Sudath v The Medical Council of NSW

"Prone to Hyperbole and Over-emphasis of his Attributes"

1. The Medical Tribunal found the Applicant was "prone to hyperbole and over-emphasis of his attributes". In this hearing there were also instances where the Applicant grossly exaggerated his skills or competencies. Some of those are listed below and others will be detailed later in these reasons.

• In his statements and other document the practitioner repeatedly testifies as to his good results and achievements in High School;
• He told the section 66 enquiry of the Medical Board on 16 May 2007 that he was "the Director of the NSW Outback Division of General Practice", but from his documentary evidence it appears he was one of a Board comprising a chairman and 6 other Directors;
• In his evidence at the S 66 hearing, he described himself as a high achiever. He said he came first in the Sri Lankan matriculation exams and, as regards his decision to come to Australia to attend university, a personal letter had been sent by the Sri Lankan Prime Minister to the Australian Prime Minister "against the brain drain";
• He said his dream was to be a heart surgeon and he had that intention since he started surgery. He believed he was "very good" at surgery. He said he receives "lots of compliments" over his paediatric work, he was well trained in communications, and he had no problems dealing with women's health issues;
• His evidence that his driving skills were such that his driving at a speed of more than 150kmph on Parramatta Road Lidcombe in a 60kmph zone at about 7.30pm on 11 August 2011 was not dangerous;
• His false statement to officers of the Department of Heath that he was "a senior intensive care doctor" and that he was "an emergency Doctor";
• His repeated false statements in documents and oral evidence to both the Medical Tribunal and to this Tribunal that there had never been a complaint about his performance as a medical practitioner;
• His partner since 2012 also made such a false allegation in her statement, presumably relying on what he told her. He apparently also told other people who provided character references that he had had no complaints;
• On 1 July 2018 the Applicant was served with the Respondent's evidence regarding complaints about his conduct as a medical practitioner. On the first day of the hearing the Applicant sought to amend statements in his written evidence that there was no complaint against him as a doctor by qualifying "complaint " to "complaint by a patient";
• He also said that in denying complaints he had forgotten about the complaints by persons other than patients. The extent of the complaints by non-patients, the extent of the patient complaints, and the fact that the complaints related to conduct in 1999/2000 and the investigations, reports, considerations and decision were not finalised till 2014, compel the Tribunal's finding that he did not forget there were complaints and they were by patients and non-patients. When he claimed there were no complaints, he lied;
• His written false Statement in briefing Dr Senaratne in the history he gave the Doctor. Dr Senaratne said "Mr Kondasinghe has not had any complaints in relation to his performance and knowledge as a medical practitioner and it appears that he has acted professionally and ethically towards all his patients including many female patients he has seen and attended to during the course his duties." Given the findings about complaints the Applicant seriously lied to and mislead Dr Senaratne;
• In these proceedings the applicant relied upon four recent character references. All of the authors reside in Sri Lanka and none of them stated he had knowledge of the Applicant's criminal offences in Australia, his medical work in Australia or his disqualification. Only one had worked with him, and only in Sri Lanka;
• His description of a woman with whom he had a relationship as a "special forensic Psychiatrist";
• His allegation in his letter of 27 October 2017 to the Tribunal that "I dedicated almost my entire career as a doctor serving the under privileged/disadvantaged rural & remote communities and aboriginal communities throughout Australia" is untrue. He has sometimes chosen to work in places that are not remote or rural and not part of an aboriginal community. He has since at least February 2015 had the wish to work in Hobart if his Registration is restored and indeed he first tried to commence this application in Hobart; and
• In his statement of 27 October 2017 addressed to the Tribunal, the Applicant states:- "Having won the highest number of vocation scholarships (13 in total) an undergraduate student had ever won by that time, I also became one of the co-founders of the Rural Club of the Faculty of Medicine - University of Adelaide, the mission of which was to motivate and encourage the medical students to go to rural/remote Australia as doctors. Practising what I preached, I dedicated almost my entire career as a doctor serving the underprivileged/disadvantaged rural and remote communities and Aboriginal communities throughout Australia. From the bottom of my heart I am extremely grateful and thankful to Australia and to Australians. I have an enormous obligation and a massive debt to this precious nation/country. That is why ever since I became a doctor I devoted and dedicated my life and career to serve the most underprivileged Australian communities and Aborigines in Rural and Remote Australia, where most doctors would refuse to go".

1. In his statement of 23 June 2018 the Applicant stated:- "After a meeting with the Hon Assistant Registrar of the Sri Lanka Medical Council … I was allowed to apply for the screening/grading pre-registration exam (ERPM) … for the foreign medical graduates. By March/April 2014 I had completed all the components of the exam with the sixth position on the merit list. It was quite a tough exam as it thoroughly tests the knowledge on Forensic Medicine, in addition to Psychiatry, Obstetrics and Gynaecology, Emergency Medicine, Surgery, Internal Medicine and Public Health in relation to Sri Lanka. Surprisingly, Final pass rate of all components of the examination is estimated to be less than 10% according (to) some sources".
2. In the same statement he falsely stated:- "It is important to emphasise the fact that since I graduated from the University of Adelaide as a doctor in 1996, I am proud to state that I have had no complaints against my practice as a doctor and no disciplinary action had been taken against me, until after my offending conduct on my ex-wife, in the context of a family/domestic relationship".
3. In the same statement he says:- "I had no complaints or disciplinary action against my practice as a doctor. I had a clean track record as a doctor. I have proven my dedication to the underprivileged rural/remote communities in Australia. I spent over four years in prison and it was an extremely harsh prison sentence due to obvious reasons. Because of the property settlement case, child custody case, my criminal case and other related expenses, I became 'broke'". And:- "I am now a devoted husband and a father, and a person dedicated to chasing money during every hour I have and to doing voluntary work towards drug addicts and women, without chasing money during every hour I have. I am poor, but I am contended with my life and my current wife has been extremely supportive". And "I am trying to live a normal and exemplary life to the best of my abilities, especially to be a good example to my precious daughters".

Requests for Psychiatric Assessment.

1. On 17 May 2005 the Health Committee of the Medical Council of NSW resolved to refer the Applicant for an assessment by the Medical Board-nominated psychiatrist, Dr Anthony Samuels. A letter was sent on 22 May 2005 to the Applicant informing him of an appointment made with Dr Samuels. The Applicant did not attend the appointment. Dr Samuels has been practising as a consultant psychiatrist and particularly a forensic psychiatrist, for 26 years. He has lectured in the Department of Psychiatry at the University of NSW, the Department of Psychological Medicine at the University of Sydney and the Department of Psychiatry and Behavioural Science at Auckland University of New Zealand.
2. He has given extensive expert evidence before Courts of all description in New South Wales and Tribunals and also provided expert advice to organisations such as the Parole Board and the Director of Public Prosecutions, the Crown Solicitor, the New South Wales Coroner, the Family Court, the Mental Health Review Tribunal, NSW Legal Aid and Western Aboriginal Legal Aid, the Victims Compensation Tribunal, the NSW Police Health Services, the Police Association, the Health Professional Councils of NSW, the Aged Health Care Complaints Commission, AHPRA, the Children's Court, the Motor Accidents Authority, the Workers Compensation Commission, the Law Society of NSW, the NSW Bar Association, Specialist Medical Colleges including RANZCP and the Australian College of Dermatologists, and NSW Local Health Districts. He has attended and spoken at overseas conferences. Since 2004 he has been the Director of Advanced Forensic Psychiatry Training with the Royal Australian and New Zealand College of Psychiatrists. He is a foundation member of the Faculty of Forensic Psychiatry with the College. His current positions include District Clinical Director Psychiatry, Murrumbidgee Local Health Network, Associate Professor of Psychiatry, University of NSW and Co-ordinator Psychiatry, Rural Clinical School, Consultant Forensic Psychiatrist, Disputes Assessor and Review Panellist for the Motor Accidents Authority, Workers Compensation Commission Approved Medical Specialist, and Member of the Faculty of Forensic Psychiatry.
3. His areas of expertise include the sanity/fitness, substantial impairment, psychotic offenders, severe personality disorder, violence risk assessments/recidivism, sexual offending and recidivism, Mental Health Act/Mental Health Criminal Procedures Act, impairment in health professionals, National Law and Health Practitioner Regulation, and other areas relating to medical practitioners under the National Law.
4. As stated above (par. 51) the Applicant did not attend the appointment with Dr Samuels.
5. On 18 May 2018 the respondent wrote to the Applicant advising him that an appointment had been made for him to have an independent assessment by Dr Samuels. The investigation by the respondent arose from a complaint by a person named in the letter. It was not Ms A, Mrs H or Dr B. It was stated in the letter that Dr Samuels is a forensic psychiatrist.
6. The letter said that as the Applicant was then resident in Sri Lanka, arrangements were being made for his assessment by Dr Samuels to be conducted by video link and the Council would meet the fees of Dr Samuels.
7. The Council received a reply from the Applicant on 23 May 2018 advising that "I cannot be available for that appointment due to my extremely busy schedule". He also said "As you can appreciate, I am strictly bound by the NCAT orders and NCAT has not ordered me to attend such an assessment as per Council's invitation".
8. The reference to NCAT orders was a nonsense. There was no order, rule or regulation preventing him from co-operating with the Medical Council by attending an assessment.
9. On 24 May the Medical Council replied and stated "Please confirm whether you wish for us to attempt to re-schedule the conference to a time suitable to both Dr Samuels and yourself, or if it is your position that you are unwilling to participate unless so ordered to do so by the Tribunal". It concluded "At this stage and based on your response, we assume you do not wish to participate and will proceed on that basis".
10. On 15 June 2005 solicitors for the Applicant wrote to the Medical Board. The four page letter set out extensive allegations of factual matters per instruction from the Applicant. Amongst those were allegations against him that were false or not proved including:

• The Applicant had obtained an interim apprehended violence order against Ms A;
• He had commenced criminal proceedings against Ms A for assault occasioning actual bodily harm;
• There is a contested custody dispute between the Applicant and Ms A arising from her refusal to agree to their child having contact with the Applicant;
• Ms A suffers from depression, anxiety, aggression, and work-related stress and has been taking sedatives and antidepressants since at least 2000;
• He has been the victim of violence during the relationship from Ms A due to her depression and anger management difficulties, "and not the reverse";
• "Ms A has been working as a radiographer (without such qualifications) under 3 different names;
• She also has another pseudonym;
• Until recently she was fraudulently in receipt of legal aid and it ceased after an investigation;
• She has two tax file numbers and two passports;
• She has 2 Social Security numbers and was simultaneously receiving both an unemployment benefit and a sickness benefit which is being investigated by Centrelink; and
• He has evidence that she "has been seeking treatment for her mental state from more than one medical practitioner and using more than 2 pseudonyms.

1. The letter advised that the Applicant denied all the allegations being made against him, the allegations did not raise issues relevant to his ability to practice medicine or his health, it was difficult to see why the Board had required a medical assessment, and the Board should satisfy itself as to the accuracy or merit of the complaints before requiring a medical examination of the Applicant. In the meantime the Applicant would not attend the appointment.
2. The Applicant did not attend on Dr Samuels.
3. Dr Samuels was briefed by the Respondent with numerous documents. His report and annexures, which totalled 29 pages, was provided on 29 May 2018 and is part of the evidence.
4. In the absence of other evidence of the reason why the Applicant refused to attend an assessment the Tribunal finds that the Applicant's excuse for refusing to participate was false and he declined because he feared the expert would give opinions unfavourable to his application.

