HRNG ADELAIDE, 7 November 1996 (hearing), 11 December 1996 (decision) #DATE 11:12:1996 #ADD 28:1:1997

Counsel for respondent: Ms A M Vanstone QC with Mr T J Jackson

The parties to this appeal were agreed - correctly, in my opinion - that the standard of proof to be applied on a charge of unprofessional conduct by a medical practitioner is the balance of probabilities, having in mind the gravity of the allegations being made - the Briginshaw gloss. It is important to understand precisely what that means. In T v The Medical Board of South Australia (1992) 58 SASR 382, Olsson J (at 423) interpreted it as amounting to "a standard of proof closely approaching proof beyond reasonable doubt". In the present case his Honour spoke of the weight of evidence in this kind of case as "approaching that which would be required to constitute proof beyond reasonable doubt", referred to Law v Deed [1970] SASR 374 and Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520 (both criminal prosecutions) as "apposite �to disciplinary proceedings", and examined the evidence to see whether the Medical Board had excluded the mitigating circumstances alleged by Dr Heinrich "within the bounds of reasonable possibility". In my respectful opinion, that was wrong. The High Court has said more than once that there are only two standards of proof in this country, not three; a clear distinction must be maintained between the standard and the process by which it will be reached in particular circumstances. See Briginshaw v Briginshaw [1938] HCA 34; (1936) 60 CLR 336, at 362-3, and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 171. To interpret the Briginshaw principle as creating with respect to disciplinary proceedings "a standard of proof closely approaching proof beyond reasonable doubt" is, in my opinion, to identify a standard of proof which is neither proof on the balance of probabilities nor proof beyond reasonable doubt but lies somewhere between the two. I have some sympathy with this, as a piece of judicial realism, but it is not the judicial orthodoxy in Australia - it is, evidently, in the United States

• and it can lead to other problems. The corollary to proof beyond reasonable doubt - the other side of the coin, as it were - is the establishment of an exculpating fact as a reasonable possibility, but it is not obvious that this is also the corollary to proof on the balance of probabilities assessed in the light of the Briginshaw principle. It is certainly not the logical corollary to proof on the balance of probabilities simpliciter, for being satisfied that a disputed fact more probably than not exists is quite consistent with the acknowledgment of its non-existence as a reasonable possibility. There is a question, then, what the Briginshaw counterpart to the criminal standard's reasonable possibility is and there is also a question, as it seems to me, whether the Briginshaw principle has any part to play in disciplinary proceedings once the charge of professional conduct has been admitted or proved and the only issue remaining is the making of orders, where the primary consideration usually is the protection of the public. However, these matters were not really argued before us and I agree with Duggan J that they are best left to an occasion when they are contested and fully debated.

With these qualifications - if that is what they are - I agree with the reasons of Duggan J.

The respondent, a legally qualified medical practitioner, pleaded guilty before the Medical Practitioners Professional Conduct Tribunal to eight counts of unprofessional conduct. The charges alleged that over a period of two months from 7th February to 8th April 1994, he prescribed certain drugs for two patients whom he had reasonable cause to believe were dependent on drugs. In the case of one patient the respondent prescribed rohypnol and/or proladone on three occasions without seeing the patient and knowing that she was in prison. He also supplied morphine by injection to the other patient on five occasions knowing she was drug dependent. It is not suggested that the respondent made an illicit profit from the incidents.

A good deal of evidence was placed before the tribunal by way of mitigation and in its written determination the tribunal stated:- "You are 50 years of age and completed your medical qualifications in 1968. You have been in general practice since about 1971. You have not appeared before this Tribunal hitherto. You are married with three children. You enjoy a good personal and professional reputation and are highly regarded in both respects by those who know you.The evidence before us indicates that you are a caring (perhaps too caring) medical practitioner who attends to his patients diligently and well. You served for 10 years as treasurer of the South Australian Branch of the Australian Medical Association. That was an honorary and demanding office which you filled with enthusiasm and efficiency."

