this latter date, the respondent received notice from AHPRA of the notification and of the Board's proposal to imminently suspend his registration.[315] The respondent had little choice but to tell his employer of the threatened suspension.
4. It is common ground that the respondent then provided some information verbally to Ms Buchanan on 8 October 2019 and/or 11 October 2019. In short, it is suggested by the Board that he provided information to her such as to cause her to believe that the matter (the subject of AHPRA involvement) was old, of little consequence or seriousness, and would not proceed. He did not tell her that he had recently been interviewed by police or that he had been reported for the offence of indecent assault. He did not tell her that the allegations were of an alleged indecent assault.
5. Shortly thereafter, it is suggested that he advised Ms Buchanan that the matter had been "sorted".
6. On or about 13 December 2019, the respondent made an application for appointment to the position of Clinical Lead, Emergency Services. The Board asserts that he provided false, misleading, and/or incomplete information in that application in that he stated that he had never been the subject of allegations of conduct of a violent and/or sexual nature towards an adult person.[316]
7. The respondent was charged with the offence of indecent assault on 13 January 2020 and was served with and became aware of the charge on 16 January 2020. The Board asserts that he was then required to advise his manager of that charge in writing. This requirement was documented in the terms and conditions of his employment contract, the Code of Ethics for the South Australian Public Sector, the Employees Charged with Criminal Offences Policy Directive and the Commissioner for Public Sector Employment Guideline: Extent of Obligation on Employees to Report they have been charged with a Criminal Offence.
8. The Board asserts that no written advice of the charge was given by the respondent until 21 April 2020 (after LCLHN had received notice of the charge from AHPRA on 14 April 2020 and had raised the matter with the respondent).
9. The Board further asserts that no verbal notice of the charge had been given by the respondent to LCLHN prior to receipt of the information from AHPRA on 14 April 2020.
10. The respondent had renewed his WWCC on 20 November 2019 and that clearance was valid for five years.
11. However, the charge laid against the respondent was notified to the CAU in the DHS. On 24 January 2020 the CAU wrote to the respondent, providing a notice under s 26A of the Child Safety Act). The notice indicated that the offence with which the respondent had been charged was a "presumptive disqualification offence" under the legislation and he would be prohibited from working with children unless he provided evidence that rebutted the statutory presumption.[317] The respondent's solicitor suggested he obtain a letter from his manager, attesting that the employer had no concerns about him working with children.
12. The respondent wrote an email to Ms Buchanan on 5 February 2020 in which he stated: "In order to renew my working with children, DHS wanted a letter from CEO stating that I am a Director, Emergency Department, had contact with children and of no concern to them".[318] A draft letter was attached.[319] On 6 February, Ms Buchanan signed a letter to that effect (but with grammatical changes) and provided it to the respondent for forwarding to the CAU.[320]
13. The respondent's solicitor forwarded the letter to the CAU with a letter stating that "My client has informed his superior Dr Ngaire Buchanan (sic), Chief Executive Officer where he is currently working and I enclose her letter dated 6 February 2020 for your information."[321]
14. The Board asserts that the respondent's email to Ms Buchanan on 5 February was false, misleading and/or incomplete. He falsely claimed that the CAU had requested a letter "from CEO" and he gave a false reason for wanting the letter, namely the need to renew his WWCC, and failed to provide the true reason, namely the issue of a s 26A notice following a charge for a criminal offence.
15. The Board further asserts that it was inappropriate for the respondent to seek such a letter from Ms Buchanan in circumstances where he had failed to advise his employer of the criminal charge and had actively misled Ms Buchanan as to the nature and seriousness of the allegations against him. It was inappropriate to do so without first advising Ms Buchanan of the true situation. It is asserted that Ms Buchanan would not have signed such a letter if she had been aware of the charge of indecent assault.
16. The Board further asserts that it was inappropriate to provide the letter to the CAU and false and/or misleading to suggest that Ms Buchanan had been informed of the matter.
17. On 16 March 2020 the Board, having received notice of the criminal charge, took immediate action to suspend the respondent's registration.[322] The LCLHN was advised by AHPRA of that action.[323] However, the advice to LCLHN provided no reasons for the decision and did not indicate the nature of the allegations or the fact that the respondent had been charged with an offence. The Board asserts that LCLHN was still unaware of the charge or the true nature of the allegations.
18. On 26 March 2020 the LCLHN (Ms France) asked AHPRA to reconsider the respondent's suspension due to the exigencies of the Covid pandemic and the respondent's pivotal role in the ED.[324] On 1 April 2020 LCLHN (Dr Pretorius) provided information to AHPRA in support of that request.[325]
19. The Board did reconsider the matter and stayed the suspension decision under s 36 of the SACAT Act (an application for review having been made to SACAT) until 2 May 2020. In its reasons for this decision, the Board had regard to the submissions of the LCLHN.[326]
20. The Board asserts that LCLHN first became aware of the charge of indecent assault and the true nature of the allegations when it received a letter containing that information from AHPRA on 14 April 2020.[327] On 16 April 2020 LCLHN (Ms Buchanan) wrote to the respondent to advise that he was to be investigated for failure to advise his manager of the criminal charge and that the LCLHN was proposing to suspend him from duty pending that investigation.[328]
21. The Board asserts that LCLHN would not have requested the Board to reconsider the respondent's suspension if it was aware of the true facts. These facts had been kept from the employer by the respondent's continuing failure to advise his manager (or LCLHN) of the criminal charge or of the true nature of the allegations. The respondent had provided false, and/or misleading and/or incomplete information to Ms Buchanan and had never provided complete and accurate information.
22. In summary, the Board asserted that the respondent failed, in the context described, to advise the employer of the charge of indecent assault laid on 13 January 2020 and failed to provide the employer with complete and accurate information as to the allegations against him. The Board asserted that the respondent had acted in breach of his conditions of employment and the various Codes and Policies by which he had agreed to be bound.
23. There are two aspects to allegation 3. Firstly, it is alleged that, in submissions to the Board on 10 March 2020 in respect to proposed immediate action, the respondent claimed that the respondent's supervisor was aware of the matter and provided Ms Buchanan's letter dated 6 February 2020. In doing so, the respondent failed to advise the Board that Ms Buchanan was unaware of the criminal charge or the nature of the allegations when she wrote the letter and was misled by the respondent as to the purpose for which he sought the letter.
24. Secondly, it is alleged that the LCLHN subsequently made submissions to the Board seeking reconsideration of the suspension the Board had imposed. When the respondent became aware of the submissions, it is alleged that he failed to clarify to the Board, AHPRA, and this Tribunal that LCLHN had been unaware of the criminal charge or the nature of the allegations when the submissions were made.
25. In each case, it is submitted that the respondent provided misleading and incomplete information to the Board / AHPRA. In the second case, it is asserted that the failure extended to a failure to provide accurate information to this Tribunal.
26. Allegation 4 is that the respondent failed to comply with the requirement under s 130 of the National Law in that he failed to advise the Board within 7 days of being charged with the offence of indecent assault. He became aware of that charge on 16 January 2020 and did not advise the Board / AHPRA of that charge at any time before 3 March 2020 when AHPRA wrote to him about immediate action. That letter noted that SAPOL had advised AHPRA of the charge on 20 February 2020.

1. In his response filed 7 September 2021 the respondent fails to directly plead to most of the particulars in allegation 2 but makes several statements. Relevantly and in summary, they include:
   1. The respondent was interviewed by police on 19 September 2019.
   2. Police informed the respondent that he may be reported in respect of the allegations. (Our emphasis. We note that the respondent was told that "You are going to be reported for one count of indecent assault").[329]
   3. When a person is reported, it is in the discretion of the prosecuting authorities whether charges are laid.
   4. The respondent was not charged with any offence until 13 January 2020. He was served with the charge on or about 16 January 2020.
   5. Ms Buchanan wrote a letter (as above) on 6 February 2020. (The asserted relevance of this letter is left unexplained).
   6. The respondent telephoned Ms Buchanan on 16 March 2020 shortly following receipt of notification of suspension correspondence from AHPRA. (No detail is provided as to the conversation or its alleged significance).
   7. On 16 March 2020 the respondent received a text message of support from Dr Pretorius. (The asserted significance of this is not explained).
   8. Dr Meyer had been corresponding with Detective Munn before the respondent was reported for the offence. (Our emphasis)
   9. AHPRA was also corresponding with Detective Munn before and after the charges were laid. (The asserted significance of this is not explained).
   10. It is "therefore clear" that the management at LCLHN was aware that the respondent was charged with criminal offending.
   11. The respondent "clearly had notified his employer."
2. No occasion is identified on which the respondent says that he advised his employer of the nature of the allegations against him or upon which he advised his employer that he had been reported for, or later charged with, an offence of indecent assault. There is no suggestion of a written notification.
3. As to allegation 3, the respondent denies that he engaged in professional misconduct as alleged. He asserts that his employer and AHPRA have been fully informed of the fact that there were "proceedings".
4. As to allegation 4, the respondent accepts that he had a duty to advise of the charge under s 130 of the National Law. He states that he failed to communicate with AHPRA until after 3 March 2020 when AHPRA wrote to him about proposed immediate action.
5. We will address the respondent's case more fully when we come to discuss the evidence.

The employment context and professional obligations

1. The respondent had worked as a medical practitioner in the public sector in South Australia since about April 2007. (C4 pages 304-305). He had risen to a level where he was required to exercise leadership responsibilities. We would expect him by 2019 to have been familiar with the professional and ethical expectations of public sector employees.
2. On 1 April 2018 he signed a new employment contract with LCLHN (then CHSALHN) to undertake the position of Consultant.[330] In doing so, he acknowledged that:

I, Dr Umair Ahmad Saleem Qazi, have read and understood the terms and conditions of this offer of employment, including the Code of Ethics for the South Australian Public Sector. > > I accept the position of consultant and agree to be bound by the terms and conditions of employment stated herein.[331]

3. Those terms and conditions are set out in the offer of employment dated 22 March 2018.[332] They included the following:

CODE OF ETHICS: > > As part of your employment conditions as a public sector employee, you are required to act in accordance with the Code of Ethics for the South Australian Public Sector. Any breach of the Code may lead to counselling and/or disciplinary procedures, including possible dismissal. Please make time to refer to this information via [link to document provided][333]

POLICIES AND PROCEDURES:

You are required to observe all policies and procedures of SA Health, the Country Health SA Local Health Network and its related health services, and contribute to the maintenance of sound administration and documentation practices by ensuring that all documentation is accurate and completed in a professional and timely manner and is in accordance with any applicable organisational and/or legislative requirements.[334]

1. The Code of Ethics for the South Australian Public Sector (The Code) emphasises the requirement that public sector employees must at all times act honestly and with the utmost professional integrity.[335] It states:

Public Sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector, or government into disrepute; or that is otherwise improper or disgraceful.

2. Under the heading "Criminal Offences", the Code states:

Public Sector employees will at the earliest possible opportunity advise their manager (or if their manager is not available, some other person in management in the agency in which they are employed or working) if they are charged with a criminal offence and, if admitted or proven, there would be a connection between the offending conduct and the employee's public sector duties/role or position and/or status. > > Reports to a manager or person in management will be in writing.[336] > > (Our emphasis)

Public Sector employees will comply with all legislation, industrial agreements, policies and procedures and lawful and reasonable directions relevant to their role as a public sector employee and/or to the performance of their duties.[337]

4. The Commissioner of Public Employment is authorised under s 14(d) of the Public Sector Act 2009 to issue guidelines relating to public sector employment matters. In February 2010 the Commissioner published the "Commissioner for Public Sector Employment Guideline: Extent of Obligation on Employees to report they have been charged with a Criminal Offence" (the Guideline). After referring to the requirements of the Code, the Guideline states:

Public sector employees are subject to far higher expectations in terms of their conduct than are members of the public and there is far greater prospect that conduct will be connected with their role as a public sector employee than is the case in most private sector employment. > > There is a large range of possible conduct, criminal or otherwise, that despite occurring outside of working hours will inevitably be connected to a person's duties or role as a public sector employee and which amounts to misconduct. This includes criminal conduct punishable by imprisonment but also conduct that is fundamentally inconsistent with the concept of integrity and other values inherent to the public sector and which has the potential to undermine public confidence in the public sector and Government. > > Inevitably there will be matters pertaining to an employee's conduct, which by their nature should not be subject to disclosure (ie they have no direct impact or relevance to the nature of the employee's duties). However, employees must consider whether they have behaved in a manner which a reasonable person would view as bringing them, the agency in which they work, or Government into disrepute or that is otherwise improper or disgraceful. In such instances, the employee should disclose the matter to their manager or other relevant delegate. (Our emphasis)

5. We appreciate that not every behaviour that constitutes misconduct in an employment sense will necessarily constitute misconduct professionally. However, allegations of serious criminal conduct by medical practitioners who work in the public health sector will inevitably reflect seriously and adversely on the medical profession and the provision of health care within the public sector. The maintenance of public confidence in health professions and in the delivery of health services is an objective of the National Law. The professional responsibilities of practitioners must be understood accordingly.
6. The respondent's role description as a Consultant at Mt Gambier was tendered as exhibit C11. It makes specific reference to the fact that "SA Health has a position of zero tolerance towards men's violence against women in the workplace and in the broader community".
7. There was a clear connection, in our view, between the allegations made against the respondent and his role, position and status as a practitioner within the public health system. The allegations, if true, would impugn his clearance to work with children,[338] his fitness to be employed within the public health system, and his fitness to be registered. They would bring the public health services into disrepute. The fact that such allegations had been made was a matter of relevance and importance to the respondent's employer. It was a fact directly relevant to his employer's duty of care to the public.

1. On 19 September 2019 the respondent was interviewed by police. He was advised of the detail of the allegations and was told that he was being reported for the offence of indecent assault. At that stage, he had not actually been charged with that offence and thus did not come within the wording of the Code requiring advice to his manager. As we understand it, the Board's case is not based on a failure to make a report at that time, so there is no need for us to address that issue.
2. Be that as it may, he provided no advice at all to the employer until 8 October 2019. He obviously did not wish to disclose the fact he had been reported or the detail of allegations made. His hand was then forced by receipt of a letter from the Board which advised him of the notification made to the Board and the Board's proposal to suspend his registration by way of immediate action. Under threat of his registration being imminently suspended, the respondent had no real choice but to advise his employer of the threatened suspension.
3. It is clear that he did so, but we must consider what information he chose to reveal while doing so.