The Applicant's Credit

1. Numerous incidents of dishonesty by the Applicant have already been described in these reasons. There are others.
2. In the criminal proceedings against him the Applicant denied the rape and the assault, but the jury did not believe him and found both offences proved beyond reasonable doubt.
3. In the hearing by the Medical Tribunal in February 2013, his version of the rape incident and the assault was not accepted. The victim's evidence was accepted. His evidence of why he made the scandalous complaints against Ms H and Dr B was not believed. The Tribunal made findings of extensive dishonesty by the Applicant to the District Court, his lawyers, "And to many other persons and bodies to whom he professed his innocence."
4. His false and total denial of the criminal offences resulted in Ms A being cross-examined at considerable length in the District Court and her being in the witness box for 3 days. The Applicant did not give evidence there.
5. The Medical Tribunal found it "fundamental to the consideration of the respondent's case" whether the Tribunal accepted his written and oral evidence. It concluded that it could not rely on his evidence. It found his versions of the sexual assault and the common assault unreliable and implausible. It found he was "prone to hyperbole and over-emphasis of his attributes". Similarly it said the same caution should be applied "to his effusive statements of sorrow and remorse".
6. After the offences against Ms A in April 2005, the Applicant made an application to the Police and a Court for an Apprehended Violence Order against Ms A restricting her behaviour for the purposes of protecting the Applicant. The evidence in these proceedings establishes that the statements he made in support of the granting of the Apprehended Violence Order, including allegations of injuries inflicted by Ms A, were untrue. Those misrepresentations were made to the Police and to the Local Court in order to obtain the Apprehended Violence Order.
7. The Medical Tribunal found that it "had the distinct impression the respondent's admission of the sexual assault is not an indication of genuine remorse but rather an acceptance of the inevitable and a realisation that continued denial would not assist his cause."
8. The Medical Tribunal also rejected the proposition that the Applicant's conduct of rape of Ms A was in any way contributed to by Sri Lankin culture in that Sri Lankan criminal legislation excluded sexual intercourse by a man with his wife without her consent from the offence of rape. His present de-facto wife also raised that aspect of Sri Lankan law in her statement. The Tribunal was confident that the Applicant and his de-facto wife well knew that Australian law applied to the particular incident and provided no such exception.
9. In the hearing before this Tribunal the Applicant claimed he did not rely on that aspect of Sri Lankan law in relation to his rape of Ms A. But he did. He raised it repeatedly in the proceedings. He implied that his rape of Ms A was not an offence, or if it was, it should not be, or should not be regarded as serious as rape of a person other than a spouse. In raising this argument he conveniently presumed that Ms A was his spouse, when she never was. In a different context he denied she ever was his wife.
10. He told Dr Allnutt, after he completed the "PREP programme" in prison that he began to realise "I have a deep seated belief and attitude that in Sri Lankan culture a husband and wife gave consent for sexual contact within marriage - I have learned that is not right."
11. The Medical tribunal rejected his evidence on this issue and found that he knew at the time of the rape that in Australia sexual intercourse with any woman without her consent was illegal. And in any event, he was never married to Ms A.
12. He told officers of the Probation and Parole service when they assessed him before sentence that he had divorced his wife in 1998. That was untrue. He has never divorced her. He also told them that his criminal record was "limited to driving offences. That too was untrue.
13. He also, to some extent, still blamed Ms A for his convictions and imprisonment because she complained. In his statement of 27 October 2017 in minimising the seriousness of the rape conduct he said: "After my Sri Lankan ex-wife (whom I met through a traditional Sri Lankan marriage proposal and married at a traditional Sri Lankan matrimonial ceremony, and with whom I lead a very traditional Sri Lankan married life) complained that I had non-consensual intercourse with her, at home in marital bed, once during our six and a half year marriage." He also said in the same document "My 2 year ban on the registration till 21/2/2015 was a result of an incident that took place at home in marital bed with my Sri Lankan ex-wife during marriage, and was absolutely unrelated to my medical practice as a doctor". Through his solicitors the Applicant, in a letter dated 15 June 2005 addressed to the Medical Board stated "Dr Sudath was never the husband of [Ms A]. But in various other documents and oral evidence he referred to her as his "wife".
14. The applicant deliberately abused the AVO process against Ms A, He, deliberately provided false information in order to obtain the order and, did not in these proceedings demonstrate any understanding or remorse in respect of such conduct.
15. The applicant also made false allegations against Ms A to the staff at John Hunter Hospital and it appears that his intention was to cause allegations to be notified to the child welfare authorities to impose pressure on Ms A. In the hearing his explanation for this conduct was that he was "angry". He did not express any contrition or remorse in respect of such conduct, notwithstanding that the allegations he made were untrue.
16. The current de facto wife, who was extremely supportive of the applicant's application, said in her statement of 15 June 2018 that she has known the applicant "very closely" for 12 Years and has been "married to him for over 6 years". She said, "But that thing happened between him and his former wife, at their home, in their mutual bed. And that complaint was made by the person who was in my position prior to me. The person knew Aruna for 6 years and complained only once during their relationship." She says that the offences of which he was convicted are, from her experience of him, totally out of character. However, her expressed knowledge of him and his character is extremely limited compared with the litany of bad conduct revealed in these proceedings. Including matters about which he has not informed her, or he has deceived her.
17. The Medical Tribunal found that his evidence that on 30 April 2005 after Ms A left their home at Northmead taking their son with her, he desperately tried to contact her, but she did not return his calls, was inconsistent with his allegations that he was the victim of an assault by Ms A, the fact he had already left the home when the police arrived at about 12.30 pm, and his conduct of leaving the area and travelling to his sister's home in Newcastle.
18. While in Newcastle the following day he called an ambulance to take him to a hospital and presented there complaining of chest pain and falsely alleging Ms A assaulted him and their child, had anger management problems, had been having an affair with a drug addict, was demanding money from him regularly had inflicted burns and cuts on the baby, had been "rough handling" the child and the child had multipole unexplained falls. The Medical Tribunal found these allegations were all false.
19. The evidence was that at the hospital he saw a Cardiologist, had various tests, then left against medical advice when he was "not fit for discharge". He testified that he was told by the Cardiologist that his test results were satisfactory, but this was untrue.
20. The Medical Tribunal found that the documentation "from both sides" contained "numerous expressions by the respondent of untenable justification of his conduct. There is also a disturbing 'shifting' of the blame to [Ms A]". The Tribunal described several instances.
21. He married his wife on 1 December 1996 and they separated on 26 December 1996. She alleged he assaulted her that day and he was charged by police with an assault occasioning bodily harm. In his interview with officers of the Heath Department in September 2003 he said he had known his wife for only 6 or 7 months before their marriage on 1 December 1996 and the marriage lasted only 4 weeks. But in his statement of 23 June 2018 in these proceedings he said he had been intimate with her since "about 1992".
22. There were also other instances where he minimised bad conduct by him or demonised a person alleged to be a victim of an assault or sexual assault by him. Examples of such conduct are:

• His extensive demonising and blaming of his wife and her former husband;
• His extensive demonising of Ms A in the letter he had his solicitors write to the Medical Board on 15 June 2005;
• Evidence of his extensive demonising and blaming of Ms A in these proceedings; and
• His extensive false and outrageous allegations against Ms H and Dr B.

1. When interviewed by Officers of the NSW Health Department on 15 September 2003 the issue was the question of the need to obtain a Working with Children Check Clearance for the Applicant so that he could work in locations where some of the patients would be aged less than 18. The Officers questioned him as part of a risk assessment because of criminal charges that had been revealed.
2. In that interview, in answer to a question about what the allegation was of "Indecent Assault" for which he was charged in 1997 in Brisbane, he said that the allegation was "That when I was opening the door that I was touching her breast, her - yeah, that's basically it".
3. The matter was not considered by the Medical Tribunal. The criminal charge was reduced to common assault on the hearing date. The Applicant was asked about the circumstances of the assault in his evidence before the Medical Tribunal. He omitted any reference to the fact that he had sexually propositioned the victim or the allegation he had touched her breast.
4. Similarly the District Court Judge in the prosecutions for the offences on 29 April 2005 appeared to be unaware of the factual context of this assault conviction and did not take it into account.
5. Apart from the convictions for rape and assault of Ms A, the Applicant generally did not disclose his full criminal record or the charge of indecent assault in Brisbane or the numerous complaints about his professional conduct the subject of investigation by the Health Care Complaints Commission, to health professional whose assessments and reports he relied upon in these proceedings and in the proceedings in the Medical Tribunal.
6. In contrast with his failure to disclose adverse matters about himself, he was keen to volunteer allegations of bad behaviour by Ms A. He saw Dr Roberts, a forensic psychiatrist, in January 2013 and told him such allegations that he hadn't raised before, including: 1. that Ms A landed on his doorstep in January 1999 unannounced seeking to live with him she threatened to kill herself if he didn't agree to marry her; 2. they did not have sexual contact till "married" (the "marriage" ceremony was 4 years later); 3. that her parents had fabricated her horoscope to match his; 4. that before the "marriage" he was told a dowry would be paid, but later he found out none would; 5. That Ms A's father's Radiography practice was shut down when he was charged with tax fraud; 6. That Ms A worked at the Adventist Hospital with false qualifications; and 7. in 2000 when they lived in Echuca Ms A stole money from their business account by forging his signature.
7. The Applicant told Dr Roberts that the Medical Board Panel of two psychiatrists (at the s66 inquiry) told him that he represented a low risk of re-offending. However, there is no such finding in the reasons of the delegates and the orders they made imposed conditions on the Applicant's conduct including requirements to obtain approval from the Board prior to commencing any employment or changing the nature or place of his employment, in general practice and to keep the Medical Board informed and provide a copy of the conditions signed by each of the practitioners in the practice, if employed in a hospital he must have a female member of the nursing staff present, whenever he conducts an intimate examination of any female patient over the age of 14 years and an adult chaperone must be present at all times and must be a person acceptable to the patient, obtain approval from the Medical Board of possible chaperones, and to report to the Medical Board within seven days of the end of each calendar month listing all patients examined by him during the calendar month showing in respect of each patient the date of every examination and the name or names of the person or persons present throughout that examination.

• He had been wrongly convicted as a result of poor legal advice;
• Ms A committed perjury in the course of the District Court proceedings and he was innocent;
• Ms A had "ulterior motives of a selfish, greedy and vindictive Sri Lankan woman";
• He should not have been convicted for the sexual assault as in some jurisdictions in Australia (i.e. Tasmania) it (rape) was "legally impossible" in the context of a married relationship. He also queried whether the offence was maintainable in the UK; and
• He also submitted to the UK Tribunal "I have been a serious victim of very unfortunate and unfair circumstances by marrying a selfish and vindictive Sri Lankan immigrant with ulterior motives …"

1. The UK General Medical Council suspended his registration as a medical practitioner as a result of his convictions for rape and assault.
2. There is no evidence that he informed the Medical Council of Sri Lanka (when he applied for registration in Sri Lanka, or at all) of his deregistration in Australia, other than his uncorroborated evidence in cross-examination. Given his extensive dishonesty and poor credit, the Tribunal finds on the balance of probabilities that he did not tell the Medical Council of Sri Lanka of the cancellation of his registration.
3. Cross-examination of the Applicant revealed frequent evasiveness by avoiding questions, volunteering unresponsive answers, and not answering. With some significant questions, the answer to which he would be expected to have recall, he answered "I don't remember" or "I can't recall". There were numerous answers that were inconsistent with a version of events he had given previously.
4. In his oral evidence he persisted in denigrating Ms A, although the proceedings and questions were essentially about himself. At one stage of his cross-examination he said that his memory "tends to block out trauma times".
5. In his cross-examination he conceded numerous statements by him to be false.
6. In cross-examination on 2 July 2018 the Applicant admitted that Ms A's version of the rape is true and his versions were not. But when asked whether her version of the assault the next day was true, he rambled and avoided the question.
7. Overall the Applicant impressed the Tribunal Members as being a very dishonest and unreliable witness.

