SUMANT GUE v DENTAL BOARD OF AUSTRALIA [2026] SASC 11

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER LAZAREVIC, MEMBER DR SCOTT, MEMBER MCENTEE) 2022/SHP000026 Appellant: SUMANT GUE Counsel: MR B JELLIS SC WITH MR H SCHUMANN - Solicitor: MERIDIAN LAWYERS (VIC) Respondent: DENTAL BOARD OF AUSTRALIA Counsel: MR T DUGGAN KC WITH MS M BARNES - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Hearing Date/s: 10/09/2025 File No/s: CIV-25-006778 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GUE v DENTAL BOARD OF AUSTRALIA [2026] SASC 11 Judgment of the Honourable Justice B Doyle 6 February 2026 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - PRIOR INCONSISTENT STATEMENTS EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - DENTISTS - BOARDS, TRIBUNALS, ETC - DISCIPLINARY PROCEEDINGS The appellant is a registered specialist dental practitioner under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). Before the South Australian Civil and Administrative Tribunal (‘Tribunal’), the respondent (‘the Board’) advanced a series of allegations about the conduct of the appellant during his engagement at the Women’s and Children’s Hospital (‘the Hospital’) between 2004 and 2019. The Board particularised some 41 allegations, many of which were admitted. The appeal concerns a subset of allegations particularised as involving intentional and sexualised touching of female employees of the Hospital. In respect of four of those allegations (involving AA, CC, DD and EE and occurring in 2012, 2014, 2017 and 2019 respectively), the allegations were of contact whilst the appellant was moving past or near the employee. The appellant was not in a position to deny that contact occurred, and ultimately did not resist a finding that contact occurred, but he denied that any contact was intentional or sexualised on his part. The appellant contends that in finding these four allegations of intentional touching of a sexual nature proved, the Tribunal erred by engaging in propensity or tendency reasoning of a kind disavowed by -- 1 of 48 -- the Board in its submissions. The appellant also contends that the Tribunal’s findings as to these particulars were wrong and against the weight of the evidence. The fifth allegation (involving BB in 2014) comprised an overt act of inappropriate touching. BB described the appellant moving his hand down over her breast, over her stomach, down onto her leg and then over her groin, with the appellant looking at BB for a reaction. The appellant denied that any such incident occurred. Two years before BB prepared her trial affidavit, BB was interviewed by a Hospital investigator. A note made by the investigator recorded that the appellant touched BB’s leg once and that she did not think anything at the time but later reflected on it, and concluded it was totally inappropriate. The appellant contended that BB had made a prior inconsistent statement to the investigator. The Tribunal declined to make a finding to that effect. The appellant contends on appeal that in its consideration of that issue the Tribunal overlooked agreed facts about the investigator’s note, and thereby misapprehended the facts and the evidence. The appellant invites the Court on appeal to find that the conduct alleged by BB did not occur. Held, allowing the appeal and remitting the five particularised allegations for reconsideration by a differently constituted Tribunal: 1. in considering whether BB had made a prior inconsistent statement, the Tribunal misapprehended a number of factual matters that had been agreed about the investigator’s note. The misapprehensions were material; 2. in considering whether the four particularised occasions involving AA, CC, DD and EE were established, the Tribunal considered that BB’s evidence of overt deliberate touching (which it accepted) rendered it more likely that the appellant’s contact with those four complainants was intentional or deliberate. That involved propensity or disposition reasoning of a kind that the Board had apparently disavowed. In the circumstances of this case, the appellant was denied procedural fairness because he was not afforded an opportunity to argue against the use of the evidence in that way or the weight that it should be given; 3. care should be taken before finding that a process error in relation to fact finding vitiates the orders made, lest it detract from the nature of an appeal by way of rehearing, in which the focus is ordinarily on whether the Court is persuaded, on a real review of all the evidence, that the ultimate disposition of part or all of the matter was in error. However, in the present case the errors made make it inappropriate for the appellate court to adopt the Tribunal’s impressions of important witnesses and, without having seen the appellant or the complainants give evidence, the Court is not able to find that the Tribunal’s ultimate acceptance of the allegations was erroneous. Fairness to both parties requires a remittal of the allegations. Evidence Act 1929 (SA) ss 28, 34O, 34P, 52; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 39(1)(b), 71, referred to. Angelakis v Psychology Board of Australia [2025] SASC 133; Badea v Department of Human Services – Central Assessment Unit [2024] SACAT 37; Briginshaw v Briginshaw (193) 60 CLR 336; Brown (a pseudonym) v The King [2025] SASCA 40; Collins v The Queen [2020] SASCFC 96; Douglass v The Queen (2012) 290 ALR 699; DPP v Roder (a pseudonym) (2024) 281 CLR 18; Eddy (a pseudonym) v The King [2024] SASCA 115; Fox v Percy (2003) 214 CLR 118; Hughes v The Queen (2017) 263 CLR 338; Hutchinson v Van Den Berg [2024] SASCA 117; Jamil v Medical Board of Australia [2024] SASC 90; Kirkland v The Queen [2021] SASCA 14; Law Society of South Australia v Jordan (1998) 198 LSJS 434; Lee v Lee (2019) 266 CLR 129; Lukaj v The King (2022) 142 SASR 98; MDM v The Queen (2020) 136 SASR 360; MDP v The King (2025) 99 ALJR 969; Medical Board of Australia v Singh [2019] SACAT 66; Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77; Nelson (a pseudonym) v The King [2025] SASCA 79; Nguyen v Tran [2018] NSWCA 21; Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339; Pfennig v The Queen (1995) 182 CLR 461; Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; R v C, CA [2013] SASCFC 137; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; R v Bonython-Wright (2013) 117 SASR 410; R v Trabolsi (2018) 131 SASR 297; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Terry v Leventeris (2011) 109 SASR 358; Testel Australia Pty Ltd v Goulding -- 2 of 48 -- [2023] SASCA 116; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559, discussed. -- 3 of 48 -- -- 4 of 48 -- GUE v DENTAL BOARD OF AUSTRALIA [2026] SASC 11 Single Judge Appeal – Civil 1 B DOYLE J: The appellant is a registered specialist dental practitioner under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). Before the South Australian Civil and Administrative Tribunal (‘Tribunal’), the respondent (‘the Board’) advanced a series of allegations about the conduct of the appellant during his engagement at the Women’s and Children’s Hospital (‘the Hospital’) between 2004 and 2019. The Board particularised some 41 allegations, many of which were admitted. 2 This appeal concerns a subset of allegations found proved by the Tribunal for reasons published on 16 May 2025 (‘Reasons’) and later made the subject of declaratory orders. Those allegations were particularised as involving intentional and sexualised touching of female employees of the Hospital.1 3 Four of those alleged occasions involved contact as the appellant was moving past or near the employee concerned. The employees (AA, CC, DD and EE) were not able to say whether the contact was intentional or accidental. The appellant, whilst generally not denying that contact of the kind described may have occurred, denied that it was intentional or sexualised. 4 A fifth particular was said to involve an overt act by the appellant towards BB. In a written witness statement and in her oral evidence before the Tribunal, BB said that whilst she was showing the appellant a patient file in the Hospital tea room, the appellant moved his hand down over her breast, over her stomach, down onto her leg and then over her groin. BB said that the appellant looked at her for a reaction. She said she was very shocked at the time, went home and made a complaint to her mother. If this account were accepted, it could hardly have been anything other than knowingly inappropriate contact. In that respect it differed from the four other allegations of contact or touching. 5 On appeal to this Court pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’), the appellant contends that the Tribunal erred in finding the five allegations proved. In particular, he contends that: (1) in respect of the allegation concerning BB, the Tribunal erred in finding that she had not made a prior inconsistent statement about the alleged conduct (ground 1), and should not have found the conduct occurred because it was against the weight of the evidence (ground 2); 1 Particular 3.1 (AA), 3.3 (BB), 3.4 (CC), 3.12 (DD), 3.15 (EE). -- 5 of 48 -- [2026] SASC 11 B Doyle J 2 (2) in finding the conduct alleged by AA, CC, DD and EE involved intentional contact on the part of the appellant, the Tribunal erred in relying upon tendency and similar fact evidence (ground 3); and (3) the findings that the conduct concerning AA, CC, DD and EE was deliberate were wrong and against the weight of the evidence (grounds 4, 5, 6 and 7). 6 For the reasons that follow, I would set aside the Tribunal’s findings in relation to the five particularised allegations and remit the hearing of those particulars to the Tribunal. 7 These reasons adopt the following structure. Nature of the appeal ............................................................................................ 3 Background .......................................................................................................... 6 Tribunal’s approach ............................................................................................ 7 Appeal grounds 1 and 2 ....................................................................................... 9 The evidence, the note and the agreed facts ..................................................... 10 The parties’ closing submissions ...................................................................... 14 The Tribunal’s approach .................................................................................. 15 Consideration ................................................................................................... 16 Appeal ground 3 ................................................................................................. 22 Propensity and ‘improbability’ ........................................................................ 23 Credibility ......................................................................................................... 29 The evidence concerning the four particularised allegations........................ 29 Particular 3.1 (AA) ....................................................................................... 29 Particular 3.4 (CC) ....................................................................................... 30 Particular 3.12 (DD) .................................................................................... 30 Particular 3.15 (EE) ..................................................................................... 31 The parties’ approach at trial.......................................................................... 31 Did the Tribunal engage in propensity reasoning?........................................ 35 Particular 3.1 (AA) ....................................................................................... 36 Particular 3.4 (CC) ....................................................................................... 38 Particular 3.12 (DD) .................................................................................... 39 Particular 3.15 (EE) ..................................................................................... 40 Disposition of appeal ground 3 ....................................................................... 41 Appeal grounds 4, 5, 6 and 7 ............................................................................. 42 Disposition and orders ....................................................................................... 44 -- 6 of 48 -- [2026] SASC 11 B Doyle J 3 Nature of the appeal 8 The parties submitted that I should apply the principles summarised as follows in Angelakis v Psychology Board of Australia:2 The appeal to this Court is by way of rehearing.3 The Court may draw inferences of fact from evidence or material before the Tribunal.4 It may affirm, vary or set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.5 In accordance with the principles governing an appeal of this kind,6 it is necessary for me to conduct a ‘real review’ of the trial record in order to determine whether the Tribunal erred in fact or law.7 This involves undertaking an independent review of the evidence and findings below and forming a view as to the appropriate outcome. Because the appeal is not a hearing de novo, the Court on appeal should not substitute its own view, or otherwise interfere, unless satisfied that the Tribunal erred.8 I must be mindful of the ‘natural limitations’ attending a review proceeding on the record, which is to say I should bear in mind the advantage enjoyed by the Tribunal by reason of having seen and heard the witnesses and experienced the ‘feeling’ of the case.9 This may call for a degree of appellate restraint in respect of findings which are likely to have been affected by impressions about the credibility or reliability of witnesses formed by the Tribunal as a result of having seen and heard them give evidence, and of having had the opportunity to consider their evidence in the context of the evidence as a whole and of the trial as it unfolded. The advantage may extend to secondary facts which are based on a combination of the Tribunal’s impressions and other inferences from primary facts.10 The extent of the advantage may be weakened by substantial delay between the hearing of the evidence and the delivery of the judgment under appeal.11 2 [2024] SASC 133 at [15]-[28]. 