Dr Gilchrist, a psychiatrist, gave evidence before the tribunal that some years prior to the period of offending the respondent was diagnosed as suffering from a condition known as hypomania, episodes of which are often associated with impaired judgment. Dr Gilchrist also stated that in his opinion the respondent was hypomanic throughout the time of the misconduct.

The tribunal suspended the respondent from practice for a period of three months. It also ordered:- "(b) That, from the date of suspension of practice and until further order, reports as to the practitioner's state of health and fitness to practise medicine be provided to the Board three monthly. The reports are to be provided either by the practitioner's treating doctor or an appropriately qualified practitioner appointed by the Board. The first report is to be furnished to the Board no later than three months after resumption of practice.The Board is to have absolute discretion as to the medical practitioner who shall provide the report and the practitioner is required to attend for examination by that medical practitioner when required.The cost of examination and report are to be met by the practitioner.

(c) That the practitioner be prohibited from directly or indirectly prescribing drugs of dependence (as defined by the Controlled Substances Act) or flunitrazepam to persons known to the practitioner to be drug dependent.(d) That, should the practitioner prescribe the drugs above mentioned to persons other than those for whom prescription is forbidden, he shall, at least monthly, report that fact in writing to the Registrar of the Board."

The respondent appealed against the suspension and certain of the orders made by the tribunal to a single judge of this court. The appeal was upheld after the learned judge found that the tribunal had acted under a misapprehension of fact in relation to one matter and that it had incorrectly placed an onus on the respondent to prove matters of mitigation, particularly in relation to his psychiatric condition. The appellant, the Medical Board of South Australia, now appeals against that decision and the order made by the learned judge that the matter be remitted for re-hearing.

It was not disputed by Mr Moss, for the appellant, that the tribunal acted under a misapprehension as to a matter of fact. However he submitted that it was not an error of such a nature as to warrant the setting aside of the tribunal's orders. The error arose in the following way. In expressing the view that the respondent was hypomanic at the time of the misconduct complained of, Dr Gilchrist said that the circumstances were very similar on each occasion. He said in evidence:- "� the two episodes that I am aware of have occurred at five yearly intervals and both have occurred in hindsight with really identifiable precipitance. I think they both occurred at times when there were significant financial pressures, where he was perhaps

working longer hours than he would normally do, that there had been a marked change and marked disruption to his normal routine. I think on both occasions it's as though the hypomanic episode really was a response or a consequence of those major stressors."

Dr Gilchrist was cross-examined by counsel then appearing for the Medical Board who asked the following question:- "Q. The facts before the tribunal include these: that on 12 occasions between September 1991 and early 1994 Dr Heinrich had prescribed drugs of dependence for known drug seekers, and on each of those occasions received letters from the Health Commission questioning his conduct in prescribing those drugs. Each of those letters explained to Dr Heinrich the legal obligations on a medical

practitioner and the need for authorisation. If I asked you to assume the accuracy of those facts, would those facts suggest to you that there might have been errors of judgment also occurring during that period of time?"

Dr Gilchrist replied that he had not been aware that this was the case. In further cross-examination, counsel for the board stressed that these warnings had taken place on twelve occasions and at this point the president of the tribunal asked a series of questions - "HIS HONOUR Q. Surely you would accept that if it is the fact, and it seems to be the fact, that on 12 separate occasions, his obligations were drawn to his attention from September 1991 onwards, it's scarcely tenable to think that he didn't know about it.

A. Again this is new information to me: it strikes me as if he's been doing something that he shouldn't have been doing, somebody should have told him he shouldn't have been doing it.

A. And the consequence was what? Don't do it, and if you do it again, what will happen?

Q. I suppose you wind up here. We're talking about errors of judgment and we're talking about possible explanations for what is serious conduct. We're being asked to accept that Dr Heinrich probably did these things whilst he was ill. We have an obligation not only to Dr Heinrich but also to the public, and what we're trying to get at - what I'm trying to get and I'm sure the rest of the tribunal members are too, that if we are to accept that Dr

Heinrich was in fact ill, he must have been a bit more ill than just a little bit.