Relevant Conduct Before the Deregistration, But Not in Evidence Before the Tribunal in February 2013

1. On 1 January 1996 the Applicant came under notice with the South Australian Police when they alleged that he had failed to wear a seatbelt when driving a motor vehicle. He subsequently was convicted of that offence in the Adelaide Magistrate's Court on 2 August 1996. It appears from his evidence that he frequently failed to attend Court in respect of driving offences and sometimes other matters.
2. On 26 December 1996 there was an incident as a result of which the Applicant was charged with assault occasioning actual bodily harm. Subsequently that charge was reduced to common assault of a family member. When the Applicant was asked about this matter he said it was an "interaction" between him and his wife. When asked what happened in an interview with HR staff of the Department of Health NSW, on 15 September 2003, he then delivered a diatribe of criticisms of the alleged victim. He said:- "My - just to give you an idea about the whole situation, my ex-wife was previously married and had been separated for 1 - 2 years when I met her, and she was married to a very violent, aggressive, abusive, alcoholic man, and she had two children from that marriage. When I met her, she had separated for roughly 1 - 2 years, and when I look back - and also during her childhood she had been sexually abused by a family member - hence, she was suffering from chronic depression, anger problems and inability to cope with things, and especially with her ex-husband. In retrospect she had, obviously, ulterior motives to marry me. She had a plan, by the looks of it. She wanted to get away from her husband, despite the fact that he had legal rights for access to the children, I think once a week, a couple of days; and also she wanted to get out of this stigma of being a single mother; and also she wanted a doctor to be the children's father; and also financial benefits of being married to - however her plan did not work because I was a doctor it was too easy for her ex-husband to find me and find - and hence find her. Consequently her - because her personal plan was failing, the back up plan, obviously was for her to deny access of the children to her ex-husband, although he had legal rights. Hence, what she used to do very frequently was to hide the children or send them - to leave the children with her relatives or friends, in order to deny access to her ex-husband when the children were due. As a consequence, during the period that I knew her, there were a couple of instances where, when she didn't give the children to him for access and sent the children away, he had to come after her, looking for the children and he had apparently forced-entered into the house. It's not uncommon - it was not unusual that on certain occasions that I found her with bruises and sometimes bleeding, after such an event, incident and she would bluntly deny that. She would not tell me and she would not want me to get involved and - …."
3. Then when asked whether they were married at the time, he said: "I was married to her for only four weeks and prior to that I was - I was seeing her on a very regular basis, yes, and - or I was spending a lot of time with her. Basically, she had taken many AVOs against this man; however he managed to breach all of those because of the fact that he had access to the children and she would deny the access and he got pretty angry about it so she was actually getting increasingly frustrated, depressed about this whole incident because her plan to get away from the - to get away from the ex-husband was not successful and, at the same time the plan to have a father who was a doctor to the children was not happening as well because the children, obviously, knew I was not the father."
4. He was then interrupted so that a new tape could be installed for the interview. When the interview resumed he said that his wife: "Was getting increasingly depressed, sad and angry about the situation. Just the fact that her ex-husband, finally, each time had found her and also the other ulterior motives of the plan did not work and despite AVOs she could not stop it."
5. He then spoke about what happened on 26 December, the day of the alleged assaults. He said that he had been married to her for only four weeks at that time and he had already told her that the marriage was "not likely to be successful".
6. He said that she was "quite depressed" about that and also about not having her children on Christmas Day or Boxing Day. He said he had been away from the place where they were staying and when he returned she was: "Sitting on the bed, quite sad, crying and she was bleeding from her head, bruised and bleeding, and immediately I realised that either she had been assaulted by her ex-husband which is, as I said, not uncommon for that to happen or, self-inflicted injuries because she had attempted suicide, from what I heard from friends in the past, once or twice and it was not uncommon that when she gets angry she would cause self-inflicted injuries".
7. When asked, whether he had seen her injured before he said he had known her from about May 1996 or June 1996 (for about 6 or 7 months prior to their marriage ceremony on 1 December 1996).
8. When asked what happened further after he saw her bleeding from her head he continued: "When I asked her what happened, she did not tell me, and after suffering from my share of - my share on that moment - at that moment I said to her, 'Look, this is not going to work'. I threatened her with divorce and she then became extremely aggressive, violent, abusive, explosive is the right word, and started yelling and screaming and bashing her head against the wall, the door, the floor. She's physique-wise, she is bigger than me. She is taller than me and wider than me, and she was basically out of control, just threw a huge tantrum. She went into a severe dysrhythmic attack I would say. Obviously someone had called the Police because of her, all this, and the Police came and charged me - presumed that I was the offender."
9. He alleges that the Police did not ask him for his version of what happened. He said he did not know what happened to her but he was taken by the Police then and they charged him with an alleged assault occasioning actual bodily harm and the lesser offence of assault on a member of his family. He was released on bail, but he denied that he ever attended the Court at all after and denied that any warrant was issued for his arrest.
10. He agreed that one of the bail conditions was that his wife was not to be accepted as a guarantor for his bail. When asked, he said he could not explain why that was a condition of the bail. It appears the person who granted bail was concerned to protect the alleged victim from any coercion by the Applicant for her to provide the bail amount.'
11. The charges were later withdrawn. When he was asked whether he could explain what brought about the withdrawal of the charges, he said: "There was basically not enough evidence, proof, to say that I was the offender …"
12. When it was put to him that his wife had appeared and given evidence and as a result of her evidence the matter was then withdrawn, he said: "I did not appear in Court and all I have been informed is that the matter was withdrawn due to insufficient evidence to prove that I was the offender".
13. When asked if there was anything else he wanted to say about that issue, he answered: "Yeah, absolutely. I mean basically if - that time and that's basically the end of our marriage and if she wanted to, if she had the opportunity to, because she was that angry with me for leaving her and threatening divorce - if she had any chance of dragging me into trouble she would have grabbed it by both hands. It's as simple as that".
14. The Police and Court records in relation to the charges and the proceedings, including the complaint of his wife, are not in evidence. On the available evidence the Tribunal finds that there is a very real possibility that he did assault his wife and cause her "bodily harm".
15. Five days later on 31 December 1996 he was stopped by Police and charged in Adelaide with driving a motor vehicle at a speed exceeding the speed limit by 15 - 29 kilometres per hour. He was convicted and fined.
16. On 5 September 1997 the Applicant was charged in Queensland with indecent assault on a woman in Brisbane. The matter was before the District Court for hearing until 23 September 1998. The arresting officer had been taken to hospital on the morning of the hearing as she was about to give birth. There had been a failure to notify the alleged victim of the hearing date and she had been contacted and was reluctant to attend because of work commitments at a hospital.
17. The solicitor for the Applicant told the judge that the Applicant had travelled from Melbourne to defend the charge. The prosecutors sought an adjournment of the hearing until the next day. The Applicant opposed any adjournment. The Applicant attended and had given the name Aron Sudath Kondasinghe. A little after noon the prosecutor announced an agreement had been reached that if the charge was reduced to common assault rather than indecent assault, the doctor would plead guilty. On the application of the prosecutor the charge was reduced to common assault and the Applicant entered a plea of guilty.
18. The version of the facts given to the Court by the prosecutor and not disputed by the Applicant or his legal representative were that the victim was 32 at the time of offence, and she had been visiting her husband at the Prince Charles Hospital. They were separated, but he had undergone heart bypass surgery and she had visited him. When she left the hospital she was at the entrance waiting for a bus or a taxi but without success. She became distressed and was crying when the Applicant in a red BMW stopped before driving out of the hospital and "it was agreed" that he would give her a lift to a railway station. En route he received a telephone call on his mobile phone and the vehicle stopped. He took the telephone call and then he suggested to the complainant that they travel to South Bank and that they spend the night together at South Bank. She declined this invitation and undid her seatbelt. When she was commencing to get out of the vehicle he reached for her and grabbed for her "and there was some contact but the Crown accepts that there are difficulties in ascertaining that it was of an indecent nature".
19. The prosecutor also said:- The complainant got a fright, ran away from the car and to the Vulture Street Railway Station. She made a complaint to somebody she saw in uniform that she thought was a Police Officer but that person has been unable to be located. She said a complaint was written down in a notebook, but no-one's been able to ascertain who that complaint could have been made to. She subsequently spoke to a woman … who was a Sexual Harassment Officer at the Prince Charles Hospital. She undertook some investigations, was able to ascertain the identity of [the Applicant] and Police were contacted.
20. The Court was told that the Applicant had no prior convictions. The offence occurred on 5 September 1997. It was not until 23 September 1998 that it was before the Court. It appears the delay may have arisen partly because (as the prosecutor told the Court) there was a delay of some months before the matter was investigated. Also, the Applicant had been working for Queensland Health at the Toowoomba Hospital and when the Hospital became aware of the charge the Applicant was suspended from his employment there. He moved back to Melbourne to obtain other employment.
21. The Applicant had been registered as a medical practitioner in November 1996. Because of the Applicant's alleged clean record and position as a young medical practitioner, the judge was persuaded to proceed without recording a conviction. The Applicant was fined $375.00 (in default 10 days imprisonment) and ordered to pay compensation of $375.00 to the victim.
22. When interviewed in September 2003 by officers of the NSW Department of Health the Applicant's version was:- On that particular instance I was driving - I had finished my work as a doctor at the hospital and I was going to South Brisbane for dinner and a cup of tea, and I was - I came out of the hospital grounds and drove out of the hospital and while I was driving past there was this person at a bus stop, who was crying and, from memory, trying to ask for help and I stopped the car to offer her - ask her help and then this person said that she needed a lift, she doesn't have any money to get to the train station and needs a lift to Brisbane - to get onto the train, to go somewhere. Hence - at the time, it didn't look like my life was at threat by offering this person a lift and hence, I said 'Yes, I am going to South Brisbane and I can drop you off there, if that's ok'. Then she got in the car and basically, I drove her and I was - the nature of my - the car I was driving at the time was that it's not easy to open the door, for somebody who has been in the car like that and, so at the railway station, in front of the railway station, I actually helped to open the door. So I opened the door and she got out of the car and she left, and that's exactly what happened until I heard an allegation.
23. He said it was quite a long time after the event when he heard of the allegation. He said was not able to recall dates, but the records showed that he was charged on 5 September 1997, the same day as the offence. , and the matter was concluded in the District Court on 23 September 1998.When asked how it was explained to him that an indecent assault had occurred, he said: "That when I was opening the door that I was touching her breasts, her - yeah, that's basically it".
24. When asked in the 2003 interview how old the victim was he said: "I think 29 years old. She would have been, because when I saw her she was obviously".
25. He said that his car was a sportscar, "a Coupe BMW". It was a two-door sportscar - a Coupe BMW 3 Series. He said the woman was a Filipino woman and he volunteered: "During the drive she asked me questions like 'Oh, this is a very nice car, you must be rich. I have never been in a BMW before', and comments like that plus 'What do you do?' She found out that I was a doctor and she did say that 'Yeah', that's close to the comments and questions and information she gathered. She knew that I was a very wealthy person".
26. He said at the interview with Department of Health officers in 2003 that he was required to give evidence. However, when he was asked whether he was required to "sit in the witness box and give your version of the events" he answered: "I did explain what happened, yes". But the transcript of the proceedings (Exhibit "R4") shows that he did not give evidence at all. It is also clear that the facts given by the prosecutor were not disputed by him or his legal representative. His legal representative in submissions referred to his behaviour as "this indiscretion on the night in question".
27. The prosecutor informed the judge that the complainant "had been contacted and was only contacted that morning and indicated a distinct reluctance to attend today because of work commitments". She had not previously had any notice she would be required for the hearing or of the date of the hearing. She was first notified that morning. She worked at the hospital and the Police prosecutor told the Court "The complainant wasn't notified then that the trial was going to be on this morning, so she was, last time I ascertained still in North Ipswich with Police having been dispatched to go to get her. The complainant witness was only contacted this morning and has indicated a distinct reluctance to attend today because of work commitments"
28. The prosecution had some considerable difficulties. In those circumstances, the prosecutor reached an agreement with the Applicant's solicitor that if the Applicant would plead guilty, the charge could be reduced to common assault instead of indecent assault. The Police would accept a plea of guilty to a reduced charge of common assault.
29. On that occasion at the Court and subsequently in this Tribunal, the Applicant did not deny the allegation by the complainant to the Police that he had proposed to her when she was in his car that they spend the night together. That implied a possible sexual activity. She said that she declined his invitation and undid her seatbelt, but as she was commencing to get out of the vehicle he reached for her and grabbed for her. It appears from the charge and from the Applicant's evidence about the allegation the complainant made was that he grabbed her on the breasts.
30. The Applicant's evidence and the court record is that the victim was 32 and the Applicant was 29. She was a stranger and he proposed they spend the night together. In the interview in 2003 he volunteered she was " looking like 40, 40 plus". When cross-examined in these proceedings about the event he said the victim was "in her sixties". It appears that these statements in the 2003 interview and in his cross-examination were invented to suggest he would not have been sexually attracted to the woman. When asked in the 2003 interview whether he propositioned the victim, he did not deny it, his answer was, "I can't remember".
31. This Tribunal on all the evidence available to it finds that on the balance of probabilities he proposed they spend the night together, she refused and as she tried to leave the car, he intentionally reached out and touched or grabbed the victim on the breasts. It was an indecent assault. The charge that was put before the Judge was of assault, not indecent assault.
32. When asked about this incident in cross-examination in the proceedings before the Medical Tribunal the Applicant said it involved picking up a hitchhiker who refused to get out of his car. The allegation that she refused to get out of the car was another lie.
