VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z1011/2020
	
CATCHWORDS	
Review and Regulation List – health practitioner disciplinary proceedings – preliminary hearing on evidence to be admitted at final hearing – ruling on admissibility of tendency evidence – evidence recorded at a 2011 formal panel hearing the subject of factual findings by the panel – relevant considerations in professional disciplinary proceedings – comparison with criminal proceedings - Evidence Act 2008 (Vic) ss 91, 97, 98, and 101.	

APPLICANT	Medical Board of Australia	
RESPONDENT	CER	
WHERE HELD	Melbourne	
BEFORE	Senior Member E. Wentworth	
HEARING TYPE	Hearing	
DATE OF HEARING	5 April 2023	
DATE OF Ruling	27 April 2023 	
CITATION	Medical Board of Australia v CER (Review and Regulation) [2023] VCAT 1415	

Evidential Ruling
1	The evidence and factual findings as set out in the Medical Board of Australia Formal Hearing: Reasons for Decision dated 16 March 2012 (Reasons for Decision) are admissible in this proceeding, and may be included in the joint Tribunal Book to be filed; and the evidence of K, recorded in the Reasons for Decision, may be relied on by the applicant as evidence of tendency at the hearing in this proceeding.  

E. Wentworth
Senior Member			

APPEARANCES:		
For the Applicant 	Mr D Dann KC, with Mr S Cash of Counsel	
For the Respondent	Ms G Coghlan KC, with Mr B Jellis of Counsel	

Reasons
1	At a preliminary hearing on 5 April 2023, I heard submissions from the parties concerning the application by the applicant (the Board) to rely on evidence of tendency at the hearing of this proceeding.  I reserved my decision.  
2	These are my reasons for ruling that evidence recorded and factual findings made by a Panel of the Board, at a formal hearing in 2011 (Reasons for Decision), are admissible in this proceeding; and the evidence recorded may be relied on by the Board as tendency evidence in relation to allegations 1 to 3 of the Notice of Allegations, which concern the patient M.  
3	Because I have ruled that the evidence referred to in these reasons is admissible, unless the parties advise that they object, these reasons may be published.
4	My ruling is confined to admissibility.  It will be for the Tribunal panel members at the substantive hearing to determine the ultimate relevance of the evidence and factual findings and the weight to be given to them, when deciding whether allegations 1 to 3 are proved or not proved.
5	Some other preliminary issues, which were to be heard by me, are likely to be resolved by agreement:
•	An application on behalf of CER that the member who conducted the preliminary hearing does not preside at the final hearing, was resolved by my indication that, having read the contested draft tribunal book, I would not preside at the substantive hearing.  
•	The Board confirmed it seeks leave to withdraw allegation 6, which will be given.  
•	CER no longer seeks orders that allegation 5 (concerning a different patient, N) be heard separately.  
•	Issues about the contents of the joint Tribunal Book are now likely to be resolved by agreement, and if not, can come back before me.
6	I start with the relevant background and the allegations in this case, and then summarise the allegations and findings in the Reasons for Decision. 
Background and allegations in this proceeding
7	At relevant times, CER’s registration has been subject to restrictive conditions in relation to female patients.  From at least 2010 he was not permitted to consult with any female patient without a chaperone being present for the entire consultation.  
8	From 31 March 2016, a new condition was imposed on CER’s registration: that he not have any contact with female patients.  Contact was defined to include consultation, interviews, examination, assessment, presenting for, advising, treating, or otherwise seeing patients.
9	The new condition was imposed by the Board as immediate action under s 156 of the Health Practitioner Regulation National Law (Victoria) (National Law) after a notification in relation to M.
10	Under subsequent 2017 immediate action, CER’s registration was suspended following a notification in relation to patient N, the patient the subject of allegation 5.
11	The Board having withdrawn allegation 6, the five allegations in brief summary are as follows.
Patient M: allegations 1 to 4
12	On 5 March 2016, M was 17 years old.  During the course of a consultation for M’s boyfriend (to discuss the results of a scan):
•	CER made comments or requested details about M and her boyfriend’s sexual activity that were inappropriate and not clinically relevant, including whether she orgasmed and whether her boyfriend knew where the clitoris was located (Allegation 1).
