IAN RUSSELL GEARY V THE PSYCHOLOGISTS BOARD HC WN CIV 2005 485 1562 [2007] NZHC 543 (28 May 2007)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                CIV 2005 485
1562

               UNDER                      the Psychologists Act 1981


               BETWEEN                    IAN RUSSELL
GEARY
                                          Appellant

               AND                        THE PSYCHOLOGISTS BOARD
   
                                      Respondent


Hearing:       23 May 2007

Counsel:       A Beck for Appellant
             
 A S McIntyre and M Francis for Respondent

Judgment:      28 May 2007 at 11.15 a.m.


               RESERVED JUDGMENT OF RONALD
YOUNG J




Introduction


[1]    This is an appeal against the findings of the Psychologists Board that the
appellant was guilty
of conduct unbecoming a psychologist and professional
misconduct.


[2]    The "conduct unbecoming" charge related to a failure by
the appellant to
advise a client that he was no longer an ACC approved counsellor. The professional
misconduct charge related to
inappropriate disclosure to a client of details of rapes
and sexual abuse known to the appellant through his professional work.


[3]    In support of the appeal the appellant alleges:




IAN RUSSELL GEARY V THE PSYCHOLOGISTS BOARD HC WN CIV 2005 485 1562 28
May 2007

       (i)     The respondent applied an incorrect standard of proof and reversed
               the onus; (relevant to
charge 1)


       (ii)    The charges against the appellant were not proved; (relevant to both
               charges)


      
(iii)   The respondent made credibility findings against the weight of
               evidence; (relevant to charge 2)


       (iv)
   The respondent did not permit the appellant to test the credibility of
               the complainant; (relevant to both charges)


       (v)     The respondent demonstrated prejudice against the appellant (relevant
               to both charges).


[4]   
These propositions in relation to the original hearing and in relation to this
appeal can be stated.


       (i)     The hearing
before the Tribunal is appropriately adversarial in nature
               although of relevance is the fact the Board is by virtue
of s 34 of the
               Psycho logists Act constituted as a commission of inquiry.


       (ii)    The onus of proving the
charge is on the prosecution and the standard
               of proof on the balance of probabilities: see Z v Complaints
      
        Assessment Committee CA231/05 22 March 2007.


       (iii)   What is appropriate professional conduct for a psychologist
is for the
               Tribunal to assess as the specialist body.


       (iv)    This appeal is an appeal by way of rehearing
on the record of the
               evidence taken (see Pratt v Wanganui Education Board  [1977]
               1 NZLR 476.

       (v)     The appellate Court will only interfere on findings of facts if
               conclusio ns by the Board are clearly
inconsistent with established
               facts. See Hutton v Palmer  [1990] 2 NZLR 260.


       (vi)    The onus in this appeal is on the appellant to satisfy the Court the
               Board was clearly wrong or there
was a miscarriage of justice (see
               Tizard v Medical Council of New Zealand & Anor HC AK M2390-91
               10
December 1992).


       (vii)   The Court may confirm, reverse or modify the decision of the Board
               or send it back
for rehearing (s 32, s 35(3) Psychologists Act).


Background facts


[5]    Both the complainant and the appellant gave evidence
before the Tribunal. A
team manager for ACC also gave evidence.


[6]    Initially during the treatment of Ms A (the complainant)
the appellant was an
ACC approved counsellor.       However, in December 2002 the appellant lost his
sensit ive claim counsellor
status. He continued treating the complainant. During the
course of his treatment the complainant said the appellant;


       (i)
    told her in graphic detail about a violent sexual attack on a woman;


       (ii)    told her that if she wanted something "done"
to her husband he could
               arrange it through criminals he knew;


       (iii)   told her about a case of sexual abuse
of a young girl including details
               of the abuse;


       (iv)    told her about another violent rape and assault on
a woman including
               details which would have enabled her to identify the perpetrator;

       (v)     told further
inappropriate "stories" involving a client propositioning
               him.


       (vi)    Told inappropriate "stories" about
the Kia Marama programme for
               sex offenders.


[7]    The complainant said in early 2003 the appellant first told her
of a falling out
between him and ACC. The complainant said she was concerned to ensure that the
appellant remained an ACC approved
counsellor because she had applied for an
independent living allowance from ACC and needed the support of an approved
counsellor.
She said the first time she knew he was not an approved counsellor was
October 2003. She denied ever receiving a letter of 27 December
from Mr Geary.


