The Board submitted that the respondent failed to observe professional boundaries, breached professional standards and the applicable Code of Conduct, and that his conduct was inconsistent with him being a fit and proper person to hold registration.

The respondent did not present any positive evidence regarding his conduct. He challenged the reliability and credibility of the complainant. The respondent submitted that the Tribunal could not be satisfied that the sexual contact was unwanted nor that he knew, was negligent or reckless as to whether or not the sexual contact was unwanted.

• The Tribunal is comfortably satisfied that the sexual contact was unwanted, and that the respondent was reckless and negligent as to whether the sexual contact was wanted;
• The Tribunal found that the Code of Conduct applied in the circumstances of the matter and that the respondent has breached the Code of Conduct;
• In the circumstances of this case, in which there was a power imbalance, the Tribunal is comfortably satisfied that Mr Rivett's conduct is conduct sufficiently serious as to fall significantly below the standard reasonably expected of a practitioner of equivalent training or experience;
• The Tribunal is satisfied that the conduct of Mr Rivett is inconsistent with him being a fit and proper person to hold registration in the profession;
• The Tribunal decides pursuant to s 196(1) of the National Law that the respondent has behaved in a way that constitutes professional misconduct

Health practitioners - Complaint by the Physiotherapy Board of Australia - Professional misconduct - Sexual misconduct in connection with the practice of physiotherapy

Criminal Law Consolidation Act 1935 s 47

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 41, 193, 196

South Australian Civil and Administrative Tribunal Act 2013 ss 60, 39

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Nursing and Midwifery Board of Australia v Morrison (Occupational Discipline) [2022] ACAT 92

Psychology Board of Australia v Griersmith [2019] VCAT 52

Ms M Barnes with Mr T Ellison on behalf of the complainant, in person

Mr J Marcus with Ms E Cousins on behalf of the respondent, in person

Pursuant to section 60 of the South Australian Civil and Administrative Tribunal Act 2013, the Tribunal had prohibited the publication of the name of, or any material tending to identify, the "affected person" as referred to in the initiating document (this person is referred to as ZZN in this published report).

This published report is an edited version of the Tribunal's decision, amended so as to comply with the above order. Some witnesses and participants in the relevant events have been de-identified in accordance with the Tribunal's order and SACAT's Anonymisation Policy. Other details that may lead to the identification of ZZN have been omitted. These changes do not affect the Tribunal's decision or the reasons for that decision.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1)

1. This is the determination of a complaint referred to the Tribunal by the Physiotherapy Board of Australia (the Board) on 25 August 2022 concerning an allegation of unwanted sexual behaviour towards ZZN by a registered physiotherapist, Darren Anthony Rivett.
2. The complaint was referred to the Tribunal pursuant to s 193 of sch 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law), the Board holding a reasonable belief that the conduct complained of constituted "professional misconduct" within the meaning of s 5 of the National Law.
3. The events the subject of the complaint occurred on the evening of 19/20 October 2019 in Mr Rivett's room at the Intercontinental Hotel, Adelaide following the Transform Physiotherapy Conference dinner at the Adelaide Convention Centre attended by Mr Rivett and ZZN, also a registered physiotherapist. Immediately after the alleged incident, ZZN complained of sexual contact without her consent to her friend, HNP, and his father Detective Sergeant TSU who was off duty at the time but staying in the city nearby. The matter was then reported to the police and Mr Rivett was arrested at the hotel and released on bail for the criminal offence of engaging in sexual intercourse with ZZN without consent.
4. On 24 October 2019, as required by s 130 of the National Law, Mr Rivett notified the Australian Health Practitioner Regulation Agency (Ahpra) of the charge. On 27 November 2019, police advised Ahpra that no charge was to be laid. Ahpra then continued with its investigation.
5. Mr Rivett participated in an Ahpra interview on 16 December 2021. Whilst answering general questions, he declined to answer questions about his interaction with ZZN in his hotel room on self-incrimination grounds.
6. The amended Complaint filed with the Tribunal on 17 January 2023 alleged that Mr Rivett had engaged in unwanted sexual behaviour towards ZZN and set out the particulars relied upon. The Board asserted Mr Rivett:
   1. Failed to observe professional boundaries between a registered health practitioner and a colleague.
   2. Breached professional standards and/or his conduct was inconsistent with him being a fit and proper person to hold registration in the profession.
   3. Breached the applicable Code of Conduct.
7. The Board sought a categorisation of professional misconduct under ss 5(a) and (c) of the National Law.
8. In the Response dated 19 April 2023, Mr Rivett denied both the allegation of engaging in unwanted sexual behaviour towards ZZN and all of the particulars underpinning that allegation. He asserted that no improper conduct was made out and thus no sanction should be imposed.

1. The Tribunal received the following evidence:
   1. A Hearing Book containing relevant documentary material (Exhibit C1). Without being exhaustive, that material includes:
      • Statements and affidavits taken from ZZN and HNP;
      • Relevant text messages, messenger records and phone call logs relating to ZZN and HNP;
      • Statements from and text messages with friends of ZZN about the incident;
      • Handwritten notes of police officers involved in the police investigation;
      • Handwritten notes of TSU;
      • Forensic Science SA material relating to the collection and analysis of forensic samples;
      • Documents relating to ZZN's medical examination;
      • The transcript of Mr Rivett's Ahpra interview;
      • The Physiotherapy Board of Australia Registered Health Practitioner's Code of Conduct.
   2. A USB (Exhibit C2) containing relevant security footage from the Convention Centre and the Intercontinental Hotel, and the video of police interaction with Mr Rivett on 20 October 2019.
   3. Sworn testimony from ZZN, HNP, TSU and forensic scientist, Luke Volgin.
   4. ZZN's Facebook messenger records accessed and provided by her at the Tribunal's request at the hearing (Exhibit C4).
2. The Tribunal has also received and fully considered the Board's written opening address (Exhibit C3), both parties' written closing addresses and further oral closing submissions.
3. Mr Rivett did not give evidence and attended the hearing by telephone from interstate. He has not presented any positive evidence of what occurred or of his state of mind.

1. Mr Marcus challenged the credibility and reliability of ZZN. He submitted that ZZN was in fact a willing participant in any sexual acts and/or did nothing to alert Mr Rivett to the fact that she was unwilling. The parties therefore agree that the matters for determination are:
   • What facts have been proven to the requisite standard;
   • If there was sexual contact, was that contact unwanted by ZZN;
   • What conduct by ZZN indicated the sexual behaviour was unwanted;
   • Was Mr Rivett either aware that the behaviour was unwanted, recklessly indifferent to that fact, or negligent in failing to ensure any sexual contact was wanted;
   • Did any proven conduct by Mr Rivett breach professional boundaries, breach professional standards, breach the Code of Conduct or amount to conduct inconsistent with him being a fit and proper person to hold registration;
   • Whether the conduct amounted to professional misconduct or any lesser standard such as unprofessional conduct.
2. The Board submitted that in considering recklessness, the Tribunal should be guided by the definition of "reckless indifference" in s 47 of the Criminal Law Consolidation Act 1935. Mr Rivett did not take issue with this submission and the Tribunal has adopted this approach. A finding by the Tribunal of recklessness or reckless indifference thus requires proof that either Mr Rivett was aware of the possibility that ZZN was not consenting or had withdrawn her consent and proceeded regardless or did not take reasonable steps to ascertain whether she was consenting, or alternatively, that he did not give any thought as to whether she was consenting.

1. The Board carries the burden of proof. The parties agree that although the civil standard of proof on the balance of probabilities applies to disciplinary proceedings, the seriousness of the alleged conduct and the serious consequences that might flow mean that the Tribunal should apply the principles articulated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
2. In making any findings of fact, the Tribunal has applied the test of being "comfortably satisfied".

1. The witnesses called to give evidence about the events on 19/20 October 2019 were being asked to recall details some four years later. It is ordinary human experience that memory will fade over time, particularly if a person would prefer to put an event out of their mind. Both ZZN and HNP provided immediate police statements, at a time when the events were fresh in their minds and when they could access records held on their phones. Those statements were adopted as their evidence in chief and are likely to be the most reliable account. Although involved as a witness rather than an investigator, as an experienced police officer, TSU also made contemporaneous notes. When giving their evidence, all three witnesses relied heavily on their statements or notes as being the truth of what happened.
2. There was no challenge to the honesty and general reliability of HNP or TSU. Both presented as straightforward, honest witnesses and the Tribunal accepts their evidence.
3. Mr Volgin is an expert forensic scientist who analysed forensic samples taken from ZZN and compared them with Mr Rivett's DNA. There was no challenge to his expertise and his evidence is accepted.
4. There was a significant challenge to the credibility and reliability of ZZN and these reasons will examine her evidence in detail. The Tribunal observes that in recounting an event on several occasions and in different settings, a person will not always use the same language, words may be used incorrectly, and every detail may not be mentioned. Where inconsistencies have been established in accounts, the task of the Tribunal is to assess the extent to which that inconsistency or the combined inconsistencies impact on ZZN's credibility or reliability.
5. The evidence of HNP and TSU includes recent complaint evidence and evidence of distress. Although the Tribunal is not bound by the rules of evidence, it is required to act according to equity and good conscience.[1] Given the nature of the allegations, the Tribunal has adopted an approach akin to that of a criminal trial and treated this evidence as evidence of consistency of conduct.
6. Exhibit C1 contains statements from ZZN's friends and colleagues to whom she spoke in the days following the incident. These statements would not fall under the rubric of recent complaint evidence. The Tribunal recognises that the fact that a similar account has been given on numerous occasions does not add any weight or cogency to ZZN's evidence. The statements are relevant for the purposes of assessing whether there are any material inconsistencies which impact on ZZN's credibility or reliability, as evidence of her state of mind, or to rebut any suggestion of recent invention when ZZN was giving her evidence.
7. During cross examination of ZZN, some facts were put to ZZN which were not accepted by her. For instance, it was put to her that Mr Rivett said she could leave at any time, and that she had helped him to undress her. A fact put to a witness is not established unless it is accepted by the witness. As Mr Rivett has elected not to make any statement or give evidence about the events that occurred in the hotel room, there is no evidence of any such fact not accepted by ZZN.