1. Ms Buchanan was the CEO of LCLHN.
2. The evidence establishes that the respondent sent a text message to Ms Buchanan, on 8 October at 6.05pm.[339] He asked to speak to her and stated that it was urgent. At 6.27pm on the same day he emailed to thank her for "speaking to me regarding the AHPRA email that I received today".[340] It appears that he had a conversation with Ms Buchanan (either in person or by telephone) between these times. The conversation appears to have related to the letter he had received from AHPRA on 8 October.
3. On 11 October 2019 the respondent was on the same flight[341] as Ms Buchanan and they had a further conversation. It is necessary to carefully consider the evidence as to what information was conveyed to Ms Buchanan by the respondent on 8 and 11 October 2019.
4. Ms Buchanan provided a statement on 17 April 2020.[342] She referred to sitting next to the respondent on a flight to Adelaide. The statement continues:

On the flight Dr Qazi informed me he was going to meet his lawyer in Adelaide. A former female junior medical staff in the same team as Dr Qazi had accused him of sexual harassment. Dr Qazi said it was reviewed at the time by the management and not thought to be valid. I think he said, the person had also gone to the police as well and they had not pursued this further. However, as this is a long time ago am not certain this was said. Dr Qazi said the event happened years ago (possibly 8-10 years). > > Dr Qazi informed me the person had followed him to his house in her own car and said there was no pressure on his part (my interpretation of his wording). Then she complained to the manager about his behaviour. > > Dr Qazi said he and his lawyer were confident it would go no further. Dr Qazi contacted me in Mt Gambier after the meeting with his lawyer and indicated it was all sorted. This was following my discussion with him on the flight to Adelaide. I cannot recall if this was in person or by telephone. > > On 16 March 2020 I received a notification that the AHPRA Board had decided to suspend Dr Qazi's registration. The notification was forwarded onto the LCLHN EDMS and the Director of People & Culture. > > Dr Qazi had not informed me of this development.

5. Ms Buchanan provided a supplementary statement on 18 November 2021.[343] In amplification of the earlier statement, she said (inter alia):

Dr Qazi said the event happened possibly eight to ten years ago and he told me a little bit of information relating to what had happened during the event. Dr Qazi said that the person accusing him had followed him to his house after night duty and that she was in her own car. Dr Qazi said he did not feel there was any pressure on his part. I cannot recall exactly what Dr Qazi said however in my interpretation, the effect of what he said was that they had a physical encounter of a sexual nature and then she complained to the manager about his behaviour. Dr Qazi did not go into detail about what his behaviour was. > > While we were still on the plane, Dr Qazi said that he and his lawyer were confident it would go no further as in that his legal matter would be settled and not go to court. At the time I put it out of my mind as the event happened 8-10 years ago. > > Dr Qazi did contact me after the meeting on the plane and said that it was all sorted.[344]

6. The Tribunal notes that these statements do not refer to a conversation on 8 October, the day that the respondent received the notice of proposed suspension from AHPRA.
7. As to the signing of the letter to the CAU dated 6 February 2020, Ms Buchanan said in the statement:

At the time of signing the letter, I cannot remember what information I had about whether criminal charges had been laid against Dr Qazi. > > I would not have signed the letter if I had known that there were formal criminal allegations against Dr Qazi.[345]

8. Ms Buchanan gave evidence before the Tribunal by video link.[346] She adopted her statement of 18 November 2021 as true and correct.
9. Ms Buchanan indicated that the plane flight referred to occurred towards the end of 2019. The respondent called her over to sit next to him. As to the conversation she had with the respondent, she stated:

Yep. So we (inaudible) um, we discussed that, um - I think I asked him why he was going to Adelaide, and he said he was going to meet his lawyer in Adelaide, um, and he mentioned that, um, there had been a female junior doctor, um, that had accused him of, um, (inaudible) sexual harassment. I can't recall the exact words he said, but it came across in that nature, uh, and he said it was about eight to ten years ago, and he'd been, um, reviewed by the employment - employer at the time (inaudible) the Local health Network, and it was not taken any further. He also said that, um -I think he said that, uh, [it][347] had been taken to the police, but the police weren't going to pursue that any further.[348]

Um, what he did say to me is that, um, after work - like , a night duty - uh, a few of the people would often go out for coffee, and he said at this time, um, he had, um, gone to his house, uh, to get something, and the person had followed him in her car and had come in to his house when, um, he said that they had a physical encounter, which I assumed was, um, something like he'd tried to kiss her, uh, and then she complained about his behaviour to her manager. At the time, though, he also said to me that his lawyer was confident that this would not be taken any further.[349]

1. Ms Buchanan deposed that the respondent did not go into detail about his behaviour. He didn't say anything else about the encounter.[350]
2. Ms Buchanan was referred to the email she received from the respondent on 8 October 2019. She did not recall receiving that email. She did not recall speaking to the respondent concerning an AHPRA email but agreed that she may have.[351] She had no recall of discussing any relevant matter with the respondent other than on the plane.[352]
3. Ms Buchanan stated that she took no action after the conversation on the plane. When asked why, she said: "I - I've - knew that it was eight to ten years ago. The information that Dr Qazi had given me, uh, indicated that it would go no further, and I believe Dr Qazi would've let me know if it had. ... Or the Director of Medical Services, because Dr Qazi doesn't report to me."[353]
4. Ms Buchanan indicated that she could not recall receiving any further information or updates from the respondent.[354] The Tribunal notes, however, that she later clarified in her evidence that the respondent did contact her and "said that everything had been sorted".[355]
5. Ms Buchanan's attention was directed to the advice she had received from AHPRA on 16 March 2020, that the Board had suspended the respondent's registration. She stated that, she was not aware, when she received that advice, that the respondent was charged with a criminal offence.[356] Hence, she was "surprised" by the suspension.[357]
6. Her attention was then drawn to the letter she had signed on 6 February 2020 addressed to the CAU. She was asked whether she knew at the time that the respondent had been approached by the screening unit and told that his right to work with children had, on a prima facie basis, been suspended. She answered: "No, I did not". She had only learnt of that fact in the context of the current proceedings before the Tribunal.[358] She confirmed that a WWCC is required to work in the ED.[359]
7. Ms Buchanan adhered to what she had said in paragraph 16 of her statement, namely that she would not have signed the letter if she had known that there were formal criminal allegations against the respondent.[360]
8. Under cross-examination, Ms Buchanan agreed that late 2019 and early 2020 was a very difficult time for the Mt Gambier Hospital and its ED. The ED was seeing about 70 patients a day. The respondent was the only doctor with specialist qualifications in emergency medicine. There were difficulties getting staff and locums to fill the necessary rosters. Doctors were working very long shifts. An email of 13 December 2019 referred to 21 vacant shifts between 23 December 2019 and 4 January 2020. On 24 December 2019 the respondent reported by email to the then Director of Medical Services and others that "current ED staffing over the Christmas and new year is unsafe. I'm afraid catastrophe can happen any moment."
9. In January 2020 there were tragic bushfires in Victoria and New South Wales with the ED having to prepare to receive victims. At the same time, hospitals were being alerted to the Covid 19 pandemic that was emerging and would imminently put serious strain on medical facilities. Eventually, there was a complete lock-down.
10. Ms Buchanan was referred to the email dated 8 October 2019.[361] She accepted that she would have received it. She accepted that she must have had a conversation with the respondent on 8 October prior to this email, but she could not recall it.[362] She could not recall whether or not she had been told by the respondent on this occasion that his registration was at risk of suspension. She could not recall whether or not the respondent discussed "some of the contents" of the AHPRA letter with her. She could not comment on whether or not "some of the matters you have referred to in relation to the conversation on the plane were, in fact, discussed during this conversation".[363]
11. She was asked:

MRS SHAW: Did he tell you that the AHPRA letter had said that the person had gone to a police station to report the incident, but was told that there was nothing that could be done, or words to that effect. > > Ms BUCHANAN: He told me that on the plane. I cannot recall it for the 8th of October. > > ... > > MRS SHAW: ...What I am putting to you is that he said words to the effect, on the 8th of October, that the AHPRA letter said that the person had gone to a police station to report the incident but was told that there was nothing that could be done, or words to that effect. > > MS BUCHANAN: Um, I can't recall it was the 8th of October. I recall it on the plane.[364]

Shortly afterwards, Ms Buchanan was asked and answered the following questions (omitting irrelevancies):

MRS SHAW: ... - what I was asking you was, did she - Dr Qazi tell you on the plane that the letter said that the person had reported the incident to the head of her department.

...

MS BUCHANAN: Yes.

MRS SHAW: Did he tell you words to the effect that, according to what he'd been told, it was considered - told through the letter - it was considered that because this incident occurred outside of hospital grounds, it was not a matter for the department? Can you say whether that was the effect ...of what he said, or something along those lines?

MS BUCHANAN: It would be the effect. Yes, it would be the effect of what he said.

MRS SHAW: Yes. And then did he tell you that he'd be - I'm now dealing with the 8th of October again, to be clear - that the department had considered it at the time and, in essence, because it occurred outside of school grounds (sic), then it could not be pursued.

MS BUCHANAN: Correct

MRS SHAW: ...Did he tell you, on the 8th of October, that the person, the junior doctor had gone to the police, but at the time she first went to the police, they had not pursued it any further at that stage, words to that effect?

MS BUCHANAN: I cannot recall that. I recall it when I was on the plane, that he said words to that effect.[365]

1. It was suggested to Ms Buchanan that the respondent had told her on the plane that he was due to appear at an AHPRA meeting in relation to the proposed suspension by the Board, and that's what he was going to see. She said that she could not recall that.
2. Ms Buchanan was asked about her evidence that the respondent later told her "It was all sorted". It was put to her that the respondent may have been referring to the fact that he had not been suspended, so he could continue to work in ED. She responded: "I cannot recall. No. No. I can't say what that (inaudible)".
3. Ms Buchanan was asked about the letter which she signed to the CAU dated 6 February 2020.[366] She was referred to the email from the respondent which asked her to sign this letter. She was asked whether the respondent had spoken to her before sending the email. She did not think that he did.[367] She was asked whether he had told her that he needed the letter for credentialling purposes in the sense of him facing criminal allegations. She responded: "No. I cannot recall that".[368] The cross-examination continued:

MRS SHAW: I mean, didn't Dr Qazi give you an explanation that he needed to reapply, if you like, for his working with children allowance with supporting material because of the criminal - because of the criminal allegations? > > MS BUCHANAN: I cannot recall that conversation. No. > > MRS SHAW: And do you agree it may have been said? > > MS BUCHANAN: Um, no, because I don't think I would've - I wouldn't have signed it.[369]

4. Ms Buchanan was asked about paragraph 16 of her statement dated 18 November 2021[370] in which she had stated "I would not have signed the letter if I had known that there were formal criminal allegations against Dr Qazi". She was cross-examined as follows:

MRS SHAW: Now, then you say in paragraph 16 - "If I'd known there were formal criminal allegations". Do you mean by that if you'd known he'd been arrested? > > Ms Buchanan: Just repeat the last (inaudible, overlapping). > > MRS SHAW: When you used the expression 'formal criminal allegations', do you - were you then referring to if someone has been arrested for the allegations. > > MS BUCHANAN: Uh, yes.[371]

5. It is convenient to refer in this context to questions asked by the Tribunal at the end of cross-examination as they relate to the same topic. The evidence was as follows:

MEMBER STEVENS: Yes, Ms Buchanan, I'm looking at your statement and at paragraphs 15 and 16. I want to be sure that I understand, and the Tribunal understands exactly what you're saying in paragraphs 15 and 16. Can you try to explain that to us please? Because on one reading, there's an inconsistency between them. > > .... > > MS BUCHANAN: Sure. Um, in relation to, um, 15, as I say, I couldn't remember the sequence of events, so I was just (inaudible) for that. Um, however, if I was aware of criminal charges, I wouldn't have been signing the letter. > > MEMBER STEVENS: And what would have been necessary in your mind for there to have been criminal charges? > > MS BUCHANAN: In my mind, it would have been that Dr Qazi had been charged with an offence. > > MEMBER STEVENS: Are you able to say whether you had been informed at the time of signing the letter as to whether Dr Qazi had been charged with an offence? > > MS BUCHANAN: I was, uh - what I recall is I (inaudible) not aware of criminal charges.[372]

6. Counsel for the respondent was offered the opportunity to cross-examine further following this evidence but did not do so.
7. We revert to cover a couple of other matters raised in cross-examination. Ms Buchanan was asked about her receipt of the letter on 16 March 2020 from AHPRA. She was asked whether the respondent had called her upon receiving that notification and she could not recall.[373] She confirmed that she would have advised Dr Pretorius and the Director of People and Culture (Ms France). She confirmed that this immediate suspension occurred at a time when the Hospital was about to go into a period of lock-down due to the Covid pandemic.[374]
8. Ms Buchanan was asked whether she had spoken at any stage to the respondent's lawyer, Mr Caldicott. She said: "Not that I recall". It was suggested to her that they had spoken at Mr Caldicott's instigation about whether the respondent would continue to be paid. Ms Buchanan could not recall.
9. Before leaving the evidence of Ms Buchanan, the Tribunal draws attention to what was not put to her in cross-examination. It was not suggested to Ms Buchanan that the respondent at any relevant stage had provided her with any detail which might have alerted her to the fact that the allegations against him related to an (alleged) serious indecent assault. It was not suggested that the respondent at any relevant time told Ms Buchanan:
   1. that there was ongoing police investigation or involvement; or
   2. that he had been interviewed by police in 2019; or
   3. that he had been reported for the offence of indecent behaviour, or
   4. that he had been charged with the offence of indecent behaviour, or
   5. that the allegation against him was that he had indecently assaulted a colleague.

Letter to the Respondent from LCLHN dated 16 April 2020 and response thereto

1. On 16 April 2020 Ms Buchanan wrote to the respondent. This letter is exhibit C18. The opening paragraphs of the letter state:

This letter serves as a formal notification that you are suspected of committing misconduct and as a result an investigation is to be undertaken. > > In summary, I suspect on or about 13 January 2020 you were charged with a criminal offence and failed to advise your manager of that charge. If proven on the balance of probabilities, I suspect that such failure would contravene provisions of the Professional Conduct Standards in the Code of Ethics for the South Australian Public Sector ("Code of Ethics") and amount to misconduct as defined in the Public Sector Act 2009.

