THE MEDICAL BOARD OF SOUTH AUSTRALIA v CHRISTOPHER DEAN HEINRICH No. SCGRG 96/428 Judgment No. 5899 Number of pages - 14 Professions and trades [1996] SASC 5899 - SASC 1996 case summary

THE MEDICAL BOARD OF SOUTH AUSTRALIA v CHRISTOPHER DEAN HEINRICH No. SCGRG 96/428 Judgment No. 5899 Number of pages - 14 Professions and trades [1996] SASC 5899 - SASC 1996 case summary — Zoe

[6]

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.

[49]

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."

[50]

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."

[56]

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.

THE MEDICAL BOARD OF SOUTH AUSTRALIA v CHRISTOPHER DEAN HEINRICH No. SCGRG 96/428 Judgment No. 5899 Number of pages - 14 Professions and trades [1996] SASC 5899

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THE MEDICAL BOARD OF SOUTH AUSTRALIA v CHRISTOPHER DEAN HEINRICH No. SCGRG 96/428 Judgment No. 5899 Number of pages - 14 Professions and trades [1996] SASC 5899 (11 December 1996)

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Cases Cited (11)