[8]    Mr Geary said that on 27 December 2002 after he had fallen out with ACC
(in early December) he sent a standard
letter to all his ACC clients telling them he
was no longer an ACC approved counsellor.              Included in this list was the
complainant. He said he discussed with her on several occasions during 2003 that he
was not an ACC approved counsellor.         
  Mr Geary denied the evidence of the
complainant that he provided her with inappropriate information about other clients.
Mr Geary
admitted using previous case histories of other clients and discussing the
Kia Marama programme with the complainant but said he
did so in a way which
ensured no-one could be identified.         He said this was a legitimate counselling
technique.


Charges


[9]    The appellant faced the following charges:

       CHARGES

       The charges against Mr Geary are as follows:

      
That you have been guilty of:

       (a)    professional misconduct; or

       (b)    conduct unbecoming a psychologist in that:

       1.      Between August 2002 and October 2003 you misled your client,
               Ms A, by wrongly informing he, and/or
leading her to believe, in the
               context of your ongoing professional relationship with her, that you
             
 had submitted certain reports to the Accident Compensation
               Corporation (including an ACC 291 Report) in circumstances
where:

               (a)      it is reported that:

                        ·   no progress of completion report was lodged by
you
                            with ACC within that period; and/or

                        ·   no ACC 291 Report was lodged by
you with ACC
                            within that period; and/or

                        ·   no other reports were lodged by
you with ACC; and

               (b)      you knew that Ms A hoped to qualify for financial benefits
                        from ACC; and/or

       2.      Between December 2002 and October 2003 you
misled Ms A, in
               that you continued to work with her without advising her that your
               status as an ACC
approved counsellor had ceased on 5 December
               2002; and/or

       3.      Between November 2001 and October 2003,
in the context of your
               professional relationship with Ms A, you disclosed inappropriately:

               ·     details
of rapes and sexual abuse known to you through your
                     professional relationships, including abuse visited on children:

               ·     connections you had with certain criminals and the assistance
                     they could provide to you
if you were deceived;

               ·     that if Ms A wanted something "done" to her ex-husband then
                     you
could arrange it;

               ·     on two occasions, details of a past female client of you who you
                     said
had shown her breasts to you and propositioned you.

               Without limiting the generality of the foregoing, your attention
is
               drawn to the New Zealand Psychological Society Inc. Code of Ethics
               1986 insofar as the above conduct
pre-dates 6 December 2002; and
               for conduct post-dating 6 December 2002 your attention is drawn to
               the
Code of Ethics for Psychologists Working in Aotearoa/New
               Zeala nd, 2002 adopted by the Psychologists Board (and in
particular
               in respect of that Code of Ethics, Clauses 1.1, 1.6, 2.1, 2.3, 2.4,3.1
               and 3.3).

[10] 
 The Board found charge 1 not proved, charge 2 proved, and the first but not
the last three details of charge 3 established and therefore
found charge 3 itself
established.

Charge 2 ­ Appeal grounds


[11]   I turn now to the appeal against the findings of guilt on
charge 2.


[12]   The prosecution case was that Ms A did not know Mr Geary had been
removed from a list of ACC approved counsellors
until October 2003 almost 12
mo nths after he had in fact been removed. The prosecution alleged the appellant
should have immediately
told Ms A about his change in status when it occurred
because he must have known how important it was to her to have an approved
ACC
counsellor.   The prosecution case was that Ms A did not receive the letter of
27 December, nor did Mr Geary clearly tell her
of his change in status until October
2003. The prosecution alleged during the course of 2003 Mr Geary misled the
complainant as
to his ACC approved status.


[13]   As to this charge the committee found:

       So this charge largely comes down to credibility
and the corroboration that
       that can be garnered from the evidence. Despite the existence of the
       27 December letter
to his then active ACC clients there is no reliable
       evidence that Ms A was ever sent or ever received a copy of that letter.

[14]   Further it said:

       With regard to the second charge Mr Geary had a clear duty to inform his
       client of this change
in status with ACC. . . he should have known the
       importance of his ACC status to this client's needs and perceptions.
   
   Although he seemed to have made some effort to inform her of some aspect
       of his changed status, his efforts fell far short
of the required disclosure.

[15]   The Board said that it would take into account Ms A's statement that
Mr Geary had been a good
advocate at times but said:

       Nonetheless it was a fundamental breach, we believe Mr Geary's negligence
       in this part
of the matter reaches the threshold of conduct unbecoming a
       register ed psychologist, at the lower end.

[16]   It is common
ground that "conduct unbecoming" involves conduct
sufficient ly serious to attract the sanction of professional disciplinary proceedings
but at the lowest end of the disciplinary scale. It must therefore be behaviour that
falls below an acceptable professional standard and has been described as "whether

the
practitioner's conduct was an acceptable discharge of his professional
obligat ions". (See B v Medical Council  [2005] 3 NZLR 810).