•	CER offered to perform an examination of M’s vagina/vulval area (which she refused) that was not clinically indicated or appropriate, in particular, he asked M to lie down on the bed and offered to demonstrate where M’s clitoris was located. (Allegation 2).
•	CER touched M’s breasts and nipples in circumstances where the touching was intentional, inconsistent with a medical breast examination (which she had refused) and sexual and/or inappropriate and/or for a non-clinical purpose (Allegation 3).
•	CER consulted with M without a chaperone being present for the entirety of the consultation, in contravention of the conditions on his registration (Allegation 4).
13	The delay in the allegations being referred to the Tribunal was to allow related criminal proceedings to conclude.  M and her boyfriend went to the police later on the day of the consultation.  CER was charged with but found not guilty of sexual assault after a County Court trial in 2019.
Patient N: allegation 5:
14	In around January to May 2017, CER had contact with a female patient, N, in breach of the condition imposed on his registration, including inviting contact (via text to N’s parents) if N had any further issues with an ankle injury, and going to N’s apartment, after she had sustained an injury to her chin, for the purpose of conducting a medical examination, and giving her pain medication (Allegation 5).
CER’s response to the allegations
15	CER has filed an Outline of Argument. In relation to allegations 1 to 4, CER:
•	denies he made the comments alleged in allegation 1;
•	denies that he offered to perform the examination as alleged in allegation 2;
•	denies that he touched the patient as alleged in allegation 3; and 
•	says that a chaperone was present for the entire consultation with M. Allegation 4 is therefore denied.
16	In relation to allegation 5, he concedes that the contact with N on 27 May 2017 was in breach of the conditions on his registration, but says that he did not attend for the purposes of conducting a medical examination and did not provide N with medication.
The 2011 Reasons for Decision: allegations in relation to K
17	The Reasons for Decision relate to allegations made about CER’s interactions with a female patient, K, in August 2006.
18	The delay in the allegations coming before a formal panel hearing (Panel hearing) was to allow related criminal proceedings to conclude.  CER was charged with but found not guilty of charges of rape and sexual assault.
19	K was 19 years old at the time of her consultation with CER in 2006.  She had attended CER with symptoms of an upper respiratory tract infection.  At the conclusion of the consultation, he gave her a prescription for antibiotics and advised her to use Claratyne for her congested nose.  She went to the police later that day.
20	The allegations were that in the course of the consultation CER:
•	conducted an inappropriate examination of K’s genital/anal area and breasts;
•	failed to obtain informed consent for the examination he conducted on K’s genital/anal area and breasts;
•	failed to provide her with privacy in conducting the examinations;
•	asked questions about her sex life that were not relevant to his treatment of her and without providing adequate explanation for asking such questions; and
•	made notes of the consultation which did not reflect the examinations that he conducted.
21	CER was legally represented at the Panel hearing by senior and junior counsel instructed by solicitors.  The Reasons record evidence given by K; a doctor S who provided a report to Victoria Police; a doctor called by CER to give expert evidence; and CER.
22	The Reasons record that CER admitted undertaking a genital/anal examination and a breast examination and that his explanation for doing so was inadequate.   The primary issue was whether the examination and questioning should have taken place, including who initiated a conversation about STDs and sexual health (he said K did).  He did not deny asking questions about the gender of K’s sexual partners, the issue was whether they were relevant to the assessment or management of her presenting complaint – an upper respiratory tract infection.
23	The reasons for decision set out K’s evidence, which the Board wishes to rely on in the current proceedings as tendency evidence.  
24	It is not clear whether K was cross-examined on the evidence she gave but it is apparent that there was an opportunity to do so – the other witnesses including CER were certainly cross-examined.  
25	In analysing the evidence, the Panel found that that K gave a credible and consistent account of all events, and, where there was an inconsistency in her and CER’s evidence, preferred her evidence.