33. In 1999/2000 the Applicant was employed by the Far West Area Health Service as the Visiting Medical Officer for the Collarenebri Health Service. Extensive complaints about the Applicant's work were made by members of the public, medical practitioners, patients, nursing staff and others. Extensive material was referred to the Health Care Complaints Commission by the Area Health Service in September 2000. Those complaints were investigated and there was an investigation report by the Health Care Complaints Commission. The investigator, Dr Leon Kleinman, reported on 19 November 2003. The Health Care Complaints Commission then prepared an investigation report which it supplied to the NSW Medical Board on 30 June 2014.
34. Following are the relevant findings in the HCCC investigation report:- "Summary of Evidence Evidence relating to the allegation that Dr Sudath refused to attend to, or delayed attending to patients that had presented to the outpatient department of the Hospital when asked to do so by nursing staff and when rostered to do so by senior management. On 20 October 1999, a patient arrived to the Hospital with an allergic reaction to a wasp sting. Dr Sudath was called at 7.25 a.m. to see the patient and subsequently attended the patient at 9.55 a.m. The patient and his wife were "quite irate" by this time. On 24 October 1999,PZ presented to the Hospital, in an unconscious state. Without examining him first and assessing his suitability for transfer, Dr Sudath instructed the attending nurse to organise the patient to be transferred to Moree Hospital. On 14 November 1999, Ms NR attended the hospital with head injuries and her six-year-old daughter attended with a graze to her right eye because they had both been involved in a car accident. Nurse O'Connor contacted Dr Sudath who instructed him to give Ms NR an injection and Panadol, and to keep her in hospital for four hours with 15-minute observations. As Ms NR was unable to sleep because of the 15-minute observations, she requested to go home after three hours. Dr Sudath was contacted and agreed to this. Ms NR wrote a letter to FWAHS dated 6 December 1999, in which she said that Dr Sudath passed her in the corridors of the Hospital (as she also worked there) and also saw her daughter seven days after the accident in relation to an ear infection. She complained that she was so annoyed by Dr Sudath's lack of acknowledgement of the injuries that she and her daughter had sustained in the car accident, that she felt that she could not return to him in relation to her continuing headaches or neck pain. On 25 November 1999, Dr Sudath delayed attending a patient of the hospital, Mr BD. Mr BD had presented to the Hospital at 5:45p.m. complaining of generalised aches and pain, lethargy and shortness of breath. Nurse Maher observed that he had a temperature of 38.9 degrees, a tachycardia of 115 a minute and a respiratory rate of 32 per minute with oxygen saturation levels initially of 95%. Dr Sudath instructed Nurse Maher over the phone to administer oral antibiotics and Panadeine and to discharge the patient after 30 minutes and to ask him to return for review the next morning. At 7p.m., the patient's temperature rose to 39.5 degrees and his oxygen saturation levels fell to 92%. Nurse Maher phoned Dr Sudath and informed him that she was not happy to discharge the patient. Dr Sudath instructed Nurse Maher to admit the patient overnight. At 8.15 p.m., the patient had a severe headache and a temperature of 39.4 degrees and Dr Sudath was contacted. At 8.30 p.m. Dr Sudath attended the patient and transferred the patient at 10.15 p.m. to Moree Hospital. On 3 December 1999, despite repeated requests from nursing staff for him to see MrGT in relation to a swollen ankle and Ms SD in relation to a dental abscess, Dr Sudath refused to see them. Nurse Conroy alleged that he refused to attend the patients because the hot water system in his house, which she noted in the incident forms that she completed in relation to Mr GT and Ms SD on 3 December 1999. The facts of the matter involving MrGT were supported in a letter from Ms Alison Hogan to Dr Lucas dated 26 July 2000. The facts of the matter involving Ms SD were supported in a letter form Ms Wendy Park to Dr Lucas dated 26 September 2000. On 11 January 2000, Dr Sudath refused to attend to EN a 14-year old boy who had presented to the Hospital with a sore throat and temperature of 38.6 degrees, which subsequently rose to 39.2 degrees. In her incident form dated 11 January 2000, Ms Donna MacGregor stated that Dr Sudath had been rung on 4 occasions but refused to attend the patient. Ms Janice Murray was mentioned as a witness to the incident. In her follow up letter dated 31 July 2000 in relation to this incident, Ms MacGregor elaborated on her concerns concerning Dr Sudath's conduct. At 9.30 a.m. on 16 January 2000, Ms OJ attended the Hospital with a swollen wrist. Nurse Stevens contacted Dr Sudath by phone but he refused to attend to the patient. He prescribed Voltaren and Panadeine over the phone and the patient asked to return the next day to see him. Nurse Stevens documented Dr Sudath's failure to attend Ms OJ on the 'Emergency Department Assessment Form' she completed on 16 January 2000. At 6.40 p.m. on 16 January 2000, a two year old child, SR was brought by his parents to the Hospital with a fever. Despite being advised that his parents were upset, and despite being called four times by the attending nurse, Dr Sudath delayed attending to this patient. At 10.15 p.m. on 19 January 2000, Mr AP attended the Hospital with a temperature of 39.5 degrees. Nurse Stevens contacted Dr Sudath at 10.30 p.m. to ask him to see Mr AP. Nurse Stevens alleged that Dr Sudath refused to see the patient. Dr Sudath attended the patient at 10.43 p.m. In his letter to the Board dated 4 February 2000, Dr Lucas alleged that Dr Sudath only saw 27 of the 78 patients that presented to the Hospital over a six-week period from December 1999 to January 2000, despite being asked to see them. No document verifying this allegation has been provided. Evidence relating to the allegation that Dr Sudath inappropriately communicated with patients, in particular by asking them inappropriate sexually related questions Ms Christine Thorne alleged that on 25 November 1999, Dr Sudath asked two pregnant patients inappropriate sexually related questions and did not perform any antenatal checks on them. She further alleged that Dr Sudath gave incorrect advice to another pregnant patient about when to travel to hospital and wrongly advised her to have an abortion based on his incorrect interpretation of a test result. The Aboriginal women and the Aboriginal Health Workers that were the source of these allegations have not been willing to provide the Commission with information to investigate these matters further. Evidence relating to the allegation that Dr Sudath inappropriately communicated with nursing staff, including making inappropriate comments to them at the Hospital and in the presence of patients and members of the community On 26 October 1999, Dr Sudath complained about the hospital's lack of stock in front of a patient and stated that it was not good enough. On 4 November 1999, nurse Kelly, alleged that, Dr Sudath criticised her in a loud and aggressive tone in front of patients and other members of the community for incorrectly leaving for the O2 for a patient, Mr JT, at 4 litres when she had been instructed by Dr Sudath to increase it to 8 litres 40 minutes earlier. She further stated that Dr Sudath had made demeaning comments to nursing staff in front of patients. She added that Dr Sudath does not understand that not every nurse can cannulate and that, "the nurses should not be made feel incompetent for not being able to cannulate". In his letter to Ms Mitchell dated 14 November 1999, Mr Tony O'Connor, RN, alleged that Dr Sudath, on the following occasions (Nurse O'Connor did not refer to any dates): asked him about his personal relationship with another nurse at the Hospital and questioned whether Mr O'Connor followed "those funny believes and traditions" Irish people had in relation to sex before marriage" in the presence of a patient; called him "incompetent" in the presence of a patient; was sharp and aggressive on the phone with him and would question his clinical judgement when Mr O'Connor would request him to see a patient; was not contactable as he had left his phone unanswered and attended; and spoke to him in an intimidating manner. Response of Dr Sudath to the allegations made against him During the course of the investigation, the Commission wrote to Dr Sudath five times to seek his response to the allegations and/or to provide him with further information as requested. Dr Sudath responded that all the allegations that have been made against him are false and part of the "bizarre politics of FWAHS" to "frustrate" and "take revenge" against the VMO. He added that the allegations relating to his conduct on 3 December 1999 are groundless as he had informed the appropriate authorities that he was unable to work on 3 December 1999. Dr Sudath specifically denied the allegation made by Nurse Stevens that at 10.30 p.m. on 19 January 2000, Dr Sudath refused to see Mr AP when contacted by Nurse Stevens. Report of the peer reviewer for this matter The peer reviewer was sent evidence relating to the issues identified for investigation as outlined on page 1 of this report. In relation to the allegation that Dr Sudath refused to attend to and/or delayed attending to patient that had presented to the Hospital, when asked to do so by nursing staff and when rostered to do so by senior management, the peer reviewer stated that "a delay may be due to reasons which he would be able to explain." However, he noted that a frank refusal to attend patients when he had been notified of the patient's presenting condition, such as in the case of Mr EN and Mr PZ, constituted a severe departure from the acceptable standard of care. In relation to the allegation that Dr Sudath inappropriately communicated with nursing staff, the peer reviewer made the following comments based on the premise that the evidence of the nurses was to be accepted. Dr Sudath's comments directly to the nursing staff constituted a moderate departure from the acceptable standard of care. Dr Sudath's criticism of nursing staff in the presence of patients and other members of the community was a severe departure from the acceptable standard of care. 5. Analysis of Evidence Issue 1: whether Dr Sudath refused to attend to and/or delayed attending to patients that had presented to the Hospital, when asked to do so by nursing staff and when rostered to do so by senior management; and Issue 2: whether Dr Sudath inappropriately communicated with: (a) patients, in particular by asking them inappropriate sexually related questions; (b) nursing staff, including making inappropriate comments to them at the Hospital and in the presence of patients and members of the community. There is conflicting evidence in relation to the above issues. Dr Sudath consistently denies that he has ever refused to attend to and/or delayed attending to patients that had presented to the Hospital, when asked to do so by nursing staff and when rostered to do so by senior management and inappropriately communicated with nursing staff and/or patients. The Commission is not in a position to decide whose evidence should be accepted. Issue 3: Whether Dr Sudath failed to listen to, or follow the advice of senior staff and his mentor; and Issue 4: Whether Dr Sudath failed to respond to complaints by patients when asked to do so by senior management. On the surface, there is no evidence indicating that there are grounds to pursue the matters relating to the above issues any further. In addition, it appears that the above issues are matters which have been addressed within a corporate governance and managerial framework. 6. Conclusion The Commission notes the distress that FWAHS conveys that Dr Sudath has caused to nursing staff and patients. However, in light of the following facts, the Commission finds that it is not in the public interest to further pursue this matter: (a) there is conflicting evidence in relation to the issues raised by the complaint; (b) the complaint is now four years old and the events referred to occurred four to five years ago; (c) there have been no further complaints received by the Commission against Dr Sudath since the complaint was lodged by FWAHS in 2000; and (d) some of the issues raised by the complaint can and/or have been addressed within a managerial and corporate governance framework. 7. Recommendation It is recommended that this investigation be terminated pursuant to section 39(1)(e) of the Health Care Complaints Act 1993 (NSW)."
35. The Conduct Sub-Committee of the NSW Medical Board notified the Health Care Complaints Commission on 23 July 2004 that it had been decided that the Committee had endorsed the recommendation of the Commission that the investigation be terminated pursuant to section 39(1)(e) of The Health Care Complaints Act.
36. On 11 August 2001 the Applicant was driving a motor vehicle west on Parramatta Road Lidcombe. The speed limit on the road is 60 km/h. Police checked his speed on radar at 131 km/h. The Police pursued him with Police lights and sirens activated.
37. The Applicant increased his speed. He eventually stopped and the Police arrested him. The facts as recorded by the police are:- "At 7:35 pm on Saturday 11 August 2001, the defendant was the driver of Victorian registered motor vehicle OSA-311 proceeded on Parramatta Road Lidcombe. The defendant's speed was checked on Police Silver Eagle Radar at 131 kmph in a 60 kmph area. Police caught up with the defendant's vehicle with lights and sirens activated. The defendant accelerated to not less than 150 kmph and not more 160 kmph and when near Frances Street, he came across moving traffic. He then diverged right and across a painted median strip onto the incorrect side of the road. The defendant continued west on the incorrect side of the road over a blind crest at the intersection of John Street Lidcombe. The defendant then merged left and onto the correct side of the road and maintained a speed of not less than 140 kmph and not more than 150 kmph. Police had commenced to call a pursuit and the defendant's vehicle slowed and stopped near the intersection of Silverwater Road. The defendant was extracted from his vehicle and was arrested and conveyed to Auburn Police Station. At the Police Station the defendant stated that he was a doctor and was running late to work at Westmead Private Hospital. He stated that he was supposed to commence his shift at 7:00 pm. He further stated that he did not see the Police vehicle as his windows were up and he had his music up. The defendant was issued two Field Court Attendance Notices for the offence now before the Court. At the time of the offence traffic was light, dry bitumen. Potential danger was extreme."
38. The Applicant did not attend court when the matter was before the Magistrate at Burwood on 28 June 2002 when the matter was dealt with. The Police version of the facts was relied upon by the Magistrate. The Applicant was convicted of driving his motor vehicle at a speed dangerous to the public, fined $1,000, disqualified from driving or having a driver's licence for three years from 30 August 2001 and ordered to pay Court costs of $58.00." .
39. On 17 September 2001 the Applicant filed an application in the Burwood Local Court seeking to annul the conviction/orders. He said in his application "I had always intended to plead not guilty to the offence of dangerous driving but would have pleaded guilty to the offence of speeding". He sought to have the decision set aside but admitted the speeding.
40. In the details he provided in the application he described the circumstances of the alleged offence:- "I was attending a crisis situation at Dubbo Base Hospital for one week. There was no doctor for the Emergency Department at Dubbo Base Hospital so I was required to be there. I spoke with the Police at Dubbo and they advised me to send facts to the Burwood Local Court and request my matter be adjourned. I realised that this is a compromise that I had to do for the sake of seriously ill patients. I thought that the Court would have adjourned my matter taking consideration of my facts. Last Friday (14/09/01) I sent a fax to the Court requesting a response to my fax of 27 August 2001. I received a Notice of Penalty and a Notice of Order to Attend for Identification Today which took me by surprise, as I thought my matter had been adjourned. I spoke with the Officer in Charge of Police at Castle Hill Police who had advised me to lodge an annulment application. I sincerely hoped my reasons for speeding would be understood and forgiven by the Court, the full circumstances I would have been prepared to tell the Court on the adjourned date in accordance with my request."
41. It is clear that the explanation the Applicant gave to the Police for his speeding and the explanation he gave to the Court when he sought to have the Court decision set aside, were significantly inconsistent. There were also inconsistencies in the version he gave to employment staff of NSW Health in an interview in October 2003. In all the circumstances, the Tribunal is not satisfied on the balance of probabilities that any of the explanations he gave is true. The Applicant's credibility is so poor that without corroboration, none of his explanations could be relied upon. The Tribunal however does, in the circumstances, accept the recorded Police version of the offence and of his conduct on the evening of 11 August 2001. It was a very dangerous and very serious offence.
42. When his application to annul the court order was heard on 28 June 2002, the previous decision was confirmed, but the fine was increased to $1,500.00.
43. When asked about the offence of Driving at a speed dangerous to the public during a recorded interview by Officers of the Department of Public Health on 15 September 2003, the Applicant told the officers (at page 24 of the transcript): "I work as a senior intensive care doctor as well as the emergency doctor and there was - from memory there was a crisis situation at Westmead Private Hospital and I had to be there on that day at a particular time":
44. Enquiries by the Department of Health of Westmead Private Hospital revealed that he was not an "Intensive Care Doctor" or "Emergency Doctor" and was employed as a "Staff Medical Officer". The Hospital advised that it always has on call a Consultant Intensive Care Specialist to assist Staff Medical Officers such as the Applicant was at that time.