3 SACAT Act, s 71(3a). 4 SACAT Act, s 71(3b). 5 SACAT Act, s 71(4). 6 The principles relating to an appeal by way of rehearing are collected in Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [114]-[118] (Doyle, Livesey and Bleby JJA) and in Testel Australia Pty Ltd v Goulding [2023] SASCA 116 at [26]-[31] (Livesey P, Doyle JA and Stein AJA). They were recently applied in the context of an appeal from SACAT in respect of a disciplinary decision in Jamil v Medical Board of Australia [2024] SASC 90 at [26]-[27] (McIntyre J). 7 Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ), Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ). 8 Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [115] (Doyle, Livesey and Bleby JJA), Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40] (Doyle CJ, Duggan and Lander JJ agreeing). 9 Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 at [116]-[117] (Doyle, Livesey and Bleby JJA), Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ). 10 Pitt v Commissioner for Consumer Affairs [2021] SASCA 24 [117] (Doyle, Livesey and Bleby JJA), Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ). 11 Terry v Leventeris (2011) 109 SASR 358 at [15] (Gray J, Sulan and Vanstone JJ agreeing). -- 7 of 48 -- [2026] SASC 11 B Doyle J 4 Ultimately, however, and subject to respecting that advantage, if having conducted a review of the evidence and the findings, the conclusion is reached that material error is disclosed, the Court cannot shrink from giving effect to that conclusion.12 There will also be cases in which, although the challenged finding is one relating to the credibility or demeanour of a witness, it can be seen that the process of making findings of that kind has miscarried, such as where no analysis is made of competing evidence or no explanation is given for rejecting important evidence. In such a case the Court on appeal may be satisfied that the process has miscarried,13 without the Court first having being positively persuaded, by reference to a review of the entirety of the relevant evidence, that the ultimate or dispositive finding was erroneous. In considering whether the fact-finding process has miscarried, the ‘necessarily incomplete’ character of the reasons at first instance should be borne in mind. As Leeming JA said in Nominal Defendant v Smith:14 In part [that] arises because of the desirability of avoiding unnecessary prolixity and inessential detail: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]. In part it arises for the reasons given by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45, in a passage approved in Williams v The Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255 at [137]: The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation. In a similar vein, in Murray v Sheldon Commercial Interiors Pty Ltd,15 the Court observed that: …it is almost certain that after the event, a disappointed litigant will be able to point to errors of omission and commission in the course of making contested factual findings in any mildly controversial trial. The nature of the fact-finding process, coupled with human fallibility, the exigencies of time and the limitations of reasons for judgment, not to mention the creativity of appellate advocacy, means that it will inevitably be amenable to criticism. That of itself is immaterial; as Lord Hoffmann said, ‘[t]he exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed’: Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 at 1372. It is the quality and quantity of any 12 Testel Australia Pty Ltd v Goulding [2023] SASCA 116 at [31] (Livesey P, Doyle JA and Stein AJA), Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ), Fox v Percy (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). 13 See, eg, Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 at [11] (Basten JA, Leeming JA agreeing), Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [66] (Leeming and Payne JJA and Schmidt J), Nguyen v Tran [2018] NSWCA 215 at [45]-[52], [76] (Beazley P, Bellew J agreeing). 14 (2015) 73 MVR 257; [2015] NSWCA 339 at [93]. 15 [2016] NSWCA 77 at [62] (Leeming and Payne JJA, Schmidt J). -- 8 of 48 -- [2026] SASC 11 B Doyle J 5 such errors in the fact-finding process which matters for the purposes of concluding that the process is sufficiently flawed to amount to appellable error. Where the conclusion is reached that the fact-finding process has miscarried, a question then arises whether the Court should make a finding as to the relevant issue or whether the only appropriate course open is to remit the matter.16 Deciding that question will require the appeal court, at least in a preliminary way, to consider whether it can be comfortably satisfied that notwithstanding the limitations attending a review of the record, it can make the findings necessary finally to dispose of the matter or, in an appropriate case, whether it is satisfied that findings required to be made in order for the party carrying the onus to establish their claim to relief should not be made. That will entail a consideration of the nature of the fact or facts the existence of which is in issue (including, in a case like this, a consideration of the Briginshaw principles) and the extent to which non-testimonial evidence or non-contentious testimonial evidence bears on the probability of their existence. If the Court is left in a position where it considers that it could not be comfortably satisfied that an important or dispositive finding should, or should not, be made, without having seen the way in which a witness or witnesses presented, or without having witnessed the atmosphere of the first instance hearing, the matter may have to be remitted.17 That will be so even though it is obviously undesirable from the standpoint of cost and delay that matters should be remitted for a further hearing. 9 I add by way of emphasis two observations about errors which are focussed upon the process of fact-finding, as distinct from errors which are a necessary corollary of an appellate court reaching a different outcome as to dispositive factual issues. 10 The first is to emphasise that any process error must be material, in the sense that it was capable of affecting the result or had the capacity for practical injustice.18 11 The second is to emphasise that in the context of an appeal by way of rehearing, an appellate court must be astute not to shirk its power and responsibility to rehear and, where it can fairly be done, finally decide the case, by too readily characterising errors of fact in respect of intermediate or primary findings of fact as process errors which vitiate the orders made below. 12 An appeal is ultimately against orders, not against reasons. In an appeal by way of rehearing, an appellant must (usually) show that the dispositive findings were wrong. To persuade an appellate court that there was a preferable finding of fact in respect of some issue which is anterior to, or intermediate relative to, the ultimate dispositive findings is not, in and of itself, to demonstrate relevant error 16 See, eg, Nguyen v Tran [2018] NSWCA 215 at [77] (Beazley P, Bellew J agreeing), and compare Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339 at [55] (Basten JA) and [95] (Leeming JA). 17 Hutchinson v Van Den Berg [2024] SASCA 117 at [148]-[153] (Kourakis CJ, Lovell and Doyle JJA). 18 See, eg, MDP v The King (2025) 99 ALJR 969; [2025] HCA 24 at [61] (Edelman J), referring, inter alia, to Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 554 (Dixon J) (albeit that that case involved an application for a new trial following a jury verdict in a civil trial). -- 9 of 48 -- [2026] SASC 11 B Doyle J 6 for the purposes of appellate intervention. Rather, it is usually simply an aspect of an attempt to persuade the court that the dispositive findings, and thus, the orders, were wrongly made. The appeal court may be persuaded by a respondent’s alternative contention that although the judge made an error in their reasoning to a particular result, the same result should have been reached by different, valid, reasoning. 13 Too readily characterising mistakes or errors in respect of lower order issues as process errors which, if material in the sense described, presumptively lead to a re-trial, would tend to detract from the essential nature of an appeal by way of rehearing in a civil case, and lead to a proliferation of re-trials. 14 However, where the process error pervades the balance of the primary judge’s reasoning, so as to leave the appeal court largely unassisted by the balance of the judge’s reasons (and therefore stuck in its position of disadvantage) a re-trial may, despite the cost and delay, be necessary.19 It will be necessary if the appeal court considers that a trial by rehearing would not be fair. That conclusion is more likely if the case substantially turns on the impressions formed of witnesses, as distinct from the drawing of inferences from objective evidence. In the particular context of disciplinary proceedings, whilst there remains a strong public interest in the finality of litigation, that interest may be tempered by the fact that the reputation and career of a person who provides important health services is at stake.20 Background 15 During the period 2004 to 2019, the appellant was registered as a dentist with a specialty in paediatric dentistry. He filled the dual roles as Unit Head of the Adelaide Paediatric Unit at the Hospital and Head of the Discipline of Paediatric Dentistry at the University of Adelaide. 16 As has been mentioned, the Board advanced some 41 allegations of misconduct grouped under a number of headings or grounds. 17 The first ground was headed ‘inappropriate touching’ and alleged inappropriate touching of staff or postgraduate students. The appellant admitted the general allegation, and some of the particularised incidents, including incidents which were not alleged to have involved any sexual or inappropriate intent. In respect of other particulars, the allegations were denied, or the appellant’s position was that whilst physical conduct as alleged may have occurred it was accidental and was not engaged in with any sexual or inappropriate intent. The Tribunal found that aspects of each of the particularised events were made out. 18 The next ground concerned a failure to maintain professional boundaries by making inappropriate comments and statements. The particulars, which were by 19 Hutchinson v Van Den Berg [2024] SASCA 117 at [148]-[153] (Kourakis CJ, Lovell and Doyle JJA). 20 cf. Jamil v Medical Board of Australia [2025] SASCA 103 at [14] (Stanley JA). -- 10 of 48 -- [2026] SASC 11 B Doyle J 7 and large found proved by the Tribunal, included referring to female colleagues and staff in person and via text and email by inappropriate terms. It is not necessary to detail those comments and statements. 19 Finally, it was alleged that between 2004 and February 2019, on multiple occasions, the appellant would communicate with registrars under his supervision in the presence of other staff in an aggressive, offensive, disrespectful and demeaning manner not conducive to a supporting teaching environment. Numerous particulars were given. By and large they were found proved. 20 The appeal grounds concern adverse findings made in respect of five particulars. In respect of four of those, the real contest was whether, assuming contact was made, it was deliberate or was instead incidental or accidental. However, as has been mentioned, in respect of one of the five particulars, the real contest was whether the contact described by the complainant occurred at all. Tribunal’s approach 21 The Tribunal commenced by addressing a number of general matters such as the applicable code of conduct for registered dentists and the applicability of the so-called Briginshaw21 approach to findings of misconduct. 22 The Tribunal then made some observations about each of the relevant witnesses. The Tribunal described some general aspects of the appellant’s evidence and observed that in his evidence he had accepted that some aspects of his initial responses to the allegations to the Australian Health Practitioner Regulatory Authority (‘Ahpra’) were not true. 23 Before turning to the particularised allegations in detail, the Tribunal made a number of further general observations under a heading ‘General credit remarks’. 24 First, the Tribunal emphasised that the passage of time necessitated caution in a number of respects. On one hand, it was acknowledged that there was a risk of witnesses placing a particular complexion on events as a result of hindsight once they became aware an investigation was on foot (Reasons [139]). On the other hand, the Tribunal said that the passage of time and the process by which evidence was first taken and then ultimately given at trial was liable to lead to differences in wording that were not necessarily indicative of a want of credibility or reliability. The Tribunal was less favourable in respect of what were said to be changes in position on the part of the appellant (Reasons [140]-[141]). 