[17]     I agree with the appellant's submissions that the prosecution here had to
prove:


         (a)    that no advice was
given by the appellant as to his change in status


         (b)    that the failure to give that advice amounted to conduct unbecoming.


[18]     As to (a) the appellant's evidence was relatively straightforward. He said he
prepared a list of all ACC clients, drafted
a letter of 27 December 2002 and sent a
copy to all of them telling them that he was no longer an ACC approved counsellor.
He also
provided other information in the letter referred to by the Board as
"inappropriate".


[19]     In support of his assertion that
he had sent the complainant such a letter he
produced:


         (a)    A copy of the letter he had sent to all clients;


    
    (b)    A computer generated list of all ACC clients whom he said he had
                sent the letter to (including Ms A).


         (c)    Letters written by him but signed by other ACC clients confirming
                they had received the letter
of 27 December.


[20]     The complainant said she had never received the letter. She accepted that
although there were discussions
with Mr Geary about his relationship with ACC
during the course of 2003 it was not until October 2003 that she understood Mr
Geary
was no longer an ACC approved counsellor.


[21]     The Board concluded that Mr Geary had not presented any "clear evidence
that
the letter was sent to and received by Ms A".            They emphasised that the

subsequent discussions between the parties were
"vague and non specific" and did
not accurately inform the complainant of the change of status.


[22]   The appellant says that
in this the Board effectively reversed the onus of
proof and wrongly found that the charge could be decided on a question of
credibilit
y. The Board preferring the evidence of Ms A to that of Mr Geary.


[23]   I agree with the appellant that the Board effectively
did reverse the onus of
proof and failed to understand the essence of this charge. The charge was that the
appellant misled Ms A
by continuing to work with her without advising her that his
status as an ACC counsellor had ceased on 5 December. The prosecution
therefore
had to prove on the balance of probabilities that Mr Geary had failed to tell the
complainant of his change in status and
that as a result he misled Ms A.


[24]   The Board's approach to the pivotal letter of 27 December seemed to be that
it was for
Mr Geary to prove that the complainant received the letter. That cannot be
correct.   It was for the prosecution to prove that Mr
Geary did not tell the
complainant about his change in status. They could do that in part by calling
evidence from the complainant
that she had not been told by Mr Geary about his
change in status. Here, however, Mr Geary claimed that he had sent a letter on
27
December telling the complainant of his change in status. In those circumstances
the prosecution had to eliminate the possibility
he had sent such a letter. The focus
therefore was appropriately not on the complainant's receipt of the letter but on
whether or
not the prosecution could prove on balance he did not send the letter.


[25]   The evidence from Mr Geary was that he sent the letter
to the complainant on
27 December. There was some independent support for that fact. His computer
records showed the complainant
as one of a list of clients who was receiving
counselling through ACC from Mr Geary. Mr Geary was able to produce the letter
he claimed
to have sent to all his ACC clients, and finally Mr Geary was able to
produce letters from his ACC clients who were prepared to say
they had received
such a letter from him.

[26]   I accept that those clients who said they had received the letter did not appear
in person to say so. However, there was no real challenge by the prosecution to the
fact that a number of his clients accepted they
had received such a letter. What the
prosecution had, to counter this evidence, and to establish on balance a letter had not
been sent to the complainant was, firstly, the complainant's evidence
she did not
receive the letter and, secondly, the discussions during the course of 2003 between
Mr Geary and the complainant. The
fact that the complainant did not receive the
letter could not be proof on the balance of probabilities that the letter was not sent.
Nor, in my view, was the evidence of the discussions in 2003 between Mr Geary and
the complainant decisive.       The Board found
the discussions were somewhat
confused.    They could legitimately have been explained by the complainant
believing that Mr Geary
remained a counsellor but with an ongoing dispute with
ACC and Mr Geary believing that the complainant had received his December
letter
and the discussions were about the unfairness or unreasonableness of his loss of
status. In this I acknowledge the Board had
Mr Geary's letter of 23 October 2003 to
ACC which neglected to mention his 27 December letter.


[27]   In my view the Board misunderstood
their task here. They decided this
charge, in part at least, by reaching the conclusion that it was for Mr Geary to
establish that
the complainant had received his letter. But that cannot be the case. It
was for the prosecution to establish on balance that Mr
Geary did not send the letter
or tell the complainant the necessary information. The Board's misapprehension of
their function here
was in my view a fatal error.