1. Before considering ZZN's evidence, the Tribunal makes the following findings of fact from the documentary evidence, evidence not challenged or matters that are not in dispute.
2. [At this point in the decision, the Tribunal discussed ZZN's age and her career history in the profession, including her involvement in her local Branch Council of the Australian Physiotherapy Association (APA).]
3. The APA is the peak body that, amongst other functions, represents and promotes the advancement of the physiotherapy profession.[2] The APA has a National Board and each state or territory has its own Branch Council.[3] Certain members of the Branch Councils are part of the APA and the National Board Directors are elected by the APA membership.[4] National Board Directors are regarded as senior members of the profession and are considered experts in their field.[5] ZZN believed that to get elected onto the National Board, you needed significant support from people who had a long association with the APA.[6] The Branch Council is elected from its members. [At this point the Tribunal discussed other matters relating to Branch Councils.] The APA Board does not supervise Branch Councils. In 2019, ZZN had aspirations to eventually be on the National Board.[7]
4. In 2019, Mr Rivett was aged 58 and was married. He was first registered as a physiotherapist on 1 February 1984. He had worked both as a practicing physiotherapist and in academia in Australia and New Zealand. In 2001, he led the establishment of a School of Physiotherapy at the University of Newcastle, and then became Head and Deputy Head of the Allied Health School at the University. He performed a mentoring leadership role for a couple of years. In October 2019, he was employed as a Professor of Physiotherapy at the University of Newcastle, was President of the Physiotherapy Council of New South Wales, and was a Board Director of the APA, being Vice President for four years.[8] There was a connection between ZZN's and Mr Rivett's state branches.
5. [At this point in the decision, the Tribunal discussed that there was a vacancy on ZZN's Branch Council and the opportunities available for ZZN's advancement and recognition.]
6. ZZN first met Mr Rivett at an APA dinner at a restaurant about a month before the Conference. She knew that Mr Rivett was on the National Board. She conversed with him for about ten minutes on that occasion, mainly about physiotherapy and wine.[9] Whether Mr Rivett invited her and another man back to his hotel as ZZN claimed, there is no evidence of any prior romantic or sexual interaction or conversation between ZZN and Mr Rivett.
7. ZZN attended the Conference at the Adelaide Convention Centre to be held between 18-20 October 2019. As ZZN was from interstate, she had made arrangements to stay at her friend HNP's brother's place in North Adelaide.
8. The Conference dinner was on Saturday 19 October 2019 from 7.00 pm until about 11.30 pm. Whilst ZZN was at the dinner, HNP was attending a sports function at Morphettville Racecourse. During the Conference dinner, ZZN and HNP were in communication about their evening plans. The communication took the form of phone calls, text messages and Facebook messenger messages. Between 10.14 pm and 11.17 pm loose plans were being made for HNP to meet ZZN in the city, with HNP letting ZZN know when he arrived.
9. Video footage from the Convention Centre shows that between 11.27 pm and 11.32 pm ZZN and Mr Rivett made their way from the dinner venue, walking side by side next to each other.[10]
10. Although there is some disparity in HNP and ZZN's statements, phone records establish that at 11.33 pm HNP called ZZN,[11] and she called him at 11.34 pm on Facebook messenger, the call lasting 50 seconds.[12]This phone call is also depicted in the video footage from 11.33pm, which shows ZZN on the phone as she and Mr Rivett are at the front entrance of the Intercontinental Hotel.[13] The hotel is between the Convention Centre and the casino. During this phone call ZZN arranged to meet HNP at the nearby casino in about 10 minutes.[14]
11. At 11.35pm, ZZN and Mr Rivett entered the hotel lifts.
12. At about 11.41pm HNP rang ZZN[15] but ZZN did not pick up the call.[16] HNP then sent a message asking where ZZN was and indicating he was in the casino. The reply message was "hey sorry just in speeches. In the convention centre" (the just in speeches message). HNP replied that he would go and find a drink and she should advise him when she was done.[17]
13. There was a missed audio call to ZZN at 11.45 pm. At 12.09 am, HNP messaged asking about ZZN's status but there was no reply.[18] At about this time, HNP's father was leaving a Flinders Foundation Ball at the Convention Centre. He saw his son seated outside. HNP told him he was waiting for a friend and he was a little concerned about her as she had not been answering his calls.[19] At 12.35 am, HNP messaged ZZN saying he was going home and he provided the address.[20] HNP then walked home to North Adelaide.[21] At 12.43 am, ZZN missed another call from him.[22]
14. From 12.53 am, there was a text exchange between ZZN and HNP (the help me message).[23] The accurate times are on HNP's records as ZZN's records were provided in June 2020 and have an interstate time. The message exchange is as follows:

ZZN 12.53am: "Help-me" > > ZZN 12.54am: "@IntERcoNT" > > HNP 12.54am: "Ok wtf" > > "Im home" > > ZZN 12.55am: "Not-in-danger" > > HNP 12.55am: "OKkk" > > "Then what's Up???" > > "What's help me mean" > > ZZN 12.56am: "Just-Glre-me-2-secs" > > HNP 12.56am: "Ok" > > (address provided) > > "Seriously what the hell is going on" > > HNP 1.05am: "Easy-".