25 The Tribunal then observed as follows: [143] In general, we were highly impressed with the evidence given by [EE], [DD], [AA], [CC], [BB], [and six other witnesses]. Each appeared to give their evidence thoughtfully, carefully, without embellishment, making appropriate concessions and presenting as witnesses of truth. Aspects of their evidence were potentially difficult 21 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 11 of 48 -- [2026] SASC 11 B Doyle J 8 to give, in particular those involving allegations of inappropriate touching where we considered they gave their evidence in ways that were thoughtful and fair and which we considered were truthful. [144] We had concerns about the reliability of [FF’s] evidence. In saying that she did not present as well as the other witnesses we perhaps need to be careful not to place too much emphasis on her discomfort in giving evidence and the risk that the more senior staff may be more comfortable in speaking that an administrative staff member, and be mindful that she was highly distressed. She explained in her witness statement that the process of recounting her experiences with Dr Gue to be “extremely difficult”, and that she has been fearful, suffering anxiety and chest pains. We consider that she was endeavouring to tell the truth and genuinely found the working environment to have been distressing. However, we had some concerns that her recall of specifics was not great, and in so far as her evidence was led to corroborate the evidence of others it generally did not do so (except in so far as it concerned the general working atmosphere and working environment, and that a theme of what she says she observed matched a theme the subject of evidence of others). [145] We have concerns about the reliability of Dr Gue’s evidence. There were changes of position between his initial responses to AHPRA, his Response, and his evidence. In his response to AHPRA he attacked the credibility of a number of complainants including by suggesting that they had financial motivations for making their complaints. We have the impression he was prepared to admit matters where the evidence was overwhelming, but to downplay the significance of events. There were a number of occasions where he did not remember an incident but reconstructed a version of events by putting forward a hypothesis consistent with innocence (such as if a witness felt a hand on the bottom, they would have been mistaking that for a touch with his briefcase). 26 The Tribunal then made some general observations about the use that may be made of the evidence of particular allegations in considering whether other allegations were made out, and what was described as the risks of ‘propensity’ reasoning or associated error (Reasons [146]-[150]). 27 I will return to these remarks in detail when considering ground 3. It suffices to note at this stage that the Tribunal noted that the Board disavowed ‘propensity reasoning’ but submitted that evidence to the effect that the appellant touched one complainant inappropriately might be properly used in displacing a suggestion, or rendering unlikely the appellant’s suggestion, that other touching was accidental or unintentional. 28 The Tribunal then addressed each of the allegations, dealing with the particulars of each allegation in sequence, and making findings in each case. 29 Under a heading ‘Characterisation’, the Tribunal concluded as follows: [642] Ground 1 relates to inappropriate touching. The particulars which we have found proven contain a mix of touching. Some of it was intentional touching of a sexual nature. Some of it involved inappropriate touches on the arms or legs where the Respondent might have considered that he was either being supportive to the recipient, or did not intend anything sinister by it. The intentional touching of a sexual nature itself in our view would amount to professional misconduct. The other -- 12 of 48 -- [2026] SASC 11 B Doyle J 9 touching was, given its effect on the recipient, the fact that it was unwelcome, and happened on multiple occasions was conduct that was substantially below the standard reasonably expected of any registered health practitioner. [643] Ground 2 relates to inappropriate comments that were of a sexual or personal nature. The allegations in Ground 2 are less serious than those in Ground 1. Whether or not one or two of the particulars might have amounted to professional misconduct we find that, taken as a whole, the particulars of Ground 2 amount to conduct that was substantially below the standard reasonable expected of a registered health practitioner. [644] Ground 3 contains a combination of matters that might be described as bullying and harassment, the venting of frustrations, and communications that were not respectful of registrars under his supervision, staff at the WCH and in the case of [GG] another professional. [645] It is conduct that is in breach of clause 4.2 of the Code of Conduct dealing with respect for colleagues and other practitioners. In the case of students, it contravenes clause 10.4(a) in treading (sic) students with respect and confidence. [646] We find that taken as whole the proven allegations in Ground 3 amount to conduct that was substantially below the standard reasonably expected of any registered health practitioner. Appeal grounds 1 and 2 30 These grounds concern particular 3.3, which alleged that: On or about 2 May 2014, a Registrar, [BB] was showing the [appellant] a patient file in the Hospital tea room, the [appellant] touched [BB] by moving his hand down over her breast, over her stomach, down onto her leg and then over her groin. 31 As the Tribunal observed, this was the most serious of the allegations made against the appellant. It was an allegation that could not be explained by reference to an accident or a joke (Reasons [195]). 32 Broadly speaking, ground 1 is a contention of process error with respect to the Tribunal’s treatment of an investigator’s note of a conversation with BB about the incident in question. The appellant contends that in failing to be satisfied that BB had made a prior inconsistent statement to the investigator, the Tribunal misapprehended or failed to deal with agreed facts relevant to the note and that, further, in finding that the note was not ‘correct and accurate’, the Tribunal departed from the Board’s conduct of the case, without providing fair notice that it might do so. 33 Building upon the proposition that the note disclosed a prior inconsistent statement, ground 2 alleges outcome error in relation to the Tribunal’s ultimate finding that the appellant engaged in the particularised conduct concerning BB. -- 13 of 48 -- [2026] SASC 11 B Doyle J 10 The evidence, the note and the agreed facts 34 On 7 September 2021, and therefore some seven years after the relevant incident, BB gave a written statement, which was later tendered as part of the Board’s case. In it, she said: 7. On Friday 2nd May 2014, there was an incident with Dr Gue in the tearoom. It was in the afternoon and everyone else was all over the place doing theatre lists and other things and from my memory, I was the only resident or postgraduate in the department on that afternoon. We had to get Dr Gue to sign off on all of our notes and I had taken some notes in to him to sign off. 8. Dr Gue was sitting down, and I was standing next to him but was bending slightly as I was showing him something in a patient file. As I was standing there, he touched me with his hand moving it down my breast, over my stomach, down onto my leg and then over my groin. It was quite a brief touch, maybe only a few seconds however it was long enough to indicate to me that it wasn’t accidental. I remember he then looked at me for a reaction and then moved his hand. I was so stunned; I didn’t do anything just got my work and left. 9. I definitely remember thinking to myself “Oh my God, what was that?”. I was wearing a dress at the time. 10. As it wasn’t the end of the day, I left the tearoom and I didn’t see him again that day however I continued working until the end of my shift. It was never mentioned again by me or Dr Gue. 11. I told my Mum that night about this touching incident. We were both so shocked. It was so unexpected; I didn’t know what to think. To this day I am still shocked that this would have happened and I feel angry that I didn’t say something at the time. 35 In her evidence in chief before the Tribunal, BB affirmed the correctness of her statement. BB explained that she was standing to Dr Gue’s right when the incident occurred. When asked to elaborate upon the nature of the contact she said that Dr Gue’s palm had been placed on her breast and then moved down and his hand ‘moved over my body’. She explained that she was wearing a dress that had a high neck and short sleeves and went to just above her knees. 36 Apart from her mother, to whom she spoke about the incident that night, the next time she spoke about the incident was in 2019 when she heard from a friend in dentistry that there was an investigation. At that time she told her husband and spoke with an investigator from the Hospital on the telephone. She said she went into detail with the investigator. 37 BB was cross-examined on a number of topics including by reference to the content of the investigator’s note. It is convenient at this point to reproduce the text of the note. For ease of cross-referencing, paragraph numbers have been added. [Name of complainant] Telephoned on 9 April 2019. -- 14 of 48 -- [2026] SASC 11 B Doyle J 11 1. Said that she was resident in 2014. Worked there between February and September. 2. She graduated with her BDS in 2012 3. Was undertaking the residency in 2014 to gain the years experience required in the course outline ie three years. 4. Applied in 2015 but failed entry. Advised she should undertake further research and that would assist an application in future. 5. Applied again in 2016 and unsuccessful. Told to undertake honours/fellowship 6. Applied again 2017 started her honours 7. Applied again 2018 unsuccessful but did not seek feedback had won a place in Melbourne. 8. In 2017 told to go to SG’s house for feedback. Did so but nothing happened. 9. Believes that SG did not want her in program as she was a local and would set up practice in competition with him. 10. Took mainly interstate and overseas post grads. If local you want them to work in his practice. 11. Said SG touched her on leg once. Didn’t think anything at the time but later reflected on it. Thought totally inappropriate. 38 In cross-examination, the appellant’s counsel asked her whether, consistent with her trial evidence, but in contrast to the second sentence in paragraph 11 of the note, her position had always been that the appellant had inappropriately touched her, or whether that was a view she only came to hold later. She said she had always had that belief. 39 BB was asked in a little more detail about the way in which the appellant had applied his palm to her breast, given that he was seated and she was standing to his right, more or less next to him, and bending over (effectively on a 45 degree angle), whilst they were looking at the same documents. She suggested he used his left hand. She was clear that the touching was not accidental and that he made eye contact with her. 40 The appellant’s counsel then asked her about having discussed the matter with a workplace investigator in 2019. She explained that the investigator called her while she was living in Melbourne. In the cross-examination that followed, she: • agreed that she knew it was important to be as accurate as possible in the things she said to the investigator and that she appreciated what the consequences might be for the appellant; -- 15 of 48 -- [2026] SASC 11 B Doyle J 12 • confirmed that she had told the investigator the information in paragraphs 1, 3, 4, 5, 6, 7 and 9;22 • agreed that she had been asked whether there had been any inappropriate touching by the appellant towards her but denied that she said to the investigator that the appellant had touched her on the leg once; • said that she recalled describing to the investigator the scenario she had described in her trial evidence and in paragraph 8 of her witness statement (including by telling the investigator about being touched on her chest and down to her groin); • could not think of any reason why the investigator would have written something different from what she said; • was not sure why the investigator had written in paragraph 11 that she had not thought anything at the time and only later reflected on it. Such a statement would not be accurate because at the time of the incident she could not believe what had happened; • acknowledged that she had previously seen the note having been provided it by the legal team in the last few days; • denied the possibility that in 2019 she had only recalled a touch on the leg and that her perception that she had been touched inappropriately was something that had grown over time; and • was asked about whether some of her evidence was a result of her viewing events retrospectively with a negative lens and whether, if things had been as bad as she said, she would not have been as keen as she had been to be admitted into the postgraduate program under the appellant’s supervision. 41 In re-examination she said that if she had been shown the note in 2019 she would have altered or clarified the contents of paragraph 11 so as to accord with what she told the Ahpra investigator. 42 In his trial affidavit, the appellant said he had never touched BB in the manner described. He said he worked with BB following this event and nothing was ever said to him about it. To his knowledge no complaint was ever made. He said that on four occasions after the incident (in 2015, 2016, 2017, 2019), BB applied for a position in the program he administered at the Hospital. 43 In further evidence in chief he said that he had absolutely not touched BB in the manner alleged. He was 100 per cent sure about that. He also said that after he heard her give evidence he tried to reconstruct the allegation. He asked his wife to assist him by holding a file next to him and said that from a seated position he 22 It otherwise emerged that the matters in paragraphs 2 and 10 were true or believed by her to be true. -- 16 of 48 -- [2026] SASC 11 B Doyle J 13 could not move his hands in the areas suggested because her arm would be in the way. A little while later, a Tribunal member asked where he got the notion that BB was holding a file with two hands. The appellant said he thought that had been the effect of BB’s evidence. The appellant suggested that the Tribunal member must not have been watching that part of the way BB gave evidence. 44 In cross-examination, the appellant was asked whether he had touched BB by touching all of her body, her breasts, all the way down to her groin ‘in a flirtatious manner’. He denied touching BB like that. He agreed that he would discuss files and patients with BB in the tea room at times, and agreed that there could be a situation where BB was standing up and he was sitting down while discussing a file together. 