[28]   I am satisfied on the evidence given that the prosecution could not establish
their case on
the balance of probabilities.         The prosecution could not have
established on balance that Mr Geary did not send the letter
to Ms A. There was
evidence to support his claim that those on the list were sent the letter. I am satisfied
that it was a reasonable
possibility that Mr Geary sent the letter and having done so
satisfied his professional obligations. There was no clear evidence
until October
2003 that Mr Geary knew, but took no action, that Ms A did not know about his loss
of status. The appeal will therefore
be allowed with regard to charge 2. The finding
of guilty set aside, and an acquittal of the charge entered.

Second ground of appeal


[29]   The second charge alleged as identified in [9] was really in two sections. The
first section alleged an inappropriate disclosure
of details of rape and sexual abuse
known by Mr Geary through his professional work. The three further particulars
related expressly
to comments the complainant said the appellant had made to her
relat ing to the use of criminals to have something "done" to her
ex husband and
details of a previous female client who had propositioned Mr Geary.


[30]   The Board found the charge proved but
only in respect of the first particular.
They identified the fact that resolution of the charge relied upon a credibility finding.
They said:

       . . . On the basis of all of the evidence we have heard and seen the Board is
       inclined to accept Ms A's
version of events as being the more credible.

[31]   However, in dealing with the three further particulars they said:

       .
. . the nature of the last three particulars is rather different from the first and
       they are much more specific. Given that
specificity, a higher level of proof
       again should be required and we do not believe such proof has been offered.

[32]   It
is difficult to understand the rationale for the suggestion that a higher level
of proof was required with regard to the specific
allegations. It may be this is some
form of misunderstanding of the rule that where the civil standard applies but the
allegat ion
is of a criminal conduct the probability of the event occurring must take
into account the seriousness of the allegations.


[33]
  In Haye v Psychologists Board  [1998] 1 NZLR 591 the Court discussed what
constituted professional misconduct. It said:

       The threshold of professional misconduct has often
been illustrated by
       refer ence to such words as "reprehensible", "inexcusable", "disgraceful",
       "deplorable" or "dishonourable".

(See also Staite v Psychologists Board  (1998) 18 FRNZ 18).


[34]   As to this charge the Board said:

       On 13 May 2002. Ms A telephoned ACC and complained about the sort of
       refer
ences Mr Geary was making in their sessions. This call was
       documented by ACC and its occurrence is not disputed by Mr Geary.
       Mr Geary admitted to routinely using material from his own experience,
       from other people he has counselled or from
"the literature" to help clients
       see that they 'not alone' in terms of their experiences. He admitted that on
       one occasion
he discussed details of a case Ms A read about in one of his
       files. (There was a good deal of disputed evidence on the way
in which
       Ms A had come to read material from this file but nothing turns on that for
       the purpose of considering the
charges before the Board.

       Mr Geary admitted to discussing in some detail the treatment programme at
       Kia Marama and
his views of its effects on the men being treated there for
       sexual abuse on children.              This was an inappropriate
discussion.
       Further mor e, in his letter to his clients of December 27 he used language and
       provided detailed client
information that the Board found quite unnecessary.

       The other examples cited by Ms A seem believable and consistent in their
       detail, and the Board does not accept Mr Geary's assertion that she has
       concocted them. Their detail and sheer number
suggest Mr Geary was in
       fact "telling yarns" in his sessions with Ms A rather than engaging in any
       sort of therapeutic
intervention. Such behaviour goes well beyond an error in
       judgement, especially when it continues after a client has expressed
       concerns, as Ms A had. Mr Geary's apparent lack of awareness of the
       inappropriate nature of his chosen language and
behaviour is most
       concerning, and certainly not that of a reasonable practitioner. His lack of
       awareness in this regard
is further exacerbated by his stated belief that he is
       "extremely good" at sensing the impact on a client, and that he does
"not
       take risks". What we have seen is quite the opposite. Some credit is due to
       Mr Geary for recognising (albeit belatedly)
under questioning that the
       language he used in his December 27 letter was not well considered. This
       charge relies heavily
on credibility, and on the basis of all we have heard and
       seen the Board is inclined to accept Ms A's version of events as
being the
       mor e credible. That said, the nature of the last three particulars is rather
       differ ent than the first.
and they are much more specific. Given that
       specificity, a higher level of proof again should be required, and we do not

      believe such proof has been offered. The charge though is worded
       cumulatively and so is proven overall by proof of the
first particular. The
       Board therefore finds this charge to proven.

[35]   The committee then went on to consider what was
professional misconduct.
They referred to the relevant test of such misconduct and said:

       Wher ein a finding of professional
misconduct requires that there has been a
       deliberate departure from accepted standards or such serious negligence as,
   
   although not deliberate, to portray indifference and an abuse of the privileges
       which accompany registration as a psychologist.