The Applicant's Relevant Conduct Since the Deregistration

1. Since the deregistration in 2013 the Applicant has generally resided in Sri Lanka and since March 2015 he has practised as a general practitioner there. There is no independent evidence in relation to his conduct in that period.
2. There is no evidence as to whether he has a criminal record in Sri Lanka and, if so, what charges or convictions he has. Because of his poor credit, the Tribunal is not prepared to conclude that there have been no so such charges or convictions.
3. There is no objective evidence of any misconduct. Since he resumed working as a general practitioner he has received a certificate of good standing from the Sri Lanka Medical Council certifying that there are no disciplinary proceedings in progress against him as at 21 August 2017 and as at 26 February 2018. There is no certificate saying there have been no disciplinary proceedings in the period since he registered in March 2015.
4. The reference from Dr Kodituwakku, the principal proprietor of the medical practice where the Applicant has worked since March 2015 refers to his experience, qualifications and skills as a practitioner, his popularity with patients and the fact that he is co-operative and supportive of his colleagues. It does not refer to matters of the Applicant's mental health, ethical values and general conduct.
5. There was also a reference from the National Institute of Addiction Management of which the Applicant has been a "co-founder" since 1997. The organisation provided training to professionals who work in addiction management. They are also engaged in creating public awareness about drug abuse in Sri Lanka. Whilst the reference states that the Applicant "has been an asset to our Institution and we sincerely appreciate his enormous contribution" the nature of his contribution is not disclosed, nor is there any opinion in relation to his conduct generally and his ethical values.
6. Similarly, there is a reference from two religious office holders, one of which states that the Applicant "joined our organisation in 2013 and subsequently became a Board member. He has been actively involved in treatment and prevention programs and also involved in screening clients and functioning as the medical advisor."
7. It says that his contribution has been significant. The reference is dated 26 January 2018 and says that he is wished well "in his future endeavours, especially in his future specialisation in the field of drug addiction and rehabilitation". It does not give any relevant information about the Applicant's conduct generally or his ethical values.
8. There is no evidence of further assaults or sexual assaults by the Applicant since his disqualification. There is no evidence that the Applicant has attended any course or therapeutic treatment since he was released from prison that might address the risk that the Applicant might commit further assaults or sexual assaults on other persons.

Report of Probation and Parole Service

1. The Probation and Parole Service on 23 December 2010 prepared a Pre-Release Report in respect of the Applicant as his non-parole period was to expire on 13 March 2011.
2. The Applicant had told the authors that he had been in two significant relationships referring to his marriage to his wife, he said:- "He was 'briefly' married to a woman of Anglo-Saxon background from 1996 - 1997" and "The inmate described the relationship as a marriage of convenience to assist his ex-wife who was a single parent and had an abusive ex-partner. Mr Sudath reported that he divorced his first wife in 1998 claiming there were ongoing problems from her ex-partner".
3. That is apart from other detail, the allegation that he divorced his wife was untrue. At the time of giving the Probation and Parole Officers that information, he was still married to that woman. He also lied to the Officers in relation to Ms A. He said that he met her in the processes of an arranged marriage condoned by both families. But the marriage did not proceed but Ms A left her parents' home and they commenced their relationship in 1999.
4. He said the relationship was subsequently formalised in a traditional marriage. The report states:- "Mr Sudath gave an idyllic account of his marriage, stating their goals, and engaged in an active social and religious life. However, the inmate also spoke at length about the flaws of his ex-wife and her family in contrast with the high social standing of his own family. Mr Sudath described his ex-wife as a devious money-driven person which appeared to be an attempt to cast a negative impression of the victim".
5. The report writers recorded that the Applicant attributed the breakdown of his relationship to Ms A to a "lack of communication" as they were "too caught up in the materialistic world" and "on different wavelengths". He initially said that he was granted equal custody of his child through the Family Court. But when challenged he eventually revealed that upon his conviction the Department of Community Services became involved and he was prevented from contact with the child because of the nature of his offences.
6. He also said that he had entered into another relationship for approximately nine months prior to his incarceration but this ceased because of his imprisonment. He said that this woman was currently residing in Sri Lanka and he claimed that they remained in regular contact by telephone. He told the authors that his registration with the NSW Medical Board had been suspended.
7. The Applicant did not reveal to the authors of the report his criminal history other than the offences against Ms A of which he was convicted. They reported that it was "limited to driving offences".
8. The authors stated in relation to the rape offence that:- "The sentencing judge further noted that anal intercourse was chosen by the inmate to increase his own sexual gratification while adding additional humiliation to the victim".. "and the intrusion occurred not only in circumstances where she did not consent, but in the more clear circumstances where she rejected his advances. Further, she continued to reject him, but he appears not to have heeded her rejections but continued with his unlawful conduct".
9. The authors stated:- "The degradation of the victim seems to be a part of Mr Sudath's wider demonstrated need to feel superior to others which was indicated during interviews with the Service and reflected in a number of Departmental records entered by various CSNSW staff. The inmate appears to have a strong affiliation and identity with his Sri Lankan culture and he reported that he his highly esteemed due to his profession as a doctor. Perhaps to justify his own righteousness, Mr Sudath commented that the victim has been alienated from the community by her actions against him. The inmate was observed to speak regularly of his status as a doctor and his financial resources which has also been consistently reflected in records entered by various other CSNSW staff. Such records and interviews with this Service suggest the offender's sense of entitlement. Mr Sudath appears to lack insight regarding the effect of his behaviour upon others which has been problematic at times in his interactions with other offenders and staff throughout his custodial sentence".
10. The PREP program is a program preparing a prisoner for release. The report stated: "Mr Sudath disputed the Police facts. He denied that domestic violence was an aspect of the relationship with his ex-wife. Mr Sudath claims that his ex-wife was motivated to bring the current charges against him due to their legal proceedings over child custody and property settlements. Mr Sudath expressed similar perspectives during his participation in the Preparatory ("PREP") Program which is detailed in the attached …".
11. The authors quoted the PREP psychologist who reported:- "(Mr Sudath) denied that in eastern cultures men ever 'raped' their wives - he said 'they don't have to'. He started to explain that while a husband or wife had the right to say 'no' to sex, because they are 'unselfish' in their love in those marriages, they could (to please their spouse) consent to sex even when they do not feel like it".
12. The Applicant attributed his conviction to an unfair trial and the incompetence of his legal team.
13. After interviews with the offender and discussion regarding the offence, the Probation and Parole Service agreed with the assessment of the sentencing judge that:- "An overview of his attitude to the offence is an absence of contrition, a continuing disrespect to the complainant and an absence of any real insight into the anti-social nature and the violence involved in his behaviour".
14. The report said the Applicant perceived himself as the victim of the offences and was more concerned about the consequences of his incarceration upon his family of origin, reporting that his father had a heart attack and his mother suffered from depression because of his conviction. The Officers found it difficult to discuss the impact of his offending behaviour on his ex-wife, given his denial. He acknowledged the traumatic impact the effects of sexual assaults upon victims generally and articulated that it would affect relationships with men and trust in sexual relationships and victims may need psychotherapy. He considered that the victim was perhaps "worse off since their separation because of her poorer financial circumstances and may be a "struggling single parent". The writers said that his "focus on the material component of their relationship demonstrates his ongoing lack of insight or unwillingness to acknowledge the impact of his violence against the victim".
15. The PREP Preparatory Program is a psycho-educational program to prepare participants for treatment programs. The Applicant participated successfully in a PREP Program and subsequently in March 2009 was considered suitable for the CORE Low-Moderate Program and placed on the waiting list.
16. Based on the advice of the psychologist conducting the PREP Program that he attended, and his "failure to appreciate the impact on his interpersonal interaction and personality style within the group setting", it was decided that he would require at least the moderate intensity of the CORE Program rather than the low intensity.
17. The Applicant commenced an Anger Management Program on 2 February 2009 and attended six sessions. In those sessions it became apparent that he was "unable or unwilling to identify his emotions or admit to any vulnerabilities, indeed there was an exaggerated response from him to feedback that he saw as criticism". The worker who provided the sessions reported:- "It became clear that group members had an intense dislike of Mr Sudath and he appeared to be superior to other members of the group". After six sessions he was transferred to another area of the centre. He requested to continue the Anger Management Program, but the worker decided "It would not be in the best interests of the group as a whole for him to do so".
18. At one assessment using the LSI-R the Applicant was found to fall within the low risk category for general risk of re-offending. A Static-99R assessment conducted by the psychology staff placed him within the low risk category of sexual/violence recidivism. However, the scoring on that model relied upon the disclosures made by the Applicant and it appears that he made no disclosure of any charge for assault or sexual assault other than or the offences that led to his imprisonment and presumably he also falsely claimed that he had no complaints made against him in relation to his work as a medical practitioner.
19. The report writers recommended that it was essential that the Applicant address his offending behaviour in a custodial setting. But their recommendation was that if he were granted release on parole, "It will be imperative that Mr Sudath engaged in a sex offender program and domestic violence intervention approved by this Service".
20. The Officers concluded that the Applicant had failed to demonstrate genuine victim empathy or insight into his offending behaviour and apportioned the blame to the victim, often denigrating her and her background. It was recommended that he should undertake a treatment course, such as CORE, before being released from custody.