26	After analysing the evidence, the Panel found that the breast examination was inappropriate; the genital and anal examinations were inappropriate, and that the questions CER asked were not relevant to the assessment and management of her complaint.  
27	The Reasons record that CER was found to have engaged in serious unprofessional conduct and was cautioned, reprimanded, and required to undertake further education in relation to appropriate questions, informed consent for intimate examinations, and boundaries.  The Board in this case does not seek to rely on those matters.
28	The Board seeks to rely on the evidence recorded and the factual findings, not on the findings of serious unprofessional conduct.  It does not propose to call K.
Legal framework
29	The parties’ submissions set out and largely agreed on the legal framework governing the admission of tendency evidence in professional disciplinary proceedings at the Tribunal under the National Law.  There were differences in the extent to which certain provisions of the Evidence Act 2008 (Vic) (Evidence Act) were said to apply, and whether the approach taken by the Courts in criminal proceedings is determinative.
30	Both parties agreed, as do I, that the Tribunal’s decision in Nursing and Midwifery Board of Australia v Singh (Singh) at [143]-[153] sets out relevant considerations.  The approach taken in Singh is summarised at [151]:
In the Tribunal’s view, in considering the evidence in this case, in which serious allegations are made against a nurse, it should have regard to the principles underlying the rules relating the tendency and coincidence evidence, even though it is not required to apply those rules.  In particular, the Tribunal is conscious of the strong prejudicial effect, when considering whether the respondent is guilty of a particular disciplinary charge, of evidence by other complainants about other alleged acts.  We proceed on the basis that there must be a high level of probative value in such evidence, before it should be taken into account in determining whether the respondent is guilty of the first allegation.
31	Singh was later cited in Medical Board of Australia v Lee [2019] VCAT 2036 (Lee), with more recent High Court authority referred to in Lee at [163]-[166].
32	The above passage from Singh was also quoted by QCAT in Medical Board of Australia v Gomez (Gomez) where Judge Horneman-Wren, Deputy President said:
In my view, this approach is consistent with the observations of Evatt J in Bott’s case referred to above.  It is an approach which is consistent with the degree of satisfaction demanded in disciplinary matters before the Tribunal given the seriousness of the allegations made and the gravity of the potential finding.
33	The parties agreed that it is appropriate to approach the admissibility and probative value of tendency evidence in a manner ‘consistent with’ the Evidence Act.   
34	Section 97(1) of the Evidence Act is relevant:
97	The tendency rule
(1)	Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)	the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)	the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

35	For completeness I include 98(1):
98	The coincidence rule
(1)	Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a)	the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)	the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
Note
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.

36	When considering admissibility of tendency evidence in disciplinary proceedings in the Tribunal, the primary question is whether the evidence has significant probative value. The case law on the meaning of that phrase provides guidance. 
37	‘Consistent with’ does not mean that the provisions of the Evidence Act in their entirety are determinative.  
38	For example, in criminal proceedings, s 101(2) of the Evidence Act requires an additional question to be answered: does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?  If not, the evidence cannot be used by the prosecution against the accused.  The potential prejudice of tendency evidence in a criminal trial is discussed in Hughes v The Queen [2017] 263 CLR 338 (Hughes) at [17].
39	Section 101(2) is not a pre-condition to the admission of the evidence in proceedings under the National Law.  As in Singh, however, the Tribunal will be conscious of the potentially prejudicial effect of evidence of similar conduct in relation to other patients.  There should be significant probative value before it will be taken into account in deciding whether an allegation has been proved, and its weight should be carefully measured.
40	In Hughes at [16] the High Court described what is meant by significant probative value:
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.  Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.  The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.  The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings.  The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.  The facts in issue in a criminal proceeding are those which establish the elements of the offence. [footnotes omitted and italics added]
41	The High Court stated in Hughes, at [41] that in determining whether the evidence has significant probative value (having identified the alleged tendency), two interrelated questions arise:
•	The extent to which the evidence supports the tendency; and
•	The extent to which the tendency makes more likely the facts making up the (charged offence):  
By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi".  In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.  