45 The investigator’s note, which had been included in a book of supplementary documents prepared by the appellant but not tendered in the course of the Board’s case, was later tendered without objection by the appellant. The document was received into evidence without any expressed limitation on its use. 46 Just prior to the filing of written closing submissions, the parties prepared and provided to the Tribunal a ‘Further Agreed Statement of Facts’ relating to the Hospital’s investigation. That statement recited that the Board did not seek to tender the Hospital’s report or the transcripts of the Hospital’s investigation but that a number of factual findings (agreed by the appellant) were sought in relation to the investigation. 47 Relevantly, those facts included the following. [1] On 15 February 2019 the [appellant] was advised by the Women’s and Children’s Hospital (WCH) that concerns about his conduct had been reported, and investigations into the allegations would be undertaken. The [appellant] was directed to remain absent from the workplace until further notice. … [4] On 22 March 2019 the WCH engaged a workplace investigator Mr J Busuttil (WCH investigator) to interview people and prepare a report to assist the Delegate of the Chief Executive of the Women’s and Children’s Health Network (WCHN) to determine whether the information provided by the witnesses was sufficient to make a conclusion about the conduct of the [appellant] pursuant to the Code of Ethics for the South Australian Public Sector (in the context of the resignation of the [appellant], below, no determination was ultimately made by the Delegate). … [6] The WCH workplace investigator prepared a written report dated 9 April 2019 (WCH Report). … [24] On 9 April 2019, the day before the WCH report was due, the WCH Investigator received a call from [BB]. [BB] did not provide a signed statement. There is no -- 17 of 48 -- [2026] SASC 11 B Doyle J 14 transcript of the telephone conversation. The WCH investigator’s notes of the conversation are attached to the WCH Report and appear in the [appellant’s] Supplementary Hearing Book at MFI R2 at tab 17 p 398 proceedings. [BB] gave evidence in these proceedings that she does not recall being provided with the notes by the WCH investigator following that phone call. The parties’ closing submissions 48 In its written closing submissions the Board invited the Tribunal to prefer the evidence of BB over the appellant. It was said that she provided a logical explanation as to why she did not say anything at the time. The Board relied upon her report to her mother as consistent with the conduct having been inappropriate. The Board submitted there was no prior inconsistent statement established. It pointed out that the WHS investigator was not called, and that the notes were ‘short form’ as distinct from a signed statement. The Board emphasised that there was an accepted opportunity for the conduct to have occurred and that the alleged touching action, whilst awkward, did not make it implausible. It was not impossible. 49 In oral submissions the Board’s counsel emphasised that the note was ‘effectively a dot point summary of what the investigator has recorded [she] said to him’. There was not an inconsistency that should trouble the Tribunal because the note was ‘clearly a summary and when she was asked to provide [a] detailed written statement to [Ahpra], she put in that full details about the touching’. 50 The appellant’s closing written submissions invited the Tribunal to find that the BB touching allegation was not proven to the requisite standard. The written submissions emphasised the investigator’s note. The following points were emphasised: • the conduct described by BB at trial would have been especially brazen. BB had only just started working, and the tea room was a very public part of the Hospital; • after the alleged incident, BB applied a number of times for a position in the program in which she knew she would be working with the appellant as her supervisor for three years and was very disappointed to have missed out; • the Board did not call BB’s mother; • there was no other occasion when BB considered the appellant had touched her inappropriately; and • most importantly, BB gave a different account to the workplace investigator, every other detail of the record of which was correct. It was implausible that BB gave her trial account to the investigator but that he wrote down something very different when the investigator’s note was otherwise so accurate. The Board did not call any evidence from the investigator to corroborate BB’s evidence of what she told the investigator. -- 18 of 48 -- [2026] SASC 11 B Doyle J 15 51 In oral closing submissions, the appellant’s counsel addressed the note and its significance in some detail. It was emphasised that BB had not said that she had been initially embarrassed to give the more detailed account. It was submitted it was not credible to suggest it was a shorthand form of what had been said; it was unlikely that such significant details would be left out. But most important was the positive inconsistency between the investigator’s record that BB did not think anything of the contact at the time and BB’s evidence. The appellant submitted that, in light of the Briginshaw standard, if the Board were to submit that the note should be put to one side, it would be expected to have called the investigator. The Tribunal’s approach 52 The Tribunal set out the rival trial accounts of BB and the appellant, including some aspects of the cross-examination and re-examination of BB about the investigator’s notes (Reasons [196]-[208]). 53 The critical reasoning of the Tribunal is contained in the following passages: [210] We bear in mind the serious nature of the allegation and the consequences to the [appellant] to his reputation thereof in weighing up the evidence. [211] We found [BB] to be an impressive and truthful witness. [212] But for the investigator’s note we would not have any hesitation in accepting it. We consider that her evidence was forthright and withstood cross examination. [213] The note however gave us cause for careful consideration. [214] [BB] did not see the note before her cross examination and was not given the opportunity when it was prepared to check whether the note was accurate. Nonetheless we need to give it careful consideration as the allegation of touching on the breast and groin is far more serious than a touch on the leg. The allegation that the touching was intentional and involved eye contact is materially different to the words ‘didn’t think anything at the time but later reflected on it’. Those differences are not sought to be explained by [BB] by reference for example to being embarrassed so that she did not tell the investigator everything– rather her explanation is that the note does not reflect what she told the investigator. [215] One would then of course wonder why an investigator would make a mistake in a note. [216] The author of the note was not called to give evidence. It is not signed. We were not told whether there was a transcript taken of the telephone call with the workplace investigator. The author of the note is not identified on the note. The note is not dated (though refers to a telephone conversation of 9 April 2019). It is not known whether the note is a contemporaneous note. It appears to be a truncated version of a longer conversation as opposed to a transcript. The formatting of the note is odd in the sense that text appears on top of other text (by which we mean that lines 3, 5 and 6 appear on the right-hand side over the top of the information on the right-hand side of the page. [217] We consider that the [appellant] has not demonstrated that the note is correct and accurate, and that it amounted to a prior inconsistent statement of [BB]. -- 19 of 48 -- [2026] SASC 11 B Doyle J 16 [218] We found [BB] to be a particularly impressive witness in respect of the way she gave her evidence. She gave a detailed account. We watched her carefully give that evidence and have reviewed the transcript. Her account was compelling. She was steadfast in her version of events through cross examination. The absence of this particular being recorded in the notes of an investigator gave us serious pause for consideration. We have accepted her response in that respect. The note was never shown to her. She would have corrected it if shown to her. The accuracy of what was said to give rise to the note has not been proven. [219] We do not accept the argument of the [appellant] that it was ‘physically impossible’ to touch her in the way alleged. The [appellant] has not proven that assertion. It makes little sense. There is no logical reason why touching her by moving his hand over her breast, over her stomach and down her leg and over her groin was ‘physically impossible’. The argument smacks of reinvention or desperation. [220] The complainant submitted that because [BB] said that she complained to her mother immediately after the incident that it adds credibility to the account. We did not accept that submission. Leaving aside that the mother did not give evidence we are not convinced that whether someone makes a complaint (or says they did) bolsters their evidence. We have decided that we believe her without relying on the evidence of a contemporaneous complaint. [221] We do not agree with the argument that [BB] would not have continued to work at the WCH had the event occurred. Her explanation as to having family reasons for wanting to stay in Adelaide is accepted by the Tribunal. [222] Having regard to her evidence, and having regard to our assessment of the [appellant] as a witness, we find particular 3.3 proven as charged. [223] We do so being satisfied to the Briginshaw standard. [224] We do not make the finding lightly. Consideration 54 The appellant submitted that the Tribunal’s approach involved the following misapprehensions: • first, contrary to Reasons [214], BB had been provided with the note for her to read by the Board’s legal team before cross-examination; • secondly, contrary to Reasons [216], it was an agreed fact that no transcript of the telephone call with BB was taken or available; • thirdly, contrary to Reasons [216], whilst the author of the note was not identified on the note, his identity was an agreed fact; and • fourthly, because the note was appended to the Hospital’s report which was dated 9 April 2019 (the same day as the conversation), it was apparent, contrary to Reasons [216], that the note was (at least, relatively) contemporaneous. 55 Those submissions should be accepted. -- 20 of 48 -- [2026] SASC 11 B Doyle J 17 56 It is tolerably clear from the second, third and fourth misapprehensions noted above that the Tribunal must have overlooked the agreed facts relating to the note. On that basis, it also failed to bring to bear, for whatever it was worth, the circumstance that the note was considered appropriate to be included as an appendix to a formal report. The document was not some unexplained and possibly incomplete draft, prepared at an unknown time. There was no uncertainty about it having been prepared by an investigator who spoke directly to BB. It was a note taken by an investigator on the day he spoke with BB and included (so it may be inferred, on the basis that it was a relevant and accurate note) in a formal report about misconduct by the appellant. 57 Further, and with respect, I consider the Tribunal’s observation that the formatting of the note was ‘odd’ to be a surprising one. The Board had not submitted that the formatting had any significance. Whilst it is the case that part of the end of the text of lines 3, 5 and 6 of the note ran over part of the SA Health letterhead on which the note is printed or was typed, once it is appreciated that the document was annexed to a report, it is hard to see why the way in which the printed text was arranged on the page might (of itself) undermine the evidentiary value or cogency of the note in establishing that its contents reflected what BB had said. 58 Accepting, as I do, that these misapprehensions involved a process error with respect to the fact-finding process, I first consider whether the error was material in the sense that it had the capacity to affect the Tribunal’s finding that the appellant committed the conduct alleged in particular 3.3. I then consider whether, the appeal being by way of rehearing, I should myself make a finding that, having regard to the Briginshaw approach, the allegation was or was not made out, or whether, despite the undesirability of doing so, that question must be remitted. 59 The Board submitted that the misapprehensions were not material because: • knowing that no transcript was available would not logically alter the probative force of the note in establishing whether a previous inconsistent statement had been made; • whilst the Tribunal was wrong to think the author’s identity was unknown, the Reasons show that the Tribunal understood the author to be an investigator, and, beyond that fact, their actual identity was not pertinent to the question whether the note established whether a previous inconsistent statement had been made; and • whether the note had odd formatting or not was not a matter of great importance. 60 The difficulty I have with those submissions is that the observations in Reasons [216] appear to have been significant to the Tribunal in assuaging the concern implicit in the question posed at Reasons [215], and in paving the way for -- 21 of 48 -- [2026] SASC 11 B Doyle J 18 the conclusion in Reasons [217] that the appellant had not proved the note was ‘correct and accurate’ or disclosed a prior inconsistent statement of BB. 61 The Tribunal does not appear to have based that conclusion solely (or predominantly) on the fact that the author was not called as a witness. The perceived uncertainties of the note appear to have contributed to that conclusion. What purpose did it serve to observe, for instance, that it was not known whether the note was contemporaneous, or who had prepared it, or that it had ‘odd’ formatting, if these were not relevant to the Tribunal’s unpreparedness to find, from the note alone, that BB had given an account of the relevant incident that was consistent with paragraph 11 of the note and which omitted the additional elements in paragraph 8 of her written statement? 