Treatment Report - Sex and Violent Offender Therapeutic Programs

1. The Sex and Violent Offender Therapeutic Programs section of the of Corrective Services (NSW) prepared a treatment report in relation to the treatment of the Applicant. It is dated 23 March 2012.
2. The authors of the report are Ms Maggie Cruickshank, a specialist psychologist with a Masters' Degree in Forensic Psychology and the Acting Therapeutic Manager of Parklea Prison and Ms D Matsuo, who has a Masters' Degrees in Forensic Psychology with Honours and was Acting as a Director.
3. The authors were not aware of the alleged sexual assault on a female stranger by the Applicant in Brisbane but they were aware of his conviction for driving at a speed dangerous to the public in 2001 and his conviction in 2003 for driving whilst disqualified. The explanation given to them by the Applicant in relation to the anal rape offence is that Ms A and he were engaging in sexual intercourse which he thought was consensual on her part but she withdrew her consent and he disregarded this and continued forcing intercourse. That was false and minimisation of the offence.
4. They were aware that there had been a restraining order made against him in South Australia, but were not aware that it was made in favour of his wife or of the complaint that lead to the restraining order or of the complaint that resulted in a charge of assault occasioning bodily harm. They were not aware of the charges of assault occasioning bodily harm and other assaults where Ms A was the victim.
5. The version of the rape offence given by the Applicant during treatment was that he understood that the (anal) intercourse was initially consensual and that his wife withdrew her consent "for reasons unknown to him and he disregarded this and continued forcing intercourse". That was serious minimisation of the offence. He also seriously minimised the assaults of Ms A the day after the rape.
6. In their report they acted on the assumption that there was no basis in the information available to them that there was any prior sexual offence history. That was wrong. There was a history of sexual assaults of Ms A and the indecent assault in Brisbane.
7. They reported that the Applicant completed a Pre-Release Course in October 2008 and a Pre-Treatment Psychoeducational Program. He attended six sessions of an Anger Management Program. But his participation was stopped because the facilitator did not want him to continue because of his adverse effect on the other group members, unwillingness to engage in the program content, and "exaggerated response to feedback he perceived as criticism". The Applicant also attended art class, computer class and forklift training. It was reported that he appeared to be generally well-behaved in the wing and his work reports were usually good until May 2011 when he was noted to consistently fail to report to work.
8. During his time in custody he received Institutional Breaches of Discipline for "Disobey Direction (18/8/09); Unlawfully Use Phone or Fax (20/1/11); and Fail to Attend Muster (11/4/11). They reported that there were problematic elements in his custodial behaviour. There were examples from a range of disciplines where his behaviour was perceived to suggest that he felt superior to others. These examples occurred throughout 2008, 2009, 2010 and 2011.
9. Pre-sentence psychological and psychiatric reports suggested the Applicant "suffered depressive symptoms to varying degrees". The pre-sentence listing indicated "severe depression and anxiety". He was at times prescribed antidepressants and temazepam because of insomnia. Dr Allnutt diagnosed him in 2007 as suffering from "adjustment disorder or mild depressive disorder." This decreased after some counselling. His medical file showed that he was prescribed antidepressant medication throughout his incarceration.
10. In relation to the progress of treatment, it was reported that he demonstrated an intellectual understanding of the issues discussed and at times questioned the motives of victims, other group members objected to his communication style, including a tendency to give long-winded and indirect answers to questions. He demonstrated "positive impression management" and sometimes demonstrated difficulty admitting to vulnerabilities and undesirable behaviour. The reporters stated that:- "He could become defensive when challenged and appeared to benefit more from being allowed to process feedback he perceived to be negative in his own time, particularly not in the group setting".
11. Also the writers reported:- " … some significant discrepancies have been found between Mr Sudath's self-reporting during treatment and collateral information, hence the veracity of information Mr Sudath provided during treatment is uncertain".
12. Over time he appeared to increase the level of his acceptance of responsibility for the sexual offence and his role in the lead-up. Although he verbalised that he would be taking responsibility for his future behaviour, the authors said it was "unknown whether he is willing to do so in practice, particularly giving concerns regarding his reliability of his self-report".
13. It was said that he "demonstrated some knowledge of potential victim effects", and also verbalised empathy towards his own victim, but the writers said "it is uncertain whether he has an emotional understanding". He demonstrated in conversation indicators that he had a "somewhat rigid and stereotype view of women (such as perceiving the women were more nurturing; liked 'romance', and that professional women were engaged in biased decision-making in favour of their own gender)".
14. In reporting about "pathways to offending" it was reported:- "Mr Sudath listed a number of problems with his relationship including lack of emotional connection and communication. He reported that he lost interest in sex with his partner after their son was born as he had difficulty reconciling her role as a mother ('pure'; 'out on a pedestal') with her role as a sexual being. However when this dichotomy was suggested to Mr Sudath, he retracted and suggested that he had been misunderstood. He stated that it was a matter of lack of arousal to his partner when she was breastfeeding. Mr Sudath reported that it was in the context of his unhappy and sexually unfulfilled relationship that he reconnected with an old friend now a forensic psychiatrist from university. He stated that he increased the level of time he spent with this woman and was not honest with his partner and as a result his partner became suspicious, jealous and withheld sex. Mr Sudath reported that on the night of his offence his partner withdrew consent during the act of intercourse, leading to feelings of rejection, frustration and anger. He stated that he felt entitled to continue intercourse which led to the current conviction."
15. The writer said there was uncertainty as to what extent they could rely upon the material and explanations given by the Applicant because of his failure to report his previous marriage and contrasting information regarding the existence of his alleged current relationship with a forensic psychiatrist. The writer said that it appeared that "Overwork, poor stress management, an unhappy relationship and idealised beliefs about relationships and role expectations may have contributed to the offence occurring".
16. In conducting a risk assessment to assist in predicting the likelihood of sexual recidivism, the writers used the Static-99R actuarial tool for such predictions. The test consists of ten items which are fixed over time and for each that applies to the subject, the subject receives a score of one.
17. Because of the inadequate information provided to the authors, the authors did not score the Applicant as having

• any prior non-sexual violence convictions;
• been convicted of a non-sexual violent offence; and
• having committed an offence on an unrelated victim.

1. The Applicant's score on that actuarial tool was zero, which suggested he was in the low risk category of male sexual offenders. But if he were scored as having had a prior sexual offence (Brisbane) on an unrelated victim and a non-sexual assault (the alleged assault occasioning actual bodily harm on his wife) and his score would have been three, which is "low - moderate".
2. The authors then looked at dynamic factors related to sexual recidivism, but amenable to change. Those factors include co-operation with supervision, general self-regulation, intimacy deficits, sexual self-regulation, warning signs and self-management. Each of those dynamic factors was discussed in the report.
3. The report writers recognised that the Applicant has a history of "problematic interactions with supervisors". Some of the problem interactions involved dishonesty by him and others are difficulty accepting appropriate feedback, argumentative in the face of contradictory evidence, disengagement and not disclosing evidence important to the issues, such as not disclosing his marriage prior to cohabiting with Ms A or with his present partner.
4. This problem and his "superiority" results in asking for special favours during his imprisonment, breaking rules, placing himself in high risk situations. This is also appears to be conduct (including manipulative conduct) that he continues to use even to the last day of the hearing. The Applicant's evidence is that he has a good relationship with his sister, who lives in Newcastle and both his brothers, one of whom resides in Melbourne. He stayed with the sister in Newcastle on numerous occasions and has also stayed at times with the brother in Melbourne. His evidence is they have supported him through the criminal proceedings and the proceedings before the Medical Tribunal. The decision to cancel his registration was the decision of the New South Wales Medical Tribunal. But when he sought to make his application commencing these proceedings, he proposed not to come to Australia; but instead to appear on the hearing by audio visual from Sri Lanka. Subsequently he changed that proposal and made his application and sought to file it in Hobart in a Tasmanian Tribunal. Subsequently he filed the application in the Sydney Registry of this Tribunal.
5. But he then decided to go to Perth; not to Sydney where his brother lived and who, he had assured Corrective Services staff, had offered to accommodate him once he was released from prison. And not to Newcastle, where his supportive sister lived and where he had family accommodation and support. If he had come to Sydney or Newcastle he could have attended the hearing in person and avoided some accommodation costs and also avoided the need for the use of Audio Visual equipment.
6. His evidence to the Tribunal was that he was so impecunious that he could not afford legal representation in the hearing. But instead of coming alone to the hearing in Sydney or Newcastle for the period of the hearing (only four days) and staying in Sydney or in Newcastle, he chose to bring his wife and three children and meet the cost of fares and accommodation for the family in Perth for about six weeks.