42	At [34] the High Court made clear that s 97(1)(b) of the Evidence Act does not import the common law concepts of ‘underlying unity’, ‘pattern of conduct’, or ‘modus operandi’, and its application should not be limited to evidence exhibiting those features. And at [37]:
Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it. 
Summary of the approach to be taken
43	In summary:
•	The Tribunal is bound by the rules of natural justice, and must act fairly and according to the substantial merits of the case in all proceedings.
•	The Tribunal is not bound by the rules of evidence except to the extent it adopts those rules.
•	While not binding, the rules of evidence and cases to do with those rules provide useful guidance.
•	Tendency and coincidence evidence has been admitted in disciplinary proceedings at the Tribunal and at QCAT, on a case-by-case basis.
•	The cases refer to a ‘high’ or ‘significant’ level of probative value before tendency and coincidence evidence will be taken into account.
•	Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.
•	Cases to do with the application of the relevant sections of the  Evidence Act to evidence in criminal proceedings may also provide some guidance in disciplinary proceedings, but there are relevant differences between a criminal trial and a professional disciplinary proceeding in the Tribunal under the National Law; and
o	the law about admissibility of similar fact evidence in criminal proceedings is not to be ‘directly transposed’ into disciplinary proceedings, and 
o	the ‘mandatory exclusion’ of such evidence, required in a criminal trial, may not be appropriate or required in a disciplinary proceeding.
•	Those relevant differences include:
o	Professional disciplinary proceedings are sui generis, and different rules and procedures apply. 
o	The objectives and guiding principles of the National Law are overtly protective, and an entity exercising functions under the National Law must have regard to those protective objectives and principles.
o	The standard of proof is the civil standard (with ‘Briginshaw’ principles kept in mind), and not the criminal standard of ‘beyond reasonable doubt’.
o	The proceedings are heard by a panel comprising a legal member and two members from the relevant health profession, and not by a lay jury. 
•	In short, depending on the case, what might need to be withheld from a jury in a criminal proceeding might be more safely put before a Tribunal panel to decide for itself the relevance and weight of the evidence in question after hearing submissions on those issues.   
44	I turn now to the probative value of the evidence given by K at the 2011 Panel hearing, recorded in the Reasons for Decision, and then consider what was submitted on behalf of CER to be a threshold issue of fairness in admitting any part of the Reasons for Decision.
The probative value of the evidence given by K
45	The Board seeks to rely on the evidence of K, and the factual findings recorded in the Reasons for Decision, as tendency evidence relevant to the Tribunal’s assessment of the facts in issue in relation to Patient M.
46	The Board submits there are striking similarities between the evidence of K, accepted by the Panel, and the disputed allegations made in respect of M in allegations 1 to 3, which support a tendency on the part of CER, to use the doctor/patient setting, in treatment of young women to:
•	make inappropriate or non-clinical comments and ask inappropriate questions about sexual history;
•	suggest inappropriate or non-clinical intimate examinations; and
•	engage in inappropriate or non-clinical or sexual contact;
and which makes it more likely that the inappropriate conduct alleged in relation to M occurred.  
47	Counsel for the Board provided a ‘tendency table’ comparing the evidence in the case of K and in the case of M as follows (with some de-identifying redactions):
Patient Name	K	M	
Gender	Female	Female	
Age	19 years old	17 years old	
Patient presentation	Symptoms of upper respiratory tract infection (unrelated to sexual health)	M accompanied her boyfriend to a consultation for test results from an ultrasound (unrelated to M’s sexual health)	
Non-clinical / inappropriate questions and comments about sexual activity	Asking questions about K’s sex life, including the nature of sexual activity, gender of her sexual partners and meeting arrangements (ie. ‘Who did you have sex with, people from the pub?’) 