62 The Board further submitted that I should conclude that, irrespective of any misapprehensions upon which the Tribunal’s conclusion may have been based, the conclusion that no prior inconsistent statement was established is demonstrably correct, particularly given that the appellant did not call the author of the note, Mr Busuttil. 63 In considering that submission, it is necessary to step back and make some observations about the context in which evidential issues arose in this case. 64 First, as the Tribunal noted (at Reasons [17]), it was not bound to apply the rules of evidence.23 65 Secondly, and accepting that it will often be useful and appropriate either to apply the rules of evidence or to treat them as providing useful guidance, the starting position in this State is that evidence of an oral out of court statement by a complainant which is inconsistent with their testimony in court is hearsay, but the making of the statement may be put to the complainant in cross-examination and evidence of the making of the statement may be admitted in exception to the general preclusion against pursuing questions of witness credibility beyond cross- examination subject to compliance with s 28 of the Evidence Act 1929 (SA) (‘Evidence Act’).24 Where evidence of a prior inconsistent statement is then adduced, if the trier of fact accepts that the statement was made or there is otherwise acceptable evidence the statement was made, that fact may be used to discredit the witness’ testimony, but it is not (without more) evidence of the truth of the out of court statement.25 23 SACAT Act, s 39(1)(b). 24 For a recent summary of the relevant principles, see Brown (a pseudonym) v The King [2025] SASCA 40 at [147]-[164] (Livesey P) and see also R v Trabolsi (2018) 131 SASR 297 at [151]-[161] (Doyle J, Kourakis CJ agreeing). 25 Potentially, the note might be tendered as a ‘business record’ available for a hearsay use pursuant to s 53 of the Evidence Act 1929 (SA), but questions would inevitably then arise as to whether its receipt should be refused for one of the reasons in s 53(2). In the present case, the appellant does not appear at trial to have placed reliance upon the note for testimonial purposes. -- 22 of 48 -- [2026] SASC 11 B Doyle J 19 66 There is no doubt that the requirements of s 28 were complied with in this case, so that it was open to set about proving that BB made a statement in the terms suggested by the note. Ordinarily, proof of the making of a previous inconsistent statement would be by way of oral evidence from a person who heard it, although there may be available more direct means, such as a recording, or in the case of a statement in writing, a document. 67 In this case, the investigator was not called, but the note was received into evidence, and facts were agreed about the provenance of the note. If the receipt of the note into evidence had been objected to, a question may have arisen as to whether, if the rules of evidence were to be applied, the evidence should be received pursuant to s 52 of the Evidence Act for the purpose of establishing the previous statement. 68 There was, however, no such debate, and so the question was not as to the admissibility of the note for the purposes of seeking to prove the previous inconsistent statement, but whether, combined with the agreed facts, it ultimately established that fact, namely, that what appears in paragraph 11 of the note was the essence and extent of what BB said to the investigator about the incident in question. 69 In my view, the circumstance that the author of the note was not called to vouch that paragraph 11 was an accurate and comprehensive summary of what BB said on the topic of inappropriate touching is relevant to, but not decisive of, that issue. 70 The matters bearing on the capacity of the note to establish the making of a statement along the lines of paragraph 11 included, at least: • the contemporaneity of the note; • the inferences that might be drawn from other matters contained in the note as to the capacity or skill of the investigator in accurately summarising details that could only have been provided to him by BB; • the inferences that could be drawn from the note itself, supplemented by the agreed facts, as to the care that one might expect to have been taken in the timing and preparation of the note; • the likelihood of the investigator consciously including only a subset of what was said to him by BB on the topic based on its perceived relative significance; • the likelihood of the investigator mishearing or, after hearing but before making the note, misremembering, BB’s initial belief about whether the touching was intentional; and -- 23 of 48 -- [2026] SASC 11 B Doyle J 20 • the likelihood of the investigator deliberately minimising or altering the effect of what was reported by BB. 71 However, another potentially important matter bearing on whether such a statement was in fact made was the weight to be given to BB’s sworn evidence that she did not make a statement of the kind in paragraph 11. Of course, whether she made an inconsistent statement was relevant to whether the evidence she gave about the incident in question was credible and reliable, but her performance as a witness, including how she dealt with the suggestion she made a previous inconsistent statement, bore on the question whether she had done so. Any appearance of circularity is simply a reflection that evidential and factual issues are not resolved in a vacuum, but (usually) in light of all the evidence. 72 The Board submits that there is no reason why I cannot for these purposes adopt the Tribunal’s assessment of the way BB gave her evidence. As has been seen from Reasons [211] and [218] and other passages, the Tribunal was impressed by her evidence. The problem with that is that it seems likely that the Tribunal’s assessment of BB was itself partly influenced by the view that she was steadfast even though confronted for the first time with the note in cross-examination. As has been pointed out, Reasons [214] reflected a misapprehension of the position in that regard. 73 I conclude that any requirement of materiality is met. The question whether an inconsistent statement of the kind alleged was made was, in this case, particularly significant, because: • there was no objective evidence available to determine proof of the commission of particular 3.3 – everything turned on the oral evidence of BB and the appellant. The credibility and reliability of their respective accounts was the issue for determination; and • this was not a case in which, if an inconsistent statement of the kind was made, there was an obvious explanation for it, consistent with the reliability of BB’s account. If the statement was made in the terms posited it had the capacity to shed significant light on the credibility and reliability of BB’s trial evidence. 74 That leaves the question whether on the material available to me I can fairly decide, as the appellant would urge, that the evidence of a previous inconsistent statement is such as to preclude satisfaction that the conduct occurred as alleged (having regard to the Briginshaw standard). 75 In my view, the note (absent further evidence from its author) does not inevitably lead to a finding that a statement of the kind posited was made, or the further proposition that BB’s trial account cannot be accepted having regard to Briginshaw considerations. The inherent unlikelihood that the note would be relevantly inaccurate is not so high that a decision-maker could not properly be -- 24 of 48 -- [2026] SASC 11 B Doyle J 21 persuaded to accept BB’s denial that she made such a statement. Nor can it be said that the real possibility that the posited inconsistent statement was made necessarily precludes a finding that BB’s trial evidence as to the allegations themselves should be accepted. 76 In reaching that conclusion, I have considered the applicability of what was said by Hodgson, Ipp and Tobias JJA in Whitlam v Australian Securities and Investments Commission26 about the Briginshaw principle calling attention to the requirement that a party seeking a finding of serious misconduct produce adequate material to enable a court to reach a comfortable satisfaction on such a serious matter. Their Honours said: Although this is not the same as the obligation of the Crown to call available evidence in a criminal prosecution, we think it is fair to say that a person seeking such a finding does need to be diligent in calling available evidence, so that the court is not left to rely on uncertain inferences: cf the article D H Hodgson, “The Scales of Justice: Probability and Proof in Legal-fact Finding” (1995) 69 Australian Law Journal 731, particularly at 739– 740. In the circumstances of this case, if the respondent were seeking to make out a case that the appellant was given good reason to believe that the fourth point had not been accepted, we would have expected that at least Mr Hamilton would have been called, if his evidence in any way supported its case. 77 In my view, that kind of approach applies to evidence directly bearing on proof of conduct which involves serious misconduct, but it becomes more problematic to apply it to evidence which is relevant only to the credibility of a witness to the relevant misconduct. Indeed, if the rules of evidence had applied in the present case, it would not have been open to the Board to call Mr Busuttil as part of its case in chief unless and until there was a distinct suggestion of recent invention, or perhaps until evidence of the previous inconsistent statement were adduced. In this particular case, I consider that the Briginshaw principles apply to the ultimate issue of whether the appellant touched BB in the manner alleged. It is not necessary or helpful to apply them to the question whether a previous inconsistent statement was made. 78 On the other hand, I do not consider that I can or should positively find, based on my independent review of the record, that an inconsistent statement was not made, without myself having had the benefit of observing BB as a witness. 79 Accordingly, confining attention to ground 1, whilst I would allow the appeal on that basis, I regard it as necessary that there be a re-trial of particular 3.3. (I will address any broader consequences for other particulars later.) 80 Ground 2, in attacking the ultimate finding in respect of particular 3.3, draws on a number of additional contentions going to the improbability of the underlying conduct concerning BB having occurred. The appellant emphasises that the event was alleged to have occurred during BB’s first week of employment with the appellant, that BB subsequently applied for programs in which she would have to 26 (2003) 57 NSWLR 559 at [119]. -- 25 of 48 -- [2026] SASC 11 B Doyle J 22 work with BB, and that the Board failed to call BB’s mother. Those are matters to be considered but they are not of such self-evident force that a Tribunal having seen and heard BB and the appellant give evidence could not possibly be persuaded of guilt. In circumstances where the appeal court has not had that benefit and cannot be sure that the Tribunal’s impressions of the witnesses were not affected by the misapprehensions identified, fairness to both parties requires the remittal of particular 3.3. 81 In these circumstances, I prefer not to express a concluded view about the Tribunal’s criticism of the appellant’s evidence by which he threw doubt upon the mechanics of the alleged touching. His evidence was premised on BB having been holding the files with two hands at the time of contact. Having not observed BB give her evidence, it is not clear to me whether, by the way in which she motioned when giving evidence, the appellant might reasonably have understood that on her account she was using two hands to hold a document or files at the time. (If that was the case, I do not think the point raised by the appellant should be dismissed as insubstantial; whether it was an appropriate matter for the appellant to give evidence about, as distinct from make submissions, is a different question.) But having not seen either witness give evidence (and there being no affidavit about what might fairly have been observed during BB’s evidence, but not revealed on the transcript), I cannot gauge whether the appellant’s evidence smacked of desperation or reinvention. For that reason I am not in a position to find that the Tribunal erred on that particular basis in a way which would result in the appeal being allowed. Appeal ground 3 82 Appeal ground 3 contends that in finding that the conduct alleged in particulars 3.1, 3.4, 3.12 and 3.15 involved intentional contact between the appellant and each complainant, the Tribunal relied on tendency reasoning. It is said that in doing so the Tribunal: • denied the appellant procedural fairness, because the Board had purportedly disavowed reliance on tendency reasoning, and the Tribunal had not notified the appellant that it might employ that reasoning; and • failed to apply the relevant legal principles applicable to the use of tendency and similar fact reasoning, or gave too much weight to the evidence. 