A. As I say this is new information to me. The original explanation I was giving to you was that there were two discrete episodes that I knew, one in 89/90 and the recent one, but if there has been a pattern - and that pattern again throughout that period of time has been inappropriate prescribing, and during that time the same hypothesis is put up, then yes it has been more serious than I've indicated.

A. It wouldn't affect my diagnosis but I would like to again have more detail about the circumstances about each of those episodes. It might make a case to actually look more closely at prescribing something to stabilise the mood, or it might actually be something that people need to monitor more clearly, particularly in terms of

Q. Do I discern what you're saying accurately, as meaning that you'd like to think about it.

A. I would like, if somebody says to me over what period of time that occurred - if there were 12 episodes over how long, five years?

XXN Q. From September 1991 to the end of 1993. Two and a half years.

A. They were in patterns, were there any patterns to the prescribing? Did they occur more often than not, or was there a sort of random -

Q. We don't have that information before the tribunal.

A. If somebody showed me a pattern that said 'on four occasions in a three or four week period' or 'in a month period this is what happened' I say again, I would wonder whether in fact he was hypomanic, in the sense that I suspect within the sort of sub- culture of the drug world if they knew that somebody was an easy touch, the word would go around very quickly.

A. And if that's the case, if you could find three episodes over that two and a half year period, and those episodes occurred there, whereas I think it's different if every two months the same pattern of behaviour - I don't think a discrete hypomanic episode would lend itself to a ready explanation in that case."

Unbeknown to the tribunal, the assertion that the Health Commission had written letters to the respondent on twelve occasions between September 1991 and early 1994, questioning his conduct in prescribing drugs of dependence, was quite incorrect. It seems to have resulted from a misunderstanding by counsel for the board of comments made in a letter which was sent by the Health Commission to the respondent on 14th April 1994. All except two of the eleven or twelve letters which had been sent to the respondent simply advised him that certain patients for whom he had prescribed drugs of dependence were known or believed to be dependent on such drugs. They did not contain any allegation that the respondent had committed an offence although they pointed out that the actions of drug dependent persons in seeking drugs by admitting drug dependence but creating false medical histories can place a medical practitioner in the position of committing an offence. The letters were not in any sense a warning following upon prior misconduct by the respondent. Two of the letters, one written on 27th October 1993 and the other on 3rd March 1994 which was after the date of the conduct alleged in the first count, did contain such warnings. The cross-examination on this point appears to have cast some doubt on the accuracy of the diagnosis and Dr Gilchrist himself was taken by surprise at the "revelation". When final submissions were being made to the tribunal the chairman again raised the question of the twelve letters. He asked counsel for the respondent:-"Do you say that we are to give no weight to the fact that on no less than twelve occasions before these matters came to light he was in effect, put on notice?"

After an exchange in which counsel said that the letters should not "elevate it to something beyond what I say is appropriate for a reprimand", the chairman replied:- "You see that is where we might have to differ and I speak only for myself, I have not spoken to my colleagues. Dr Gilchrist came along and told us that this was really a bit of an error of judgment, a bit of an oversight, but I believe that the transcript will substantiate my recollection, which is that when told that there was a bit more to it than that he was a bit inclined to characterise what happened as being more significant, a bit more serious, than first he had thought. I think that that information is patently capable of being used to characterise the nature of the offending."

It is clear from the determination of the tribunal delivered on 9th February 1996 that its members remained under a misapprehension as to the effect of the letters to the respondent. The determination states:- "The misconduct occurred in early 1994 and after you had received between September, 1991 and early 1994 some twelve letters from the Health Commission explaining your obligations as a medical practitioner, who was treating known drug seekers. Exhibit P1 shows quite clearly the explicit nature of the warnings given. Those warnings were ignored."

The letter, Exhibit P1, written after the period of offending, makes allegations of illicit prescription of drugs to the persons named in the subsequent charges of professional misconduct and asserts that the respondent has "demonstrated an unacceptable standard" and is an unsuitable practitioner to prescribe drugs of abuse for drug-dependent patients. It advises that a copy of the letter will be sent to the Medical Board for consideration as to whether the respondent's actions constitute professional misconduct.