[36]   And they said:

       Such a description fits the third charge very well indeed, in that Mr Geary
       clearly did not
choose his words with due consideration to their intended

        audience, and clearly caused distress. He showed genuine disregard
and
        inexcusable indifference for the welfare of his client. Mr Geary's negligence
        in regard to this particular of
the charge is extreme. The nature of the
        material he has related to this vulnerable client is clearly inappropriate and

       distressing. We know of no evidence supporting such graphic and detailed
        disclosur e as a therapeutic intervention with victims of sexual abuse.
     
  Indeed, best practice requires a much greater sensitivity to the impact such
        material could have on a victim of sexual
abuse. Mr McIntyre argued that
        Mr Geary's behaviour was to the level of professional misconduct, that it
        was inexcusable,
or dishonourable, or disgraceful. The Board agrees that
        Mr Geary's proven conduct in relation to the third charge meets the
legal
        tests for professional misconduct.

[37]    The appellant accepted that he had used examples from his own experience
for counselling purposes without identifying clients. Counsel for the appellant said
there was no evidence from any professional
psychologist that this method was
inappropriate or would amount to misconduct. Nor was it put to the appellant that
there was no
professional basis to justify the use of examples in counselling. The
appellant says, therefore, it was not established by evidence
there was any
inappropriate disclosure by him of matters known to him as a result of a professional
relat ionship.


Credibility


[38]    The second ground of attack on the decision by the appellant relates to
credibilit y. The appellant in support of his submission
that the finding that the
complainant's testimony should be preferred over that of the appellant, was unsound
and wrong, said;


        (i)      The cross-examination of the appellant occupied only three of
                 29 pages of his evidence;


    
   (ii)     The appellant was not permitted to explore credibility of the
                 complainant because he was stopped or
prevented by the Chair of the
                 Board.


        (iii)    In assessing the complainant's credibility the Board failed
to refer to
                 the appellant's allegation that Ms A was an habitual complainant.

       (iv)    It was not open for
the Board to conclude particulars 2, 3, and 4 were
               not proved but find particular 1 proved.


[39]   It is appropriate
to consider, firstly, the appellant's complaints regarding the
Board's findings as to credibility. As to (i) above the length of
cross-examination is
hardly relevant in assessing credibility. As to (ii) the appellant gave two examples of
how he was prevented
from exploring the credibility of the complainant. The first
occurs at pp 40 and 41 of the transcript of evidence. Prior to p 40
Mr Geary's cross-
examinat ion of the complainant was focused on the complainant's ACC assessment
and what she hoped from it in terms
of a disability allowance. The complainant said
that she thought the quantum of any allowance she might receive from ACC turned
on
the degree of impairment that she had suffered as a result of the injuries caused to
her by the abuse. The complainant was then referred
to a letter that she had written
regarding her mental health. The letter was part of the bundle. Mr Geary tried to get
the complainant
to read the letter out loud. The letter detailed Ms A's claim of the
symptoms of her various mental health problems. The Chair of
the Board intervened
and said that Mr Geary had made his point and that the Board could read the
document. The Board Chair could
not see the need to put the complainant through
the experience of reading it out loud to the Board. The Chair thought that this would
be unnecessarily stressful for the complainant and illustrated. The Chair illustrated
that the Board understood the point Mr Geary
was making and asked Mr Geary to
mo ve on with his questioning.


[40]   I reject the submission that the Chair's comments are an
example of the
appellant not being permitted to explore the credibility of the complainant. It is hard
to understand how reading
this passage aloud to the Board was going to be of any
relevance at all to the credibility of the complainant.      In any event
the Board
indicated that it had understood the point being made by Mr Geary and thought that
it would be unnecessarily insensitive to have the complainant read out the list of her
mental
health problems. I agree.


[41]   The second example given by counsel for the appellant relates to an example
the appellant had
used of sexual abuse. The complainant had said that Mr Geary had
used the example of a funeral director in one of his discussions
with the her. The

complainant believed she knew who the person was. Mr Geary in cross-examination
tried to get her to reveal the
name of the person she believed Mr Geary was referring
to. She refused. It is hard to understand what this had to do with credibility.
However, the Chair indicated he understood the point. The appellant claimed the
complainant's refusal to answer the question somehow
affected her credibility. Mr
Geary's right to cross-examine was not curtailed.


[42]   Two other points were made relating to credibility
issues.           Firstly, the
appellant said that the respondent did not refer, in its decision, to the allegation that
Ms A was
an "habitual complainant". As counsel for the respondent pointed out,
this proposition could only be relevant to credibility if Ms
A was an habitual
complainer whose complaints had been rejected as untrue. There is no evidence that
that was the case here.    
 Simply alleging that the complainant had previously
complained about other psychologists was therefore neutral.