2. The letter gave notice of the author's intention to suspend the respondent from duty and invited his submissions. He was directed to remain absent from the workplace.
3. Unfortunately, this letter was not amongst the documents originally tendered by the Board, although there were references to it in those documents, including a letter from the respondent's solicitor replying to it. The letter C18 was produced for the first time at the start of the final day of the hearing when the respondent was under cross-examination. Counsel for the Board advised the Tribunal that counsel had realised the document was missing, that the Board/AHPRA did not have it, and that it had just been obtained from Ms Buchanan. The letter is a significant part of the chronology. The Board sought to tender it.
4. The respondent opposed the tender on the basis that it would be unfair to receive the letter at this belated stage of the proceedings. Counsel referred to the fact that the chance to examine Ms Buchanan concerning it had passed. The Tribunal decided that it was appropriate to receive the document into evidence. The Tribunal noted that the original document had been in the respondent's possession at all relevant times, and it was not suggested that his solicitors were unaware of it. The content of the letter contained no surprises. Such content could generally be inferred from other documents already before the Tribunal. The Tribunal was of the view that there was no unfairness to the respondent. It was in the interests of justice for the evidence to be complete.[375] The Tribunal indicated it would entertain any application such as for recall of Ms Buchanan, but no such application was made.
5. The respondent's solicitor replied to the letter on 21 April 2020.[376] In the course of that letter (addressed to Ms Buchanan), he stated:

As soon as my client was charged, the matter was reported to the appropriate authorities. > > It was reported to you via telephone on 8 October 2019. On 9 October 2019 AHPRA was notified, and the Credentialling Committee was notified on 3 March 2020.

6. The letter contains no suggestion that written advice was ever given to LCLHN.
7. It is convenient to deal immediately with the above claims. Firstly, the respondent (on his own case) was not charged until January 2020. He could not have given advice of the charge in 2019. Secondly, insofar as the letter might be understood as a claim that he notified Ms Buchanan on 8 October 2019 of the fact that he had been reported for the offence of indecent assault, that is not her evidence and not what was put to her in cross-examination. We will examine the respondent's evidence on this point in due course.
8. Thirdly, although not directly relevant to allegation 2, AHPRA had written to the respondent on 8 October 2019, referring to the fact that he had been reported for the offence of indecent assault.[377] It is non-sensical to suggest that he notified AHPRA of this fact on 9 October 2019.
9. Finally, there is no evidence before the Tribunal of any communication from the respondent to the Credentialling Committee on 3 March 2020. Nor is there any evidence that the respondent notified the Credentialling Committee at any time that he had been charged with (or reported for) an offence. The respondent submitted an application to that Committee on 11 March 2020.[378] In answer to the question: "Has a criminal claim of any nature ever been made against you? If you have answered yes, please provide details", he ticked "Yes" and added: "Currently under investigations by AHPRA/SAPOL". This was not a notification that he had been charged with an offence.

1. Dr Pretorius became the Executive Director of Medical Services in January 2020.[379] She was not in this position in 2019.
2. Dr Pretorius gave a statement to LCLHN on 12 November 2020[380] and a statement to AHPRA in November 2021.[381] These statements were tendered as part of the Board's case and Dr Pretorius was not required to attend for cross-examination.
3. On 12 March 2020 Dr Pretorius was provided with a copy of the respondent's application for renewal submitted to the Credentialling Committee and dated 11 March 2020.[382] Her attention was drawn to the suggestion that the respondent was under a SAPOL investigation.
4. Dr Pretorius stated that she had no knowledge of this matter before receiving the above information.[383] She conferred with Ms Buchanan who advised her that "Dr Qazi had told her that it was a vexatious claim from 8 years ago and he was confident that it would not go any further".[384]
5. Dr Buchanan had deposed that she received a letter from AHPRA on 16 March 2020, stating that the respondent had been suspended.[385] She deposed that she forwarded it to Dr Pretorius and Ms France. Given the urgent situation caused by the suspension, it can be inferred that she did so the same day. Dr Pretorius states that she received this letter on 18 March 2020 (and that it referred to a suspension on 18 March),[386] but that may well not be correct. It seems more likely she received it on 16 March 2020.
6. During the evening of 16 March 2020, Dr Pretorius texted the respondent concerning a clinical matter and added "...Ngaire told me about the other stuff. I am really sorry to hear and hope you are ok. Please know you have my unqualified support and let me know if there is something I can do".[387] In her statement Dr Pretorius could not recall what she meant by "the other stuff". She assumed that it referred to what she had been told by Ms Buchanan.[388] It is likely that she also knew at this time of the suspension and understood the suspension to relate to the matter she had been told about.
7. Dr Pretorius notes that the letter from AHPRA did not provide any details as to why the respondent had been suspended.[389] She confirms that she had no knowledge at that stage of the gravity of the allegations or that there were already criminal charges.[390]
8. LCLHN asked AHPRA to reconsider the suspension in the light of the Covid 19 epidemic and Dr Pretorius provided information to AHPRA on 1 April 2020 in support of that request.[391]
9. On 14 April 2020 Dr Pretorius received a letter (with annexures) from AHPRA which stated that the respondent was charged with indecent assault and contained details of the allegations.[392] She states that

...I was shocked and horrified at the detail of the allegations against Dr Qazi. Before receiving the letter and the enclosed documents I was not aware that Dr Qazi was alleged to have committed an indecent assault against a work colleague, or that he had been charged with the criminal offence of indecent assault. > > If I had known of the details of the allegations, I would not have supported Dr Qazi's return to work following AHPRA's initial decision to suspend his registration.[393]

10. As detailed above, upon receipt of the letter from AHPRA on 14 April 2020, LCLHN promptly suspended the respondent from his employment and indicated that he would be investigated for failure to advise his manager of the criminal charge.[394]

1. Ms France was the Director of People and Culture. Her statement[395] confirms that the respondent at no stage provided written notice that he had been charged with a criminal offence.[396] She deposes that any notification of a serious criminal offence would necessarily be referred to herself, Dr Pretorius and/or Ms Buchanan. She outlines the steps that would be taken in relation to such a matter.[397] Her evidence is consistent with what did actually happen after 14 April 2020.

1. The respondent affirmed an affidavit on 7 December 2021 which he adopted in his evidence.[398]
2. He acknowledged signing his contract of employment on or about 1 April 2018. He does not recall reading the Code of Ethics carefully.[399]
3. He provided details as to his background and qualifications. We have regard to this evidence but do not repeat it here. He indicated that the Mt Gambier Hospital covers a vast area and is the only hospital in the region which deals with heart attack and stroke victims.[400]
4. The Emergency Department sees about 70 patients a day, sometimes considerably more. His work as Emergency Physician and Director of the Department was extremely challenging and demanding. He would supervise all junior doctors and have responsibility for most cases in the Department. He deposed to the very busy period in December 2019 and January 2020 when there were 21 vacant shifts. He identified the email correspondence at that time.[401]
5. He would work about 10 hours per day and was on call after those hours.
6. Prior to the allegations his integrity and honesty had never been questioned He had no prior involvement with police allegations or the justice system.[402]
7. He deposed that he had heard nothing about the allegations of AB until he was interviewed on 19 September 2019. He was informed of the allegations. The police officer told him he was not being arrested. She told him he was being reported. He did not fully understand what this meant but understood he had not been charged. He thought nothing more would come of it as it seemed so absurd. He took steps to obtain legal advice.[403]
8. On 8 October 2019 he received the letter from AHPRA, advising him of the notification. He was invited to make a submission as to why he should not be suspended.
9. On 8 October 2019 he spoke to Ms Buchanan by telephone. He deposed:

In my telephone conversation with her I had the letter I had just received from AHPRA with me and so I referred to the allegations in the AHPRA letter. I also gave her some of the detail I had been given by Sarah Munn during the interview with her on 19 September 2019 at Elizabeth Police Station. I told Buchanan both over the phone and in my email that I would keep her updated ...[404]

10. The respondent exhibited to his affidavit the email he sent to Ms Buchanan following the conversation.[405] It stated:

Thanks for speaking to me regarding ahpra email I received today. I will keep you updated with any more information or updates. Following are my lawyer details for more information if required. [Details provided] > > (Our emphasis)

11. The respondent deposed that his intention was to fully cooperate and inform his boss and he told Ms Buchanan that. He did not think he had to tell anyone else. He was not aware of any obligation to tell his manager.[406] He had instructed his lawyers to provide any information to AHPRA or his employer that they requested.[407]
12. On 11 October 2019 he took a flight to Adelaide and spoke to Ms Buchanan on the plane. He beckoned her to come and sit next to him. He deposes:

We discussed the allegations in some detail and I further advised her that my legal team were due to appear at AHPRA to argue against the suspension.[408]

13. On 14 October 2019 he attended at AHPRA with his legal team and the Board decided not to suspend him. The Board told him by letter that:

"The Board has placed the investigation on hold until such time as advice has been received from SAPOL as to the outcome of the criminal investigation" [emphasis added][409]

14. The above quotation from the Board's letter dated 18 October 2019 (with emphasis added in the respondent's affidavit) is incomplete. It stops mid-sentence. The letter, which is exhibited to the affidavit as UQ3, specifically advises the respondent that the investigation has not been finalised and is ongoing. It then states:

In this regard, we advise that the Board has placed the investigation on hold until such time as advice has been received from South Australia Police (sic) as to the outcome of the criminal investigation (and any associated proceedings). > > (Our emphasis)

15. We add a further observation. The Board's letter clearly differentiated (as had the Board's earlier letter dated 8 October 2019) between the ongoing investigation and the matter of immediate action. As to the latter, the letter indicated that the Board had "decided not to take immediate action at this time" (Emphasis added). This is in the context of the respondent's submissions to the Board that no immediate action should be taken because (inter alia) no decision had yet been made to charge the respondent with any offence.
16. The respondent's affidavit continued:

The AHPRA letter made it plain, and I had every reason to believe that AHPRA were communicating directly with SAPOL and so knew what was happening at all times. > > I also believed that AHPRA were in communication with my employers and given that I had a lawyer representing me to respond on my behalf I believed that everything that needed to be done was being done. > > I continued to work in my paid employment and believed that the matter would be resolved in due course. I was not suspended, my employer knew of the allegations and AHPRA had reversed their decision. Things proceeded fairly normally from that point and I continued to run an extremely busy Emergency Department.[410]

17. We observe that the affidavit provides no detail as to the basis upon which it is claimed that the respondent "believed that AHPRA were in communication with my employers". We also observe that the affidavit does not state what the respondent actually told Ms Buchanan (or any other manager) about the allegations against him.
18. The affidavit then addresses the job application submitted by the respondent on 13 December 2019. He states that he did not answer the questionnaire as carefully as he should have. He states:

There are a number of mistakes throughout the document including for my date of arrival in Australia I have mistakenly recorded my date of birth. I was incorrect in answering "no" as to whether I speak English and other languages at home - in fact, I do speak other languages at home. > > There is a further mistake at page 15 of the form where I have recorded 1 November 2018 as the date my Department of communities and social inclusion (sic) criminal history child related employment screening check date was issued when it should be 20 November 2019. > > I admit that I did not complete the form as carefully as I should have. In the back of my mind, I had not been charged, however, on reflection I agree I should have answered the question as to allegations of conduct of a violent and/or sexual nature towards a person over 18 as "yes". > > I dispute that I had any intention to make a false statement or to mislead anyone. I was careless in answering the form and I accept I should have answered "yes" however to my mind everyone knew about the allegation including AHPRA my employers the police and my lawyers. I had instructed my lawyers to respond on my behalf to anything they were asked and I told my employer on the same day I received my initial letter from AHPRA. My intention was not and has never been to conceal or deceive anyone.[411]

19. The respondent confirmed that he became aware of the police charge a few days after 13 January 2020.[412] He states:

Despite being charged, I was not arrested nor was I required to attend court and nor was I placed on bail. My lawyer knew and I believed AHPRA knew given their direct communications with the police. I do believe after I was charged, I asked Mr Caldicott whether I needed to tell anyone else, and he said I did not. I believed everyone who needed to know did know. I did not attempt to conceal it from anyone.[413]

20. We observe that the respondent does not claim in his affidavit that he told Ms Buchanan or any other LCLHN officer at this point (or at any time before 14 April 2020) that he had been charged with the offence of indecent assault. This is despite his previous statement to Ms Buchanan that he would keep her updated.[414]
21. The respondent states that he received the letter from the CAU dated 24 January 2020. It invited him to make a submission.[415] His lawyer provided an initial response dated 29 January 2020.[416]
22. The respondent states[417] that he received a letter from his solicitors on 31 January, suggesting that he obtain a reference from his "supervisor, Ms Buchanan" indicating that he had contact with children and was of no concern to them. He states that:

I telephoned Ms Buchanan with the request that she provide a letter. I had no reason to conceal from her the fact that I had been charged and believe that I would have told her. The wording of the proposed email which I sent to Buchanan was suggested to me by my solicitor.[418]

23. The respondent states that Ms Buchanan provided him with the letter on 6 February 2020.
24. It is convenient to note at this point that correspondence between the respondent and his solicitor was subsequently received into evidence.[419] On 31 January the solicitor wrote, suggesting that a reference be obtained from the respondent's "_superviso_r". The respondent emailed his solicitor the same day, attaching a draft of the letter he would ask his supervisor to sign. The draft letter was in the name of Dr Pretorius, who was in fact the superior to whom the respondent reported.[420] The respondent's email to his solicitor asked:

Do I need to tell her about the case? If it is not necessary, I would prefer not to give her the details".

25. The respondent records that his solicitor then provided submissions to the CAU.[421]
26. The respondent states:

My employer did know about the allegations and to my mind nothing else had changed. The fact that I had been charged I believed must have been known to AHPRA because of their continuing contact with police. I had my solicitor looking after my responses both through the Department of Human Services and with AHPRA - Mr Caldicott was handling those communications - if DHS was aware I may have wrongly assumed AHPRA knew also. > > As far as I was concerned, I was being open and transparent and complying with all appropriate processes and relying on my solicitors to advise me of my obligations. In reading letters to my lawyer and his responses I was content that everyone was informed of everything they needed to be informed of. The fact that I had been charged was not a secret and is openly referred to in correspondence with DHS.[422]

27. We observe that DHS had become involved because of the charge and was clearly aware of it at all relevant times. The fact that the charge was acknowledged in correspondence with DHS says nothing about the degree to which the respondent was candid with other agencies.
28. The respondent refers to his suspension by the Board on 16 March 2020 and to the subsequent decision to stay that suspension.
29. The respondent states:

In relation to the allegation that Dr Pretorius and Ms France had not been informed I say, had I not believed that telling the CEO was sufficient, I would have ensured they were told.[423]

30. The respondent states that he called Ms Buchanan immediately after receiving the email from AHPRA on 16 March 2020, advising him that his registration was suspended. He refers to the text message he received from Dr Pretorius the same day.[424]
31. The respondent states:

I was unaware that, the fact that I was charged required me, within seven days, to give written notice of that fact. I was relying on the fact that I was legally represented and that that ensured that I would be complying with my legal requirements. Further, I had been told in the initial letter from AHPRA, annexure UQ3 that they were awaiting the "outcome of the criminal investigation". I did not consider the outcome would be known until after my criminal trial.