(Reasons for Decision, p5 and 15)	Asking questions relating to the sexual activity of M and her boyfriend, including whether her boyfriend knew where the clitoris was 
(Statement of M [6]-[8]; statement of her boyfriend [4]-[6])	
Non-clinical / inappropriate suggestions of intimate examination	Suggesting that a [vaginal] swab needed to be taken 
(Reasons for Decision, p5) 	Offering to perform an examination on M’s vagina and/or vulva area, including suggesting to M and her boyfriend that he could demonstrate where M’s clitoris was located 
(Statement of M [7]; statement of [her boyfriend] [5])	
Non-clinical/ sexual/ inappropriate contact	Inappropriate breast examination
(Reasons for Decision, p5 and 15)	Touching the breasts and/or breast area and/or nipples of M
(Statement of M [9]-[13]; statement of [her boyfriend] [8]-[9])	
	Intimate examination of vagina and anus (with no swabs taken)
(Reasons for Decision, p5 and 15)		

48	There are, as submitted on behalf of the Board, some striking similarities in the evidence of K recorded in the Reasons for Decision and the evidence in relation to M.  
49	Although it is implicit from the table, I would add the similarity, that in both cases, the reason for the presentation was unrelated to their sexual health, or otherwise warranted the intimate examinations undertaken in K’s case, and allegedly suggested, in M’s case.
50	There are, as submitted on behalf of CER, some differences.  I note the following:
•	K did not refuse the intimate examinations undertaken by CER (and admitted by him to have taken place).  M refused his alleged offer to examine her vaginal/vulval area and demonstrate where her clitoris was located, and it is not alleged he carried out the proposed examination.  She also refused his alleged request to ‘take a look’ at her breasts.  The allegation is that he came over to her and touched her breasts despite her refusal.  In my view, this does not reduce the probative value of the evidence that, in both cases, CER suggested an inappropriate examination.
•	K was the presenting patient and was alone in the consultation.  M was not the presenting patient; she was accompanying her boyfriend and the conduct is alleged to have taken place in his presence.  In my view, this does not reduce the probative value of the evidence that, in both cases, CER is alleged to have asked inappropriate questions about sexual activity, made inappropriate suggestions of intimate examinations, and made inappropriate physical contact with intimate areas of the person’s body.
51	Counsel on behalf of CER submitted that the ten-year time gap between the consultation in K’s case, in 2006, and the conduct alleged in relation to M, in 2016, diminished the probative value of K’s evidence and leads to the conclusion that the attempt by the Board to rely on it as tendency evidence should fail.  
52	The submission referred to the decision in McPhillamy v The Queen, (McPhillamy) at [27-30], where the High Court took into account the ten-year time gap involved in that case and held that the proposed tendency evidence was weak and should have been excluded at trial.  
53	McPhillamy concerned a defendant charged with sexual offences when he was an acolyte, against an 11-year-old altar boy.  The alleged conduct occurred in 1995 to 1996.  The offending was not reported for a number of years. The prosecution led evidence from two witnesses about other alleged conduct in 1985 when the defendant was an assistant housemaster, and they were boarders.  
54	The tendency asserted was to have a sexual interest in young boys under his supervision and to act on that sexual interest.  
55	As the Court noted, there was no evidence that the asserted tendency had manifested itself in the decade between the two alleged incidents. 
56	The Court held, at [30], that, while evidence of the earlier allegations might be relevant to proof that he had committed the offences in 1995/6, it was not admissible as tendency evidence:  
It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with "B" and "C" is relevant to proof that he committed the offences alleged by "A", but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact.  In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
57	I note that at [31], the Court went on to also refer to the factual differences between the earlier allegations and the later alleged offences, which it considered had ‘little in common’:
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.  The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision.  The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995‑1996.  The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable.  The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him. [footnotes omitted]
58	In other words, it was not enough, in the view of the Court and for the purposes of tendency evidence, that in each case the alleged victims of sexual misconduct were young boys under the accused’s supervision.  Some other feature of the conduct would have to ‘link the two together’.  