[43]   The second
general matter relating to credibility raised by the appellant is
that if the committee rejected the second, third and fourth allegations,
they inevitably
had to reject the first allegation because the complainant's credibility must have been
irretrievably damaged.


[44]   It does seem, as I have previously observed, that the committee
misapprehended the standard of proof for the particular allegations.
They set a
higher benchmark beyond the balance of probabilities. They should not have done
so. The fact that they did not think the
evidence of the complainant reached this
higher threshold does not affect their finding on the first particular.          As the
respondent pointed out, there was some corroborative evidence in support of the first
particular. This included the acceptance by
the appellant that he had discussed the
Kia Marama programme and examples from his work with the complainant.
Alt hough not independent
of the complainant, but illustrative of her consistency, was
the fact that after the first occasion on which the appellant raised
these issues at
counselling the complainant rang ACC to express her concern about the disclosures.


[45]   I have read all of the
evidence including the cross-examination of both the
complainant and the appellant.        The appellant personally cross-examined
the

complainant.      The cross-examination by Mr Geary of the complainant had an
inappropriate personal tone to many of the exchanges.
What is clear, however, is
that significant latitude was given to Mr Geary in his cross-examination of the
complainant by the Board.
Much of the material seemed of marginal or no relevance
to the issues before the Board. Significant parts of questions were simply
statements
by Mr Geary about his position. However, Mr Geary could not possibly complain
about not being able to range over the full
field of topics that suited him.


[46]     It may be in the future the Psychologists Board will have to consider whether
it should
allow such questioning personally by a person charged with professional
misconduct with respect to a previous client. The relationship
will have been one of
sensit ivit y.   It may be preferable for the appointment of an Amicus, where a
psycho logist is not represented
by counsel, to ask the questions (subject to relevance)
desired by the psychologist.


[47]     I am satisfied that the credibility
findings made by the Board were
legit imately open to them and that there was no unfairness to the appellant in the
way that this
was done either in the conduct of the litigation itself or in the
conclusio ns reached by them.


Specificity of charge


[48]     The appellant submitted
that it was not clear from charge 3 exactly what the
object ionable conduct was alleged to be. The charge was of inappropriate disclosure
of certain material. This could have meant that the disclosure was inappropriate
because it revealed confidential information which
had come to Mr Geary through
his work as a psychologist.         It could also have meant the disclosure was
inappropriate because
such disclosures had no therapeutic purpose especially given
the complainant had sought Mr Geary's help arising from her own sexual
abuse.
The charge could have included both allegations. The prosecution said its case was
solely based on the latter allegation of
inappropriate disclosure as affecting
therapeutic use.     The decision of the Board focused solely on this point.        The
appellant
submits that it was not clear to Mr Geary exactly what the charge alleged.

This was especially so, it was submitted, given the
charge in part referred to clause
1.6 of the Psychologists Code of Ethics which related to privacy and confidentiality.


[49]  
I am satisfied that Mr Geary approached the case on the basis that the third
charge referred to both the question of client confidentiality
and appropriate
treatment.   Reading the evidence of the hearing illustrates that a number of
Mr Geary's questions and his evidence
related to both these topics. And it was clear
fro m the questions asked by some of the Board members at the end of Mr Geary's
evidence
that the issue of the therapeutic value of his use of these examples was very
much at the core of the charge. In addition, the reference
to clause 1.1 (general
respect and dignity), clause 2.1 (the promotion of wellbeing of clients), clause 2.4
(the obligation to responsible
care of those who are vulnerable) of the code of ethics
in the details of charge 3 would have made it clear to Mr Geary that the
charge
related to appropriate treatment.


[50]   It would also have been open to the Board to have found, on the evidence,
that
Mr Geary was also guilty of charge 3 because he had inappropriately revealed
confident ial client information. The fact that they
did not do so, but focused solely
on the inappropriateness of the use of this material for therapeutic purposes in my
view was not
unfair to Mr Geary. He understood this was part of the allegation
contained in the charge. He cross-examined on that basis. Nor could
counsel for the
appellant identify what other factual material he might have brought before the
Board, what further questions he
may have asked or what further submissions he
may have made if he had understood the Board would reach a decision solely based
on
the inappropriate use for therapeutic purposes. I am satisfied therefore that this
ground of appeal must fail. I make the point,
however, the charge would have been
more readily understood by everyone if it had explicitly identified its focus.


[51]   To return,
therefore, to the charges themselves. The appellant submitted that
even if the Board was satisfied the appellant had said what Ms
A claimed this could
not be professional misconduct.