15. At 1.06am ZZN picked up a phone call from HNP and the call lasted 51 seconds. HNP was talking for at least 10 seconds but ZZN did not reply. HNP could hear background noise and scrambled voices but could not make out anything specific.[24] HNP then began running into the city.
16. At 1.11am ZZN sent a text message that just said "L-".[25]
17. Video footage of the hotel lifts and front entrance show ZZN left the hotel at 1.16am.
18. At 1.16 am HNP received a phone call from ZZN.[26] The call lasted 4 minutes 31 seconds.[27] ZZN was crying and she sounded upset. HNP asked her what happened and ZZN said that she didn't want to say. He insisted that she tell him what happened and ZZN said she could not tell him or it would ruin her career. She said "It's really bad. It would ruin my career". When HNP encouraged her to tell him what happened and said he would help her sort it out, ZZN said "I just got raped".[28] ZZN then burst into tears and sounded hysterical. HNP told ZZN to stay where she was and he was coming. He then said he would call his father. ZZN said that she did not want him to call his father, but HNP said it was the best thing to do and he was going to do it. ZZN replied "Okay. Just come here".[29]
19. At 1.21 am HNP rang his father seeking his help and his father agreed to attend the vicinity of the Intercontinental Hotel.[30] There were then further phone calls to establish ZZN's location.
20. HNP located ZZN on North Terrace at about 1.30 am.[31] Two males were with her. Whilst ZZN indicated she was okay, HNP could see she was clearly in distress. She was shaking, she had been crying, and she looked lost and shocked. When asked who she was in the room with and what happened, ZZN indicated to HNP it was "Darren" and she gave his surname.[32] ZZN also indicated to HNP, who was trying to guide his father to their location, that she would not go to the Intercontinental Hotel; she appeared scared at the thought of going there.[33] ZZN was at this time not sure if she wanted to go to the police. She mentioned to HNP four or five times that she was worried about what had happened because it would affect her career and she was "pretty apprehensive about the whole situation."[34]
21. When TSU arrived, HNP heard his father talking to ZZN about what happened. He heard his father ask her whether the person touched her private area and ZZN said something similar to he felt her up. She also said that he did not want her to leave and he had held her down at one stage. ZZN mentioned that he said she couldn't tell anyone about what happened and he had called her a naughty schoolgirl. When asked how Darren got her to his room, ZZN said that he had invited her to his room to have some wine; she said she wanted to go to the casino instead, saying something like "why can't we go somewhere else".[35]
22. When TSU first saw ZZN, he observed she was crying and very upset.[36] She looked very distressed and from his extensive policing experience "it was very obvious to him that something serious had happened to her".[37]
23. TSU asked ZZN if she had been sexually assaulted. She said that she had. TSU recorded in his notes that the offender had "possibly committed cunnilingus and possibly digital rape".[38] In evidence, he explained that they were not the actual words she used and he wrote "possibly" because as a police officer it was not definite until proven in court.[39] His memory was that ZZN told him her underwear had been taken off and the person had put his head between her legs and licked her vagina.[40] When she was providing these details, ZZN was shaky.[41]
24. TSU gave ZZN advice about her options.[42] He told her what would happen if she reported it and what would happen if she didn't.[43] He noted that ZZN was very concerned the person would ruin her career. ZZN also mentioned there was a warning not to say anything about it.
25. ZZN was not pressured to report the matter to the police.[44] She made her own decision to report it and TSU contacted police on her behalf at 2.03 am on 20 November 2019. Patrol officers attended at 2.10 am and ZZN was escorted to the Hindley St Police Station.[45]
26. Detective Brevet Sergeants Mahony and Eglinton were recalled at 2.50 am on 20 November 2019 and they took carriage of the investigation.[46]
27. HNP provided an affidavit from about 3.49 am onwards.[47] He also provided screen shots of his text records and phone call log, but not his messenger records.
28. Detective BS Mahony made notes of her involvement in the investigation.[48] The Tribunal is unable to determine if the notes made at 4.25 am record a conversation she had with ZZN or what she had been told by other officers upon being recalled. The notes at 4.50 am begin "version from the victim" and the Tribunal accepts these notes relate to a conversation between ZZN and Detective BS Mahony. In the notes, after recording acts of kissing down the body and biting of the left nipple, Detective BS Mahony recorded "hand touched vagina while on top. Believe finger penetration. Blacked out-woke up still cunnilingus."
29. Due to illness, Detective BS Mahony was unable to attend the Tribunal to give evidence about her notes, but TSU provided some evidence about general police practice which the Tribunal accepts. TSU said investigating officers make contemporaneous notes to record what occurred at the time as that will be a person's best memory.[49] An investigating officer of a complaint of rape would get a basic story so that they can move forward with the investigation. Most of the time when a sexual assault occurs, the victim is not in any condition to give a statement at that time. They can give a story, but most of them are very distressed and the thought of giving a full statement about what has just happened is something that can be put off for a few days.[50] A detective speaking initially to a victim is wanting enough information to determine if they have reasonable cause to suspect an offence has been committed. How the initial information is recorded is up to the detective but you would make accurate notes sufficient to consider further enquiries and to interview the suspect. The alleged sexual acts would normally be recorded. However, exact details would normally only be sought and recorded when a victim gives her full statement.[51]
30. At 5.40 am on 20 November 2019 Detective BS Mahony and other officers attended Mr Rivett's hotel room, arrested him for sexual intercourse without consent and transported him to the police station. When interviewed, and after receiving legal advice, Mr Rivett exercised his right to silence.[52]
31. ZZN began providing her Affidavit (police statement) to Detective BS Eglinton at 5.45 am on 20 October 2019. The times in ZZN's police statement were taken from her phone, which they were looking at as her statement was being taken.[53]
32. A sexual assault examination was conducted at 10.55 am on 20 October 2019. Forensic samples were taken from ZZN including swabs of the low vagina, labia, lips, left cheek, left nipple, left breast/chest. The records show under a heading of adverse drug and alcohol related symptoms, that boxes for "memory loss" "fluctuating consciousness" and "out of body experience" were ticked by the doctor, though the box "loss of consciousness" was not ticked.[54]
33. On 27 November 2019, police advised that no charge was to be laid following DPP adjudication that there was no reasonable prospect of conviction.[55]
34. Ahpra then continued its investigation.
35. On 22 June 2020, an Ahpra investigator took a further statement from ZZN after confirming that her police statement was true and correct.[56] This further statement contained information about people with whom ZZN had contact in the days following the incident, namely VXC, XOS, PQS, ILM, CZU, YCS and SVS. At this time, ZZN provided copies of any texts with those people.[57]
36. PQS provided a statement on 3 March 2020 detailing a conversation with ZZN on 21 October 2019.[58] The Tribunal notes that as this statement was taken some four and a half months later, PQS's recollection is not likely to be as reliable as it would have been if it had been taken proximate to the conversation. PQS was not called to give evidence and there was no cross examination of ZZN about this statement. Whilst there are some small differences in the detail provided, those differences are not such as to impact on the Tribunal's assessment of ZZN's credit and reliability. The Tribunal notes that at this time, ZZN indicated to PQS that she was quite disgusted by what happened because of the practitioner's age and given that he was older than her father, and also because he was in a position of authority in her profession.[59]
37. There was nothing of significance in YCS's statements.[60]
38. A statement containing details of a long conversation with ZZN on 21 October 2019 was taken from XOS on 18 April 2020.[61] The Tribunal's observations in paragraph 60 about PQS's statement including its untested and unchallenged nature also apply to XOS. In this conversation, ZZN expressed embarrassment at not realising what Mr Rivett had potentially meant by inviting her to his room, as she innocently assumed that she was still having professional contact with him. She expressed the sentiment that she did not think that a practitioner of his age would attempt something of a sexual nature with somebody much younger. She was distressed that she had not thought more about the invitation to his room and said in hindsight she should have said no to him.[62] In relation to ZZN's account of the events, the Tribunal finds there are no significant inconsistencies such as would impact on our assessment of ZZN as a witness. It is noted that ZZN told XOS that she had locked herself in the bathroom when she was sending texts to HNP.
39. There was a text message exchange between ZZN and VXC on 22 October 2019 (the hard to answer messages).[63] ZZN was cross examined about these text messages. When talking about not sleeping well, ZZN messaged "I found out the perpetrator is a professor at the University of Newcastle. He's married. He probably has kids (oops)."[64] She mentioned that a male colleague, SVS, had asked if she consented "which was hard to answer". Later in this exchange, VXC wrote "I assumed you didn't consent if you filed a complaint but maybe that was an inappropriate assumption" and ZZN's reply was "I never said no directly. But I also never said yes and I felt like he used force which scared me. I also made it clear that I wanted to leave". When VXC replied that "its hard to say no and often we don't feel we can say no", ZZN added "I just couldn't really process what was happening to me. And how to get out safely".[65]
40. A further Ahpra statement was taken from ZZN on 19 November 2020 and signed on 29 January 2021.[66] This statement related mainly to the structure of the APA, ZZN's and Mr Rivett's role in that structure, what conversations ZZN had with Mr Rivett around the APA and promotion of their industry, and the impact of a claimed comment made by Mr Rivett as ZZN left that "I hope you realise that these encounters stay within the Board".
41. By letter dated 18 January 2021, Ahpra advised it was continuing its investigation. The letter set out the issues they were investigating, namely Mr Rivett transgressing professional boundaries by inviting ZZN to his hotel room, telling her he could help her attain a position within her local Branch, making inappropriate advances and engaging in unwanted sexual behaviour without consent, and seeking to exploit a power imbalance.[67]
42. Mr Rivett was interviewed by an Ahpra investigator on 16 December 2021.[68] In relation to the incident itself, he exercised his legal right to decline to answer questions if they might incriminate him. He provided details of his professional experience, advised of his ongoing serious cardiac problem and stated he was not renewing his registration. He also stated the following:
    1. He knew the Code of Conduct extremely well and contributed to its evolution. He did not believe he had transgressed it in any way.[69] He had mentored many health professionals. He had never been the subject of a complaint as far as he was aware.[70] He had been involved in ethics committees in the 1980's.[71]
    2. He accepted he probably met ZZN on an earlier occasion, although he didn't remember meeting her. He absolutely denied inviting her back to his room on that occasion.[72]
    3. The conference in Adelaide was the National Conference of the APA. His role was to attend as a Director of the APA National Board; at that time he was Vice President, having been elected by the other directors.[73] His duties at the conference were essentially to interface with the volunteers, to make them feel valued and to provide assistance where possible.
    4. Being aware ZZN had claimed that he said he could help her attain a leadership position within her Branch Council, he pointed out that the position as described by ZZN did not exist and there was another comparable position with a different title.[74] He said the only people who could influence the decision were the other members of her Branch committee and he had never been a member of her Branch Council.
    5. In relation to a claim of power imbalance, he pointed out that the organisations were volunteer organisations, and the volunteers were not paid. Whilst he could see power imbalance if there was a patient or a student involved, within a volunteer organisation there was "no way there would be any sort of power imbalance."[75]
    6. He considered the Code of Conduct primarily made reference to patients and clients so he could not see how professional boundary misconduct applied.[76]
    7. When asked whether he saw himself as having some standing given his position as a Director, he said Directors saw themselves as colleagues of all members. He acknowledged that as they were voted in, they obviously held some standing but "by no means as a Director would you see yourself as anything but a colleague of other members".[77]
43. A DNA sample from Mr Rivett was submitted to the Forensic Science Centre. When uploaded onto the FSC database, it could be compared with results obtained from ZZN's swabs. There was a presumptive result for saliva on the swabs from ZZN's left nipple and left chest. Male DNA was found on the low vaginal, labial and left chest swabs but there was insufficient DNA to proceed with further analysis.[78] There was a DNA match with Mr Rivett on the left nipple swab.[79]
44. Mr Volgin explained in evidence and the Tribunal accepts that on the left nipple swab, 80% of the DNA found was from ZZN, 19% was from Mr Rivett and there was a 1% trace from a third person.[80] The saliva result was presumptive because there can be a false positive result from breast milk, faecal material, vaginal secretions and possibly sweat.[81] It was not possible to identify where the positive saliva test came from; it could possibly be a false positive to ZZN's sweat or even her saliva.[82]
45. Mr Volgin also gave evidence about contact DNA. With a biological fluid like saliva, the results contain high amounts of DNA relative to DNA deposited through touch. When a person occupies a room, DNA can be deposited on items in the room and there can be secondary transfer where someone else touches that item and the first person's DNA is picked up on the second person's hands and transferred to another surface.[83] DNA would not be transferred through clothing as clothing would act as a physical barrier.[84] However, if DNA was transferred onto a person's hand and then the hand touched that person's body, DNA transfer could occur.[85]

1. When ZZN gave evidence before the Tribunal, she adopted as the truth her police statement and two Ahpra statements. She gave brief additional oral evidence in chief and was then subjected to extensive cross examination.

