Alroe v Medical Board of Queensland [2005] HCATrans 446 (23 June 2005)

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Alroe v Medical Board of Queensland [2005] HCATrans 446 (23 June 2005)

Last Updated: 1 July 2005

[2005] HCATrans 446

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B61 of 2004

B e t w e e n -

CHRISTOPHER JOHN ALROE

Applicant

and

MEDICAL BOARD OF QUEENSLAND

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.12 AM

Copyright in the High Court of Australia

MS D.A. SKENNAR: May it please the Court, I appear for the applicant. (instructed by Alroe & O’Sullivan)

MR A.J. RAFTER, SC: If it please the Court, I appear for the respondent. (instructed by Phillips Fox)

GLEESON CJ: Yes, Ms Skennar.

MS SKENNAR: Your Honour, the point for determination in this application is whether there is a difference between corroborative evidence and confirmatory evidence in the sense used by his Honour Chief Justice Gibbs in Bromley v The Queen. The question for determination arose in this case in circumstances where the complainant made allegations of sexual misconduct against the applicant and in circumstances where the complainant had been diagnosed with a mental illness.

The Tribunal at first instance had been warned by Dr Reddan that the evidence of the complainant ought to be carefully scrutinised and, indeed, required corroboration. Whilst it is not suggested that Dr Reddan used corroboration in the sense a court might use legally, it is submitted that in the circumstances of this case the direction in Bromley v The Queen that the Tribunal should have given itself is that the evidence to be considered supportive of the complainant’s evidence had to be evidence that was corroborative in the legal sense, that is, it had to be independent of the complainant and inculpatory in a material particular.

While his Honour Chief Justice Gibbs did not use that terminology in the decision in Bromley v The Queen, he did approve the direction by the trial judge in that case to the jury that the evidence needed to be supported by independent evidence to a substantial extent. It is submitted that the test between corroboration and the direction given to the jury in Bromley v The Queen is for all intents and purposes the same.

In this case the evidence considered by the Tribunal, and again by the Court of Appeal, was effectively accepted by both the Tribunal and the Court of Appeal as not being corroborative in a legal sense; rather, it was merely supportive. The Tribunal and the court looked at that evidence and thought that the evidence sustained evidence of an improper relationship. While there might have been evidence which indicated that there was some social contact between the applicant and the complainant, there was in fact no evidence that was other than neutral in terms of whether there was a sexual relationship between the applicant and the complainant. The type of evidence relied upon was - - -

McHUGH J: What about the self-serving statement of what she told her son after she returned home on 17 January 1999 and then she told him she had developed a friendship with a well-known Rockhampton man and then I think it was the following day, was it not, or a few days later she told him that she had had sex with a friend?

MS SKENNAR: Your Honour, a self-serving statement cannot be independent evidence of the complaint.

McHUGH J: But we are not dealing with the rules of evidence. You have here the phone call records, the invitation to the social events, the evidence from the complainant’s son, the evidence from Ms W, the “Fly-Buy” card records, the work roster and the complainant’s knowledge of the applicant’s personal affairs. Why was that not enough in a situation where there court is not bound by the rules of evidence to confirm her evidence?

MS SKENNAR: Well, it might not have been bound by the rules of evidence. It was required, pursuant to the Briginshaw test, to reach a standard of proof that satisfied it to a level in terms of where the outcome was grave and dire for the applicant. What the Tribunal did was effectively string together an accumulation of facts based on evidence, none of which taken by itself would have been sufficient.

It is my submission that it is wrong to say that if each piece of evidence is put together and taken overall that the outcome can justify the Tribunal’s decision, because the position is if the Tribunal had said, or directed itself, that it needed evidence that was independently supportive and inculpatory in a material particular, it would not have accepted various parts of that evidence. That would have potentially led to a quite different outcome in the Tribunal.

So the problem is not just one piece of evidence by itself. The problem is, taking it overall, which is what the Tribunal did and also the Court of Appeal, it is inappropriate in circumstances where it is a tribunal not bound by the rules of evidence because it means that effectively on the thinnest of circumstantial cases the consequences that have occurred in this matter are the inevitable outcome.

Your Honours will see that I delivered to the Court papers in relation to an article I located by Danuta Mendelson discussing the very issues that - - -

GLEESON CJ: This is the article entitled “Disciplinary Powers” et cetera?

MS SKENNAR: That is correct, your Honour. At pages 149 to 151 there is discussion about the concern of tribunals such as these, such as the one in question in this case, not being bound by the rules of evidence and being required to decide on the standard of civil proof, and the potential negative outcomes as a result thereof. On page 151, starting at the bottom of the first column down to the heading “Conclusion”, there is an extract from a case where a complaint was made and subsequently found to be without foundation. It is those sorts of complaints and this sort of complaint that can effectively ruin a practitioner’s life.

The point in this matter is that that should not occur on evidence unless that evidence is in effect based on the standard of actual corroboration, which is that it is actually independent, or at least some evidence is actually independent and some evidence is actually inculpatory in a material particular. Here there was none of that.

McHUGH J: But the problem is this, is it not? Those of us who are trained in the traditions of the common law do not like the notion of tribunals empowered in this way to deal with such important matters, but the legislature has seen fit to set up tribunals so they are not bound by the rules of evidence for the very purpose of bypassing the ordinary rules of the common law courts. We cannot ignore that and we cannot inject into those proceedings the procedures and rules applicable to the common law system of justice, that is to say curial justice. That is your problem. You have to make out a major premise in this case and there is also a question as to even if you make out your major premise whether or not the minor premise is made out, given the various facts to which I referred you.

MS SKENNAR: Your Honour, while the Tribunal and Parliament has determined that the Tribunal should not be bound by the rules of evidence, they should not simply be ignored. They should not simply be put to one side and various aspects of fairly innocuous evidence being put together to have a combined effect of a particular outcome. In my submission, the Tribunal, while not necessarily directing itself that it was bound by the rules of evidence, should have directed itself that the level of proof required simply required that there be some independent evidence and that there be some independent evidence to show that there was in fact a sexual encounter. To have less than that means that complaints could be made fairly easily and they are almost impossible to disprove.

McHUGH J: Well, that is true, but one assumes that the tribunals are conscious of this. They know that they have within their power the future of a professional person and Parliament assumes that they will examine the evidence carefully and look at it in a common sense way, not necessarily bound by the rules of evidence. You have a complaint made by a woman who suffers from this mental condition, but there certainly are a lot of facts
which indicate some sort of relationship. I mean, even like buying the $71.95 bottle of perfume at Myers in June 1999.

MS SKENNAR: I think the finding there, your Honour, was only that an item was purchased and an entry was made on the applicant’s “Fly-Buy” card.

McHUGH J: Yes.

MS SKENNAR: The complainant certainly asserted that he bought her a bottle of perfume, but I do not think the evidence actually showed that is what it was.

McHUGH J: Yes.

MS SKENNAR: Your Honour, I will probably keep going back to the same point, the problem is not that the Tribunal did not look at the evidence carefully, because it is obvious from its judgment it did, but that it did not apply the appropriate standard in the case to determine whether in a circumstance such as this, where there is no actual evidence, whether there should have been at least some independent evidence that could go to proving the complaint. They are my submissions, your Honour.

GLEESON CJ: Thank you, Ms Skennar. We do not need to hear you, Mr Rafter.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this case. The application is dismissed.

MR RAFTER: The respondent seeks costs, your Honours.

GLEESON CJ: What do you say about that, Ms Skennar?

MS SKENNAR: I cannot - - -

GLEESON CJ: The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 10.23 AM THE MATTER WAS CONCLUDED