[52]   In this, I consider that the Board's specialist knowledge played a
legitimately
significant part in reaching the findings they did. They were entitled to decide

whether or not, given the factual
findings they had made, this was seriously
reprehensible "yarn telling" rather than therapeutic intervention. I am satisfied that
the conclusions reached, therefore, were properly open to them given the credibility
findings made by them.


Prejudice


[53]  
This ground of appeal relates to the appellant's claim arising from the fact
that "the respondent might have unfairly regarded the
appellant's case with
disfavour" because:


       (i)      The membership of the Tribunal was substantially the same as the
   
            previous complaint against Mr Geary;


       (ii)     The respondent was not an impartial arbiter;


       (iii)    The respondent imposed a disproportionate
penalty.


[54]   As to membership of the Tribunal, a previous complaint was heard by the
Board in 2003 which comprised of a Mr S
Osborne, Dr L Surgenor, Ms Janet Peters,
Dr C Love, Mr Ron Chambers and Ms Anne Raethel. This complaint was heard by
Mr S Osborne,
Dr J Bushnell, Dr C Love, Mr K Pulotu-Endemann and
Dr L Surgenor. Therefore of the five members hearing this complaint three had
previously been part of a Board which heard an earlier complaint against Mr Geary.
It is not suggested that Mr Geary at any time
raised any concern about the
membership of the Tribunal before or during the hearing.


[55]   By itself I do not see that the fact
that three of the five Tribunal members
have previously heard a complaint against Mr Geary is discriminatory prejudice. I
have had
the opportunity of reading a précis of the previous Board's decision, the
Board's decision with respect to the imposition of penalty,
and Miller J's decision on
appeal (Geary v Psychologists Board HC WN CIV 2003-485-1815 27 September
2004). It is clear that at least
some of the findings of the Board in 2003 related to the
appellant's credibility.

       It is vital to the administration of justice
that a fact finding tribunal
[56]
comes to its task with an open mind and with the appearance of an open
mind. If it fails to do
so there is a real danger that it will bring bias to its
decision making. Where the credibility of a litigant is at stake, this aspect
is
especially important. However, the fact that a Tribunal may have previously
made adverse findings against a litigant, including
findings of credibility,
does not disqualify it on that ground alone from hearing another case
involving the same litigant. There
must be other aspects in the facts which would
bring a real danger of bias to the decision making. Setting the bar at the level
advocated
by the appellant would place an inappropriately threshold for real danger
of bias. I adopt the English Court of Appeal view in Locabail
(UK) Ltd v Bayfield
Properties Ltd [1999] EWCA Civ 3004;  [2000] 1 All ER 65 when they said at 78:

       The mere fact that a judge, earlier in the same case or in a previous case, had
       commented adversely
on a party or witness, or found the evidence of a party
       or witness to be unreliable, would not without more found a sustainable
       objection. In most cases, we think, the answer, one way or the other, will be
       obvious. But if in any case there is
real ground for doubt, that doubt should
       be resolved in favour of recusal. We repeat: every application must be
       decided
on the facts and circumstances of the individual case. The greater
       the passage of time between the event relied on as showing
a danger of bias
       and the case in which the objection is raised, the weaker (other things being
       equal) the objection
will be.

[57]   In this case there is nothing beyond the previous involvement of some only of
the current Board in a previous decision
some two years ago when some credibility
findings were made. Applying the test in Locabail (UK) Ltd v Bayfield Properties
Ltd I am
satisfied that there was here no real danger of bias arising from the previous
invo lvement of some Board members in Mr Geary's previous
disciplinary hearing.


[58]   The second ground of alleged prejudice relates to the impartiality of the
respondent. The appellant
says that this impartiality was suspect because of the
extent of questioning of Mr Geary by members of the Tribunal. The appellant
points
out that the questioning by the Tribunal after Mr Geary had given his evidence in
chief and been cross-examined was for some
29 pages. The appellant submits that
some of this questioning was of new topics and other in the nature of cross-
examinat ion. The
appellant says that the impression created was that the respondent

members were not adopting an impartial judicial role but were
active participants in
the case.


[59]     This allegation requires a consideration of the transcript of evidence. I note
that Mr
Geary's cross-examination of the complainant occupied some 28 pages. Mr
Geary was then cross-examined by Mr McIntyre counsel for
the prosecution for
some 28 pages and then Mr Geary was questioned by Board members for some 30
pages.