1. ZZN understood Mr Rivett attended the Conference as a Board Director as he told her that the APA paid for everything for him, such as his hotel room and flights.[86] At the time of the conference, she did not see Mr Rivett as her equal. She saw him as very senior and very respected within the profession.[87] She considered he had a lot of influence and sway in the profession.[88]
2. The conference dinner at the Adelaide Convention Centre began at about 7 pm. ZZN was not seated with Mr Rivett during the dinner. At about 10.30 pm, when she was looking for a colleague, she saw Mr Rivett on the dancefloor. She later returned to talk to him as she was networking and looking to make contact with APA Board members.[89] [At this point in the decision, the Tribunal discussed the manner in which ZZN was networking with Mr Rivett].
3. At one stage, ZZN was dancing with several people. Whilst dancing, Mr Rivett touched her on the waist a few times and at one point put both hands on her waist. This made her feel weird, she tried to maintain her space and she tried to get other people to dance as well so that she felt more comfortable.[90]
4. After about 15 minutes of dancing and chatting, ZZN suggested to Mr Rivett that they get another drink. At the time, he had been talking about another female he really liked and told her they had reignited their relationship and she wanted to hear more about this as she knew that person. Unable to get a drink as the bar had closed, they started moving to the casino for a drink.[91]
5. Referring to her phone when she gave her police statement, ZZN said as they were leaving the conference venue at 11.33 pm, she organised to meet HNP at the casino in 10 minutes.[92] As they were walking past the Intercontinental Hotel on their way to the casino, Mr Rivett suggested and she agreed that they go to his room for a drink.[93]
6. Upon entering his room, about which she gave a full description, Mr Rivett opened a bottle of red wine and they sat on the couch talking.[94] After talking for a little while, he began touching the back of her neck in the context of talking about her vertebrae. This made her feel very uncomfortable.[95]
7. Whilst in the room, they were mainly discussing work. Mr Rivett told her she was intelligent and very capable and he told her she would be good in the leadership position. Earlier in the night, he had told her he would help her in that regard and that he would make it happen. He also referred to another physiotherapist who had received an award at the conference and told her he had assisted greatly in getting the award across the board for her.[96] During the conversation, Mr Rivett was also telling her about his relationship with the other physiotherapist.[97]
8. In the Ahpra addendum statement of 29 January 2021, ZZN provided further information about her discussions with Mr Rivett.[98] She was excited and enthusiastic about the APA and what it could achieve. She had an in depth discussion with him about government and policies. She spoke about her philosophy of the importance that patients are seen, heard and can express themselves when having therapy. He also discussed with her his professional experiences and made comments about the profession.
9. Whilst talking to Mr Rivett, ZZN's phone was behind her on the couch and it was flashing as HNP had tried to call her several times. Mr Rivett noticed this and made comments about him and the fact he must really like her. She told Mr Rivett that she was meeting HNP at the casino and that she would leave after she finished her drink.[99]
10. Conversation continued and then Mr Rivett leant in, kissed ZZN on the lips and tried to pull her closer. She felt really uncomfortable and tried to resist by staying really rigid. He was opening his mouth when he was kissing her and it seemed like he was trying to open her mouth.[100]She was in shock and realised she was in a bad situation. She kissed him back but remained very rigid. She then stated she needed to go to the toilet and got up and walked into the bathroom.[101]Later in her statement, ZZN said she "pushed him away to go to the bathroom".[102]
11. When in the bathroom, ZZN was feeling quite scared as she realised she was in a "really shitty situation".[103] She started messaging HNP using her smart watch as she had forgotten to take her phone with her. Her messages were very brief as it was difficult to write each letter and she used a dash instead of a space as she did not know how to do a space.
12. Her phone showed that at 12.53 am she wrote 'Help-me" and at 12.54 am she wrote "@intercont".
13. While in the bathroom, HNP was calling ZZN but she didn't answer as she was concerned it would have gone to loudspeaker on her watch. She wanted HNP to stop calling as she was worried Mr Rivett would see it coming up on her phone which was still on the couch. She sent HNP two more messages in the bathroom. The message at 12.56 am stated "Not-in-danger" and at 1.05 am "Just-give-me-2-secs". She sent these two messages because she was worried Mr Rivett would see the calls and she thought she could handle the situation.[104]
14. When ZZN was in the bathroom, Mr Rivett was yelling out words to the effect of "why are you taking so long" or "what are you doing".[105] She felt his tone was stern, she thought he was offended that she wasn't interested when she pushed him off to go to the toilet, and that he was getting "pissed off".
15. When she left the bathroom, ZZN intended to get her bag and leave. However, Mr Rivett was standing in front of her and in front of the couch. Mr Rivett started kissing her again on the lips. She kissed him back as she didn't want to anger him and she wanted to calm the situation down.[106]
16. Mr Rivett put his hands on ZZN's waist and pushed her towards the bed. When the bed was directly behind her, he put her hands over her head and used both hands to hold her wrists. He then released his grip and pushed her backwards onto the bed, resulting in her lying on the edge of the bed, with her legs hanging off.[107] This push was not aggressive.
17. He began kissing ZZN quite forcefully, and she felt this was quite aggressive. He was holding her wrists with one hand and began trying to undress her with his other hand. He slid the back zip of her dress down and was taking her dress down over her shoulders. He struggled to take her bra off with one hand so he released his grip on her wrist and used his other hand to remove her bra.[108]
18. ZZN then sat up and was trying to get up. She tried to redress herself by pulling her dress back up over her shoulders. She said "oh no I don't really want to take this off" and "I don't really want this to happen" (the don't really want this to happen comments).[109] She said this in a "coy" way because she was uncomfortable and really scared.[110]
19. Mr Rivett became more aggressive after she told him no. He aggressively pushed her backwards with both hands on her shoulders. He used both hands to put both of her arms over her head, with her wrists being crossed together again. He called her a naughty school girl.[111]
20. He then began to kiss ZZN's lips, neck and down her chest. He licked her chest and bit her left nipple which hurt.[112]As he made his way down her body, he had released his hold on her wrists.
21. At some point while her wrists were held and Mr Rivett was kissing her on her chest, ZZN answered a call from HNP on her watch.[113]She could hear HNP talking and asking her where she was, if she was okay, and what was going on. This was on loud speaker. She didn't respond. She thought HNP realised that she wanted him to listen to what was happening.[114]
22. In her statement ZZN referred to her phone showing she answered two calls from HNP at 1.06 am and 1.11 am lasting 51 and 49 sec but ZZN could only recall answering one phone call.
23. Mr Rivett was whispering to her and told her to hang up. At the time, ZZN's wrists were being held and one of Mr Rivett's arms was slightly across her throat; this was uncomfortable and it made it difficult to breathe. Mr Rivett said that she was really naughty and that she should not have done that.[115]He then became extremely aggressive around her neck. He put his hand over her neck and squeezed lightly several times.
24. At some point, Mr Rivett slid her dress up and took ZZN's g-string off. He did this very aggressively. He pushed her legs open aggressively and held her down with his hand on her left thigh.[116]He was on top of her and he began to touch her clitoris; it felt like he was rubbing it with one finger. She felt like she was out of her body, watching what was happening.
25. ZZN held her hands above her head and tried to message HNP on her watch without Mr Rivett being aware.[117]Her phone showed she sent a message at 1.11 am which just said "L-". ZZN thought she was trying to write "help" at the time.
26. ZZN felt Mr Rivett try to penetrate her vagina with his finger although she was not sure whether it entered. At this time, she felt like she had a surge of energy and she pushed him off her and jumped up off the bed.[118]She said something like "I'm sorry I have given you the wrong impression". She didn't look at him. She grabbed her underwear and bra, putting her bra on and her underwear in her bag. She had trouble pulling up the zip on her dress. She was angry at Mr Rivett and snapped at him to do the back up.
27. As ZZN walked towards the door to leave, Mr Rivett said "I hope you realise that these encounters stay within the Board".[119] In her Ahpra statement of 29 January 2021, she stated when he made this comment she thought he could really decimate her and make her undesirable to potential employers. She felt like that because she knew he had a lot of influence and sway in the profession.[120]
28. She did not respond and left.
29. As soon as ZZN was out of the building she called HNP. Initially, she just cried without saying anything but she told him she thought she had just been raped. She told him where she was and HNP said he was coming to get her. Because she didn't want to stay in the area in case she saw Mr Rivett or anyone else on the Board, she went down the street to the front of Parliament House. Two strangers found her in a "catatonic state". They stayed with her and provided information to HNP about where she was. HNP arrived as did his father and after telling him what happened, his father called the police for her.[121]
30. During the incident ZZN was tipsy.[122] She had consumed four glasses of wine at the dinner and then some red wine in Mr Rivett's room.[123] Her impression was that Mr Rivett was quite drunk because he was saying inappropriate things at the dinner that a professional wouldn't normally say.
31. In terms of timing, they spoke for about 45 minutes in the hotel room before ZZN went to the bathroom; after leaving the bathroom she thought she was only in the hotel for about another 15 minutes.[124]
32. ZZN said the chronological order of events once she left the bathroom was slightly confusing as it felt like it all happened really quickly.
33. ZZN did not give Mr Rivett permission to touch her vagina. During the incident, she felt she had no control and that Mr Rivett was not listening to her or to what she wanted. She felt hopeless and numb to what was happening.[125]She also felt that he was manipulating her because she was young and naïve, and he was someone who could easily influence her career.[126]