As I have pointed out only two of the letters apart from P1 imply misconduct. The letters of 27th October 1993 and 3rd March 1994 do contain warnings, although the language used is by no means as strong as that to be found in P1. Unfortunately, the tribunal assumed that all the letters contained warnings of the type issued in P1. If that had been so, then the conduct of the respondent would have been far more blatant and rather more serious. Furthermore, the receipt of twelve letters over a lengthy period would have placed an obstacle in the path of accepting the opinion of Dr Gilchrist that there had been a recurrence of the respondent's previously diagnosed psychiatric condition during the period of offending.

In my view the misapprehension of fact is of sufficient seriousness to vitiate the orders made by the tribunal and I agree with the learned judge appealed from that they should be set aside. (cf The Queen v Wylie (1976) 15 SASR 232).

The next ground of appeal argued by the appellant was that the learned judge erred in holding that it was the duty of the tribunal to act on the version of facts which, within the bounds of reasonable possibility, was most favourable to the respondent. I discuss it because of its potential relevance to the proceedings in the event that the matter is remitted to the tribunal. This issue arose out of the tribunal's consideration of the evidence of Dr Gilchrist. The tribunal stated in its determination:- "On our view of the material before us, we are not satisfied that it is more probable than not that you were suffering a hypomanic episode at the relevant time nor are we satisfied that your judgment at that time was (to a greater or lesser degree) impaired. A

perusal of your clinical notes made at the time fails to support some aspects of your version of things. The notes are brief and unsatisfactory, particularly for one well-known for attention to detail.To put it at its highest, we think you may have suffered an episode of hypomania but, in our view, that is no more than a possible explanation for your conduct which we take into account. You do not claim that your state of mind was such as to relieve you of responsibility. Hypomania may explain what you did but it cannot excuse your conduct."

The learned judge concluded that this passage from the determination revealed an incorrect approach to the resolution of disputed issues of fact in disciplinary proceedings. He commenced his analysis by observing that the onus of proof of misconduct in such proceedings rests on the board and that the standard of proof was that usually referred to as the Briginshaw standard, namely, proof on the balance of probabilities but paying due regard to the seriousness of the allegations. Both the appellant and the respondent agreed that the onus was on the board to prove the charges of professional misconduct and that the Briginshaw standard was applicable. Although different views have been expressed on this issue from time to time there is recent authority of this court to support the view taken by both counsel. (Kerin v Legal Practitioners' Complaints Committee, 20 September 1996[1996] SASC 5650; , (1996) 67 SASR 149.)

The learned judge then stated that this standard of proof "extends not only to primary findings of fact related to decisions as to guilt, but also to findings of fact on which a disciplinary, quasi-penal, `sentence' is imposed". He derived support for this proposition by analogy with criminal cases dealing with the appropriate onus and standard of proof to be applied by a sentencing court in disputed fact situations. His Honour cited Law v Deed [1970] SASR 347 and Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520. He concluded:- "� the Crown not having controverted evidence of substance given by the medical experts called by the appellant as to the existence and effect of hypomania at the relevant time, then the Tribunal was bound to act upon those mitigating circumstances unless the prosecution was able to demonstrate that the evidence in question was so lacking in weight and conviction that it ought to be rejected. (In that regard I by no means ignore the dictum of White J in The Queen v Stevenson (1984) 35 SASR 237 at 243, but Mr Stevens, of counsel for the Board, sought to take what he there said well beyond its stated limits. White J was merely reiterating what had earlier been said by Legoe J in The Queen v Belcher (1981) 27 SASR 46 at 53. Where facts are peculiarly in the knowledge of an offender then there is an evidentiary onus on that person to establish a proper basis of mitigating fact, where a claim in mitigation flies in the face of what would otherwise be commonsense inferences. That is a far cry from this case, in which the hypothesis advanced was by no means incredible on the expert evidence."