59	The decision of the New South Wales Court of Appeal that the evidence was admissible,  was overturned. 
60	Like Hughes, McPhillamy concerned the admission of tendency evidence in criminal proceedings involving charges of sexual offending against a child.  In the circumstances of that case, and in the context of an asserted tendency with a ‘high level of generality’, the Court held that the ten-year gap in time between alleged conduct diminished the strength of the proposed tendency evidence.  Those circumstances included differences in the setting, the nature of the role occupied by the defendant, the nature of the supervision, and the specifics of the conduct.
61	I agree with the submission on behalf of the Board that McPhillamy is not determinative in this case.  This is so not only because it concerns criminal proceedings, but also because the tendency asserted by the Board in this case, and the evidence sought to be relied on can be distinguished from McPhillamy in any event.  
62	The tendency asserted in this case is more precise than in McPhillamy and, unlike in that case, the evidence concerns the same setting – a consultation between doctor and patient in a clinic – as well as similar ingredients in the conduct.
63	There are, as submitted on behalf of the Board, ‘stark’ similarities in the evidence, distinguishing the circumstances from those in McPhillamy. 
64	Further, there is no evidence of collusion and collusion is improbable: there is a substantial gap in time between the consultations, and K and M each went to the police the same day, following the consultation.
65	In all the circumstances, the evidence given by K before the Panel hearing has significant probative value warranting its admission in these proceedings.  The weight to be given to it in relation to the allegations concerning M is a matter for the Tribunal panel that will hear the case, and will no doubt be the subject of submissions. 
66	There are separate considerations in relation to the factual findings by the Panel.  In my view, they are relevant to the weight that may be given to K’s evidence and ought to be admitted, but are not themselves tendency evidence.  They are evidence of findings made by the Panel after hearing the evidence of K and CER.
Additional submissions as to admissibility of the Reasons for Decision 
67	I turn now to consider what were described as threshold issues in submissions on behalf of CER:
•	Whether the Reasons for Decision are ‘evidence’, for the purposes of admission as tendency evidence;
•	Taking into account the Tribunal’s duty to act fairly, whether it is fair to admit the evidence of K as tendency evidence, when the Board does not propose to call her and there will be no opportunity to cross-examine her at the hearing; and
•	Whether s 91 of the Evidence Act prevents their admission in any event.
68	As submitted for CER, tendency evidence in Courts and Tribunals is usually given by witnesses at the trial or hearing.  In this case, as submitted, the Board does not propose to call K and there will be no opportunity to cross-examine her at the hearing.  
69	As submitted by the Board, however, K has already given her evidence, in a disciplinary proceeding under a predecessor to the National Law.   The Board wishes to rely on the record of that evidence.  
70	In other words, while the form of it may be unusual, it nevertheless has the necessary quality of evidence, to be considered as tendency evidence for the purposes of these proceedings.  I note also that under s 98(1)(c) of the VCAT Act, the Tribunal may inform itself on any matter as it sees fit, subject of course to obligation to act fairly.
71	It is relevant to the question of fairness that at the Panel hearing where K gave her evidence, CER was legally represented and had the opportunity to cross-examine K – whether or not that opportunity was taken (and it appears it may not have been).  
72	CER also had the opportunity to give evidence as to the disputed matters, which appear to have been limited, noting that he admitted that the intimate examinations took place; that his explanations for conducting them, professional communication skills and notes were inadequate; and that he did not provide adequate privacy. 
73	Importantly, CER did not appeal the findings of the Panel, or otherwise dispute the accuracy of the Panel’s detailed record of the evidence or their analysis of it.
74	There are some additional considerations here.  
75	It is not unknown, where a witness has already given evidence in relation to alleged sexual misconduct, or sexual offending, to excuse the witness from giving their evidence again, for example in the event of a mistrial.  
76	Where it is over a decade since the witness gave the evidence at the Panel hearing, and she was giving evidence about matters that had occurred half a decade before that, there are stronger arguments for relying on the 2011 record.  Although not contemporaneous to the events, her 2011 evidence was certainly more proximate in time to the events than any evidence she might give again in these proceedings.