1. ZZN confirmed she did not consent to any of the sexual contact that occurred.[127]
2. ZZN said she had no contact with Mr Rivett until after the formal part of the dinner had concluded.[128] She agreed she asked Mr Rivett if he wanted to get a drink and she suggested the casino.[129] On their way, he indicated he had wine in his room so they went there while she waited for HNP to come. She invited Mr Rivett for a drink because she wanted to hear more about his relationship with another physiotherapist, and she wanted to continue to talk to him "as he was fun". ZZN did not agree that she had formed the view that he could advance her position as a physiotherapist. Her position was that she respected him and she felt like he was being very generous with his time and also giving her a lot of help in terms of his experiences.[130]She agreed she regarded him as a senior member of the profession. She conceded that there was a degree of self interest in that she wanted him to know who she was, but that was not why she was speaking to him. In relation to the possible leadership position, she agreed he would be a useful contact, especially if she was successful.[131]
3. ZZN denied that she had made up the allegation that she had been invited to Mr Rivett's hotel during the earlier APA dinner to add credibility to her story as this was not mentioned in her two earlier statements.[132] ZZN explained that when she gave her police statement she was more focused on getting the details of what happened that night out on paper and she didn't know if she had spent a great deal of time checking the detail about the previous meeting.[133] It was in her second Ahpra statement because the investigator wanted more information, and sought more information about how she knew Mr Rivett and their previous interaction.[134] Nobody had asked her explicitly before that time.[135]
4. ZZN was asked whether she had been talking to APA members about considering standing for the leadership position. When pressed, she replied "I have to tell the truth and I don't know".[136]
5. ZZN was cross examined about the arrangements she made to meet up with HNP. Mr Marcus questioned ZZN about phone contact with HNP as they were leaving the Convention Centre. ZZN said she did not currently remember the exact words she used but she knew they made a plan to meet at the casino. Mr Marcus then asked, "And did you say to HNP at that point of time that you were still in the speeches part of the conference and that you would meet him later?" Her answer was that she did not currently know what she said to HNP back then. Mr Marcus then continued "So if I suggested to you that you in fact lied to him and said that the conference was still in the speeches phase, would you agree with that" and she replied "I don't agree with that". Mr Marcus then said "And after communicating with HNP, is it the case that Mr Rivett then invited you to his hotel room for a drink" to which ZZN agreed.[137]
6. ZZN said she went up to Mr Rivett's hotel room because HNP had been at a dinner elsewhere and wasn't going to get to the casino for a while. She did not know if Mr Rivett heard her making arrangements with HNP; she thought she had a phone conversation so she thought he would have heard.[138] ZZN agreed that she was not pressured or forced to go to the hotel room; she agreed she wanted to go with Mr Rivett to keep talking to him.[139]
7. It was then put that during the conversation in the room, the two of them kissed. ZZN corrected this and said "Yes, during the conversation Mr Rivett kissed me".[140]It was further suggested that Mr Rivett was not the initiator and that it was a mutual kiss. ZZN said she did not agree with that. ZZN did agree that she kissed Mr Rivett back. She explained that when he kissed her, she realised she had "misjudged things" and was in "a really shit situation". She just went into panic mode and she kissed him back.[141] ZZN showed signs of being upset when giving this evidence. When asked whether she did anything to indicate how she was feeling at that time, ZZN said her body language would have indicated she was not interested as she was very rigid, she was very withdrawn, but she added that she didn't say anything. When asked about the nature of the kiss, ZZN agreed their mouths were open, and their lips were touching but she did not remember if their tongues were touching. She accepted that she was actively kissing Mr Rivett.[142] She agreed that apart from her body being rigid, she did not do or say anything to indicate to Mr Rivett that she did not consent to the kiss.[143]
8. ZZN said that after exiting the bathroom, she did not leave because she didn't feel that she could without making Mr Rivett more angry.[144] When asked whether she said that she wanted to leave, ZZN said that she really didn't say anything.[145]
9. ZZN was unable to say whether she was rigid during the second kiss.[146]
10. ZZN was questioned about how Mr Rivett was able to remove her dress and bra without her assistance. ZZN said that she did not presently remember this specific part of the incident so she was not sure,[147] and she later confirmed she had no present recollection of this beyond her statement.[148] It was put that she helped remove her clothing. ZZN said that was not correct and explained "because there's at no time point where I remember consenting to anything in that regard and I would suggest that taking my clothes off would be indicating to him that I would have been interested in something, whereas I never did anything to that effect to show that I wanted anything to happen".[149] She agreed that as she had no current memory, that was an assumption. She took a similar position about the removal of her underwear;[150] she did not agree that she assisted him and she did not think that happened, but as she had no current memory she "had nothing else to state otherwise".
11. ZZN was asked to explain what she meant when she used the word "coy" to describe her don't really want this to happen comments. She had difficulty articulating what she meant, but said she made the comment in a soft or meek or shy way, not a hard pushy way.[151] She added that using that tone was how she approaches confrontation. ZZN rejected the suggestion that she meant playful or seductive. ZZN agreed she did not verbally say "I don't consent to what is happening right now".[152]
12. In relation to how the incident came to an end, ZZN said "I remember I had this really big surge of energy. It kind of like I went from being in this like completely catatonic state where I like didn't really know what to do or I really couldn't do much. I was just kind of frozen. And then all of a sudden I had a surge of energy and I was like, stood up, pushed him away and started putting my clothes on".[153] ZZN agreed that was the first time she had physically pushed Mr Rivett away during the course of the incident.[154]
13. When it was then suggested ZZN went with Mr Rivett to continue networking and advance herself professionally, ZZN said it was more because she was having a nice time talking to Mr Rivett and he seemed like a really genuine nice person. She did not feel there was any attraction or anything like that. He was talking to her and giving her his time as a senior person of the profession, he was giving her advice and listening to her about her experiences, and it was great to have somebody who was that senior listen to her and provide advice. When it was specifically put that she went to the hotel room to engage with him sexually, ZZN said "In no way, shape or form was I ever interested in Mr Rivett sexually. And like, I'm sorry, I don't know how old Mr Rivett is but even the prospect of that with anyone that might be 30 years older than me, it doesn't interest me in any way shape or form". ZZN also rejected the suggestion that she initially went to the room and had consensual sexual activity but then changed her mind.[155]
14. ZZN was then questioned about the help me message. ZZN said that she sent the help me message to HNP because she wanted somebody to help her get out of the situation which she agreed was awkward but not dangerous.[156] It was put that this message was sent at the point when she said to Mr Rivett that she was sorry for giving him the wrong impression and she then left. ZZN firmly rejected that and said that was not when it happened, it happened much earlier on.[157]
15. ZZN was asked about providing information to Detectives BS Eglinton and Mahony.[158] She could not say for certain whether she gave them separate narratives of the events as she did not remember speaking separately to the two Detectives.[159] She only remembered giving her statement to Detective BS Eglinton. After being shown Detective BS Mahony's notes,[160] she was asked whether she told Detective BS Mahony that Mr Rivett put his tongue in her vagina. ZZN said that she did not remember that now, but she had a faint memory, she felt like she dissociated during the event and she did not really know what was going on and she couldn't say for certain whether it was fingers or tongue. As she could not remember any conversation with Detective BS Mahony, ZZN said she was not saying Detective BS Mahony made an error, but rather suggesting that as a possible answer to the question.[161]
16. Referring to her police statement, ZZN also said the officer was asking her questions and she was trying to go through and tell her about everything that had happened. When the officer asked specific questions about what had entered her vagina, as they discussed it more, she was sure it was just a finger.[162]
17. ZZN was also asked about Detective BS Mahony's note that she "blacked out". ZZN said that she did not black out and she suggested the notes were based on the officer's interpretation or understanding rather than what she was actually trying to tell her.[163] ZZN said the reference to blacked out was probably referring to dissociating.
18. In relation to the hard to answer messages, ZZN said that the reference to "oops" was made in the context of her trying to process what had happened and understand it. When she found out Mr Rivett was married, she thought that was weird because he had been telling her about the other person he liked. And then when she found out he had children "that was horrendous, that that's a situation his kids have to be in." "Oops" was probably her thinking "that was a pretty crap situation".[164] ZZN rejected the suggestion that it was a reflection on a mistake she made in trying to pursue a sexual encounter with Mr Rivett, stating "I thought I made it pretty clear before that I had no interest in any sexual engagement with Mr Rivett".
19. When asked about the text "[SVS] ... asked if I consented which was hard to answer", ZZN stated that she had never said no, she never said anything. She added "But everything is on the basis of implied consent in this and I don't think as an older male trying to engage in sexual activity with a younger female that you can rely on implied consent I just don't think that's okay."[165] She also said she interpreted SVS's question as enquiring whether she gave verbal consent.
20. ZZN was asked to identify any behaviours that might have indicated to Mr Rivett that she was not consenting. She identified locking herself in the bathroom for an extended period of time, saying I don't really want this to happen and I don't really want to take this off.[166] It was then suggested she had just added the detail of locking the door as it was not in her statement. ZZN said she had a memory of doing that because it felt safer.[167]
21. It was put that up until the point where she said she was sorry she had given him the wrong impression, any physical contact was consensual. This proposition was rejected.[168]
22. It was put that Mr Rivett never promised to assist her with the leadership; ZZN relied on her statement and disagreed.[169] It was put that he never called her a naughty school girl and that he never grabbed her by the throat; ZZN disagreed with both propositions.[170] It was suggested Mr Rivett never made a comment about things staying within the Board; ZZN said she definitely remembered him telling her not to tell anyone. It was also put that whilst in the room, Mr Rivett suggested she could leave at any time; ZZN rejected that suggestion.[171]
23. It was suggested that ZZN was happy to start off with, then regretted engaging in physical activity with Mr Rivett so she left. ZZN's reply was "I don't know how many times I need to say this today but I never consented to any, there was never any want for any sort of sexual engagement on my behalf, the entire ... no."[172]
24. It was further put that apart from locking herself in the bathroom and saying I do not want this to happen, ZZN did nothing else to convey clearly to Mr Rivett that she was not consenting. ZZN then added her body language, she was sure that apart from being stiff during the kiss, there would have been other aspects of her body language that would have indicated that she was not consenting.[173]
25. ZZN remembered after she left the hotel, she was completely shocked.[174] When she was talking to HNP, she was still processing everything and she didn't understand what had just happened.[175]
26. It was directly put that ZZN had made up that this was a non-consensual encounter to avoid any issues that might have arisen from sexual contact with Mr Rivett; she disagreed.[176]
27. When asked to estimate how long she was in the bathroom, ZZN said it felt like she was in there for 15 minutes. From her memory, she thought she sent the first message to HNP a little while after going to the bathroom as she did go to the toilet.[177]

1. Ms Barnes made the following submissions:
   1. ZZN should be accepted as an honest and reliable witness;
   2. ZZN's evidence was supported by independent evidence from HNP, TSU, the text and messenger messages and phone calls and in particular the help me message, and the forensic evidence;
   3. ZZN gave credible explanations for any inconsistencies in her account;
   4. The Tribunal should find that there was sexual contact as described by ZZN, it was unwanted and ZZN had not provided consent;
   5. There was a clear, unambiguous indication of ZZN's lack of consent when she made the don't really want this to happen comments. From at least this point, Mr Rivett could not have been under any misapprehension; however, he proceeded regardless, taking no steps to ascertain whether ZZN wanted sexual contact or giving no thought to whether she consented.

1. Mr Marcus made the following submissions:
   1. Any sexual contact between Mr Rivett and ZZN cannot be proven to be unwanted;
   2. The Board's case depends entirely on the word of ZZN and there are issues relating to her credibility and reliability;
   3. The DNA evidence does not prove Mr Rivett licked ZZN's left nipple as there could be secondary transfer of DNA and the biological sample may not have been saliva;
   4. ZZN lied to HNP about her whereabouts so that she could continue to interact with Mr Rivett;
   5. ZZN reported to Detective BS Mahony and TSU an act of licking of the vagina but such conduct was not reported in her police statement or given in evidence;
   6. Detective BS Mahony recorded that ZZN "blacked out" whereas that is not in ZZN's police statement and was disclaimed in evidence;
   7. The medical examination records record ZZN reported "memory loss" "fluctuating consciousness" and "out of body experience";
   8. Issues d, e, f and g should lead the Tribunal to have real concerns about ZZN's reliability such that it cannot be comfortably satisfied of her version of events;
   9. The hard to answer messages indicate ZZN herself did not know whether she was consenting;
   10. The help me message can be viewed as being a request to help ZZN out of an embarrassing situation, in which ZZN initially was a willing participant but then changed her mind. She might have changed her mind because she was embarrassed with her actions, or things might be awkward the following morning, or she simply decided she wanted to be elsewhere;
   11. ZZN's distress immediately afterwards is equivocal. It is possible that she was distressed because she considered Mr Rivett had intentionally had unwanted sexual contact, when there had simply been a misunderstanding as to whether she was a willing party. Her distress does not assist in determining Mr Rivett's state of mind;
   12. ZZN apologised to Mr Rivett for giving him the wrong impression. This is supportive of ZZN acknowledging at the time that she had not communicated to Mr Rivett that sexual contact was unwanted and Mr Rivett not knowing that she was unwilling;
   13. The totality of the evidence is consistent with ZZN going to Mr Rivett's hotel room with a view to furthering her career including engaging in sexual contact, but then changing her mind. She lied to HNP about her whereabouts, she was with Mr Rivett for an hour and a half, she kissed him back, she must have assisted him to remove her clothing, and when she spoke about not wanting it to happen, she used a coy voice which would suggest it was said in a teasing or playful way;
   14. Even if ZZN's version of events is accepted, ZZN did not in any way communicate to Mr Rivett that she did not want any sexual contact to occur. She did not say no. If she did say that she did not want this to happen, she described using a coy voice and Mr Rivett may not have understood that she was trying to signal her unwillingness;
   15. It cannot be proved that Mr Rivett either knew the sexual contact was unwanted, or was reckless or negligent in that regard;
   16. There was nothing in the circumstances such that sexual contact between Mr Rivett and ZZN was inherently improper and power imbalance issues do not arise;
   17. This was not a student/ teacher or senior practitioner/ subordinate situation. Both were adults with capacity to make informed decisions about their actions, the meeting was outside the workplace in a clear social setting, the meeting did not involve a patient, there was no lack of capacity because of significant alcohol ingestion and ZZN voluntarily went to Mr Rivett's room;
   18. Although there was a significant age gap, ZZN was capable of making her own decisions;
   19. Whilst Mr Rivett did occupy positions of seniority in the profession and the APA, there was no established relationship of a kind which would make a sexual relationship inappropriate. Also, ZZN was herself an astute practitioner, involved in positions of responsibility within the APA;
   20. In relation to power imbalance, there is no evidence before the Tribunal to show that Mr Rivett was able to damage ZZN's career.