83 In the course of submissions, reference was made by both parties to s 34P of the Evidence Act, and to common law authorities concerning propensity or disposition evidence.27 As has been mentioned, the Tribunal was not bound to 27 In a criminal trial involving multiple complainants, the secondary use of evidence of offending against one complainant in connection with charged conduct involving another complainant attracts the application of s 34P: Eddy (a pseudonym) v The King [2024] SASCA 115 at [63] (Bleby and David JJA, B Doyle AJA), Collins v The Queen [2020] SASCFC 96 at [144] (Blue J, Peek and Stanley JJ agreeing). -- 26 of 48 -- [2026] SASC 11 B Doyle J 23 apply the rules of evidence, and, in any event, s 34P only in terms applies to charges of criminal offences.28 84 Whilst not bound to apply the rules of evidence, when exercising original jurisdiction in disciplinary matters of this kind, there are some indications that the Tribunal will take a more ‘court-like’ approach to the reception and use of material. In any event, the overarching and operative filter on the Tribunal’s conduct and reasoning is the obligation to provide natural justice and operate fairly to the parties having regard to the consequences of the decisions that might be made.29 85 Reliance by a court or tribunal upon a mode of reasoning disavowed by a party may involve a denial of procedural fairness to the other party. MDM v The Queen30 was such a case, and other examples were given in Peek J’s reasons in that case.31 Remembering that procedural fairness is about practical injustice,32 much will turn on the particular circumstances of the case. Where the prosecution’s position has been clear from the outset, it is more likely that the defence will have made forensic decisions accordingly. That said, even where the issue emerges in closing submissions, the disavowal of a particular use by one party may mean the other, to its prejudice, refrains from arguing against such a use, or fails to draw attention to the dangers or limits of reasoning in that way. As well, in such a case, if the court or tribunal engages in a mode of reasoning disavowed by one party, the court or tribunal may be seen as entering the fray in a way that might impair its neutrality and thus the appearance of fairness. 86 Before considering the approach of the Board below, and comparing it with the reasoning of the Tribunal, I observe that the Board’s position on appeal was that what it had urged below, and what the Tribunal had engaged in, was not propensity or disposition reasoning, but ‘improbability’ reasoning. 87 It may therefore be helpful to make some general observations about those labels, and what they may entail. Propensity and ‘improbability’ 88 As is well understood, to reason based upon a propensity to commit conduct of the kind alleged is to reason that because there is evidence, or perhaps even a finding, that a person has engaged in similar misconduct in the past, it is more likely than it might otherwise be that they engaged in the alleged misconduct. The reasoning is not illogical, because patterns of behaviour and dispositions obviously 28 Evidence Act, s 34O. 29 Medical Board of Australia v Singh [2019] SACAT 66 at [31]-[50] (Hughes P). See also Badea v Department of Human Services – Central Assessment Unit [2024] SACAT 37 at [84] (Hughes P). 30 (2020) 136 SASR 360. 31 (2020) 136 SASR 360 at [80], referring to R v Fleming (2017) 129 SASR 27 and Ribbon v The Queen (2019) 134 SASR 328. 32 Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ). -- 27 of 48 -- [2026] SASC 11 B Doyle J 24 exist, but it may be dangerous, for various reasons that are well understood and need not be catalogued. 89 Evidence proving or suggesting that a party has engaged in other misconduct may be relevant to assist in proof of the misconduct in issue without relying on a propensity, even though it may incidentally suggest such a propensity. In written submissions, the Board submitted that what was engaged in by the Tribunal, consistent with the Board’s submissions below, was ‘coincidence’ reasoning which resists on the ‘improbability of events occurring by coincidence’. 90 To avoid confusion,33 it will often be important, when considering ‘improbability’ reasoning, to identify what it is that is said to be made more or less improbable by the proposed evidence.34 91 Without being exhaustive, evidence of misconduct of a person on a separate occasion may assist in establishing guilt because it: • reduces the inherent improbability of the person engaging in the alleged guilty conduct; • renders less improbable (or more explicable) a particular feature of the complainant’s reaction to the alleged offending; • renders improbable an innocent explanation for an apparent association with the events in issue; or • renders it improbable that a complainant would give an account that is relevantly similar to another complainant’s account unless it were either true, or false because it is the product of collusion. 92 The first type of improbability reasoning will usually but may not always involve reliance upon a propensity or disposition of the defendant. Where there are multiple complainants and the issue is whether the defendant did the acts alleged at all, the nature of the allegations may be such that the trier of fact may consider that it is unlikely that such conduct would be committed at all, because, for example, there was a high risk of detection. In such cases, the real probative force of evidence may be that the complaints of misconduct should not be rejected as unworthy of belief because they appear improbable having regard to human experience.35 In other cases, the evidence of other prior misconduct (particularly if it did not generate a contemporaneous complaint) may render less improbable that the defendant would take the risk of engaging in similar misconduct. 33 See, eg, Lukaj v The King (2022) 142 SASR 98 at [58] (Livesey P, Lovell and Bleby JJA). 34 In one sense, all circumstantial evidence involves improbability reasoning. Evidence is relevant if it rationally affects the probability that the facts in issue occurred. 35 Hughes v The Queen (2017) 263 CLR 338 at [60] (Kiefel CJ, Bell, Keane and Edelman JJ). -- 28 of 48 -- [2026] SASC 11 B Doyle J 25 93 The second type of improbability reasoning, whilst incidentally disclosing a propensity to offend against the particular complainant, is not reliant upon the existence of the propensity. It is directed at explaining the otherwise apparently improbable fact that the complainant did not, on the occasion at question, resist or complain or otherwise react in a manner that would be expected if the conduct were ‘out of the blue’. 94 The third type of reasoning also does not deploy or rely upon a demonstrated propensity on the person’s part for guilty conduct but instead relies upon the improbability of an innocent explanation or association. As McHugh J said of this kind of reasoning in Pfennig v The Queen:36 Makin is the classic example. It was a case involving objective improbability reasoning, not propensity reasoning. The propensity of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused’s propensity. 95 In this kind of case it is the innocent explanation that is rendered improbable by the evidence of similar circumstances (by reason of it being unlikely that a person could find themselves associated with particular events in innocent circumstances on a number of occasions). Of course, if an innocent explanation is rendered unlikely to the point that a conclusion of a guilty explanation is inevitable, the resultant conclusion may reveal a propensity, but the propensity plays no role in the reasoning to that conclusion, and subject to appropriate directions being given, the risk of prejudicial or faulty reasoning may be more readily managed. 96 McHugh J contrasted an alternative explanation for admissibility in Makin (with which he disagreed). He said that, on such an approach:37 … the jury would find the disposition charged from the uncharged deaths and then use that disposition to conclude that the accused had murdered the child the subject of the charge. That is certainly not the way that the courts have hitherto dealt with cases giving rise to objective improbability reasoning. Indeed where there is only one similar instance beside the charged instance relied upon, it would be a very strange reasoning process. The risk of prejudice of true similar fact cases is not from propensity reasoning but from the fact, as Murphy J pointed out in Perry, that ‘[c]ommon assumptions about improbability of sequences are often wrong’. A jury may wrongly give the similar fact evidence far more weight than it deserves. In other cases involving similar facts, however, the accused may have admitted the facts of a similar incident or the facts of a similar incident may clearly point to wrongdoing on the part of the accused in relation to that incident. In such cases, there is a risk that, instead of relying on probability reasoning, the jury will simply rely on the propensity of the accused as revealed by the incident that is admitted or proved. It follows that the nature of the 36 (1995) 182 CLR 461 at 531 (references omitted). 37 (1995) 182 CLR 461 at 531 (references omitted). -- 29 of 48 -- [2026] SASC 11 B Doyle J 26 prejudice and the degree of risk of an unfair trial will always depend on the facts of each case. 97 As for the fourth type of reasoning, as was said in Eddy (a pseudonym) v The King (‘Eddy’):38 Where the prosecution relies upon similarities between the accounts of complainants to demonstrate the improbability of independent concoction, fabrication or mistake, the proposed use of the evidence does not entail reasoning that the accused possesses a propensity or disposition to commit particular crimes and is more likely to be guilty as a consequence. That is so notwithstanding that, if the degree of similarity leads to a conclusion that the accounts of the complainants could not have been independently concocted, and if the reasonable possibility of collusion or contamination is otherwise excluded, such that the events described must have occurred, a propensity of the accused will be revealed.39 … Where admitted for a similar account use, the probative value of the evidence is its capacity to negate the possibility that the complainants independently concocted, fabricated or imagined their accounts. Since s 34S makes clear that evidence is not to be excluded only on the basis that it may be the result of collusion, it is not essential that the complainants’ accounts themselves disprove or tend to disprove that the accounts have been affected or infected by collusion (or innocent contamination, for that matter). Indeed, it may be that similarities which attend the accounts of numerous complainants themselves raise the spectre of collusion, such that it becomes the primary forensic issue in the trial.40 In this context, the inherent unlikelihood of more than one child known to an adult accused incorrectly alleging sexual abuse against the accused is the starting point for analysis,41 but it is by no means sufficient to justify cross-admissibility. Whilst it may be true to say that being the subject of two or more false accusations is an inherently less likely state of affairs than being the subject of one, a moment’s consideration shows the danger of reasoning from that basal improbability alone, and its potential to undermine if not invert the designedly exacting criminal standard of proof.42 98 A transparent articulation of the type of reasoning involved is important to an appreciation of its cogency and the pitfalls that may be associated with it. 99 Taking the fourth type of reasoning (sometimes shortened to ‘similarity of account’ reasoning) as an example, it is critical to appreciate, as the passages from Eddy show, that the real force of the evidence is to remove as a realistic possibility that a complainant has imagined or otherwise independently erred in their account. The similarity of the accounts of different complainants may narrow the field of realistic possibilities to truth or collusion (including innocent contamination by discussion between complainants). Understanding that is important to a proper use of the evidence, because it focuses attention upon the risk of collusion. Further, 38 [2024] SASCA 115 at [86]-[90] (Bleby and David JJA, B Doyle AJA). 39 R v Bonython-Wright (2013) 117 SASR 410 at [50] (Kourakis CJ, Blue and Stanley JJ agreeing). 40 R v C, CA [2013] SASCFC 137 at [58]-[60] (Kourakis CJ, Anderson J agreeing). 41 MDM v The Queen (2020) 136 SASR 360 at [14] (Kourakis CJ). 42 Douglass v The Queen (2012) 290 ALR 699 at [48] (the Court). -- 30 of 48 -- [2026] SASC 11 B Doyle J 27 because, once collusion is discounted as a real possibility, the force of this kind of reasoning is to bolster the credibility or reliability of the complainants’ accounts, it has little if any role to play if the credibility or reliability of the complainants’ accounts is not in issue. 100 It is primarily for that reason that, in connection with the four particulars relevant to appeal ground 3, ‘similarity of account’ or ‘improbability of similar account’ reasoning was not, in my view, relevant. That is because there was no substantial issue about whether the four complainants were being honest when they described the appellant having made contact with them. The real issue was why and with what (if any) intention the appellant made contact with them. That was not an issue about which the complainants could give direct or determinative evidence. The credibility and reliability of their accounts was not really the issue. It was the inferences that might properly be drawn from their accounts. If this fourth type of reasoning were to have been engaged in, it would have been critical to carefully consider the possibility of innocent or conscious contamination as between the complainants. 101 The appellant’s case being that the contact must have been incidental and non-deliberate (and in any event not engaged in with prurient intent), I accept that the third type of reasoning was potentially relevant. However, engaging in that reasoning may carry risks unless it is done with a clear appreciation of its logic. Translated to the facts of the present case (which I will explain in more detail shortly), the logic is this: • in respect of a particular complaint, there is no real issue that the complainant experienced some physical contact from the appellant; • the Board contends that the contact was deliberate and inappropriate, but the appellant says that the contact must have been incidental and without any inappropriate intent; • confining attention to any particular complaint, both may seem reasonably plausible and not impossible explanations; • however, in light of three other complainants’ evidence, the innocent hypothesis becomes less probable to the point of being improbable, because whilst a person may accidentally make contact of a particular and unwanted kind once, there may come a point where it is distinctly improbable they would accidentally do so on numerous occasions. 