It was conceded by Mr Moss that it was for the board to prove matters of aggravation and, as I understand the submission, to rebut mitigating factors if they were put in issue. The appellant's written submission on this topic reads as follows:- "When a tribunal comes to ascertain the facts upon which its disciplinary orders are to be based, the tribunal must be satisfied

of the existence of facts, whether they be aggravating or mitigatory, upon the balance of probabilities. The Briginshaw

standard applies and if, upon the whole of the evidence, a not improbable explanation favourable to the person subject to

discipline can be inferred, then the Tribunal should act upon the most favourable version. A tribunal should not act on improbable versions even though they may amount to a reasonable possibility."

The matter which was argued on appeal was that the learned judge was in error when he went on to say, in his judgment:- "There was a substantial body of evidence on the question of

probable hypomania and, in the final analysis, the question was whether the Board was able to show, according to the Briginshaw standard, that the most favourable version of the facts, within the bounds of reasonable possibility, excluded the thesis advanced by Dr Gilchrist."

Mr Moss drew a distinction between the tribunal acting on a version given by a defendant in disciplinary proceedings, which was not improbable and one which was reasonably possible. According to the argument, the respondent was entitled to be sentenced on a more favourable basis only if the version given on his behalf was not improbable.

Counsel for both the appellant and respondent argued that the practice of the criminal courts in disputed facts hearings provides some assistance in determining the approach to be adopted in disciplinary proceedings when the tribunal is faced with a similar task. However, there is considerable controversy in Australia as to the burden and standard of proof to be applied as part of the sentencing process in criminal cases. The divergent views are documented in R v Ali [1996] VicRp 56; [1996] 2 VR 49 and Langridge v The Queen (unreported decision of the Court of Criminal Appeal (WA), dated 17th May 1996). In the first case the Victorian Court of Appeal declined to follow an earlier Victorian authority, R v Chamberlain [1983] VicRp 110; [1983] 2 VR 511, and resolved the problem by drawing a distinction between the circumstances of the offender such as previous good character, personal background, mental illness and remorse on the one hand and the circumstances of the offence, such as breach of trust and the level of participation of the offender, on the other. In their joint judgment the majority stated, (p60):- "The burden of proof concerning the circumstances of the offender rests on him and must be discharged on the civil standard. (There are exceptions, for `circumstances of the offender' is but a phrase intended to capture the distinction. Prior convictions, for example if they are not admitted, must be established by the Crown.) The burden of proof concerning the circumstances of the offence rests on the Crown and must be discharged beyond reasonable doubt. That does not mean, any more than it does at a trial, that the Crown must prove every fact on which it relies beyond reasonable doubt. See Shepherd v R [1990] HCA 56; (1990) 170 CLR 573. It is the issue going to sentence that must be proved to the criminal standard. The Crown may say that trafficking was committed as part of a commercial operation. If that is disputed it must be proved beyond reasonable doubt, but there may be a large number of individual facts showing the nature of the operation. They do not all have to be proved to the criminal standard. Although we have spoken of `disputed sentencing facts', it is in truth disputed sentencing issues that fall to be established. They have to be proved by the prisoner if they are circumstances of the offender and by the Crown if they are circumstances in which it is alleged the offence was committed. In the latter case it is for the Crown to prove the version of the facts on which it invites the judge to sentence and to disprove any version raised by the prisoner.The last point is subject to two important qualifications. There are some issues relating to the circumstances of the offence that the prisoner would have to raise in the same way, for example, as self-defence or provocation are raised on a trial for murder. In such cases assertions from the bar table are not enough. There must be at least some probative material before the Crown's duty is enlivened. Moreover, in all cases where there is material probative of the version for which the Crown contends, defending counsel may find it difficult to induce a reasonable doubt without leading evidence. More often than in the past, that should be evidence from the prisoner himself. Compare R v Raptis, Lilimbakis and Sinclair (1988) 36 A Crim R 362 at 366."