1. Having considered individually and collectively Mr Marcus' submissions, the Tribunal is comfortably satisfied that ZZN is an honest witness who has given a sufficiently reliable account of the events in the hotel room upon which the Tribunal can make findings of fact.
2. ZZN presented as an honest, frank, and careful witness. Whilst generally composed, she was tearful when expressing her feelings that she found herself in an unwanted situation from which she needed to extricate herself without impacting her career. She demonstrated she was taking the oath seriously when she replied to questions by saying that as she did not have any current memory, she could not give an answer. There were no signs that she was embellishing her story, nor were there signs of hostility towards Mr Rivett. She made appropriate concessions in cross examination and gave plausible explanations for her behaviour and any suggested inconsistencies. Her firm denials of going to the hotel room for a sexual encounter and protestations that she was not sexually attracted to a man of Mr Rivett's age had the ring of truth; these were not sentiments she was expressing for the first time in the witness box as similar sentiments had been expressed to her friends immediately after the incident.
3. ZZN largely depended upon her police statement for specific details as the passage of time had eroded her memory. The police statement is detailed, with ZZN recounting her dealings with people at the Conference dinner, providing a description of Mr Rivett's room, and providing detail of her and Mr Rivett's behaviour. The independent evidence from phone call logs, text and messenger records is entirely consistent with ZZN's account of events in Mr Rivett's room. For example, ZZN said that when conversing in the room, Mr Rivett made a comment about HNP's frequent attempts to contact her; this is borne out by HNP's messenger records between 11.45 pm and 12.43 am. ZZN's ability to provide detail in her police statement is also demonstrative of the fact that any alcohol she had consumed had not impacted her ability to appreciate what was happening to her.
4. It was suggested that ZZN had watered down her evidence relating to the tone of voice she used in the don't really want this to happen comments. In her police statement, she had used the word coy, which Mr Marcus suggested meant playful. In evidence, ZZN explained by that word she meant soft and meek, rather than hard or pushy. The Tribunal accepts that that was her meaning.
5. It was also suggested that when giving evidence, ZZN had fabricated that she had locked the bathroom door as that was not in her police statement. ZZN said in evidence that happened and there is evidence rebutting the suggestion of recent invention as ZZN told XOS that she locked the door.
6. Mr Marcus also submitted that ZZN must have helped Mr Rivett remove her clothing. The Tribunal does not so conclude; in our view clothing can be removed even if a person is passive and not actively doing anything to assist.
7. The Tribunal accepts that the just in speeches message to HNP was not truthful as at that time ZZN and Mr Rivett were in his hotel room. However, we do not consider ZZN lied in evidence, because the context in which this was put in cross examination as summarised at paragraph 106 was misleading. The detail of the messenger exchanges with HNP were apparently not sought or included in ZZN's police statement, ZZN was not referred to the message in cross-examination, and in our view it is highly likely that she had no current memory of sending this message in these circumstances. Because there was no further questioning on this topic, the Tribunal has not had the benefit of hearing her explanation for sending this message. However, we do not conclude that she was dishonest about her location because she had gone to Mr Rivett's hotel room for a sexual encounter. In addition, whilst accepting ZZN was not honest with HNP about her whereabouts, we do not consider this impacts significantly on her general credit.
8. Mr Marcus' suggestion that ZZN was a willing participant up until the help me message whereupon she apologised for misleading Mr Rivett and left, was rejected by ZZN and is disproven by the independent evidence. The help me message was completed at 1.05 am, the overheard phone call was at 1.06 am, the "L-" message was at 1.11 am and ZZN did not leave the hotel until 1.16 am. The elapse of about ten minutes is not consistent with the proposition put by Mr Marcus. On the other hand, it is entirely consistent with what ZZN said happened during that period of time and is independent evidence which bolsters her credibility and reliability.
9. The Tribunal rejects as implausible the suggestion that there was an alternative explanation for ZZN's distress and immediate report of rape. If there had been consensual sexual activity and ZZN had simply changed her mind and left, there was no need for ZZN to have alleged rape as nothing untoward had happened and it is unlikely this would have caused her distress. The Tribunal treats the evidence of immediate complaint and distress as being consistent with her account. The Tribunal also treats the evidence of HNP and TSU of ZZN's concern about the impact on her career of any disclosure as consistent with her evidence that Mr Rivett had made a parting comment about the matter staying within the Board.
10. In relation to the DNA evidence, the Tribunal recognises that some of the male DNA found on ZZN's swabs was insufficient to be matched. We have also borne in mind the possibility of secondary DNA transfer and a false positive for saliva in relation to the left nipple swab, although there is no suggestion that ZZN touched her own left nipple so that secondary transfer occurred in that way. In our view, the force of the DNA evidence is that it is consistent with ZZN's evidence as to the sexual contact that occurred, including Mr Rivett biting her left nipple.
11. The Tribunal accepts that when speaking to TSU and Detective BS Mahony, ZZN made a report of both a digital and a tongue/vagina act. At this time, ZZN was in shock and very distressed and we accept that it is unusual for police to take an evidential statement in the immediate aftermath of such an event. Detective BS Mahony's notes are very brief, contain an error as to Mr Rivett's name and other spelling errors and her notes were not shown to ZZN and adopted as accurate notes. ZZN's explanation as to why this allegation did not appear in the police statement is entirely plausible, namely that once required to provide a detailed and chronological account, she had thought through what she thought had happened and recognised that although Mr Rivett had been licking her body, only digital penetration had occurred. We do not consider this inconsistency significantly impacts upon on her credibility or reliability in these circumstances.
12. The Tribunal accepts that ZZN said something to Detective BS Mahony that led her to write that ZZN "blacked out". This was not repeated during her medical examination, when loss of consciousness was not noted. What was then noted was memory loss, out of body experience and fluctuating consciousness. We accept ZZN's evidence that what she was trying to convey to Detective BS Mahony was that she felt that she dissociated during the incident. ZZN was not asked about the medical notes, but what was there noted is not inconsistent with ZZN's police statement. Memory loss could merely connote that because things happened quickly towards the end of the incident, there were difficulties with the chronology. Fluctuating consciousness could represent her sense that she was dissociating. Given the detail that ZZN was able to provide in her police statement, we do not consider that ZZN is so unreliable that the Tribunal cannot found facts based on her account.
13. The hard to answer message needs to be considered in its entirety. The Tribunal does not consider it indicates ZZN did not know whether she was consenting. Rather, the message is entirely consistent with her police statement and her evidence, namely that the sexual contact was unwanted but ZZN did not actually say no.
14. The Tribunal does not accept the submission that the help me message is neutral. It is, in our view, a significant piece of supportive evidence. ZZN said that the message was sent on her watch; the shortness and appearance of the messages support this evidence and support her evidence that she was in the bathroom at this time. The only possible inference to be drawn from the message was that at that time ZZN was seeking help to get out of the situation because what had happened or might then happen was not something that she wanted. The "just give me 2 secs" message is consistent with her intention to leave as quickly as she could. The entirety of the message is powerful evidence that what happened in the hotel room in the 10 minutes after she left the bathroom was unwanted by her.
15. The help me message, the acceptance of a phone call from HNP and the "L-" message all support ZZN's version and the timing of events that occurred between 1.05 am and 1.16 am.
16. In the Tribunal's view, ZZN's account of what happened has all the hallmarks of being an honest account. ZZN did not claim that she had said no, she told the police she kissed Mr Rivett back and disclosed that she said that she was sorry she had given him the wrong impression. In our view, she would not have provided this information which favoured Mr Rivett if her claim of unwanted sexual activity was a fabrication.