Report of Dr Anthony Samuels of 29 May 2018

1. Dr Samuels' report is 16 pages and 13 pages of annexures. In the report Dr Samuels acknowledges he has read the Expert's Code of Conduct and agreed to be bound to it.
2. He acknowledges having read 12 specific documents which he refers to in his report.
3. Dr Samuels was asked particularly to report on: - 1. The level and extent of Mr Sudath's insight into his offending and more generally in respect of his conduct giving rise to his convictions; 2. The voracity or reliability of Mr Sudath's insight into or regret for offending and/or conduct giving rise to his convictions; and 3. Any other aspects of Mr Sudath's insight or conduct that may be relevant to the Tribunal's determination of this matter.
4. Dr Samuels' report is a careful and detailed report. I have adopted the headings Dr Samuels has provided and comment on the thorough report. The following comments arise. The contents of the report cannot all be set out here but important aspects of Dr Samuels' opinions are as follows:-

Level and Extent of Mr Sudath's Insight into His Offending and More Generally in Respect of His Conduct Giving Rise to His Convictions

1. Dr Samuels notes that until 2011 although Mr Sudath maintained his denial of having sexual intercourse with Ms A without her consent and even though he claimed in the Medical Tribunal hearing that he had accepted "full responsibility" for his offending, there is evidence that he had only accepted a component of responsibility and has very much reformulated the particulars of complaint 2. Dr Samuels said the Applicant went on reporting that his wife had initially consented to the sexual intercourse and then had withdrawn her consent. He said that the Applicant also purported that there was some confusion as to whether or not he was having anal or vaginal intercourse with her and also suggested that they often had anal intercourse to prevent pregnancy. Dr Samuels and referred to the finding of the Medical Tribunal that the Applicant's admission of sexual assault was not an indication of genuine remorse but rather an acceptance of the inevitable and a realisation that continued denial would not assist his cause. Dr Samuels also noted that the Applicant also claimed to not be relying upon the fact that Sri Lankan law the act of a man having sexual intercourse with his wife without her consent is not a criminal offence, although he said he did not believe that he was excusing or seeking to mitigate his rape offence because of that, but in fact the Applicant repeatedly sought to rely upon such an argument. Dr Samels instanced the Applicant's statement of 27 October 2017 where he said:- "After my Sri Lankan ex-wife (whom I met through a traditional Sri Lankan marriage proposal and married at a traditional Sri Lankan matrimonial ceremony, and with whom I led a very traditional Sri Lankan married life) complained that I had non-consensual intercourse with her at home in the marital bed, once during a 6½ year marriage …" And his consequent statement in his application commencing these proceedings dated 3 January 2018 where under "Orders Sought" he states:- "Due to a matter between myself and my Sri Lankan wife on 22/02/2013 NSW Medical Tribunal cancelled my registration …"
2. In his de facto wife's statement of 15 June 2018 she says at p 5:- "He worked as a doctor, before and after that conduct with his ex-wife, without any complaint against him as a doctor. But because of one incident arising from a domestic relationship, with his own wife, at home in their mutual bed, his opposition party is trying to paint a picture of him as a totally dishonest bad charactered person".
3. In the Medical Tribunal evidence of his formulation of events contained in the transcript at page 51 line 25,the Applicant stated:- "Yes I accept that I raped my wife but not in the way she says I raped her".
4. The Applicant denied previous physical violence in the marriage, despite the evidence given to Dr Brennan and he maintained that denial throughout the Medical Tribunal hearing. The trial judge included in his sentencing reasons a finding that there had been a history of physical abuse to the victim by the Applicant throughout the relationship and on the same day as the rape. Dr Samuels found that on the material provided to him the Applicant does not have any more insight into his offending or in respect of his conduct giving rise to the conviction. He said the material suggested to him that "up until the time of the Tribunal hearing Mr Sudath continued to minimise and deny his offending behaviour.
5. Dr Samuels noted that in the recent letter written to the Chairperson of NCAT the Applicant stated: - "In August 2016 after 11 years plus, my ex-wife has contacted me through Facebook to apologise for everything done in the past and stated there is not a day that goes by without her thinking of me that she prays for me every day".
6. Dr Samuels' opinion is that this suggests that the Applicant, after 11 years. is of the opinion that the victim has something to apologise to him for. He notes that the Applicant has not attended for a psychiatric assessment as proposed by the Medical Council and accordingly Dr Samuels has no clear idea of the Applicant's mental state and has not thereby had any opportunity to directly assess if there has been a change insight, empathy or "rigid stereotyped views of women". Dr Samuels also said:- "To my knowledge he has not undertaken any further insight-oriented therapy or specific sex and violent offender treatment so there really is no basis to assume that his level of 'insight into his offending and more generally in respect of his conduct' has in fact changed at all".

The veracity or reliability of Mr Sudath's insight into, or regret for, the offending and/or conduct giving rise to is convictions

1. Dr Samuels noted the Medical Tribunal's findings of the Applicant being "prone to hyperbole and over-emphasis of his attributes" and also the confrontation with him about his stereotyped sexist comments in relation to his wife as a "blue-eyed, blonde Australian". He also noted the Tribunal's finding that there was "a distinct impression of deliberate exaggeration and fabrication on the respondent's part" and a finding by the Medical Tribunal that "it is the respondent's self-promotion and not to be taken at face value and the same caution must be applied to his effusive statements of sorrow and remorse".
2. It should be noted that in these proceedings the Applicant has made extensive and effusive expressions of sorrow, regret, guilt and remorse. The Medical Tribunal found his statements, protestations of remorse, to be insincere. This Tribunal has come to the conclusion that it cannot be satisfied that the Applicant's extensive expressions of apology, sorrow, regret and remorse are sincere. They are not consistent with his conduct prior to cancellation of his registration and not consistent with his conduct since the cancellation.
3. With regard to the conduct since the cancellation there are three dimensions of concern. One is undesirable conduct that has continued after the cancellation of his registration, and another is the failure of the Applicant to undertake any serious response since the cancellation that recognises he does have problem behaviours and adopts steps to stop or minimise such behaviours. The third is that he cannot be relied upon to tell the truth.
4. Dr Samuels also referred to the findings of the treatment report that the Applicant had a "rigid and stereotypical view of women". That was also the finding in that report at para 45 that the Applicant may have "attempted to portray himself in a positive light and may have engaged in dishonesty regarding his life circumstances".
5. In his oral evidence Dr Samuels expressed the view that there was a pattern of domestic violence in the relationship between the Applicant and Ms A. The Applicant at the hearing by the Medical Tribunal admitted on 19 February 2013 that he was a "control freak" when it came to money. And he said it was at domestic abuse program in prison that he learnt that "It's part of abuse to control a woman with finances". On the morning of 30 April 2005 immediately before he assaulted Ms A, he had demanded her passport and she had refused to give it to him. He did not know where it was. He was pursuing Ms A demanding that she give him her passport. Then he assaulted her. The District Court Judge found that "he wanted the passport was no doubt in the hope or expectation that he could use it as a bargaining chip on the question of if and when and how separation was to be achieved".
6. Dr Samuels concluded that the Applicant's recent correspondence and interactions with the Tribunal and the Medical Council suggest that many of those observations remain current and "It seems he continues to minimise his sexual offending as a marital issue that occurred outside of his medical practice. In his general application for reregistration (3/01/2018) he states 'due to a matter between myself and my Sri Lankan wife on 22/2/13 the NSW Medical Tribunal cancelled my registration'. Dr Samuels refers to the statement earlier quoted in these reasons set out in the 'orders sought' section of his application commencing these proceedings."
7. Dr Samuels considers that the applicant's references to his Sri Lankan wife continue to suggest the level of disrespect. "His cultural beliefs appear to have altered a little". He notes the applicant's letter to the Chairperson of the Tribunal of 22 October 2017 where he stated:- "After my Sri Lankan ex-wife (whom I met through a traditional Sri Lankan marriage proposal and married at a traditional Sri Lankan matrimonial ceremony and with whom I led a very traditional Sri Lankan married life) complained that I had non-consensual intercourse with her at home in the marital bed once during our 6½ year marriage".
8. Dr Samuels considers that the applicant has been continuing to use hyperbole in the same letter. In the same letter to NCAT he wrote:- "I dedicated my time, effort, knowledge, experience and other resources to the purpose of rehabilitating the drug addicts and educating them about their sexual rights and well-being". Dr Samuels said that these comments to some extent mirror those made in the Tribunal hearing in which he said he suggested he would approach the Attorney-General to get the law changed in Sri Lanka regarding sexual legal rights of married women.
9. It should be noted Dr Samuels also stated:- "He also stresses his altruism in his correspondence to the Council (4/01/2018), Mr Sudath stated 'As a permanent resident of Australia soon to be a citizen when I return to live in Australia this would not only allow me to pay off my massive debt to the precious nation of Australia but also help give my beautiful wife and my two daughters, four and one years old, a good life, education and upbringing …' however, this is offset by the threat that follows, 'otherwise, unfortunately, the four of us are compelled to join the Centrelink'''.
10. Dr Samuels notes the email from the applicant in relation to his inability to attend a Skype assessment with Dr Samuels where the applicant stated:- "As you can appreciate I am strictly bound by the NCAT orders and NCAT has not ordered me to attend such an assessment as per the Council's invitation".
11. Dr Samuels commented there is also a degree of sarcasm in this correspondence in that he first thanks for the invitation and says "although very late" and "that is very generous of you and I appreciate your gesture".
12. Dr Samuels comments:- "This recent correspondence continues to suggest a somewhat patronising, sarcastic style and also, to some extent, reflects the controlling domineering attitude noted by the Tribunal, particularly Mr Sudath's comment that if he is not reregistered it will be, in a sense, the Medical Council's fault that he and his family are collecting Centrelink benefits in Australia. Given Mr Sudath is working and registered in Sri Lanka, he obviously has other options".
13. Dr Samuels says it is evident that the applicant "has never really accepted responsibility for his offending behaviour". He notes that the trial judge in the District Court stated:- "Neither of these incidents was an isolated incident" (referring to the sexual assault and the physical assault) and Ms A also gave a history of physical and sexual violent over six years which the applicant denied in the Tribunal hearing
14. In concluding Dr Samuels states:- "Although Mr Sudath claims to have accepted 'full responsibility for his sexual offending behaviour' this certainly does not seem to be the case and his version of events is very difficultt (sic) too from the very brutal assault described in the particulars of complaint two and he attempted to convey that he was confused about which orifice he was entering and that he had merely continued with intercourse after his wife whom he stated had an initiated the encounter, withdrew her consent".
15. Dr Samuels also notes the finding of the Medical Tribunal that "it was the respondent's evidence about the possible confusion between anal and vaginal intercourse that was unconvincing" and in para 47 the Tribunal found:- "Ms A's version as expressed in her oral evidence and statements to be more plausible. This includes an acceptance of her evidence and statements at trial including her screaming and in pain and her injuries on medical examination by Dr B".
16. Dr Samuels referred to the reported problems in the applicant's participation in the programs he attended at the prison. He refers also to the difficulties the applicant had with criticism, the fact that he was noted to be demanding and seemed to be engaged in positive impression management and tended to give long-winded answers and did not appear willing to examine factors that led to his offences or future management strategies that might reduce his risk of offending. He noted that it was concluded that he had a "somewhat rigid and stereotypical view of women".
17. Dr Samuels noted that Dr Roberts and Mr Taylor in reports prepared on instructions from the applicant or his legal representatives for the District Court proceedings "concluded that Mr Sudath does not have a personality disorder". Dr Samuels said: "In my view his history does suggest the presence of Antisocial Personality Features".
18. Dr Samuels said that the findings regarding antisocial personality traits or antisocial personality disorder since the previous assault in Queensland which the Applicant suggested was "minor" and the many concerning issues raised in the chronology of events prepared for the s 66 enquiry. There were also driving offences including the driving at a speed dangerous to the public and driving while disqualified in 2003. There were also the problems with his employment with Health Service NSW involving:- "Rule breaking and boundary violation and the fact that he was known as 'Dr Sidot and Dr Sudath', as well as concerns about possible self-prescribing and termination of his employment by the Far Western Area Health Service which was concerned that he was not safe to be left to practice alone in isolated rural communities".
19. Dr Samuels said that the Applicant's outright lies about his wife's affair with a drug addict and also about alleging abuse of his child, made by him in order to trigger notification to the Department of Community Services, and his unfounded and outrageous allegations against the social worker and the doctor involved in the care of Ms A, are further factors pointing towards a man who has quite significant antisocial personality features.
20. He said: "To my knowledge he has not undertaken any further insight-oriented therapy or specific sex and violent offender treatment, so there is really no basis to assume that his level of 'insight into his offending and more generally in respect ot his his conduct', has in fact changed at all".
21. Dr Samuels concluded:- "It is my opinion that Mr Sudath's antisocial traits significantly impact upon the veracity or reliability of Mr Sudath's insight into, or regret for, the offending and/or conduct giving rise to these convictions." "His current communication style and unwillingness to attend psychiatric assessment certainly raises questions about his 'veracity and reliability of insight' and lead me to wonder if any of his attitudes have really shifted."