102 When the logic is clearly articulated, it can be seen that the cogency of the last step invites attention to further questions, including: • to what extent, given the circumstances in which the incidents occurred (such as the confined or crowded nature of the space in question), might occasional contact of the kind described be expected to occur from time to time; and -- 31 of 48 -- [2026] SASC 11 B Doyle J 28 • over what period of time were the four incidents said to have occurred and, so far as can be ascertained, are they the only known occurrences of similar conduct during that period? 103 When it is appreciated that it is the improbability of the innocent hypothesis that is the focus of the reasoning, it can also then be appreciated that to point to a further instance where there is no suggestion that the innocent hypothesis was at play, is to include within the data set an irrelevant piece of information. As will be explained, this is where I think the Tribunal appears most clearly to have engaged in propensity or disposition reasoning. 104 In a case where there are four admitted interactions which are capable of a guilty or innocent explanation, evidence that satisfactorily proves (in its own terms) guilt of a fifth occasion in which there was deliberate touching of a colleague, is not necessarily an irrelevant circumstance. But its relevance lies in the fact that the person has now been shown to be a person with an interest in, and preparedness to give effect to, inappropriate touching of work colleagues. All things being equal, that may render a guilty explanation of the other occasions less improbable than might otherwise be assumed. That is propensity or disposition reasoning. 105 Turning back to the first category, and focusing upon a case where propensity reasoning is explicitly relied upon, the fact of multiple allegations of similar misconduct may give the evidence relating to each a degree of probative strength in respect of each other allegation in a kind of iterative way; that is to say that looking at all of the evidence may warrant a finding as an intermediate fact of a tendency (including, in a criminal case, at a lesser standard than beyond reasonable doubt) which is then deployed in determining whether particular alleged acts are proved to the requisite standard.43 In some other cases, there may be scope for sequential reasoning. 106 In engaging in that kind of reasoning, it is important, when assessing the probative force of particular evidence, to consider two interrelated matters: first, how strongly the evidence supports the relevant propensity or disposition and, secondly, the extent to which the propensity or disposition makes more likely the facts making up the contested allegation.44 107 This further emphasises the desirability of identifying the particular ‘improbability’ contended for in order to properly understand the nature of the use or reasoning proposed in connection with evidence, and, in turn, to give it the weight, or treat it with the caution, that it merits. 108 That is not to say that that level of analysis is always called for in a particular case, especially where the rules of evidence are not binding. However, in a case 43 DPP v Roder (a pseudonym) (2024) 281 CLR 18 at [27] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 44 Hughes v The Queen (2017) 263 CLR 338 at [41] (Kiefel CJ, Bell, Keane and Edelman JJ). -- 32 of 48 -- [2026] SASC 11 B Doyle J 29 in which propensity reasoning is expressly disavowed by the regulator, a lack of precision about improbability reasoning may make it more difficult to determine whether the court or tribunal has reasoned to guilt in a way that was not anticipated by the parties’ submissions, and which resulted in a failure to afford procedural fairness. Credibility 109 Before turning to deal with the substance of the appeal ground, it is appropriate to note one further matter. To this point, reference has been made to the improbability of an innocent hypothesis. In criminal cases, innocent hypotheses may emerge without the accused, who is entitled to remain silent, giving evidence on oath in terms that bear out that hypothesis. In such cases, the accused’s credibility as a witness is not distinctly in issue, and nor, absent an attempt to rely on good character, will they have ‘lost the shield’. 110 Here, however, the appellant gave evidence in chief that in his 15 years of working at the Hospital, he did not ever intentionally tap someone on the bottom. If it were demonstrated that, on a particular occasion, he did intentionally tap someone on the bottom, that would, quite apart from any capacity to demonstrate a propensity, tend to undermine his credibility as a witness. In the nature of things, this would have the capacity to undermine his denials of other allegations. This was another way in which the evidence on one count was potentially relevant to evidence on another count, but in undertaking reasoning of that kind, it is necessary to bear in mind that merely to undermine the credibility of a denial is not (generally speaking, anyway) to establish the obverse of the denial. Rather, it is to undermine evidence that might otherwise stand in the way of a finding (according to the requisite standard) that the conduct occurred. The evidence concerning the four particularised allegations Particular 3.1 (AA) 111 Particular 3.1 alleged that in or about August or September 2012, the appellant brushed his hand across the middle of AA’s buttocks in a surgical theatre at the Hospital. AA in her witness statement described an occasion when she was working in theatre when the appellant brushed his hand across her bottom in a swooping action across the middle of her bottom. She said that at the time she thought it was an accident as he was moving his arm, but later went home and thought about it and it didn’t sit right with her. 112 In oral evidence she made clear she did not see his hand make contact but that was her belief consistent with the nature and extent of the contact and its movement. AA said she was standing at the patient’s head when it occurred. She said in oral evidence that ‘at that exact moment, it felt accidental, it felt like we were just squashed together. I felt differently about it later but in that moment, it felt like people were sort of jostling for space’. She said she had become aware of some ‘cultural issues’ and it was that which made her reflect and ponder the ‘bigger picture’ and question whether it was accidental. -- 33 of 48 -- [2026] SASC 11 B Doyle J 30 113 In cross-examination she agreed that the contact was brief and that it felt like someone brushing past. She also agreed that what she felt was either an accidental or intentional touch and at the time she was happy to give the appellant the benefit of the doubt. Whilst giving evidence she could not have a firm view about whether it was intentional or not. 114 The appellant in his affidavit said: I am not in a position to deny that the physical contact occurred, though it would not have been intentional. The surgical theatre room where I typically worked is a relatively small space. It is not a private area and there are always a range of people present such as registrars, nursing, and in anaesthetic staff. I am now much more careful about any incidental accidental touching in a workplace environment. I recognise that in the past this is not something I would have necessarily thought about or even noticed. I acknowledge that this was below professional standards. 115 Following the conclusion of the evidence, the appellant’s position was that the Tribunal could and should find that on the occasion in question, his hand made contact with the middle of AA’s buttocks in a surgical theatre at the Hospital. What was in issue was his intent in doing so. Particular 3.4 (CC) 116 Particular 3.4 alleged that in about August 2014, the appellant placed his flat open palm on the buttocks and tapped or quickly smacked the buttocks of a registrar CC whilst she was operating on a patient. 117 CC’s witness statement described the incident. In short she said she believed it was a short quick motion with the palm of the appellant’s hand which she described as a short quick smack. Her oral evidence was consistent with that, but confirmed there was no ‘audible noise’. In cross-examination she resisted the notion that she felt a brief brushing sensation. However, she acknowledged in cross-examination that she did not know whether the contact was intentional or not. She said only the appellant could know that. 118 As was the case with AA, the appellant did not resist a finding that there had been contact made with CC’s buttocks on the occasion in question but disputed that it was intentional. Particular 3.12 (DD) 119 The allegation is that on or about 4 September 2017, in a reception area of the dental department of the Hospital, the appellant walked past a registrar DD and gave her a light smack on her buttocks in front of other staff of the Hospital. 120 In her witness statement, DD said that she was standing in reception and as the appellant walked past he gave her a light smack on the bottom. She was shocked particularly because it was such a public place. In her oral evidence she used the word ‘tap’ and said that he used the palm of his hand and it was a ‘light pat’. In cross-examination she agreed she did not see the appellant touch her or -- 34 of 48 -- [2026] SASC 11 B Doyle J 31 what part of his body touched her. In the course of cross-examination she accepted that what she felt was consistent with being accidental contact or intentional contact. She agreed that none of the other people in the room raised a concern about the incident but said that they did not see the incident. 121 Amongst other things it was put to her that the appellant was carrying a briefcase. She said he might have been carrying a file, but did not see him holding a briefcase. The appellant’s case and evidence was that he walked past DD carrying his briefcase with notes in his left hand and was opening the door with his right hand. He said have a good afternoon and could have brushed or bumped past her back or buttocks with his briefcase or case notes with his left hand. He said in his affidavit, ‘I do not deny the allegation, but if it did occur it was not intentional’. (As will be noted later, he was cross-examined about whether his position had shifted or was inconsistent in relation to his memory of this event.) Particular 3.15 (EE) 122 Particular 3.15 alleged that on or about 11 February 2019, the appellant brushed his hand against the upper thigh of a registrar EE in a corridor of the Hospital. 123 EE said the corridor was wide and there was plenty of room. She said as she walked past him (from the opposite direction) she felt the side of her being touched. She did not remember what part of the appellant touched her but he brushed against her in the corridor. Nothing was said. She turned around and thought to herself ‘did that just happen’? It felt purposeful. In cross-examination she agreed that what she felt could have been consistent with an accidental bump. In re-examination she observed that he had not said ‘sorry’ as she might have expected in the case of an accidental bump. 124 The appellant said in his affidavit that if the alleged conduct did occur it was unintentional. He said ‘I was in close proximity walking along a corridor in the Hospital with likely my brief case in one hand and medical files in the other’. He accepted there would or should be a finding that he made contact with EE’s upper thigh in a corridor of the Hospital. The parties’ approach at trial 125 The question of the use that might be made of the evidence concerning any one allegation of inappropriate touching in respect of any other allegation of inappropriate touching was not explicitly canvassed until closing submissions. 126 The appellant emphasises that the Board did not, before or at the opening of the trial, serve a tendency or similar fact notice. I would not attach any significance to that. The Evidence Act regime plainly did not apply. It is true, though, that in opening, the Board did not indicate that it would be inviting reliance upon propensity reasoning. -- 35 of 48 -- [2026] SASC 11 B Doyle J 32 127 In its written closing submissions, the Board made a number of submissions under a heading ‘Normalised conduct’. These submissions addressed the power imbalance that was said to have emerged from the evidence generally, and its relevance to whether the appellant would be willing to act in such a bold or brazen manner as alleged, without concern he would be sanctioned. 128 The Board submitted, inter alia: The evidence is not relied upon for a propensity purpose. Instead the Board submits that such evidence goes to the question of whether the disputed conduct occurred. To consider the particularised allegations in a silo or in isolation would be artificial. Human behaviour is inherently social and context-dependent. The question of background and context goes to the improbability question – that without context, without understanding that this was normalised conduct, the Tribunal would be left considering whether a Head of Department would be willing to act in this manner towards staff and post-graduates in a public setting. However, when taken in context against the evidence of the environment and normalisation of conduct – it leads to a conclusion that otherwise improbable conduct is not unreasonable or implausible. Essentially, the fact that the [appellant] was willing to routinely engage in such conduct, makes it more likely that he engaged in the conduct in question. 