77	In criminal proceedings, there will usually be a transcript of the earlier evidence which can be used as a record of the evidence given.  The parties were not able to tell me whether there was a transcript, or recording of the proceedings in 2011 but no doubt the inquiry will be made before the tribunal book is finalised.  As it is, the record of K’s evidence in the Reasons for Decision is sufficiently detailed to stand, as reflecting the evidence she gave.
78	For the reasons above, no unfairness, in my view, arises from the fact that CER will not have another opportunity to cross-examine K on the evidence she gave in 2011, as recorded in the Reasons for Decision. 
79	Counsel on behalf of CER also submitted that s 91 of the Evidence Act prevents the admission of the Reasons for Decision as evidence of the facts alleged in the 2011 proceedings.
80	Section 91 provides:
91	Exclusion of evidence of judgments and convictions
(1)	Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)	Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note
Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

81	Section 91 is not an absolute prohibition.  Section 92 provides:
92	Exceptions
(1)	Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove—
(a)	the death, or date of death, of a person; or
(b)	the due execution of a testamentary document.
(2)	In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—
(a)	in respect of which a review or appeal (however described) has been instituted but not finally determined; or
(b)	that has been quashed or set aside; or
(c)	in respect of which a pardon has been given.
(3)	The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

82	In Psychology Board v Milosevic (Milosevic), the Tribunal referred to s 98 of the VCAT Act and held, at [33], that s 91 of the Evidence Act does not bind the Tribunal.  
83	Whilst I agree with the view expressed about s 91, I note that the case concerned whether the practitioner’s conviction, on charges that mirrored the allegations before the Tribunal, should be excluded, as the summary below indicates.  It was also not a case about tendency evidence.
84	I note also that s 92 of the Evidence Act was not referred to, although on its face it would appear to allow the conviction evidence the subject of the decision into evidence.  
85	Mr Milosevic had been convicted in the County Court of two counts of using a false document in order to obtain registration.  The two documents were a graduate diploma and master’s degree, both found to be false documents.  Mr Milosevic did not appeal against the conviction or the sentence of imprisonment.
86	The convictions prompted the disciplinary proceedings.  The Board alleged that Mr Milosevic obtained his registration as a psychologist irregularly or fraudulently, namely by providing forged documents to obtain his registration.  Mr Milosevic contended that he was wrongfully convicted, and that his registration should not be cancelled.
87	At [22]-[38], the Tribunal considered the approach that should be taken, declining to take the view proposed by the Board, and deciding that:
•	Section 91 does not bind the Tribunal;
•	In making the relevant finding, the Tribunal should rely upon the findings and convictions in the County Court, unless there is good reason not to do so; and
•	The Tribunal is not the appropriate vehicle for Mr Milosevic to challenge the County Court verdict.  Any disquiet about the finding of guilt is a matter for the Appeal Courts.
88	I agree with the view in Milosevic that s 91 of the Evidence Act does not bind the Tribunal;  and does not in any event prevent the Board from relying on the evidence of K, as recorded in the Reasons for Decision, because it is not captured by s 91(1).  
89	As to the factual findings of the Panel, they do come within the wording of s 91(1) as ‘… a finding of fact, in an Australian or overseas proceeding’.  
90	Under s 91(1) they would not be admissible to prove the existence of a fact that was in issue in that proceeding.
91	In my view, this does not prevent them being admitted in these proceedings, for several reasons: s 91 is not binding on the Tribunal, CER did not appeal them, and the fact that they were made by the Panel after hearing K and CER’s evidence will be relevant at the hearing to an evaluation of the weight of K’s evidence before the Panel. 
92	Their weight and relevance will of course be a matter for the Tribunal deciding this case – as will the relevance of and the weight to be given to K’s evidence in determining whether the Board has proved allegations 1 to 3.
93	However, although the factual findings are admissible, they are not evidence as such, they are findings.  For that reason, in my view, they do not constitute tendency evidence.
 Conclusion
94	For the reasons given, I rule the evidence and the factual findings sought to be relied on by the Board to be admissible.

E. Wentworth
Senior Member