1. The Tribunal makes the following further findings of fact from ZZN's evidence and the independent evidence.
2. The Conference dinner at the Adelaide Convention Centre began at about 7 pm. ZZN was not seated with Mr Rivett during the dinner. At about 10.30 pm, when she was looking for a colleague, she saw Mr Rivett on the dancefloor. She later returned to talk to him as she was networking and looking to make contact with APA Board members. [At this point in the decision, the Tribunal discussed the manner in which ZZN was networking with Mr Rivett]. ZZN danced with several people. Whilst dancing, Mr Rivett touched her on the waist a few times and at one point put both hands on her waist. This made her feel weird, she tried to maintain her space and she tried to get other people to dance as well so that she felt more comfortable. She did not initiate contact with him.
3. After about 15 minutes of dancing and chatting, ZZN suggested to Mr Rivett that they get another drink. At the time, he had been talking about another female physiotherapist who was known to ZZN and with whom he had reignited a relationship. ZZN wanted to hear more about this and was grateful for Mr Rivett's attention. Unable to get a drink as the bar had closed, ZZN suggested a drink at the casino and they began walking in that direction.
4. At 11.33 pm ZZN spoke to HNP and organised to meet him at the casino in 10 minutes. As they were walking past the Intercontinental Hotel on their way to the casino, Mr Rivett suggested they go to his room for a drink and ZZN agreed, believing that they would continue their professional interaction.
5. In the room, Mr Rivett opened a bottle of red wine and they sat on the couch talking. After talking for a little while, Mr Rivett touched the back of ZZN's neck in the context of talking about her vertebrae. This made her feel very uncomfortable but she did not protest in any way.
6. Whilst in the room, the discussion was mainly around work. ZZN was excited and enthusiastic about the APA and what it could achieve. She had an in depth discussion with Mr Rivett about government and policies. She spoke about her philosophy of the importance that patients are seen, heard and can express themselves when having therapy. Mr Rivett shared his professional experiences and made comments about the profession. Mr Rivett told her she was intelligent and very capable and said she would be good in the leadership position. Earlier in the night, he had told her he would help her attain this position and that he would make it happen. He also talked about another physiotherapist who had received an award at the Conference and said he had assisted greatly in getting the award across the board for her. During the conversation, Mr Rivett was also telling her about his relationship with the other physiotherapist.
7. Whilst talking to Mr Rivett, ZZN's phone was behind her on the couch and it was flashing as HNP tried to make contact with her between 11.45 pm and 12.43 am. Mr Rivett noticed this and made comments about him and the fact he must really like her. She told Mr Rivett that she was meeting HNP at the casino and that she would leave after she finished her drink.
8. As the conversation continued, Mr Rivett initiated sexual contact. He leant in, kissed ZZN on the lips and tried to pull her closer. ZZN felt really uncomfortable and tried to resist by staying really rigid. Mr Rivett was opening his mouth when he was kissing her and it seemed like he was trying to open her mouth. She was in shock and realised she was in a bad situation. ZZN actively kissed him back, but she remained very rigid. She then stated she needed to go to the toilet and got up and walked into the bathroom, leaving her phone on the couch.
9. When in the bathroom ZZN was feeling quite scared as she realised she was in a difficult situation. She started messaging HNP using her smart watch. She sent the help me messages beginning at 12.53 am. HNP tried to call her when she was in the bathroom but she didn't answer as she was concerned the call would go to loudspeaker on her watch. She wanted HNP to stop calling as she was worried Mr Rivett would see the contact on her phone. She thought she could handle the situation which is why she sent the "Not-in-danger" message. She also intended to leave straight away. When in the bathroom, Mr Rivett was yelling out words to the effect of "why are you taking so long" or "what are you doing". ZZN felt his tone was stern and that he might be annoyed.
10. ZZN was in the bathroom for at least 12 minutes, leaving at about 1.05 am. As she came from the bathroom, Mr Rivett did not enquire as to her wellbeing. He immediately started kissing her again. ZZN kissed him back as she did not want to anger him and she wanted to calm the situation down.
11. Mr Rivett then put his hands on her waist and pushed her towards the bed. When the bed was directly behind her, he put her hands over her head and used both hands to hold her wrists. He then released his grip and pushed her backwards onto the bed. ZZN ended up lying on the edge of the bed, with her legs hanging off. This push was not aggressive.
12. Mr Rivett began kissing ZZN quite forcefully, and she felt this was quite aggressive. He held her wrists with one hand, and began trying to undress her with his other hand. He slid the back zip of her dress down and pulled her dress down over her shoulders. He struggled to take her bra off with one hand so he released his grip on her wrist and used his other hand to remove her bra.
13. ZZN then sat up and was trying to get up. She tried to redress herself by pulling her dress back up over her shoulders. She made the don't really want this to happen comments. She spoke softly and meekly. She was feeling uncomfortable and really scared.
14. Mr Rivett did not make any enquiry of ZZN at this time. He aggressively pushed her backwards with both hands on her shoulders. He used both hands to put both of her arms over her head, with her wrists being crossed together again. He called her a naughty schoolgirl.
15. He then began to kiss her lips, neck and down her chest.
16. At 1.06 am, while her wrists were being held and Mr Rivett was kissing her on her chest, ZZN deliberately picked up a call from HNP on her watch. The call lasted 51 seconds. HNP could be heard talking as it was on loud speaker. She did not say anything. Mr Rivett was whispering to her and told her to hang up. Mr Rivett said that she was really naughty and that she should not have done that. Mr Rivett then became aggressive around her neck, putting his hand over her neck and squeezing lightly several times.
17. The precise chronology from 1.06 am to 1.16am cannot be determined, but during this time the following occurred. Mr Rivett continued kissing and licking ZZN down her chest and he bit her left nipple which hurt. As he made his way down her body, he released his hold on her wrists. At some point, he slid her dress up and took her g string off. He did this very aggressively. He pushed her legs open aggressively and held her down with his hand on her left thigh. He was on top of her and he began to touch her clitoris.
18. At 1.11 am she tried to message HNP on her watch, holding her hands over her head so that Mr Rivett would not see. She was only able to send "L-".
19. While all of this was happening, ZZN felt like she was out of her body, watching what was happening. But when she felt Mr Rivett try to penetrate her vagina with his finger, she felt a sudden surge of energy. She pushed him off and got up. She said something like "I'm sorry I have given you the wrong impression". Not looking at him, she collected her underwear and bra, putting her bra on and her underwear in her bag. She was angry, and when she had trouble pulling up the zip on her dress, she snapped at him to do the back up.
20. As ZZN walked towards the door to leave, Mr Rivett said "I hope you realise that these encounters stay within the Board". This made ZZN very afraid that because Mr Rivett was very influential, he could destroy her career prospects. ZZN did not respond and left the hotel room.
21. At no stage, did Mr Rivett enquire as to whether ZZN wanted sexual contact.
22. Apart from the don't really want this to happen comments, ZZN did not directly say no to Mr Rivett's sexual advances. Other than responding to the kisses, she behaved passively and did not reciprocate or initiate any sexual behaviour.
23. ZZN left the Intercontinental Hotel at 1.16 am. She immediately called HNP, distressed and complaining that she had been raped. She did not want to stay in the area in case she saw Mr Rivett or anyone else on the Board, so she went down the street to the front of Parliament House. Two strangers found her in a "catatonic state". They stayed with her and provided information to HNP about where she was. HNP arrived as did his father and after telling TSU what happened, the police were contacted and attended her location.
24. Both ZZN and Mr Rivett had consumed alcohol that night. ZZN was tipsy but not so effected by alcohol that her ability to consent was compromised. Whilst there is evidence that Mr Rivett had consumed alcohol, he was able to converse with ZZN for a long period of time, he does not appear to be affected by alcohol in the video footage of his walk from the Convention Centre or during his arrest, and there is no evidence that the ingestion of alcohol impacted his ability to appreciate the circumstances.

1. The Tribunal is comfortably satisfied that any sexual contact that occurred in the hotel room was unwanted by ZZN. We accept her evidence in this regard and we accept that she had no sexual interest in Mr Rivett and thought she was going to Mr Rivett's room for continuing professional interaction. We accept that when Mr Rivett made sexual advances, ZZN felt that she had no control, that Mr Rivett was not listening to what she wanted, that she felt hopeless, numb and frozen and at times she dissociated and felt out of her body. ZZN did not see Mr Rivett as her equal; she saw him as very senior and very respected within the profession and she considered he had a lot of influence and sway. She tried to extricate herself from unwanted sexual contact without harming her career prospects.

1. There is no direct evidence as to Mr Rivett's state of mind as Mr Rivett has not made any statement about the incident or given evidence. The Tribunal must therefore consider ZZN's evidence about her and Mr Rivett's behaviour and what inferences can be drawn therefrom.
2. Before the conference, ZZN and Mr Rivett had only met briefly and there was no existing relationship between them. They were not seated next to each other at the dinner and only spent time together after the formal parts of the Conference were over. Together with other people, they danced and even at this early stage, Mr Rivett was touching ZZN. Although unwanted, ZZN did not complain but tried to distance herself. There is no evidence of any flirtatious behaviour by ZZN.
3. We find that Mr Rivett would have been aware that ZZN was enjoying his company given that she invited him for a drink at the casino after the Conference had ended. The video footage provides evidence that they were walking close together in a companionable way. Whilst ZZN was seeking to extend her time with Mr Rivett, it was not her suggestion that their time together be moved from a public venue to a private one. That was Mr Rivett's suggestion.
4. From all that later occurred, we are comfortably satisfied that when Mr Rivett invited ZZN to his room and she accepted, he thought that she might be amenable to a sexual encounter, although ZZN had done little to so suggest. In light of the limited previous contact between the two, the significant age difference and Mr Rivett's powerful position and his stated ability to promote ZZN's interests, his decision to invite ZZN to his room was unwise and was fraught with danger as the circumstances demonstrate.
5. ZZN remained talking to Mr Rivett in the hotel room for about an hour and 17 minutes and Mr Rivett was aware that she was spending time with him rather than meeting up with HNP. During the conversation, ZZN tolerated Mr Rivett touching her neck in the context of professional talk and she did not protest.
6. There is no evidence that ZZN made any advances towards Mr Rivett before he initiated the first kiss. ZZN kissed Mr Rivett back but she did not physically lean into the kiss and kept her body rigid.
7. Shortly thereafter, and before any further contact, ZZN removed herself from Mr Rivett's company. She was in the toilet for an appreciable time.[178] Mr Rivett was aware that she was in the bathroom for longer than was necessary simply to go to the toilet because he asked her what was taking so long.
8. Immediately upon ZZN exiting the bathroom, Mr Rivett recommenced the sexual contact by kissing ZZN and ZZN kissed him back. There was no conversation between the two, there was no enquiry by Mr Rivett as to her well-being or as to whether she wanted any sexual contact.
9. Mr Rivett then began to manoeuvre ZZN to the bed and remove her clothing. He held her in a dominant position with her hands above her head. There is no evidence that ZZN assisted the removal of any of her clothing. Mr Rivett was the initiator of all that followed. His behaviour was dominating, whilst she was passive, not initiating any touching or reciprocating at all.
10. Very early on, when Mr Rivett removed her bra, ZZN acted so as to indicate that she might be unwilling. She sat up, pulled up her dress and made the don't really want this to happen comments. Mr Rivett made no enquiries of ZZN at this time. He called her a naughty schoolgirl and continued with his sexual advances for a period of about 8 to 10 minutes. He was aware that at one stage, ZZN had managed to receive a phone call. This did not seem to alert him to the fact that ZZN seemed to be behaving in a strange way as he called her naughty and proceeded with his sexual activity in a more forceful way. He did not stop until ZZN physically pushed him off her.
11. The Tribunal is unable to find that Mr Rivett actually knew that the sexual contact was unwanted. However, we are comfortably satisfied that from the point where ZZN sat up and made the don't really want this to happen comments, Mr Rivett was reckless as to this fact. He was either aware of the possibility that she might not be a willing participant or he simply did not turn his mind to this at all. Indeed, the evidence suggests that Mr Rivett thought that what was occurring was part of a sex game.
12. We are also satisfied that Mr Rivett was negligent as to her consent. A reasonable person, having regard to all of the circumstances, would have anticipated that the sexual behaviour might be unwanted at least from her don't really want this to happen comments onwards for the following reasons:
    1. There was a significant age gap between Mr Rivett and ZZN and there was no prior relationship between them;
    2. The interaction between Mr Rivett and ZZN only occurred because both independently attended a professional event;
    3. Mr Rivett was in a powerful position in the profession's peak body. He well understood that and he knew that ZZN knew that because he introduced ZZN to other influential people at the conference and he spoke to her about being able to assist her and of his ability to influence an award for another physiotherapist. Mr Rivett was also the Chair of his state's Branch Council, which had connections with ZZN's Branch Council. Contrary to Mr Marcus' submission, it is not necessary that there be other evidence of his ability to influence ZZN's career; this can be inferred and Mr Rivett himself represented to ZZN that he had such influence. Furthermore, Mr Rivett sought to use his position of influence in attempting to silence ZZN by remarking that "I hope you realise that these encounters stay within the Board".
    4. Mr Rivett knew that ZZN was reasonably new to the profession, was ambitious and had leadership role aspirations. Although he had no direct voting rights, he knew or ought to have known that he had the influence to affect the views held by others as to her suitability.
    5. A reasonable person in this position should have been aware that these factors might make it dangerous for him to have sexual contact with ZZN in the absence of an unambiguous expression of her willingness.
    6. Whilst ZZN did not initially voice her opposition to Mr Rivett's conduct, at no time did ZZN tell Mr Rivett that she wished to have sexual contact with him, nor did she initiate any such contact.
    7. At no time did Mr Rivett ask her whether she was amenable to sexual contact.
    8. Although ZZN kissed Mr Rivett back when he initiated the first kiss, ZZN remained rigid and she thereafter removed herself from his presence for an appreciable time. At this point, a reasonable person in the circumstances should have turned their mind to the possibility that the kiss was unwanted.
    9. Although ZZN returned the second kiss, when ZZN pulled her dress up and made the don't really want this to happen comments, shortly after she had disengaged in sexual contact by going to the bathroom, a reasonable person in the circumstances should not have continued with sexual contact. Her comments were a clear indication that she might be unwilling and Mr Rivett should not have ignored her comments or assumed they were sex banter. He should have stopped and not continued. There should have been no further sexual contact unless ZZN explicitly indicated that such contact was wanted.
13. In making these findings we have borne in mind Mr Marcus's submission that ZZN's apology to Mr Rivett should be treated as an acknowledgment by ZZN that she had not communicated to Mr Rivett that sexual contact was unwanted and Mr Rivett not knowing that she was unwilling. ZZN was not cross-examined about why she made this comment. A number of possibilities exist. She may have made the comment to try to extricate herself from an unwanted situation without causing offence to Mr Rivett, she could be referring to the fact that she did not say no, she could be referring to the fact that she returned his kiss on two occasions. We would not draw the inference that is sought to be drawn in these circumstances.