"Any other aspects of Mr Sudath's insight or conduct that may be relevant to the Tribunal's determination of this matter."

1. Dr Samuels agrees with the report of the psychologist and the treatment report from the Corrective Services (NSW) that the score of zero on the Static-99R test tool under-represents the Applicant's risk of reoffending. He notes that evidence of Ms A that was accepted in the District Court is that there were numerous other occasions when the Applicant both physically and sexually offended against her and there may be other instances with other women of which evidence has not been available. If the findings of the District Court of those numerous other incidents of assault or sexual assault were taken into account then the Static-99R score would be elevated.
2. Dr Samuels also found that the false allegations made by the Applicant to staff at the John Hunter Hospital were motivated by desire to affect a notification to the Department of Community Services against Ms A. He also stated: "There are also suggestions he left the hospital against medical advice in order to evade the Police".
3. Dr Samuels reports that:- "Mr Sudath was questioned about a Professor Smith (p 126) who supposedly authored a document on the internet which states (para 5) 'Dr A Kondasinghe innocent in accordance with Sri Lankan law'' is concerning. He claims to have no knowledge who this Professor Smith is, but this does raise concerns that this was a document authored by Mr Sudath and was another manipulative act to defend himself."
4. Dr Samuels raised other concerns about inconsistent information he has given in the Sex and Violent Offender Therapeutic Program, to the Medical Tribunal, and false allegations he made against Ms A to others.
5. In his conclusion Dr Samuels says that even in the absence of any other convictions for assault or sexual assault on Ms A disregarding those alleged results:- "Mr Sudath is a practitioner that I would have serious concerns about in regard to his character, honesty, ethics, rule breaking, propensity for violence, possible mental illness and history of substance misuse as well as his medical competence."

Evidence of Dr D C Senaratne

1. Dr Senaratne is a psychiatrist practising in Perth. The Doctor is originally from Sri Lanka, graduated in medicine and surgery in Ceylon and then trained in psychiatry in the UK. The Dr Senaratne was apparently instructed by the Applicant to prepare a psychiatric report of him for these proceedings.
2. Dr Senaratne did not acknowledge that he had read the Expert Witness Code of Conduct or state that he would comply with it. He did not state what documents he had read in relation to the Applicant or these proceedings other than the following:
3. The doctor practises in Perth and saw the Applicant on two occasions, on 5 June 2018 and on 11 June 2018, for a total of two hours. 1. The practitioner's Applicant's statement of 3 May: 2. The reply by the Medical Council dated 3 May 2018; 3. "The report pertaining to the hearing of the Medical Tribunal of NSW dated 22 February 213" (2 pages - the reasons of the Medical Council were not provided); 4. Proceedings of the s 66 enquiry on 16 May 2007 (it is not clear whether this is the transcript of the hearing or the written decision of the enquiry); 5. Medico legal report of Dr Samson Roberts dated 3 January 2013 and Dr Peter Klug dated 31 October 2012 (this is not in evidence); and 6. Psychological report of W John Taylor dated 26 August 2011.
4. Dr Senaratne prepared a report at the request of the Applicant, who was using the name "Aruna Kondasinghe". The doctor reports the instructions given to him:-
5. "Mr Kondasinghe described the circumstances that led to his incarceration. He said that his second marriage was an arranged marriage which had occurred on 16 May 2013. He said that their marriage was under strain for about 12 months prior to the incident due to him working long hours in order to earn sufficient money for them to eventually have a comfortable life. In addition he said that his wife accused him of infidelity and also that she had fraudulently withdrawn money from his bank account. This had led to a strained relationship. There were arguments about missing money, suspicious telephone calls to his wife and his wife suspecting him of having an affair. He said that their sex life had suffered and there was a mutual lack of trust in each other. He said on the night of the incident they had started having sex and half way through, their 15 month old baby who was sleeping close by had woken up and started to cry and his wife had asked him to stop but (he) was sexually highly aroused, couldn't control himself and insensitivity and continued to have sex. The following morning they had a row and in the process he had assaulted her, which had resulted in her leaving the house with the baby. He said that he had tried to locate where she had gone to, but with no success. Later he had rung up the Police because he was anxious for their safety. Police had informed him that they were safe."
6. The documents and instructions provided by the Applicant were grossly inadequate for the doctor to be properly informed enough to give the opinions sought from the Doctor by the Applicant. The Applicant did not provide Dr Senaratne with a copy of the District Court Judge's Sentencing reasons, any reports or records of Corrective Services (NSW) or the Probation and Parole Service, the reasons of the Medical Tribunal. Ms A's version of the rape and the assault the next day, or the report of Dr Samuels.
7. The instructions given by the Applicant to the doctor did not inform the doctor of any criminal charges or offences other than the two offences of which he was convicted in 2005 and was sentenced to imprisonment. The doctor was not informed of any complaint about the Applicant's performance as a medical practitioner.
8. In cross-examination and in answering questions from the panel members, Dr Senaratne, because of the relevant information the Applicant had withheld from him and false information he gave him, retreated from any opinions of any relevance to the issues in the proceedings.
9. The Tribunal did not rely upon any opinions of Dr Senaratne.

Proved Problem Behaviours

1. At the trial in the District Court, Dr Roberts, who was engaged by the Applicant to give evidence in the defence case, and prepared a report dated 23 January 2013, which is in evidence before this Tribunal, gave the following evidence that was quoted in the decision of the Medical Tribunal:- "There are certainly plenty of people in substantial positions of authority and respect to whom we give a lot of - to whom we give a lot of kudos to exhibit features of narcissism and exhibit a degree of grandiosity which might cause our stomachs to turn on occasion, but it certainly doesn't lead them into unlawful conduct. The fact is that - perhaps I should be absolutely straight forward - there are times when Dr Sudath's manner, use of language, intonation, even some direct comments, are potentially of a nature as to lead him to come across as conceited, arrogant, superior, all knowing and that he has the potential to grate on us, but it would be inappropriate if an assessing clinician such as myself condemned everyone I saw who grated on me, in fact if I was working in justice health for any length of time and did so I would be out of business."
2. The evidence is that the Applicant has more serious and more extensive problem behaviours than Dr Roberts spoke of. The problems that the Applicant has include:

• Habitual dishonesty;
• Lack of Integrity;
• Antisocial Personality Traits or an Antisocial Personality Disorder;
• Problems maintaining relationships;
• Prone to Hyperbole and overemphasis of his attributes;
• Arrogance/Superiority;
• Positive Impression Management;
• Manipulative behaviour;
• Raising false allegations against others;
• Stereotypical and rigid views of women;
• Problems dealing with seniors;
• Rule breaking and boundary violation;
• Difficulties dealing with criticism;
• Minimising his criminal conduct and antisocial behaviour;
• Blaming victims of his bad behaviour;
• Lack of genuine remorse for the rape and assaults on A; and
• Refusal to submit to objective psychiatric assessment.

Treatment or Rehabilitation Since the Deregistration

1. Since the Applicant was released from prison more than 7 years ago he has not attended any treatment or rehabilitation. He has not attended any course, counselling, anger management class or program, or any psychotherapy. He has not sought any professional treatment for his problem behaviours.

The Applicant's Insight

1. The Medical Tribunal also concluded "That the respondent often tailored his evidence to his perception of what the Tribunal would want to hear in order to give him a favourable result".
2. In the hearing before this Tribunal the members had the same view of his evidence and submissions.
3. In his evidence and his closing submissions and in his de facto wife's evidence their focus was on the deregistration decision, which they perceive as punishment of him. They also perceive any refusal of his application as further punishment. They argue that he has had sufficient punishment. They appear to be ignorant of the Tribunal's role in these proceedings to protect the public.
4. The Pre-Release Report of Corrective Services (NSW) of December 2010 stated:- "Mr Sudath appears to lack insight regarding the effect of his behaviour on others which has been problematic at times in his interactions with other offenders and staff throughout his custodial sentence."
5. and concluded:- "Mr Sudath's attitude to his offences has waivered between denial and minimisation. He has failed to demonstrate genuine victim empathy or insight into his offending behaviour and apportions blame to the victim, often denigrating her and her background."
6. The Tribunal found at the hearing in February 2013:- "The lack of insight still infects the respondent's appreciation of his wrongdoing and remains a significant factor in the protective orders that should be made".
7. This Tribunal concludes from the Applicant's failure for more than 7 years since his deregistration to seek any assistance for his behaviour problems, and from extensive other evidence, that he does not recognise his behaviour problems and he has no genuine insight into the consequences of his problems for himself and others.
8. Indeed his lack of insight is demonstrated by his conduct of bringing his application without any evidence that he has, since his deregistration, undergone any objective psychiatric assessment or undertaken any therapeutic steps to address his behaviour problems.
9. Conclusion
10. The Applicant's registration was cancelled because he was not of good character. That situation has not changed. The evidence before this Tribunal establishes that he is still not of good character.
11. If he resumed practice as a medical practitioner his character defects are a multifaceted impediment to his performance as a medical practitioner. They threaten the safety of patients, the reputation of the profession and public respect for, and trust in, the profession.
12. His application should therefore be refused.

Non-Publication Order

1. For protection of the privacy of patients or any wife or de facto wife of the Applicant, any victim of any assault by him and the persons referred to as Ms H or Dr B, a non-publication order was made at the end of the hearing on 5 July 2018. A more extensive order should be made today..

Costs

1. The Tribunal's power to award costs is in cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the Applicant sought an order that the respondent pay the Applicant's costs. The Applicant has succeeded in opposing the Applicant's application. In closing submissions, the respondent did not oppose the order for costs, but at the time of the orders, the Tribunal did not make an order for costs. Accordingly, the order for costs was made in these reasons.

Applicant's Closing Submissions

1. Closing submissions were invited in writing after the hearing (and after the close of evidence). The Applicant's closing submissions exceeded 60 pages and were filed and served after the Respondent's submissions. Unfortunately much of the Applicant's submissions were new evidence rather than submission. The Tribunal has not accepted such new evidence as evidence in the case.

Orders 1. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of a wife or de facto wife of the Applicant. or a patient of the Applicant or a victim of any assault by the Applicant or persons "Ms H" or "Dr B" is prohibited. 2. The Applicant's application for a re-instatement order under s163B(1)(c) of the Health Practitioner Regulation National Law is refused and dismissed. 3. The Applicant must pay the respondent's costs of or incidental to these proceedings as agreed or as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 February 2019 - Anonymisation 12 February 2019 - further anonymisation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2019