The casting of an onus on the offender to prove circumstances which are relevant to him or her is contrary to the approach generally adopted in South Australia: Anderson v The Queen [1993] HCA 59; (1993) 177 CLR 520. It was argued by the Crown in Anderson that, although the prosecution had borne the onus of establishing commercial purpose in a drug case as a circumstance of aggravation, the appellant nevertheless carried the onus of establishing that his offence was "a simple cannabis offence" within the meaning of the Act. The majority stated (p539):- "� While that submission has some theoretical appeal, it seems to us, with respect, to be divorced from the practical reality of what was involved in the present case. The theoretical appeal of the submission lies partly in the fact that it is for an offender to raise an alleged circumstance of mitigation on a sentencing hearing: See Law v Deed [1970] SASR at 379; R v Aloia [1983] WAR 133 at 136, and partly in the fact that, clearly enough, there could be no affirmative finding that the appellant's offence had, in fact, been a `simple cannabis offence' unless the sentencing judge was satisfied, on the balance of probabilities, that that was so. Nonetheless, if the Crown failed to discharge the onus of establishing commercial purpose as a circumstance of aggravation, the appellant was entitled to be sentenced on the basis that there was a reasonable possibility that he had had no such purpose. In the circumstances of the present case, that would have meant that there was a reasonable possibility that the facts were such that the appellant's offence had been no more than a `simple cannabis offence'. If that stage had been reached, the ordinary `duty of the [sentencing] judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused": cf R v Maitland [1963] SASR at 335; Law v Deed [1970] SASR 377; R v Scanlan (1986) 21 A Crim R 428 at 432, would have required that the appellant's sentence be determined on the basis that his offence had been a `simple cannabis offence' for which the s45a expiation procedure, involving an expiation fee of $150 would have been appropriate."

The approach adopted in the cases referred to in Anderson was affirmed in R v Perre (1986) 41 SASR 105 at 108.In Langridge v The Queen (supra), a bench of five judges was convened in order to decide the onus and standard of proof appropriate to disputed facts on sentence hearings. Kennedy, Walsh, Wallwork and Owen JJ concluded that circumstances of aggravation should be proved by the prosecution beyond reasonable doubt. Kennedy J was of the view that the majority in Anderson's case were not limiting their observations to the position in South Australia. He said:- "So far as principle is concerned, as Dickson J said in R v Gardiner (1982) 68 CCC (2d) 477, and as a number of commentators have observed, the facts which justify the sanction are no less important than the facts which justify the conviction, and both should be subject to the same standard of proof. For the accused, the consequences can be just as grave in either case. The sentencing process may well result in the loss of his or her liberty."

Walsh and Owen JJ said:- "It is true that their Honours in the High Court did not suggest that they were pronouncing a binding rule to be applied to the Code States as well as to South Australia. Anderson is a case about onus rather than standard of proof but in relation to both the decision relies on principles which are fundamental to the criminal law. Unless there is a clear statutory prescription to the contrary, the subject should not be deprived of his or her liberty otherwise than as a result of proof beyond reasonable doubt. There is nothing in s656 or elsewhere in the Criminal Code to suggest that the legislature intended to abrogate this fundamental principle in the area of sentencing. Accordingly we believe that the reasoning in

Anderson is applicable in this State and that on a plea of guilty disputed circumstances of aggravation must be proved by the Crown beyond reasonable doubt.In our view the application of the civil standard tailored to meet the gravity of the individual circumstances runs counter to 'the especial need for certainty in the criminal law': R v Shivpuri [1986] UKHL 2; [1987] 1 AC 1 at 23. We believe that insistence on proof of disputed facts to the criminal standard of persuasion better fits the need for certainty in the administration of justice in the criminal jurisdiction."

Murray J reached a different conclusion. He was of the view that the onus of proving any disputed fact of an aggravating or mitigating kind rests on the party, whether prosecution or defendant, who seeks to rely upon it for sentencing purposes.