1. Section 5 of the National Law contains the following relevant definitions.

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 or 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 or experience; and

(c) conduct of the 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.

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.

1. As submitted by the parties, when considering categorisation, a two-step approach is required: first does the relevant conduct amount to professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or his professional peers and second, is the conduct sufficiently serious to fall substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[179]
2. With regard to the first step, the Tribunal is comfortably satisfied that in light of the power imbalance inherent in the age difference and the disparity between Mr Rivett's position of influence and standing compared to ZZN's professional experience, having unwanted sexual contact with ZZN at a time when he was reckless and/ or negligent as to whether the contact was wanted, constitutes a failure to observe professional or appropriate boundaries between a registered practitioner and a colleague and constitutes a breach of the professional standards expected of a person of Mr Rivett's seniority both in the profession and as an academic. It is professional conduct that is of a lesser standard than that which might reasonably be expected by the public or Mr Rivett's professional peers.
3. Whilst Mr Rivett, in his Ahpra interview, suggested that he and ZZN were essentially equals, that is plainly not so. Mr Rivett was either being evasive with this response or, if that was his view, it is concerning that he did not and does not recognise the disparity in their positions.
4. In his interview, Mr Rivett expressed the view that issues of power imbalance do not arise with a volunteer organisation such as the APA. He also suggested that as he did not vote for the leadership position, he could have no influence. If that reflects Mr Rivett's true beliefs, it is concerning that he is not alert to issues of power imbalance. Whilst it is true that there is no employment overlay, it is clear that careers are made and enhanced by being on professional representative boards such as the APA and its Branch Councils. Being elected to such boards is prestigious and depends upon a person's reputation. Mr Rivett, given his predominant position in the profession, clearly had the ability to promote the interests of aspiring leaders such as ZZN and influence reputation. Indeed, Mr Rivett spoke to ZZN both about promoting her interests in the leadership position and his influence in an award that was handed out at the conference. In this sense, power imbalance and influence issues do arise, particularly when initiating a sexual encounter with a far younger, aspirational colleague.
5. Mr Rivett also suggested that the Code of Conduct, about which he said was very familiar, primarily made reference to patients and clients and he could not see how professional boundary misconduct applied. In taking this position, it would seem that Mr Rivett had not considered those provisions of the Code that relate to colleagues or the applicability of overarching principles relating to conduct. A person of his experience and in academia should have been aware of this.
6. In closing submissions, Mr Marcus accepted that the Code could apply to behaviour between colleagues. He submitted that if a serious offence was perpetrated by one member of the profession against another, then the conduct would fall foul of a professional Code of Conduct that mandated a level of respectful behaviour towards one another. However, he submitted that the Code did not directly address social or personal interactions with colleagues, nor did it mandate a particular standard of behaviour or prohibit particular actions. The requirement for ethical behaviour was in the context of a client focus. Mr Marcus thus submitted that there would need to be a finding of overt misconduct to amount to a breach of the Code and if the Tribunal considered Mr Rivett's behaviour was negligent, that would not amount to a breach of the Code of Conduct.
7. The Tribunal accepts Mr Marcus' submission that the focus in the Code is on patients and clients, and that the Code does not proscribe prohibited behaviour between colleagues. However, as submitted by the Board, we consider the following provisions of the Code have application:
   1. The term "practice" is defined as "any role, whether remunerated or not, in which the individual uses their skills and knowledge as a practitioner in their regulated health profession".[180] The definition further provides that practice is not restricted to the provision of direct clinical care and includes education, advisory and regulatory or policy development roles and any other roles that have an impact on the safe, effective delivery of health services in the health profession. As a Board Director of the APA, attending a professional conference in that capacity, Mr Rivett was partaking of professional practice and his interaction with ZZN was in a professional capacity.
   2. Under the heading of Overview, the Code provides "Good relationships with colleagues and other practitioners strengthen the practitioner-patient/client relationship and enhance care."[181]
   3. Under the heading Professional Values and Qualities, the Code provides that the professional values "apply to the practitioner's conduct regardless of the setting, including in person and electronically eg social media, e-health etc."[182] It continues:
   4. "Practitioners have a duty to make the care of patients and clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion..."
   5. When talking about professionalism, the Code provides "Practitioners are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients, or clients and colleagues..."
   6. It is accepted that under the heading Respect for Colleagues and Other Practitioners, the Code provides for clear communication and respect "for those involved in the care of a patient". However, 4.2.c is not limited to a client focus, as it provides that "good practice involves behaving professionally and courteously to colleagues and other practitioners at all times, including using social media."[183]
   7. In the Introduction to Professional Behaviour, the Code provides "In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical behaviour."[184]
8. The Tribunal does not accept Mr Marcus' submission that there will only be a breach of the Code if Mr Rivett knew that ZZN was not consenting. Given Mr Rivett's high standing in the profession, and the fact that his conduct was towards a far younger colleague whose advancement in the profession he could influence, to be reckless about ZZN's consent or to be negligent by not stopping sexual behaviour when he should have been alerted to the possibility that she was not consenting, is not ethical, is not trustworthy and is unprofessional. As physiotherapists invade clients' personal space by the very nature of their treatment, Mr Rivett's conduct would undermine the trust and respect of the community.
9. Section 41 of the National Law provides that a Code approved by the Board is admissible in evidence as to what constitutes appropriate professional conduct or practice for the health profession. The Tribunal finds that Mr Rivett breached the Code of Conduct.
10. Mr Marcus also submitted that if the Tribunal found Mr Rivett's state of mind fell short of actual knowledge that the sexual contact was unwanted, the finding should be one of unprofessional conduct rather than professional misconduct. The Board submitted that a finding of recklessness or negligence should nevertheless lead to a categorisation of serious misconduct under ss 5(a) and (c) of the National Law.
11. In the circumstances of this case, we are comfortably satisfied that Mr Rivett's conduct is conduct sufficiently serious as to fall significantly below the standard reasonably expected of a practitioner of equivalent training or experience and we make a finding of professional misconduct. Mr Rivett is at the peak of his profession. He is a person who both professionally and academically is a role model. He ought to have been aware of and alert to his power to influence ZZN's advancement in a career that was still in its infancy. He should have been aware of the power imbalance in the significant age disparity. He should have had these factors in mind when he made sexual advances towards ZZN and he should have made sure that ZZN had clearly and unambiguously expressed that she wanted such sexual contact. When ZZN made the don't really want this to happen comments, he should have immediately stopped any sexual activity. In not doing so, he had no regard for what ZZN wanted to happen and he proceeded with sexual acts that had an increasing level of dominance in them.
12. For the same reasons, the Tribunal is satisfied that the conduct of Mr Rivett is inconsistent with him being a fit and proper person to hold registration in the profession. Whilst it is accepted that the conduct does not relate to a dealing with a client or a student, his conduct has displayed an attitude that leads us to find that Mr Rivett does not possess sufficient moral integrity and rectitude of character to permit him to be accredited to the public as a person to be entrusted with the sort of work that his registration entails.[185] Given Mr Rivett's failure to recognise the power imbalance both in terms of age and influence, the conduct particularly raises concerns about trustworthiness with younger health professionals.

1. The Tribunal decides pursuant to s 196(1) of the National Law that the respondent has behaved in a way that constitutes professional misconduct.
2. The order dated 13 June 2023 made pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the name of, or any material tending to identify, the "affected person" as referred to in the initiating document remains in place.
3. This matter will be listed for a hearing for the parties to make submissions on sanctions at a date and time to be advised by the Tribunal Registry.

[1] South Australian Civil and Administrative Tribunal Act 2013 s 39.

[4] Transcript of Tribunal Hearing, 6 November 2023, p 19.

[24] Exhibit C1, pp 180, 208. Although the phone records of this call were not provided in evidence, both ZZN and HNP were referring to their records at the time of making their statements and the Tribunal accepts this is what was recorded on their phones.

[25] Exhibit C1, p 209; Transcript of Tribunal Hearing, 6 November 2023, p 99. Although not provided in evidence, ZZN was observing that message when making her police statement and the Tribunal accepts that this is what was recorded on her phone.

[26] Exhibit C1, p 190.The call at 1.16am was the last of 8 calls with ZZN.

[28] The Tribunal prefers HNP's account rather than ZZN's account of what she said as HNP had a very clear memory of this conversation; Transcript of Tribunal Hearing, 7 November 2023, p 20.

[29] Exhibit C1, p 182; Transcript of Tribunal Hearing, 7 November 2023, p 24.

[34] Transcript of Tribunal Hearing, 7 November 2023, p 25.

[37] Transcript of Tribunal Hearing, 9 November 2023, p 5.

[39] Transcript of Tribunal Hearing, 9 November 2023, p 7.

[43] Transcript of Tribunal Hearing, 9 November 2023, p 5.

[44] Transcript of Tribunal Hearing, 7 November 2023, p 26.

[49] Transcript of Tribunal Hearing, 9 November 2023, p 9.

[53] Transcript of Tribunal Hearing, 6 November 2023, p 99.

[80] Transcript of Tribunal Hearing. 7 November 2023, pp 45-46.

[127] Transcript of Tribunal Hearing, 6 November 2023, p 17.

[161] Transcript of Tribunal Hearing, 6 November 2023, p 75.

[179] Nursing and Midwifery Board of Australia v Morrison (Occupational Discipline) [2022] ACAT 92.

[185] Psychology Board of Australia v Griersmith [2019] VCAT 52 at 67.