32. As previously indicated, the respondent gave evidence before the Tribunal.[425]
33. He described receiving the letter from AHPRA on 8 October 2019. It indicated that immediate action by way of suspension was proposed. This was a critical issue due to the importance of his role in ED. He immediately attempted to contact Ms Buchanan. He sent a text,[426] saying that he needed to speak to her urgently. She called him back.[427]
34. He had a conversation with Ms Buchanan about the letter he had received from AHPRA. He told her he had received the letter and that they were proposing to take immediate action. He deposed:

Then I also give her the outline of the allegations. ...Uh, and just tell her what was in the letter actually, what's written in here. Like it's dated back to 2010, uh, about the doctor I work with and uh, (inaudible) allegations.[428]

35. The respondent stated: "I remember telling her these are false allegations. From (inaudible)".[429]
36. He described that he sent an email[430] to Ms Buchanan after the conversation. He provided his solicitor's contact details.
37. The respondent deposed that suspension was a serious issue and he would have to keep Ms Buchanan updated about any developments.[431]
38. The respondent then described how he saw Ms Buchanan during the plane flight to Adelaide. He produced a boarding pass[432] for a flight on 11 October 2020. He was referred to his affidavit where he had said that they discussed the allegations in some detail. He said that the source of his information about the allegations was the AHPRA letter.[433]
39. The respondent stated that he attended the meeting at AHPRA. He was notified of the outcome by letter dated 18 October.[434] He advised Ms Buchanan of that outcome. He deposed:

I told her the outcome of my meeting with AHPRA, uh, on the 14th of October, um > > ... > > Which is the Board is not taking any, uh, immediate action and they're, um - I don't remember the exact word, but they're postponing their, uh - any investigations till the police, uh, inquiry (inaudible), something along the lines of that, as indicated in that letter.[435]

40. The respondent then gave some evidence re staffing difficulties in 2019-2020. Emails concerning this were tendered.[436]
41. The respondent then canvassed the events leading to his request of Ms Buchanan in February 2020. He said that the wording of his draft letter presented to Ms Buchanan was obtained from Mr Caldicott's letter. He was asked about his communication with Ms Buchanan. He deposed:

I remember speaking to her, um, that I would need this letter to, um - to renew my, uh, working with children check.[437]

42. He then sent Ms Buchanan an email.[438]
43. The respondent referred to receipt on 16 March 2020 of notice from AHPRA that he had been suspended immediately. He deposed that he rang Ms Buchanan and told her he was suspended.[439] He also referred to the text message received from Dr Pretorius the same day.[440]
44. Under cross-examination, the respondent agreed that, as a practitioner working in the public sector, he knew that he was subject to a Code of Ethics. He "didn't have much familiarity" with it. He didn't "go through it" when he signed his contract.[441]
45. He said that he was not aware of the obligation to advise his manager in writing when charged with a criminal offence.[442]
46. He was not aware that failure to comply with professional standards under the Code could result in disciplinary proceedings and allegations of misconduct.[443]
47. He agreed that he was charged with the offence of indecent assault on 13 January 2020 and became aware of that on 16 January 2020. He agreed that there was no document in which he had advised his employer in writing of that charge.[444]
48. The respondent recalled receiving the communication from AHPRA on 8 October 2019. He agreed that it was a highly significant matter for him because the proposal was to suspend his registration. He had a telephone conversation on 8 October with Ms Buchanan. He agreed that he did not go through line by line what the letter said. He told her about the proposed suspension. He "told her about the allegations" in the letter. He did not go through the letter "word-for-word".[445]
49. He was asked about the plane trip when he spoke to Ms Buchanan. He said: "We went through the details". He agreed that during the plane ride he had mentioned that a female junior doctor that he'd previously worked with had accused him of sexual harassment. He then said that the words used were either "sexual harassment" or "sexual assault".[446]
50. He stated that the only information he had at the time was the letter from AHPRA.[447] He told her there were allegations and that they were false allegations. He said: "I didn't go through the letter, but I'd read the letter, so I told her what was in the letter". He did not have the letter with him at the time.[448]
51. He denied having said to Ms Buchanan that the allegation had been reviewed at the time by management and that it was thought not to be valid. He then amended this answer by saying: "I think that's partially correct or incorrect" and "I did tell her that she has gone to management".[449]
52. He agreed that he had said that the person accusing him had gone to the police, but they had not pursued it any further.[450]
53. The respondent said he had told Ms Buchanan the exact year and month of the alleged incident. He may have said something about the person following him to his house ("in reference to, uh, uh, going past my house").[451]
54. It was put to the respondent that he said to Ms Buchanan that he and his lawyer were confident that it would go no further. He responded:

DR QAZI: I don't remember saying that. > > MR DUGGAN: Is it possible you did say that? > > DR QAZI: No.

He denied saying words to the effect that the matter would settle and not go to court.[452]

1. The respondent confirmed that he had spoken to Ms Buchanan after AHPRA had decided not to suspend him. He was asked whether he told her "that it was all sorted". He said:

I don't remember saying these words, "it's all sorted", um, but I remember telling her that, uh, AHPRA had, postponed their investigation till the completion of, uh, uh - till the trial or police investigations are, uh, uh, done - till that time.[453]

2. It was put to the respondent that he had suggested the matter had "gone away" or words to that effect. He denied this.[454]
3. The respondent was asked about the position he applied for on 13 December 2019. He stated that he was familiar with the form and the declarations that had to be made. He knew the purpose for those declarations. He said he did not fill out the form carefully.[455]
4. He was asked about his failure to declare that he had been the subject of allegations of a violent and/or sexual nature to an adult person. He suggested that his answer to that question was "a mistake". He stated that he made a number of mistakes on the form. He had put his date of birth where he should have put his arrival date in Australia. He had said that he did not speak a language other than English at home whereas that was not correct. He had put in incorrect details concerning his WWCC.[456] He denied that his declaration was deliberately false. He said he had no reason to lie or mislead. He deposed:

DR QAZI: It has never been my intention to conceal or hide information from my employer or when I apply for a job. > > MR DUGGAN: But, Dr Qazi, you read that question, didn't you? > > DR QAZI: I didn't read it. I always answer no to this - these forms when I fill out these questions.[457]

5. The respondent's evidence relevantly continued as follows:

DR QAZI: ... Everybody knew about this case; the police knew, AHPRA knew, SA Health knew. Why would I put in something which is known to everybody? > > MR DUGGAN: But, Dr Qazi, on the 13th of December 2019, you were well aware that the police were considering charging you in relation to this matter, weren't you? > > DR QAZI: I accept it, uh, Mr Duggan. This is my mistake. I (inaudible) by mistake.[458]

6. Then followed a critical passage of evidence which we will set out in full:[459]

MR DUGGAN: ...So you told me that you found out about the charge on the 16 January 2020. I want to suggest that from that time until you were suspended on the 16 March 2020 - that you never told Ngaire Buchanan that you had been charged. > > DR QAZI: Um, I did - updated her about the charge. I remember our conversation where I told her, um, that, um, I am charged now, but that does not mean that I need to be on bail or - or - or I'm arrested. > > MR DUGGAN: I'm just writing that down. When do you say that that conversation occurred in that period - in that window that I've given you? > > DR QAZI: So, uh, either on 16th or within the next few days of - I come to know about (inaudible) > > MR DUGGAN: All right. So that's actually the last day of the window, the 16th of March 2020, that you're talking about, is it? > > DR QAZI: Yes. > > MR DUGGAN: All right. What about - is that the first time you told her that you were charged with an offence? > > DR QAZI: Yes. > > MR DUGGAN: Okay. And you had to tell her you were - well, I take that back. You had to have a discussion with her at that stage because you'd been suspended, correct? > > DR QAZI: Um, I'm just rephrasing so I answer you correctly. > > MR DUGGAN: Sure. Yes. > > DR QAZI: So, uh, you're asking that I - if I told her when I got charged on the 16th. Yes I did. > > MR DUGGAN: One - on the 16th - so just to get this - > > DR MENZ: 16th of - sorry, 16th of what month? Are we talking January or - > > DR QAZI: 16th of January. Around 16th January. > > MR DUGGAN: Oh, you're talk - yes, thank you [laughs]. You're talking 16th January, are you, that you told Ngaire Buchanan that you had been charged? So let's just go through the sequence again. That's when you found out that you'd been charged? > > DR QAZI: Yes. > > MR DUGGAN: Okay. And you say you told her almost straight away after you found out that you'd been charged, is that right? > > DR QAZI: Yes. I remember, uh, when I come to know, I went to her office. She was not there, and I left a message with her PA. Her name is Barb - to give me a ring when she's back. I would like to see her. > > MR DUGGAN: Well, I suggest to you that you did not, in fact, tell Ngaire Buchanan that on or about the 16th of January 2020, and I give you an opportunity to respond to that now. > > DR QAZI: I did told her. > > MEMBER STEVENS: Well, the answer so far is that - "I left a message with the PA to ring me". > > MR DUGGAN: Yes. So just following that up, was there further contact that was made? > > DR QAZI: Yes. There was a further contact. I received a call from Ngaire Buchanan and in that conversation I told her that I'm being charged now. > > MR DUGGAN: And when do you say that that happened? What date? > > DR QAZI: Uh, either on the 16th or 17th. Within - within those dates. > > MR DUGGAN: Just be 16-17 January; is that what you're saying? > > DR QAZI: That's correct. Yes. Within a few days of me getting to know about it. > > MR DUGGAN: And - > > DR QAZI: And less than a - a week's time that - if you want a more specific answer. > > (Emphasis added)

7. The respondent was asked what Ms Buchanan's response was to this communication. He said he could not remember her response. He said there was not any significant response. He volunteered that he did not recall her asking for any clarification or asking him to tell anyone or to notify anyone or to tell her in writing.[460]
8. The respondent was cross-examined about the fact that this alleged conversation is not referred to in his affidavit. He could not say why. He denied that he was making up this evidence.[461]
9. He was cross-examined in similar vein in relation to the responses provided by his solicitors in the context of his employer's disciplinary investigations and proceedings. Reference was made to a letter from LCLHN to the respondent dated 22 September 2020.[462] In that letter it was alleged (inter alia) that the respondent had failed to advise management at the earliest possible opportunity that he had been charged with a criminal offence. The respondent's solicitor responded to that allegation by letter dated 7 October 2020.[463] It was put to the respondent in cross-examination that there was no mention in that response of the claim that the respondent advised Ms Buchanan on or about 16 January 2020.[464] He agreed that he had reviewed the response before his solicitor had sent it.[465]
10. The respondent was referred to the letter he received from the CAU dated 24 January 2020.[466] He agreed that it was a serious matter as he needed a WWCC to work in the ED. He was referred to a letter he received from his solicitor dated 31 January 2020 and his email to his solicitor of the same date.[467] He had said, "Do I need to tell her about the case. If it is not necessary, I would prefer not give her the details." He agreed that he was referring to Dr Pretorius. It was put to the respondent that he didn't want to tell Dr Pretorius about anything to do with the allegations made against him by AB. He responded, "That's not true." He stated that Dr Pretorius had started at the Hospital in January, he had already spoken to Ms Buchanan, and it was more comfortable for him to speak to her.[468]
11. It was put to the respondent that it was important for him to tell Dr Pretorius that he had been charged, irrespective of when she had started at the hospital. He responded that he was not withholding information. He was going to the person he was more comfortable with.[469] The Tribunal raised the issue of whether he thought Ms Buchanan would have shared information with Dr Pretorius. He was asked:

MEMBER STEVENS: Because what you appear from this email to have been contemplating, that you - was that you would ask Dr Pretorius to sign the statement about your suitability for working with children without telling her that you were, at that point in time, the subject of a police charge for an alleged sexual assault as it was - > > DR QAZI: I was uncomfortable speaking to the new person who just started in my institution, and I didn't know her before, and it was much more easier for me to speak to Ngaire Buchanan. That was the only reason.[470]

12. It was put to the respondent that nothing in the draft he prepared referred to the context, namely that he might potentially be prohibited from working with children. He said that the draft was never sent to Dr Pretorius, and he had spoken to Ms Buchanan concerning "that I needed a letter from her in order to, uh, get clearance of working with children".[471]
13. The respondent stated, "Look I told Elaine Pretorius' boss this is why I needed the letter, and - as I said before, you don't need any letter from your supervisor or from your work (inaudible) to get clearance for working with children. So I had to explain it to her-

'Because of the recent, uh, charges against me, I needed that letter from you.'[472]

14. The respondent agreed that Dr Pretorius was his manager.[473]
15. The respondent was asked about his email to Ms Buchanan dated 5 February. It was suggested that it stated inaccurately why he was seeking the letter. He responded:

DR QAZI: Are you referring to 'in order to renew my working with children check'? > > MR DUGGAN: Yes. I am. > > DR QAZI: So the working with children is valid for five years, and my, uh - and they wanted more, uh - a letter from the hospital so that it can be renewed for another five years, so[474]

16. The respondent did not acknowledge any issue with how his email was worded. Further, he said he had spoken to Ms Buchanan before sending the email and explained why he needed the letter. He confirmed that Ms Buchanan knew "the exact reason" he wanted the letter. He denied that he was "making up" his evidence as to conversations with Ms Buchanan.[475]
17. He was asked why he initially proposed to get the letter signed by Dr Pretorius. He responded that his solicitor had suggested a letter from his supervisor, and she was his supervisor.[476]
18. The respondent was asked why he stated in his email to Ms Buchanan that the CAU wanted a reference from the CEO. He said, "I think my wording is not correct in that letter".[477]
19. Member Golding then asked the respondent whether a person's manager or supervisor would need to know if that person had been charged with an offence that put that person's WWCC at risk. He answered "Yes" but denied that he preferred not to tell Dr Pretorius.[478]
20. The respondent agreed that there was no reference in his response to the alleged conversation with Ms Buchanan shortly after 16 January 2020.[479] It was suggested that the first time he had ever said anything about that alleged conversation was in his evidence earlier that day. He said that was "false". He said:

I was keeping my solicitor, my employer, and whoever I needed to know about the ongoing development, whether it was written on the forms, or whether it's an email, or in person. I was keeping everyone informed.