It should also be pointed out that, although Kennedy J said it was unnecessary to express a view as to the proof of facts put forward by the defence in mitigation, he drew attention to the remarks of Burt CJ in R v Aloia [1983] WAR 133 at 136:- "It is a question which often arises on a plea of guilty, particularly on a hand-up brief. In such a case the sentencing Judge can safely rely upon the statement of material facts made by Crown counsel unless as to facts extending beyond the elements of the offence they are challenged by the prisoner. If such facts, assuming them to be facts of aggravation, are so challenged, they must be proved. And I think the same may be said of the defence and of facts put up by counsel on behalf of the accused in mitigation. Such facts, if challenged, require some evidence to support them, which is not to say that the accused carries the onus of establishing them. A statement from the bar table of an exculpatory primary fact with no evidence capable of supporting it cannot, if challenged by the Crown, be enough. But such a statement if not challenged by the Crown may be accepted by the trial Judge � ."It should be noted that two of the cases referred to in Anderson's case, Law v Deed and Aloia, dealt with matters of mitigation or, to use the terminology in Ali's case, "circumstances of the offender".

It was against the background of Law v Deed and Anderson's case that counsel for the board conceded that in proceedings before the tribunal the board had the onus of proving matters of aggravation and disproving matters of mitigation subject to an evidentiary onus in relation to the latter category. It was common ground that the Briginshaw standard of proof should apply in keeping with the general standard of proof in disciplinary proceedings. In the light of this concession and in the absence of any argument on the point it would not be appropriate for the court in this case to go behind the concession. There is a clear argument for using criminal cases as a guide in disciplinary proceedings. Of course there are differences between the two types of proceedings and the standard of proof applicable to each. Furthermore it has been pointed out on many occasions that disciplinary proceedings of this nature are protective and not punitive in purpose. Nevertheless they do involve allegations of misconduct and their outcome can have a grave effect on the reputation and livelihood of the practitioner. It is also now common for disciplinary tribunals to be given the power to fine as well as suspend from practice. I do not regard the proposition that the prosecuting authority should prove matters of aggravation as controversial. There may be room for argument as to whether it should be required to disprove contested matters relating to the circumstances of the practitioner. However, that is best left to an occasion when the issue is contested and argued.I return to the appellant's criticism of the manner in which the learned judge expressed himself on this issue. The primary consideration which must be borne in mind is that, in accordance with the concession which has been made, if the evidentiary burden on a matter of mitigation has been discharged by a practitioner before the tribunal, the onus then falls on the prosecutor to disprove that circumstance. If it is not disproved then it is to be taken into account in the practitioner's favour.

In criminal cases it is common to refer to the corollary of proof beyond reasonable doubt and in Anderson's case the court referred to the consequence of failure to discharge the onus, namely, the entitlement of the defendant to be sentenced on the basis that his assertion on the relevant issue was a reasonable possibility. However, the stating of the consequence of the failure of the prosecutor to negate a mitigating factor on the balance of probabilities in a case such as this can lead to confusion. It may be, as Mr Moss suggests, that this leaves a "not improbable explanation" for the tribunal to act upon. Dixon CJ used that phrase in Briginshaw's case [1938] HCA 34; (1938) 60 CLR 336 at 368, when he said while discussing the civil onus:-"Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation."

However in the same case his Honour referred to Ross v Ross [1930] AC 1 by way of an example of an adultery case in which the standard of proof beyond reasonable doubt was not applied and in that case Lord Thankerton said:-"Admittedly the respondent must prove facts which are not reasonably capable of an innocent construction."

However that may be, I think the learned judge correctly stated what I have referred to as the primary consideration concerned with the prosecutor's onus of proof and I do not agree that the judge's further remarks as to the consequence of any failure to disprove the matters raised by the prosecutor's case led him to decide the case on any wrong principle.

The first paragraph of the tribunal's remarks which I have quoted above suggest that they had in mind an onus which fell to be discharged by the practitioner. However they go on to state that they took the psychiatric condition into account as a possible explanation for his conduct. It is not clear what weight they gave to the material. However in the light of my view as to the first ground of appeal it is unnecessary to decide whether there was an error in this respect which would require a quashing of the tribunal's orders. Suffice to say that, in my opinion, any future determination of the disputed issue should be assessed in accordance with the onus and standard of proof which I have suggested.

In my view the appeal should be dismissed and the matter remitted to the tribunal for consideration.

I agree with the orders proposed by Duggan J and for the reasons he gives.