[60]     The first section
of questioning by the Board that was said to be in the nature
of cross-examination related to an attempt by Dr Bushnell to clarify
what Mr Geary
had said about continuing to treat his ACC clients. It was unclear whether Mr Geary
had offered clients who were ACC
clients the opportunity of being treated by him for
free to the until the end of their treatment irrespective of Mr Geary's ACC status.
Having read the questioning, I cannot see anything objectionable in it. There is some
frustration by the Board member because of
the difficulty in getting what seemed to
be a straight answer out of Mr Geary. In addition, perhaps most importantly, a
Board member
asked Mr Geary whether this "special offer" to his clients may have
had any impact on whether they completed the testimonial letter
which he had sent to
all clients asking they sign and return. If this was a matter of concern to the Board,
as it legitimately could
have been, the proper course was to do exactly as the Board
did and put the proposition to Mr Geary so he could answer it. If the
Board had
reached a conclusion about influence in its decision without raising it with Mr Geary
it could have been unfair to him.


[61]     The second section complained of related to charge 3 and the particulars
alleged. Dr Bushnell's questioning related to
whether Mr Geary had any recollection
of using any of the examples in any way similar to those given in evidence by the
complainant.
The questioning was no more than an invitation to see whether there
was such a recollection so that Mr Geary's response was clearly
understood. This
was in my view an obvious case of clarification. The Board were entitled to know
precisely whether this was a straight
credibility question or a question of emphasis
with common ground of storytelling.

[62]   The next section complained of as being in the nature of cross-examination
related to an ACC report. Again the questioning was unobjectionable. It invited
explanat ion of understandable concerns of the Board.
For example, a Board member
asked whether there was any scientific evidence behind the particular technique of
using similar case
histories for therapeutic effect. The Board member acknowledged
what Mr Geary said were the positives of such a technique and asked
whether there
were any possible dangers. This questioning was, as counsel for the respondent said,
"open-ended" and gave Mr Geary
the opportunity of responding to what was
obviously an important question without having his viewed challenged.


[63]   The final
section said to be objectionable was an attempt by the Chair to
reconcile a series of reports and their importance. There was clearly
some confusion
about this and the Chair's questions were essentially what he thought was a summary
of Mr Geary's position. There
were questions about why, if Mr Geary had made
notes, he had not brought them to Court given the potential importance of them. An
assert ion by a witness that he has made notes of a vital point but failed to bring them
to a Court is potentially relevant to credibility.
It was an appropriate matter for the
Chair to raise to give Mr Geary an opportunity of explaining why he did not bring
the notes
to Court.


[64]   I have also considered the transcript overall. I see nothing in the questioning
by the Board which was inappropriate
or unfair or could create any impression of a
lack of impartiality. Most of questioning seemed to me to arise because of the
confusio
n of the hearing primarily engendered by Mr Geary's confused questioning
of the witnesses for the prosecution and the lack of clarity
and specificity in his own
evidence.


Penalty ­ disproportionate or excessive


[65]   Finally, the appellant says that the penalty
imposed was "a completely
disproportionate response to the conduct found proved". I consider this submission,
together with the submission
that the penalties imposed were manifestly excessive.
Rather strangely the Board imposed a fine of $9,000 in total for both offences

without apportioning the fine between the two charges. They should not have done
so.


[66]   For this purpose I assume a very
modest fine for the first charge given its
lesser seriousness and the fact it was described as being at the low end of such
offending,
perhaps $1,000 and therefore $8,000 for the more serious offence.
Looked at overall, the fine of $9,000 against a maximum of $20,000
over the two
offences hardly seems so disproportionate as to exhibit prejudice.       The second
offending was serious.     It related
directly to patient treatment.   It involved a
technique the respondent found had no therapeutic value and could do harm. The
appellant
had repeatedly used this "technique". He did not accept or understand its
inappropriateness and danger even after advice from the
Board. He therefore leaves
his future potential clients vulnerable to this "technique".    And the respondent
properly took into
account previous disciplinary findings of the Board. The sentence
imposed was well within the range available.                It
was not "completely
disproportionate". The appellant has neither established this as a ground of prejudice
or as a basis for establishing
the penalty was excessive.


[67]   However, because I have allowed the appeal on charge 2 and because the
Board imposed a composite
penalty on charges 2 and 3 I must allow the appeal
against sentence. I have already assessed the penalty on charge 2 as properly
$1,000
of the $9,000 imposed on both charges. I therefore make the following orders:


       (i)     The appeal is allowed on charge
2 and an acquittal entered.


       (ii)    The appeal against the finding that charge 3 was proved is dismissed.


       (iii)
  The appeal against the composite fine of $9,000 is allowed and the
               fine reduced to $8,000.


[68]   Should either party seek
costs memoranda will be filed within 14 days.

.................................
Ronald Young J