He could point to no documentary reference with respect to the alleged conversation.[480]

1. The respondent stated that he told Mr Caldicott that he had advised Ms Buchanan he had been charged.[481]
2. The respondent was referred to correspondence from AHPRA dated 3 March 2020 in which immediate action was again being proposed.[482] He confirmed that his solicitors provided submissions to AHPRA dated 10 March 2020. He confirmed that he had read that letter and instructed his solicitor to send it.[483]
3. He was asked about the statement in the letter, "I respectfully remind the committee that ... his supervisor is aware of the matter". He said that was a reference to Ms Buchanan.[484]
4. The respondent was then taken to AHPRA's letter dated 16 March 2020 in which he was advised of his immediate suspension from practice. He said that he told Ms Buchanan that he had been suspended and could not work the next day. He deposed that Ms Buchanan was "surprised". He did not remember her saying anything. He did not know why she was surprised. He stated, "I think she was supportive. She said, 'I'm sorry to hear about this'. Something along the lines."[485]
5. The respondent was taken to the application he made to the Credentialling Committee on 11 March 2020.[486] As to his statement on page 1124 that "No action is taken", he stated that he was referring to the fact that AHPRA had not taken action in October 2019 to suspend him. It was pointed out to him that, at the time of signing this document, the Board was again considering whether to suspend him. He said, "I was still working in the hospital performing my duties, and I had no restriction on my registration".[487] The Tribunal notes that on page 1125, the respondent noted that he was currently under investigation by AHPRA and the police, but did not volunteer that he had been charged with an offence.
6. The respondent was referred to the decision of AHPRA on 7 April 2020 to stay his suspension. He said that on 8 April before returning to work he met with Dr Pretorius in her office. He asked her whether she wanted any further "info" and she said no.[488]
7. It was put to the respondent that he had failed to notify the Board within seven days that he had been charged. He said that he was unaware that he had to. He said that, "to my knowledge", the Board was already aware and were in investigation (sic) with SAPOL. He deposed that his solicitor had advised him he didn't need to advise anyone else.[489]
8. The respondent was questioned about the letter from LCLHN (Ms Buchanan) dated 16 April 2020[490] which stated that he was to be investigated for failure to advise his managers of his criminal charge. He deposed that he was surprised and shocked to receive the letter as he had told Ms Buchanan about the charge on or about the 16 January and again on 5 February. He referred the letter to his solicitor who responded on his behalf.[491] It was put to him that the response made no reference to alleged conversations with Ms Buchanan on the above dates.
9. During re-examination, the respondent produced an email chain that became exhibit R19. He deposed that he emailed Dr Pretorius and Ms Buchanan on 7 April 2020 and advised them that his suspension had been lifted and that he could return to work. Dr Pretorius responded "Woo hoo!!! Great news". She indicated that she would need to catch him up on what had happened in his absence. He agreed to catch up with her. The Tribunal notes that there is a copy of a text message (annexed to Dr Pretorius' statement)[492] from Dr Pretorius to the respondent dated 8 April 2020. This message asked whether he could catch up that afternoon with Paul, Ngaire and her.
10. The respondent deposed that he had met with Dr Pretorius on 7 April at around 5.00pm-5.30pm. He deposed that he specifically remembered asking her whether she wanted any more detail and she said "no".
11. With regard to correspondence referring to his "supervisor", the respondent was asked in re-examination whether he had a supervisor after October 2019. He said he did not and said he did not need one after obtaining his specialist registration. Under questioning from the Tribunal, he indicated that his timesheets were approved by the Director of Medical Services (DMS). That was Dr Pretorius, after she started in January 2020. He said his "day to day administration" was done by the DMS. He was asked about organisational charts and said he was reporting to Ms Buchanan and to the DMS.
12. We note that Ms Buchanan's evidence was that he did not report to her. He reported to the DMS.[493] We have no doubt that the DMS was his direct supervisor in the context of the organisational structure. The fact that he no longer had to be supervised for limited registration purposes was irrelevant.

1. Privilege was waived for Mr Caldicott to give evidence of his communications with the respondent.
2. Mr Caldicott swore an affidavit that was admitted as exhibit R14. He made reference in that affidavit to the affidavit of the respondent, R13. He confirmed much of the chronology already known to the Tribunal. We shall not traverse that ground again.
3. He confirmed that his instructions were to provide to AHPRA or the respondent's employer whatever information they requested.[494] He was not instructed to hide any information.[495]
4. He stated that he had "assumed" that AHPRA would be providing the employer with any information about the ongoing investigation.[496] We observe that this was a problematic assumption in the light of privacy requirements. AHPRA is required under the National Law to advise an employer of any action taken which affects an employee's registration status. However, that does not allow the release of other confidential information. There is legislative power to release information in certain specified circumstances, but those circumstances are limited and for obvious reasons the power is sparingly used.
5. With reference to paragraph 39 of the respondent's affidavit, Mr Caldicott states that "I may well have indicated [to the respondent] that everyone already knew, and I could not think of anyone else he needed to tell."[497] Mr Caldicott does not depose that he did say this.
6. Mr Caldicott confirms that he wrote to the respondent on 31 January 2020, suggesting that he get a reference from his supervisor indicating that he has contact with children and is of no concern to them. He received a draft from the respondent, which was initially in the name of Dr Pretorius. He does not depose to giving any advice concerning that draft or the identity of the proposed author. He says that he eventually received a letter signed by Ms Buchanan. He says he had no issue with this change of author. He understood the respondent had already "discussed many of these sensitive issues" with Ms Buchanan.[498]
7. Mr Caldicott states that, if the DHS knew about the charge, he "assumed" that AHPRA also knew.[499] That was also a problematic assumption.
8. Mr Caldicott states that he had one conversation with Ms Buchanan which was about whether the respondent would be paid during his suspension.[500]
9. In evidence before the Tribunal, Mr Caldicott stated that the respondent was not charged until 13 January 2020. Prior to that the respondent had been reported for the offence and he was negotiating with police with a view to persuading them that charges should not be laid.[501]
10. Mr Caldicott was referred to letters received from AHPRA dated 18 October 2019[502] and 20 January 2020.[503] He was then taken to a letter from DHS dated 24 January 2020[504] and his response dated 29 January 2020.[505] He was asked about the statement in that response that "AHPRA is currently aware of the proceedings and have agreed for Dr Qazi, in the circumstances, to continue to practice." He stated that that information came from AHPRA's letter dated 20 January 2020.[506]
11. We observe that the letter from AHPRA of 20 January does not state that AHPRA was aware of the charge against the respondent. Indeed, the letter refers to the investigation and to "any associated proceedings", rather than to a charge actually laid. There was scant basis to justify an assumption that AHPRA had been made aware of a charge served on the respondent just 4 days earlier and that the Board had already considered this development and decided that the respondent could continue in practice. The letter did not say this. (We note that it had taken 12 days for SAPOL to advise AHPRA that the respondent had been reported for the offence in September 2019 and the respondent and his solicitor were made aware by AHPRA's letter of 8 October 2019 of this 12-day gap).
12. When later asked by the CAU for written confirmation from AHPRA "advising that the pending criminal charge will not affect Dr Qazi's professional registration", Mr Caldicott responded by providing AHPRA's letter dated 18 October 2019 (which pre-dated the charge).[507]
13. In examination-in-chief, the following evidence was given:

MR D'ANGELO: Did Dr Qazi tell you anything about what he had told Ngaire Buchanan and, if so, when? > > MR CALDICOTT: I'm of the belief that by this stage he'd already communicated what had happened or occurred to Ngaire Buchanan. I don't know the specific details of it, but I thought it had been communicated to Dr Buchanan that he'd been charged or reported or had a hearing before AHPRA, so by this stage, I would have thought that Ngaire Buchanan had an amount of information from Dr Qazi.[508] > > (Emphasis added)

14. Under cross-examination, Mr Caldicott was referred to the email[509] from the respondent to him, attaching the draft letter he would ask his employer to sign. He was asked whether he responded to the question he was asked in the email. He stated: "Short answer is I really don't know., but I would have". He did not have a specific recollection of responding.[510]
15. Mr Caldicott stated that he did not have a recollection of any discussion with the respondent where he talked about changing the person who might sign the letter. He said, "I don't know what I advised Dr Qazi about it".[511]
16. Mr Caldicott was taken to C18, the letter sent by LCLHN to the respondent on 16 April 2020 to advise him he was being investigated for misconduct in failing to notify the employer of the criminal charge. He said he would have got instructions before responding to that letter on 21 April 2020. He then said he could not recall whether he had specific instructions. He was asked about the statement in the letter that the matter was reported to Ms Buchanan by telephone on 8 October 2019. He said that was based on instructions. The respondent had told him that he'd told Ms Buchanan that he'd been reported and was requested to appear before AHPRA. This was prior to him being charged.[512]
17. Mr Caldicott deposed to his previous experience in dealing with APHRA on a number of matters. He said:

And the police, by the way, the police notify AHPRA of disqualifying offences and it happens quite often. > > ... > > Sometimes they do, sometimes they don't.[513]

18. The cross-examination returned to the letter dated 21 April:

MR DUGGAN: ... If you had been told that on or about the 16th or 17th January 2020, that Dr Qazi had told Ngaire Buchanan that he had been charged, prior to sending the letter, you would have included that in the letter, wouldn't you? > > MR CALDICOTT: Most probably > > MR DUGGAN: Well, most definitely, Mr Caldicott. > > MR CALDICOTT: No, most probably. The main reason for that is that I'm not certain whether he did or didn't on that particular day...[514]

19. We refer also to the following passage of evidence:

MR DUGGAN: ...And what I want to suggest to you is that at no stage did Dr Qazi tell you that he'd - this is expressly - at no stage did he tell you that he had spoken to Ngaire Buchanan and told her that he'd been charged. > > MR CALDICOTT: I can't recall that., but to qualify, I was aware that he had spoken to Ngaire Buchanan about the fact that AHPRA had been involved, that he had been reported, and that there were - and that he was defending the charges but, aside from that, as to specifically picking up the phone on the 16th of January and ringing his employer, I can't say one way or the other. > > MR DUGGAN: Yeah. You see, I want to suggest to you at no stage while you were retained in the matter did Dr Qazi speak to you and say that he had told Ngaire Buchanan that he had been charged. > > MR CALDICOTT: I do not have an independent recollection. I have a belief that he had. > > MR DUGGAN: What's that belief based on? > > MR CALDICOTT: Well, the belief that there were ongoing discussions between him and Ngaire Buchanan, he was seeing her on a daily or weekly basis, that she was aware that AHPRA had an investigation on foot, and that there was constant communication between the two of them. So, it was again an assumption on my part that he had told her, but as to him specifically telling me that he had, I don't have an independent recollection.[515]

20. Mr Caldicott was taken to the letter from LCLHN dated 22 September 2020,[516] setting out the employment disciplinary allegations against the respondent. He agreed that he would have obtained instructions before sending his response.[517] His response dated 7 October 2020[518] resulted from instructions given by the respondent to respond to the allegation that he'd failed to tell management about the criminal charge.[519]
21. Mr Caldicott said that he had no independent recollection of the respondent ever telling him that he had told Ngaire Buchanan that the reason for the 6 February 2020 letter was that he might lose his WWCC because he had a criminal charge.[520] He said he was of the "belief" that Dr Qazi had told her about "the matters".
22. Mr Caldicott stated:

... I didn't speak to Ngaire Buchanan and specifically say "Are you aware of the charge?, no independent recollection, but I would have said - other than the fact that he had spoken to Ngaire Buchanan about reporting, I'm very clear about that, but as to the actual charge, I can't say, although again - and, you know, it was an assumption on my part - but if Ngaire Buchanan signed that letter, , in particular "He has contact with children and they have no concern" , in criminal law parlance, that's a red flag to - because they constantly receive reports from people saying they are either on the ANCOR(?) register or on other registers or can't work.[521] > > (Emphasis added)

23. Mr Caldicott accepted that he had no independent recollection of the respondent ever telling him that he had had a conversation with Ngaire Buchanan about the charge.[522]
24. He also deposed that he had no independent recollection of the respondent ever asking him, "Do I need to tell anyone else?".[523]

1. The respondent was interviewed by police on 19 September 2019 and told he would be reported for the offence of indecent assault. He had not at that stage been charged with any offence. He provided no advice at all to his employer until 8 October 2019. He was obviously hoping that he would not be charged and would not have to reveal the fact that he had been accused and reported. When he received the letter from AHPRA on 8 October 2019, he had no real choice but to advise his employer that his registration was at risk of imminent suspension.

Conversations with Ms Buchanan - 8 & 11 October 2019

1. He spoke to Ms Buchanan on 8 October and 11 October 2019. We suspect that those two conversations are conflated in her memory, but that is of little significance. It is the combined effect of what she was told that is important. It is clear that he told Ms Buchanan that he had received a letter from AHPRA and that it was proposed that his registration be suspended. He told Ms Buchanan that the allegations were 8-10 years old (or alternatively, gave her the exact month and year).
2. Ms Buchanan says that he told her that a junior doctor colleague had accused him of "sexual harassment".[524] She could not be certain of the exact words used, but it "came across in that nature".[525] He had told her that the complaint was reviewed by management at the time but not taken any further. She thought (without being certain) that he also told her that the person had gone to the police at the time, and they had not pursued this further.[526]
3. Ms Buchanan deposed that the respondent "told me a little bit of information relating to what happened during the event".[527] He told her that a few of the people would often go out for coffee after work. He had gone to his house to get something, and the person had followed in her car. The respondent said something to the effect that he did not feel that there was any pressure on his part. She had gone into his house, and they had had a physical encounter which, Ms Buchanan assumed was something like he had tried to kiss her. Then she had complained to her manager about his behaviour. He also said that his lawyer was confident this would not be taken any further.[528]
4. Ms Buchanan deposed that the respondent did not go into any further detail about his behaviour. He did not say anything else about the "encounter".[529]
5. Under cross-examination, Ms Buchanan agreed that the respondent had told her that the person had gone to a police station to report the incident but was told that there was nothing that could be done, or words to that effect.[530] This question was later rephrased to include the concept that "police had not pursued it any further at that stage". Ms Buchanan again agreed.[531]
6. She agreed that the respondent had told her that the person had reported the incident to her Head of Department, and it was considered that because the incident occurred outside hospital grounds, it was not a matter for the Department, or words to that effect.[532]
7. The respondent's evidence about what he told Ms Buchanan was generalised and vague. He said "I referred to the allegations in the AHPRA letter. I also gave her some of the detail I had been given by Sarah Munn during the interview on 19 September."[533] "We discussed the allegations in some detail".[534] "Then I also give her an outline of the allegations ... uh, and just tell her what's in the letter actually, what's written in here".[535]
8. The respondent deposed: "I remember telling her, 'These are false allegations'".[536]
9. Under cross-examination, the respondent stated that he did not go through the letter word for word.[537] He initially agreed that he had said that the junior doctor had accused him of 'sexual harassment'. Then he added, "'sexual harassment' or 'sexual assault'".[538]
10. He denied that he said that he and his lawyer were confident that the matter would go no further.[539] However, his affidavit does say: "I felt certain nothing more would come of it as it seemed so absurd".[540]
11. The respondent did not specifically claim in his evidence about these conversations that that he had told Ms Buchanan:

(1) that he had been accused of an indecent assault; or

(2) that there was recent police involvement, or

(3) that he had been interviewed by police in September 2019, or

(4) that he had been reported for the offence of indecent assault, or

(5) that it was alleged that he had picked up a female colleague and carried her to a couch despite her objections and demands that he put her down, or

(6) that it was alleged that he pinned her down and persisted in licking and kissing her face and neck despite her protestations and requests that he stop, or

(7) that it was alleged that he had put his hand up her top and groped her breast area and upper body without her consent and against her protestations, or

(8) that it was alleged that he had groped her lower body outside of her clothing, without her consent and against her protestations, or

(9) that it was alleged that he had placed his hand on her throat and said, "I'm choking you".

1. Nor was it put to Ms Buchanan in cross-examination, that any of this specific information was conveyed to her by the respondent.
2. In short, the respondent did not specifically claim in his evidence to have provided any information which would have alerted Ms Buchanan to the seriousness of the allegations against him. Nor did he claim to have advised her that he had been reported for the offence of indecent assault.
3. We do not accept the respondent's generalised claims that he "told her what's in the letter". We are completely satisfied that he did not do so. If he had provided even a fraction of the information set out above, we are satisfied that Ms Buchanan's reaction and subsequent behaviour would have been entirely different.
4. We do not consider that any of the above information was relayed to Ms Buchanan on 8 or 11 October in the conversations referred to. We find that the respondent was deliberately selective in what he told Ms Buchanan in an attempt to convince her that the matters raised by AHPRA were insignificant and of no merit.
5. The respondent himself deposes that he told Ms Buchanan that the allegations were false.
6. We accept the evidence of Ms Buchanan (agreeing with what was put to her in cross-examination by the respondent's counsel) that the respondent had told her that the person had reported the incident to her Head of Department, and it was considered that because the incident occurred outside hospital grounds, it was not a matter for the Department, or words to that effect.
7. We accept the evidence of Ms Buchanan (again agreeing with what was put to her in cross-examination by the respondent's counsel) that the respondent told her the person had gone done, or words to that effect.
8. We appreciate that the respondent says he was relating matters from the letter, but in each case, this was information likely to lead Ms Buchanan to the view that the allegations were old, had already been appropriately considered and dealt with at the time, and were of limited seriousness, if not vexatious.
9. We consider it likely that he described the allegation as one of "sexual harassment" or at least gave that impression. Ms Buchanan was left with the impression that he may have tried to kiss her or something similar. We accept Ms Buchanan's evidence that he provided no substantive information to her about his conduct during the 'encounter' or as to what his conduct was alleged to have been.
10. We accept Ms Buchanan's evidence that the respondent told her that he and his lawyer were confident that the matter would go no further.
11. We are comfortably satisfied that the respondent did not advise Ms Buchanan that he had been the subject of a recent police investigation or that he had been reported for the offence of indecent assault.
12. We note that the respondent told Ms Buchanan that he would keep her updated.[541] There was no suggestion that he was assuming that anyone else would do so.
13. Consistent with the information she had at the time, Ms Buchanan took no action.

Conversation after AHPRA decided to take no immediate action

1. The Board subsequently decided not to take immediate action. AHPRA advised the respondent of this by letter dated 18 October 2019.[542] The letter also advised that the investigation into his conduct was ongoing, but that "...the Board has placed the investigation on hold until such time as advice has been received from South Australia Police as to the outcome of the criminal investigation (and any associated proceedings)".
2. It is common ground that the respondent spoke to Ms Buchanan shortly after receiving this letter. She would need to know that the Board had not proceeded with immediate action. We accept Ms Buchanan's evidence that the respondent contacted her and said words to the effect that "it was all sorted".[543]
3. The respondent's evidence-in-chief concerning this conversation was that:

I told her the outcome of my meeting with AHPRA, uh, on the 14th of October, um - ... which is the Board is not, uh, taking any, uh, immediate action and they're, um, - I don't know the exact word, but they're postponing their, uh - any investigations till the completion of, uh, the police , uh, inquiry (inaudible) , something along the lines of that, as indicated in the letter.[544] (Emphasis added)

4. Under cross-examination, the respondent was asked whether he had told Ms Buchanan that "it was all sorted". He responded:

I don't remember saying these words, "it's all sorted", um, but I remember telling her that, uh, AHPRA had, postponed their investigation till the completion of, uh, uh - till the trial or police investigations are, uh, uh, done - till that time.[545] (Emphasis added)

5. The respondent's claim that he had referred in this conversation to an ongoing police inquiry or investigation (or to a trial)[546] is important in the context of the issues before the Tribunal. However, there is no such claim made in the respondent's affidavit sworn on the second day of this Tribunal hearing. Nor had the claim been made in the responses provided to LCLHN on behalf of the respondent.
6. Furthermore, although Ms Buchanan was cross-examined about this very conversation,[547] it was not put to Ms Buchanan that the respondent had made these statements to her.
7. Having regard to the totality of the evidence before us and our view as to the general credibility of the respondent, we reject the respondent's evidence that he referred to police investigations or inquiries (or to a trial) in this conversation. We are satisfied that such matters were not referred to.
8. Ms Buchanan's evidence under cross-examination was, "What I recall was that he said everything was sorted"[548] and "I saw it as the allegation, uh, had been sorted, so it wasn't going to go any further".[549] We accept that this was her understanding.[550]
9. Ms Buchanan was asked:

MRS SHAW: I'm simply saying to you, in terms of your recall, can you say one way or another whether he had indicated to you in terms of it being sorted that he was not suspended and he could, therefore work in emergency? Can you say one way or another whether - > > MS BUCHANAN: I cannot recall. No. No. I can't say what that (inaudible).[551]

10. Consistent with the information she had at the time and her understanding of the matter, Ms Buchanan took no action.
11. We do not overlook the fact that the respondent had provided his solicitor's contact details and invited contact with the solicitor if further information was required. However, the limited information he had provided was such as to make it unlikely that this invitation would be taken up. Such an invitation was no substitute for disclosure.

1. The documentary evidence establishes that the respondent made a false declaration in his employment application dated 13 December 2019. The issue for the Tribunal is whether this was a careless error or was due to recklessness or was a deliberate false statement.
2. We have set out the respondent's affidavit evidence about this at paragraph 445 above. We will not repeat that here.
3. The respondent submits that this was a very busy time in the ED. He points out that the application was signed on the very date that he sent email correspondence to his superiors about difficulties in filling rosters.[552] We note, however, that this email referred to rosters over the Christmas period from 23 December to 4 January, so it was not addressing the situation at the actual time of the email (being the date of the application). Action was taken by the CEO by return email to address the issues raised. Nonetheless, we accept that the challenges of working in ED were significant and the respondent had a heavy workload and was faced by administrative challenges such as that raised in the email. We accept that he would have been very busy.
4. The respondent points out that he made a number of mistakes in filling out the application. He admits that he did not fill out the application form as carefully as he should have. He agrees, on reflection, that he should have answered "yes" to the question as to whether he had ever been the subject of allegations of violent or sexual conduct to an adult.
5. He disputes that he had any intention to make a false statement or to mislead anyone. His intention was not to conceal or deceive anyone. He was just careless.
6. Under cross-examination, he denied that his declaration was deliberately false. He said that he had no reason to lie or mislead.[553]
7. When pressed in cross-examination about this matter, he responded as follows:

DR QAZI: It has never been my intention to conceal or hide information from my employer or when I apply for a job. > > MR DUGGAN: But Dr Qazi, you read that question, didn't you? > > DR QAZI: I didn't read it. I always answer 'no' to this - these, uh, forms when I fill out these questions.[554] > > (Emphasis added).

8. The respondent's own explanations, namely that "In the back of my mind, I had not been charged" and "to my mind everyone knew about the allegation" suggest that he did read the question and considered how to answer it. This was an application for a senior position. The obligation to provide truthful information was obvious. The question clearly asked whether he had ever been the subject of allegations of conduct of a violent and/or sexual nature. The truthful answer was "yes". He had been reported for an offence of indecent assault 3 months earlier. He had been notified of an AHPRA investigation about 2 months earlier. He had engaged senior counsel to represent him. His solicitor was currently trying to persuade police not to charge him. The allegations against him must have been foremost in his mind. He did not misunderstand the question. He chose to answer it untruthfully. This was not due to carelessness. His declaration was deliberately untruthful.
9. Whether he had been charged with an offence was irrelevant. So too was the claim that "to my mind everybody knew about the allegation." If everybody knew, there was surely no impediment to giving a truthful answer. However, for reasons which we will articulate later in this Statement of Reasons, we do not accept that the respondent had a genuine belief that his employer knew of the relevant facts. We consider that he believed at all relevant times that he had successfully kept important facts from the employer and that he took steps to maintain that position.
10. Moreover, whatever the position with Ms Buchanan or his direct supervisor, there was no reason to think that those considering his application would necessarily have any information at all. We find that he did not want to reveal the truth, namely that he was the subject of a police investigation. He did not wish to reveal that he had been reported for an offence of indecent assault. He had not told Ms Buchanan this and did not want his employer to know. He was no doubt hoping that charges would never be laid. We infer that he also wished to give himself the best opportunity of winning the position he had applied for. A truthful answer would have obviously diminished his chances. Contrary to his evidence, he did have a reason (or two reasons) to lie and mislead.
11. He signed a declaration that the contents of his application were true, acknowledging that any false statement could lead to disciplinary proceedings. Bearing in mind the requisite standard of proof (and applying the Briginshaw principles), we find that the answer to the question was deliberately untrue and so was the declaration.

Alleged conversation on or about 16-17 January 2020.

1. The respondent was charged with the offence of indecent assault on 13 January 2020. He became aware of the charge on 16 January 2020. Whatever the situation before then, he now had a professional duty to advise his employer of that charge. The duty was spelt out in the Code, but we consider that it would have been an obvious professional duty in any event. The charge was likely to reflect adversely on the public health service and the medical profession. It was likely to impugn his clearance to work with children, his fitness to be registered and his suitability to work in the public health system. It needed to be advised to the LCLHN. The Code confirmed this duty and stated that the advice had to be in writing.
2. During his cross-examination, the respondent gave the following evidence:

MR DUGGAN: ... So you told me that you found out about the charge on the 16 January 2020. I want to suggest that from that time until you were suspended on the 16 March 2020 - that you never told Ngaire Buchanan that you had been charged. > > DR QAZI: Um, I did - updated her about the charge. I remember our conversation where I told her, um, that, um, I am charged now, but that does not mean that I need to be on bail or - or - or I'm arrested. > > MR DUGGAN: I'm just writing that down. When do you say that that conversation occurred in that period - in that window that I've given you? > > DR QAZI: So, uh, either on 16th or within the next few days of - I come to know about (inaudible) > > MR DUGGAN: All right. So that's actually the last day of the window, the 16th of March 2020, that you're talking about, is it? > > DR QAZI: Yes. > > MR DUGGAN: All right. What about - is that the first time you told her that you were charged with an offence? > > DR QAZI: Yes. > > MR DUGGAN: Okay. And you had to tell her you were - well, I take that back. You had to have a discussion with her at that stage because you'd been suspended, correct? > > DR QAZI: Um, I'm just rephrasing so I answer you correctly. > > MR DUGGAN: Sure. Yes. > > DR QAZI: So, uh, you're asking that I - if I told her when I got charged on the 16th. Yes I did. > > MR DUGGAN: One - on the 16th - so just to get this - > > DR MENZ: 16th of - sorry, 16th of what month? Are we talking January or - > > DR QAZI: 16th of January. Around 16th January. > > MR DUGGAN: Oh, you're talk - yes, thank you [laughs]. You're talking 16th January, are you, that you told Ngaire Buchanan that you had been charged? So let's just go through the sequence again. That's when you found out that you'd been charged? > > DR QAZI: Yes. > > MR DUGGAN: Okay. And you say you told her almost straight away after you found out that you'd been charged, is that right? > > DR QAZI: Yes. I remember, uh, when I come to know, I went to her office. She was not there, and I left a message with her PA. Her name is Barb - to give me a ring when she's back. I would like to see her. > > MR DUGGAN: Well, I suggest to you that you did not, in fact, tell Ngaire Buchanan that on or about the 16th of January 2020, and I give you an opportunity to respond to that now. > > DR QAZI: I did told her. > > MEMBER STEVENS: Well, the answer so far is that - "I left a message with the PA to ring me". > > MR DUGGAN: Yes. So just following that up, was there further contact that was made? > > DR QAZI: Yes. There was a further contact. I received a call from Ngaire Buchanan and in that conversation I told her that I'm being charged now. > > MR DUGGAN: And when do you say that that happened? What date? > > DR QAZI: Uh, either on the 16th or 17th. Within - within those dates. > > MR DUGGAN: Just be 16-17 January; is that what you're saying? > > DR QAZI: That's correct. Yes. Within a few days of me getting to know about it. > > MR DUGGAN: And - > > DR QAZI: And less than a - a week's time that - if you want a more specific answer.[555] > > (Emphasis added)

3. In other words, the respondent claimed that within a few days of being advised of the charge, he told Ms Buchanan that he had been charged. If this was true, it would be a powerful answer to allegation 2. Whilst the advice was not said to be in writing, it would nonetheless establish that the respondent promptly notified his employer and had thus acted openly and transparently. The allegations of deliberate concealment would fall away. It would be clear that the employer had the relevant information at all subsequent times. In the same way, such evidence would be a powerful answer to the employment disciplinary proceedings brought by LCLHN.
4. We find that the respondent's evidence as to this conversation is not truthful. We note that this claim was first made during cross-examination. It was not mentioned during the respondent's evidence-in-chief. It was not mentioned in the respondent's affidavit. It was not pleaded in the response. It was not mentioned in the responses made to LCLHN in the context of the employment disciplinary proceedings. It was not put to Ms Buchanan in cross-examination.
5. Insofar as the respondent claims that he told Mr Caldicott about this conversation, Mr Caldicott's evidence does not confirm this,[556] and we reject the respondent's claim. It is extremely unlikely, in our view, that the respondent told Mr Caldicott about this conversation and Mr Caldicott did not refer to it in any of his responses to LCLHN.[557] The suggestion that the respondent had this conversation with Ms Buchanan was not put to her in cross-examination. Everything suggests that the respondent's former and his current solicitors and his counsel knew nothing about this alleged conversation. We have no hesitation in finding that the respondent's evidence concerning this alleged conversation is a concoction. It is evidence that is deliberately untruthful. We reject the respondent's evidence on this point. We are satisfied that no such conversation occurred.
6. We find that the respondent did not, between 16 January 2020 and 5 February communicate to Ms Buchanan or to LCLHN that he had been charged with the offence of indecent assault nor did LCLHN communicate with the respondent in any way that might have suggested to him that it had received any information from any other source.

Communications between the respondent and Mr Caldicott.

1. It is convenient at this point to refer to evidence as to communications between the respondent and Mr Caldicott. We do not have confidence in the respondent's evidence of such communications. We do not accept his evidence other than where it is positively confirmed by Mr Caldicott.
2. Mr Caldicott was referred to his letter to LCLHN dated 21 April 2020. It was asserted in that letter that the matter was reported to Ms Buchanan on 8 October 2019. Mr Caldicott deposed that this was based on his instructions. The respondent had told him that he had told Ms Buchanan that he had been reported and was requested to appear before AHPRA.[558]
3. We find that the respondent did say this to Mr Caldicott, and it was untrue. The respondent had not alerted Ms Buchanan to the police involvement or the fact that he had been reported for an indecent assault. He misled Mr Caldicott into believing that he had been frank with Ms Buchanan in October 2019 about the allegations and the fact he had been reported. Thereafter, it would appear that Mr Caldicott simply assumed that the respondent was in "constant communication" with Ms Buchanan and continued to be frank with her about developments.[559] Such an assumption was ill-founded. He had been misled by his client. This was further compounded by his incorrect belief that AHPRA would be providing information to the employer.
4. The respondent, however, knew the true situation. He knew that he had kept Ms Buchanan "in the dark".
5. Mr Caldicott had no recollection of being advised by the respondent on any occasion that he had informed Ms Buchanan of the fact he had been charged. He merely assumed that he had advised Ms Buchanan.[560] We do not accept the respondent's evidence that he did tell Mr Caldicott this.
6. Mr Caldicott did not recall any conversation about the identity of the supervisor who would be asked to sign the letter. Mr Caldicott does not state that the respondent told him about any alleged conversation with Ms Buchanan on 5 February.

1. The CAU provided a notice under s 26A of the Child Safety Act to the respondent on 24 January 2020. His solicitor advised that he needed a letter from his supervisor stating that he worked with children and the employer had no concerns. The respondent initially questioned whether he could seek such a letter from Dr Pretorius without telling her "about the case". He said he would prefer not to give her the details.
2. The respondent eventually approached Ms Buchanan instead. His email to Ms Buchanan dated 5 February 2020 falsely stated that the CAU had sought a letter from the CEO. It also falsely stated that the letter was sought for the purpose of renewing his WWCC. His WWCC had been renewed in November 2019 and was valid for five years. It did not require renewal. The letter was sought due to the s 26A notice and the prospect that he might be prohibited from working with children due to the criminal charge.
3. The respondent states that he approached Ms Buchanan because Dr Pretorius was new to the Hospital, and he was more comfortable talking to Ms Buchanan. He states that he had a conversation with Ms Buchanan on 5 February (before sending the email). His affidavit evidence was:

I telephoned Ms Buchanan with the request that she provide a letter. I had no reason to conceal from her the fact that I had been charged and believe I would have told her.[561] > > (Emphasis added)

I remember speaking to her, um, that I would need this letter to, um, - to renew my, uh, working with children check > > Um, because, um, AHPRA (inaudible) the situation was changed and I had to provide for the information to (inaudible) services, and then I sent her an email.[562]

5. When pressed on this issue in cross-examination, the respondent deposed:

Look, I told Elaine Pretorius' boss this is why needed the letter, and - as I said before, you don't need any letter from your supervisor or from your work (inaudible) to get clearance for working with children. So I had to explain it to her - > > "Because of the recent, uh, charges against me, I needed that letter from you" > > (Emphasis added)

6. He said that Ms Buchanan knew "the exact reason" he needed the letter.[563]
7. Ms Buchanan's evidence on this point commences with her statement dated 18 November 2021, which was adopted as part of her evidence.[564] She stated:

At the time of signing the letter, I cannot remember what information I had about whether criminal charges had been laid against Dr Qazi. > > I would not have signed the letter if I had known that there were formal criminal allegations against Dr Qazi.[565]

8. In her evidence-in-chief, Ms Buchanan adhered to the claim that she would not have signed the letter if she had known there were formal criminal proceedings. She was asked whether she knew, at the time she signed the letter, that the respondent had been approached by the CAU and told that his right to work with children had been prima facie suspended. She stated that she did not know that at the time and had only recently been advised of that.
9. Under cross-examination, Ms Buchanan was asked whether the respondent had spoken to her before sending the email in which he requested the letter. She did not think that he did.[566] She was asked whether he had told her that he needed the letter for credentialling purposes in the sense of him facing criminal allegations. She said, "No, I cannot recall that".[567] The cross-examination continued:

MRS SHAW: I mean, didn't Dr Qazi give you an explanation that he needed to reapply, if you like, for his working with children allowance with supporting material because of the criminal - because of the criminal allegations? > > MS BUCHANAN: I cannot recall that conversation. No. > > MRS SHAW: And do you agree it may have been said? > > MS BUCHANAN: Um, no, because I don't think I would've - I wouldn't have signed it.[568]

10. Ms Buchanan was asked about paragraph 16 of her statement dated 18 November 2021[569] in which she had stated "I would not have signed the letter if I had known that there were formal criminal allegations against Dr Qazi". She was cross-examined as follows:

MRS SHAW: Now, then you say in paragraph 16 - "If I'd known there were formal criminal allegations". Do you mean by that if you'd known he'd been arrested? > > Ms BUCHANAN: Just repeat the last (inaudible, overlapping). > > MRS SHAW: When you used the expression 'formal criminal allegations', do you - were you then referring to if someone has been arrested for the allegations. > > MS BUCHANAN: Uh, yes.[570]

11. When answering that question, we think it unlikely that Ms Buchanan had in her mind the concept that a person could be formally charged with a serious offence without being arrested. We think it unlikely that she was intending to say that she would not regard such a charge as "formal criminal allegations".
12. This was clarified in subsequent questions from the Tribunal:

MEMBER STEVENS: Yes, Ms Buchanan, I'm looking at your statement and at paragraphs 15 and 16. I want to be sure that I understand, and the Tribunal understands exactly what you're saying in paragraphs 15 and 16. Can you try to explain that to us please? Because on one reading, there's an inconsistency between them. > > MS BUCHANAN: I - I - from my perspective, um, when I was putting that together, I certainly (inaudible) put anything (inaudible) that I couldn't recall- > > MEMBER STEVENS: I'm sorry, we're having trouble- > > MS BUCHANAN: -and so that's why- > > MEMBER STEVENS: We're having trouble hearing with the sound on the link. Can you please just start again and speak as clearly as you can please? > > MS BUCHANAN: Sure. Um, in relation to, um, 15, as I say, I couldn't remember the sequence of events, so I was just (inaudible) for that. Um, however, if I was aware of criminal charges, I wouldn't have been signing the letter. > > MEMBER STEVENS: And what would have been necessary in your mind for there to have been criminal charges? > > MS BUCHANAN: In my mind, it would have been that Dr Qazi had been charged with an offence. > > MEMBER STEVENS: Are you able to say whether you had been informed at the time of signing the letter as to whether Dr Qazi had been charged with an offence? > > MS BUCHANAN: I was, uh - what I recall is I (inaudible) not aware of criminal charges. > > (Emphasis added)

13. On the totality of the evidence (and having regard to the Briginshaw principles), we are comfortably satisfied that Ms Buchanan was not aware of the criminal charge when she signed the letter dated 6 February 2020. We do not accept the respondent's evidence that he had a conversation with her on 5 February where he explained why he needed the letter and referred to the charge.
14. In coming to this conclusion, we have considered the respondent's contention that Ms Buchanan would not have signed the letter without such an explanation as letters from employers are not normally required for a WWCC. This contention was not put to Ms Buchanan in cross-examination. The evidence suggests that Ms Buchanan was curious about the request and did speak to Ms France about it. However, this was not entirely a normal situation as AHPRA had recently been involved in relation to a notification of alleged misconduct and Ms Buchanan was not to know what may have been reported to the CAU or disclosed to CAU by the respondent. She eventually decided to sign the letter, having been reminded by the respondent of the urgency.
15. We agree that Ms Buchanan might have been more curious and less trusting, but this does not cause us to doubt her evidence. We accept her evidence that she would not have signed the letter if she had been aware of the criminal charge.
16. We find that it was inappropriate for the respondent to request Ms Buchanan to sign this letter in circumstances where:

(1) he had not notified her or LCLHN that he had been charged with an offence of indecent assault;

(2) he had not been candid about the details of allegations made against him;

(3) he had not been candid about the reason the letter was necessary; and

(4) he misrepresented the reason for requesting the letter.

1. The letter was then submitted as part of his submission to the CAU, together with a statement that the respondent "has informed his superior, Dr Ngaire Buchanan". The respondent was aware that this statement was false or misleading in that Ms Buchanan did not know of the charge, the allegations against him, or the s 26A notice. The CAU allowed the respondent's WWCC clearance to stand.

Further AHPRA proceedings and the credentialling application

1. On 20 February 2020 SAPOL advised AHPRA that the criminal charge had been laid. On 26 February SAPOL provided details of the charge to AHPRA.
2. On 3 March 2020 AHPRA wrote to the respondent through his solicitor indicating that the Board proposed immediate action to suspend the respondent's registration. He was given until 10 March to make a written submission. It appears that the respondent failed to advise LCLHN of this imminent threat to his registration. He instructed his solicitor to make submissions to the Board.
3. On 11 March 2020 the respondent completed an application for renewal to the Credentialling Committee.[571] In answer to the question, "Have you ever been investigated, or are you currently under investigation by AHPRA or a Medical/Dental Board in any State/Territory of Australia or overseas?' the respondent ticked "yes" and added "No action is taken".[572]
4. The respondent deposed that this was a reference to the fact that the Board had declined to take immediate action in 2019. The respondent does not mention in the form that the Board was again considering such action.
5. In answer to a question, "Has a criminal claim of any nature ever been made against you? If you have answered yes, please provide details", the respondent ticked "yes" and added: "Currently under investigations by AHPRA / SAPOL".
6. Whilst this is an accurate answer to the question, the respondent fails to mention the fact he has been charged with an offence of indecent assault. This is consistent with the view that he had failed to advise his employer of the charge and did not want to do so. We observe that the criminal charge was clearly a relevant matter with respect to his application for accreditation. It ought to have been disclosed.
7. As previously stated, the Credentialling Committee provided a copy of the form to Dr Pretorius. She was surprised by the reference to a police investigation and spoke to Ms Buchanan. Ms Buchanan advised her that it was a vexatious claim from many years ago.

1. The Board took immediate action to suspend the respondent. He was advised of this on 16 March 2020. AHPRA also advised LCLHN but without providing any reasons for the action or outlining any of the allegations. No reference was made to the criminal charge.
2. The respondent says that he spoke to Ms Buchanan that same day and it appears likely he would have done so. He says that she was "surprised" and was supportive of him. She agrees that she was surprised by the suspension.
3. In our view, she would hardly have been surprised by the suspension if she was already aware that the respondent had been charged in the criminal courts with indecent assault. It is doubtful that she would have expressed her support if aware of this.
4. The respondent received a text message from Dr Pretorius that same evening. She said that Ms Buchanan had told her about "the other stuff". She affirmed her unconditional support.
5. We consider it to be clear that Dr Pretorius did not know of the criminal charge or the nature of the allegations against the respondent. Her uncontested evidence confirms this. She may have known of the suspension when she sent the text message, but if so, we infer that she related it to the "vexatious" complaint she had been told about.
6. LCLHN then made submissions to AHPRA that the suspension be reconsidered. We find that it did so because it was unaware of the criminal charge or the nature of the allegations against the respondent. This was due to the failure of the respondent to advise of the charge and the false, misleading and incomplete information he had provided. The submissions played a part in persuading the Board to stay the suspension until 2 May 2020.

1. LCLHN (Ms Buchanan, Dr Pretorius, and Ms France) became aware of the true situation when they received AHPRA's letter dated 14 April 2020. Their reactions to that letter are instructive. The uncontested evidence of Dr Pretorius is:

I was shocked and horrified at the detail of the allegations against Dr Qazi. Before receiving the letter and the enclosed documents I was not aware that Dr Qazi was alleged to have committed an indecent assault against a work colleague, or that he had been charged with the criminal offence of indecent assault. > > If I had known of the details of the allegations, I would not have supported Dr Qazi's return to work following AHPRA's initial decision to suspend his registration.

2. Ms France wrote to state that LCLHN was not aware of the charge or allegations. Ms Buchanan took prompt action to suspend the respondent and initiate a disciplinary investigation.
3. We are entirely satisfied that LCLHN did not know of the charge or the detailed allegations prior to 14 April 2020. Bearing in mind the Briginshaw principles, we are comfortably satisfied that the respondent did not advise LCLHN of the charge either verbally or in writing before that date.

1. The respondent claimed in evidence that "to my mind everyone knew about that allegation". We do not accept that anybody within LCLHN knew the true situation. We do not accept that the respondent believed that they knew. We find that he was well aware that his employer did not know of the criminal charge or the true nature of the allegations.
2. He had not told anybody about the criminal charge or the true nature of the allegations. Yet, he was the source of the employer's information. He had advised Ms Buchanan as to the earlier immediate action letter. He had told her he would keep her updated. He had told her about the outcome of the proposed immediate action. He had told her that "it was all sorted". There was no basis at all to think that his employer was receiving information from any other source.
3. His employer had raised no issue with him since his last conversation with Ms Buchanan. It must have been obvious to him that the employer had not been advised about the report for an offence of indecent assault. He was a long-term public sector employee in a management role. It is inconceivable that he thought that his employer may have been formally advised of such a serious charge but had failed to take any action or even to raise it with him. We do not accept that the respondent had any reason to think that his employer knew of the report or the true nature of the allegations.
4. We find that the respondent had carefully managed the incomplete and misleading information provided to Ms Buchanan and there had been no feedback at all. He clearly believed that his immediate supervisor, Dr Pretorius, did not know and he didn't want her to know. He continued to provide carefully crafted information so as to not reveal the fact that he had been charged. He obviously did so, believing that the employer did not know the truth. We do not accept the respondent's claim that he "believed that AHPRA was in communication with my employers".[573]

1. The respondent claimed that he had relied on his solicitor to advise him what needed to be done. However, he had misled Mr Caldicott into believing that he had been frank with Ms Buchanan in 2019 about the report and the nature of the allegations. Mr Caldicott came to believe that Ms Buchanan knew all about the matter. That was untrue. Mr Caldicott's advice was based on an incorrect understanding. This was directly due to being misled by the respondent.
2. Furthermore, in most respects, Mr Caldicott's evidence falls short of confirming that he gave the advice attributed to him by the respondent. We do not accept the respondent's evidence as to those matters where it is not specifically and positively confirmed by Mr Caldicott.

1. The respondent claimed that he was unaware of the provisions of the Code. He also claimed that was not aware that failure to comply with the professional standards under the Code could result in disciplinary proceedings and allegations of misconduct. We do not accept that an intelligent person, who had been a public sector employee for 12 years and had risen to a position of leadership, could be so naïve about such matters. We do not accept that he was ignorant of the provisions of the Code, but in any event, the need to disclose that he had been charged was an obvious professional responsibility. He ought not to have needed a Code to tell him that. Furthermore, the situation demanded that he make himself aware of, and comply with, his professional and employment responsibilities.
2. Far from making the honest disclosure that he ought to have made, the respondent provided false, misleading and incomplete information. When he asked Ms Buchanan to sign the 6 February letter, he created for himself a further responsibility to ensure that she had all information that was of relevance to that issue. He did not provide that information. Rather, he misrepresented the reason for the request and failed again to divulge that he had been charged. His misconduct was active as well as passive.

1. Bearing in mind the Briginshaw principles, we are comfortably satisfied that the respondent deliberately made a false statement in his application for employment dated 13 December 2019 and falsely declared that the information provided was true.
2. We also find (again, with due regard to the Briginshaw principles) that the respondent failed, between 16 January 2020 and 14 April 2020 to advise his employer (in writing or verbally) of the fact that he had been charged on 13 January 2020 with the offence of indecent assault. Between 8 October 2019 and 14 April 2020, the respondent provided false, misleading and incomplete information to the employer concerning the matter with which he was eventually charged. He failed after 16 January 2020 to make candid disclosure consistent with his professional responsibilities. He failed to comply with the conditions of his employment and the conduct standards applicable to a public sector employee. He improperly sought a letter from Ms Buchanan for presentation to the CAU without advising her that he had been charged with the offence and that he had been served with a s26A Notice.
3. The Board invites the Tribunal to deal with these matters together and to categorise the respondent's behaviour as professional misconduct. We consider that to be appropriate. We find that the respondent's conduct (identified in allegation 2) was substantially below the standard of conduct reasonably expected of a medical practitioner of his training and experience. It was also conduct inconsistent with the respondent being a fit and proper person to hold registration in the profession. We find that the respondent behaved in a way that constitutes professional misconduct.

1. It is necessary to retrace the context for allegation 3.
2. The respondent had obtained the letter dated 6 February 2020 from Ms Buchanan and provided it to the CAU. The CAU determined that the WWCC clearance would stand.
3. AHPRA was belatedly advised by SAPOL that the respondent had been charged. On 3 March 2020 AHPRA wrote to the respondent through his solicitor to advise that the Board proposed immediate action to suspend his registration. The respondent was invited to provide submissions.
4. On 10 May 2020 the respondent's solicitor provided written submissions.[574] They contained the claim that the respondent's "supervisor is aware of the matter". Attached to those submissions was (inter alia) the letter from Ms Buchanan dated 6 February 2020.[575] The submissions did not clarify (nor did the respondent otherwise clarify) the circumstances in which that letter had been obtained from Ms Buchanan, namely that:

(1) she was unaware of the charge or the nature of the allegations against the respondent, and

(2) she had been misled by the respondent as to purpose of the letter and the circumstances in which it was sought.

1. The respondent confirmed that he had reviewed that letter and instructed his solicitor to send it.[576]
2. We find that this constitutes the provision of misleading and incomplete information to AHPRA / the Board as alleged.
3. On 16 March 2020 the Board took immediate action to suspend the respondent's registration.[577]
4. By letter dated 19 March 2020 the solicitor asked for the decision to be re-considered.[578] The misleading information previously provided, namely that the respondent's "supervisor is aware of the matter" was not corrected or clarified.
5. On 20 April 2020 the respondent applied to this Tribunal for a review of the decision to suspend.
6. On 26 March 2020 Ms France called AHPRA, on behalf of LCLHN, and asked for the suspension to be re-considered in the light of the current Covid 19 epidemic and the pivotal role of the respondent.[579] On 1 April 2020 Dr Pretorius provided information to AHPRA in support of this request.[580]
7. On 6 April 2020 the Board decided to stay the immediate action suspension until 2 May 2020 under s 36 of the SACAT Act.
8. By letter dated 7 April 2020 AHPRA provided information to this Tribunal and to the respondent as to the Board's reasons for the stay.[581] It is apparent that the submissions made by LCLHN were regarded as material and important to the Board's decision. The Board's reasons do not address the issue as to what information LCLHN may have had when the submissions were made. The Board may have assumed that LCLHN knew everything, but that is not clear. LCLHN's submissions about the public interest needs at Mt Gambier Hospital were valid regardless. It is difficult to say with precision that the Board acted on false or misleading information, other than in the sense that the submissions would not have been made and the position of LCLHN would have been different if it was aware of the true facts. The respondent must have realised that this might have been the case but had no definitive information.
9. It is not suggested that the respondent was aware of the submissions made by LCLHN before the Board made its decision. However, it is submitted that the respondent was ultimately advised (on 7 April) of those submissions and their effect on the Board's decision. It was submitted that this gave rise to a responsibility to correct the false information provided to the Board, AHPRA and this Tribunal. It is submitted that the respondent took no steps to communicate with AHPRA, the Board or SACAT to clarify the true situation.
10. We note that the window to do so was brief, before the true position became known to LCLHN and AHPRA. It is arguable that the respondent should have clarified the situation within this window, but we do not consider that we should regard this as a basis for a separate finding of misconduct. We will regard the submissions made to AHPRA under a false understanding of the situation as an outcome of the respondent's failure to be candid with LCLHN.

1. For the reasons set out above, and bearing in mind the Briginshaw principles, we are satisfied that the respondent provided false, misleading and incomplete information to the Board / AHPRA when he claimed in the letter dated 10 May 2020 that his supervisor was aware of the matter and attached the 6 February letter without clarifying the matters to which we have referred. We find that the respondent's conduct in that regard constitutes professional misconduct.
2. We do not make any further finding of misconduct under Allegation 3.

1. Section 130 of the National Law required the respondent to give notice to the Board within 7 days of becoming aware that he had been charged with the offence of indecent assault. This is not disputed.
2. It is also not in dispute that the respondent gave no such notice. AHPRA did not become aware of the charge until 20 February 2020, some 35 days after it had been served on the respondent. At that time AHPRA was made aware by SAPOL.
3. The respondent and his solicitor claim that they believed AHPRA would be advised by SAPOL. This is of course no excuse for the respondent's failure to meet his own statutory responsibilities.
4. The respondent also claims that he was unaware of the statutory requirement and was not advised of it. We take this into account, but the respondent's failure is significant, nonetheless.
5. We find that the respondent failed to comply with the requirement under s 130.

1. We find that the respondent failed to notify the Board within 7 days of becoming aware that he had been charged with the offence of indecent assault. We find, in the circumstances, that this was conduct that was of a lesser standard than that which might reasonably be expected of a medical practitioner by the public or his professional peers. We find that it was conduct that constitutes "unprofessional conduct" as defined in s 5 of the National Law.

1. This matter will now be listed for a directions hearing to make arrangements for submissions on sanction.

1. The Tribunal has previously made an order prohibiting the publication of the names of, or any material tending to identify, AB and BF. That order continues in force.
2. Counsel for the respondent previously foreshadowed that an application might be made in respect of the identity of the respondent. Submissions were invited but have not been received.
3. If any such application is to be pursued, that application should be filed, together with any further supporting evidence and written argument, within 14 days. The application would then be heard and determined at the directions hearing.

1. The Tribunal decides pursuant to s 196(1) of the National Law that:

1.a. With respect to Allegation 1, the respondent has behaved in a way that constitutes professional misconduct.

1.b. With respect to Allegation 2, the respondent has behaved in a way that constitutes professional misconduct.

1.c. With respect to Allegation 3, the respondent has behaved in a way that constitutes professional misconduct; and

1.d. With respect to Allegation 4, the respondent has behaved in a way that constitutes unprofessional conduct.

1. [1] The National Law is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Health Practitioner Act).

[3] As these terms are defined in s 5 of the National Law.

[4] The Australian Health Practitioners Regulation Agency (AHPRA) provides administrative support to the Board in accordance with the National Law.

[5] The South Australian Civil and Administrative Tribunal (SACAT).

[6] [1998] SASC 7142; affirming Debelle J in Rajagopalan v Medical Board of South Australia [1997] SASC 6363.

[7] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635; Carpenteri v Registrar of Firearms [2021] SASC 27at [33]; Medical Board of Australia v Amin (unreported SACAT decision dated 15 October 2021, matter 2020/SHP000006) at [41]-[44].

[11] [2021] SASC 27.

[12] That's Entertainment WA Pty Ltd v Commissioner of Police (2013) 228 A Crim R 201; see Carpenteri at [27]-[34].

[14] C3 (exhibits) and C4 (transcript).

[16] Carpenteri v Registrar of Firearms [2021] SASC 27 at [33].

[34] T6/12, pages 104-105; T7/12, pages 74-75.

[36] The affidavit of the Head of Department suggests this was about August 2011 - see C1 page 260.

[51] "Assault" was the term used by the witness, referring to the alleged unwanted physical contact.

[88] Respondent's Written Reply 7 March 2022.

[89] Law Society of SA v Jordan [1998] SASC 6809.

[92] Physiotherapy Board of Australia v Rivett [2024] SACAT 5.

[93] Magistrates Court Exhibit P11 (part of Tribunal Exhibit C3).

[105] T9/12, page 86, C4 pages 214-215.

[123] Mr Devitt volunteered a similar disclaimer later in his evidence - C4 page 204.

[130] Her initial evidence was inadvertently not recorded.

[132] The email chain in exhibit C9 suggests this was probably on 7 June 2010.

[171] See also the respondent's evidence in the Magistrates Court at C4 pages 297-298.

[184] See also statement at para 16 (C1 at page 227).

[185] Such allegations are also referred to in the Summary of the AHPRA notification in June 2018.

[187] C1 page 18, paragraphs 3 and 4. Note that AB's position was there wrongly described as a "Registrar". She was an RMO.

[190] C4 page 312, line 26, page 316 line 18.

[195] C1 page 255 para 3; confirmed by the respondent at C4 page 302, and by AB at C3 - MC exhibit P9a (item 30).

[204] More accurately, she had known him for a few weeks.

[206] The group plan was referred to in the "Summary" of AB's notification to AHPRA in June 2018.

[209] Evidence 13/12, not recorded but noted by Tribunal members.

[213] Respondent's Written Submissions 23 February 2022at para 5.16.

[214] (2003) 214 CLR 118, at 127; [2003] HCA 22 at [30]- [31].

[217] See Dr Meyer's evidence at T9/12, page 100 where she appears to suggest that an internal investigation would only be conducted if the incident occurred "in the hospital".

[223] In terms of the proceedings before this Tribunal, this alleged statement was at all relevant times understood to be part of AB's account of what occurred. It was not specifically referred to in the referral document, but it was referred to in the opening and the parties were at all relevant times on notice that it was a matter for the Tribunal's consideration and determination. Cf Law Society of SA v Jordan [1998] SASC 6809.

[239] T9/12, page 64. See also page 59.

[243] Tribunal Exhibit C3, MC Exhibit D12.

[248] Nursing and Midwifery Board of Australia v Dunnett [2018] SAHPT 5; Reyes v Dental Board of SA [2002] SASC 239; Nursing and Midwifery Board of Australia v Symons [2020] SACAT 28; NSW Bar Association v Cummins [2001] NSWCA 284; (2002) 52 NSWLR 279 at [56] (and cases cited therein).

[250] Medical Board of Australia v Arulanandarajah [2021] VCAT 85, at [30]-[48]; endorsed in Zhao v Medical Board of Australia [2021] VSC 763 at [150]; Medical Board of Australia v Bernard [2021] VCAT 222, at [8].

[252] Two small examples will suffice. The chain of correspondence concerning the respondent's suspension by his employer requires reference to C18, then C1 page 113, then C1 page 766. The response to a letter which appears at C1 page 108 is found at C1 page 768.

[260] The Board acted through its relevant Committee in this process, but for convenience we will simply refer to "the Board".

[269] C1 page 62, paras 21-23, pages 93-107.

[274] The Board is required under s 161 of the National Law to give 3-monthly reports on the progress of an investigation.

[278] R13, exhibit UQ4, letter 31 January 2020.

[287] See email chain in C7; C2 pages 934-935.

[292] C2 page 935, para 11; submissions at page 984 and letter at page 978.

[293] C2 pages 1117-1119, para 7; pages 1122-1127, at 1124 & 1125.

[304] C1 pages 762-763ff; C2 pages 1070-1071ff.

[326] C2 page 936, para 20; pages 1100-1102.

[327] C2 pages 1069- 1071 and attachments page 1072ff.R

[338] As indecent assault is a "presumptive disqualification offence" under the Child Safety Act.

[346] T8/12, pages 13-31, T9/12, pages 8-41.

[347] Correction to transcript after listening to recording; see also clarification at T8/12, page 20.

[383] C2 page 1144 para 6; C1 page 804

[415] R13 paras 41-43; letter C1 page 34.

[425] The evidence as to Counts 2-4 commences at T10/12, page 28.

[447] We note that he had also been provided with information during his police interview.

[457] T10/12, page 107. We note that the following question was answered "yes".

[493] This is confirmed in the respondent's role description, C11.

[529] C1 page 181 para 5; T8/12, page 20.

[541] Exhibit UQ2 to R13; T10/12 pages 35-36.

[546] Bearing in mind there was no charge at that stage.

[556] T9/3, pages 29-30, 32-33, and 39.

[571] C2 page 1118, para 7; pages 1122-1127.

[575] Affidavit of Victoria Bennet - C2 page 934 at paras 11-13; C2 page 978.