129 At Reasons [146], the Tribunal observed that both parties made submissions about the need to assess the evidence as a whole but in doing so avoid the risk of falling into error by adopting ‘propensity’ reasoning or some other error. They said the issue arose particularly in respect to the allegations of ‘touching’ and whether touching was intentional or unintentional. The Tribunal reproduced the oral submission of the Board in some detail. 130 The Board’s counsel first addressed what were described as background and contextual uses of the evidence. Counsel then continued: And that’s relevant for a number of reasons; the context evidence is relevant, in our submission, when the Tribunal comes to assess the credibility and reliability of each individual witness. It’s relevant when the Tribunal considers whether, as the respondent has submitted, there was an innocent or an accidental explanation for any of the allegations. It’s relevant to rebut the implausibility argument relied upon by the respondent. It’s relevant to consider, as well, why the witnesses and in particular the postgraduate students would not have complained at the time, and why the [failure] to complain is therefore explicable and not a reason to disbelieve that particular witness. The Board’s submission is that the Tribunal can be comfortably satisfied that this workplace culture was one in which the respondent was in a position of substantial power, both over staff but also significantly over the postgraduate students. It was described as an environment and accepted, in my submission, by the respondent as a high stress, high workload environment, both for the respondent and certainly for the postgraduate students. 131 Shortly after this, the submission continued in these terms: Now, I want to come then to what I’ve described as the “non-tendency use” or the “non- tendency argument”, because of course the applicant is not making any submission that the Tribunal should engage in tendency reasoning here. So, we’re not making any submission -- 36 of 48 -- [2026] SASC 11 B Doyle J 33 that the Tribunal should say that because if they find, for example, that the respondent acted in a certain way that it’s more likely that he would have acted in a certain way in relation to a second person. But the Tribunal will need to decide, of course, and assess a potential cross-admissibility of the evidence given by each witness. And the Board’s submission is that there is a permissible and appropriate use of the evidence relating to different particulars, and it’s cross-admissible in relation to other particulars. Firstly, as I’ve expressed already, it’s relevant to the Tribunal’s assessment of the credibility and reliability of each witness to consider how that witness’s evidence fits with the narrative as a whole about which the Tribunal has heard, and how that witness’s evidence fits with the evidence of other witnesses. The Tribunal can quite properly, in my submission, use the background context to assess a witness, an individual witness’s credibility and reliability. Where background matters, for example, and the evidence about those are consistent across the witnesses and where one witness’s evidence about those background matters is corroborated by other witnesses, that’s a matter from which in my submission it can properly be inferred that that witness is a truthful and reliable witness. And if they are truthful and reliable about those background or context matters, then the Tribunal can take that into account in assessing their evidence in relation to any disputed allegation. The second point that I want to make is about improbability reason[ing]. When you take any of these particulars in isolation and specifically when you take any of the inappropriate touching in isolation, so for example, touching to the bottom of one of the postgraduate students, if that’s viewed in isolation and it might seem implausible that a person in the respondent’s position would touch a student and a junior colleague on their bottom in a workplace, but when that allegation is considered in conjunction firstly with the overall context but secondly in conjunction with the evidence of other witnesses that they were touched in a similar way or in an inappropriate manner, or that they saw the respondent touch a student or staff member in a similar way, then clearly the improbability lessens. And it’s not to say, of course, and I think I’ve made this submission already, that the Tribunal should reason the respondent had propensity to touch his students inappropriately. Rather the submission is about the circumstance rather than about the person, if that makes sense. So, it’s not about this respondent and a suggestion that he is more likely to engage in such conduct. Rather, it’s about the circumstances. It relies on improbability reasoning rather than any tendency on the part of the respondent. Our submission is, is that if the Tribunal finds, for example, that he touched one complainant inappropriately, you’re entitled to use that finding when you consider whether that displaces the suggestion as well put on behalf of the respondent that the touching was accidental or unintentional because the evidence, in our submission, for the Tribunal, it’s clear that the respondent touched multiple witnesses in a similar place on their body, for example, on the bottom and in similar circumstances; they’ve used at work when they were a post graduate student. And that’s evidence, in our submission, that could probably be relied upon to rebut the suggestion innocent or accidental touching. So, when the Tribunal comes to consider whether or not it’s willing to accept the evidence of a witness that they were touched in a certain manner, then the Tribunal is entitled to consider the likelihood of that touch occurring at all and the likelihood of that touch occurring when there is other evidence of similar touching occurring and in the context that -- 37 of 48 -- [2026] SASC 11 B Doyle J 34 I’ve described. But can I say a little bit more about the topic of accidental or, what it’s been called, I think, “unintentional touching” because in relation to a number of the particulars, that is the respondent’s position; that if the touching occurred, it must have been unintentional or accidental. Now, in my submission, when the Tribunal is considering that position, the Tribunal can use the evidence of all of the appellants witnesses who speak about being touched by the respondent and in particular where there is touching of the same nature because, in my submission, that evidence is cross-admissible to rebut the suggestion that the touching was accidental and unintentional. So, I’m going to use the example about touching on the bottom. So, when you come to consider the first allegation under the ground that deals with inappropriate touching, which is allegation 3.1, that relates to [AA] and an allegation that the respondent brushed his hand across her buttocks in surgical theatre. His position is that that was accidental. Now, when the Tribunal comes to consider that touching, the Tribunal of course will consider the evidence of [AA] and what they find established and what they’re willing to accept in relation to her evidence. The Tribunal can also consider the evidence from the other witnesses about the respondent touching them, most significantly of course, where the evidence from those other witnesses is that the touching of them was in the same part of the body, in particular, where the touching was of a female postgraduate on the bottom. And so, in relation to 3.1, the allegation that [AA] was touched on the bottom in surgical theatre, it’s our submission that the Tribunal can also consider the evidence in relation to 3.4, which is [CC], which is evidence that she was touched on the bottom whilst she was also in theatre, 3.6, which is [CC’s] evidence that she was touched on the bottom when she was leaving the respondent’s office, 3.1.2, the evidence of [DD] that she was smacked or touched on the bottom in reception when he was walking past, and you can also consider the evidence, in our submission, of [FF] that she saw the respondent smack [CC] on the bottom. So, in our submission, you can take into account if you find any pieces of those particulars or any parts of those evidence of those witnesses that you find proven when considering whether or not the touching of the bottom in relation to [CC] was accidental. And there is, in my submission, nothing at all improper about reasoning in that way. 132 The appellant in his written submissions noted that the Board disavowed propensity reasoning. In his counsel’s oral submissions in response to the Board’s oral closing submissions, the following comments were made: So, there are a couple of points that I think are, one is in the foreground, and one is in the background in terms of the Board’s submissions about this. This is before I get into the detail of some of the witnesses, which is, well, it may be one witness said that they felt contact between Doctor Gue and their bottom. That’s one thing, but here we’ve got three and we’ve also got someone who said that they felt contact with the outer thigh. So, when you put that together, that makes it more likely that it was intentional. I think that’s kind of a submission that’s been made. I’m not so sure that that submission is consistent with the proposition that what the Tribunal is being asked to do is an aversion of propensity evidence or tendency reasoning, but I can sort of for a moment, I think that it would be a better point if there was a real dispute about whether they felt contact at all. But where the critical issue is whether or not that they felt contact that was intentional, I think the fact that there are multiple people that in the circumstances of this case have raised an allegation doesn’t really assist you with that one way or the other. -- 38 of 48 -- [2026] SASC 11 B Doyle J 35 Why is the fact that – see, our case theory is he’s a tactile person, doesn’t look where he’s going, on none of these occasions did the witness say he knew where he was going. He hasn’t taken care, and he’s made contact with people in an accidental way. I’m not sure why the fact that that’s occurred with more than one person makes it more or less likely that it was intentional rather than accidental. I don’t think the number of allegations really in any significant way bears on the likelihood that it was intentional or not. It might be part of what the Tribunal thinks about to an extent, but it doesn’t really take the matter very far because you can imagine it being put against us the other way. Well, if you say it was an accident, why have you never accidentally made contact with anybody else in this way? You see what I mean? It’s logically neutral on whether it was deliberate or not. It would be different – if the facts were different and you had someone being touched repeatedly every week or every month, or a particular witness being touched multiple times or a significant compressed number of incidents that you couldn’t plausibly consider to be accidents, then that would be a powerful case. But here you’ve got, on my submission, scattered examples over, the investigation has been done over 15 years. Each of the relevant witnesses that have given evidence about feeling contact were there for three and a half years, and we’re either talking about one or two sensations each over a long period of time. So, it really is a frequency that’s not inconsistent with our thesis, which is it just wasn’t intentional. And in fact, the fact that it’s happened more than once is equally consistent with it being someone who is not careful with what he’s doing. So, I don’t think the sort of propensity tendency argument gets you there, in my submission. Did the Tribunal engage in propensity reasoning? 133 On appeal, the appellant contends that whilst the Board purportedly disavowed propensity or disposition reasoning, the Tribunal engaged in it. By contrast, the Board contends that the Tribunal did not rely on any propensity or tendency reasoning in its decision. Instead it relied on improbability reasoning. The Board submitted in writing that: 49. The improbability reasoning in this case, can be articulated as follows: 49.1 the conduct had a particular similarity, namely the circumstances in which it was alleged to have occurred (postgraduate students at the hospital and in a training environment), towards females, in the presence of other staff and on a similar part of their body with a fleeting touch by hand and all by the same perpetrator 49.2 the evidence was relevant and admissible to displace the defence of hypothesis of accidental touching. 50. The evidence was additionally circumstantial evidence which was relevant and permissible for the Tribunal to take into account in considering the ‘context’ or ‘background’ in relation to the particular circumstances, environment and relationships in the setting in which the complained of behaviour was said to have occurred. 134 In oral submissions on the appeal, the Board submitted that the kind of improbability reasoning that it had invited, and which the Tribunal had undertaken, was the third type of reasoning I identified in paragraph [91] above. The Board said it was Makin-style improbability reasoning; namely, it is objectively -- 39 of 48 -- [2026] SASC 11 B Doyle J 36 improbable that the appellant would on so many occasions innocently make contact with complainants in the manner described. 135 In the course of argument, the Board accepted that that style of reasoning of its nature entailed considering, simultaneously, the improbability of so many similar innocent interactions occurring. That is as distinct from considering the occasions sequentially and reasoning from a finding that one occasion was deliberate to the unlikelihood that the next occasion was accidental. 136 I turn now to the Tribunal’s approach. 137 Immediately following its recitation of the oral submissions of the parties (as set out above), the Tribunal made reference to non-propensity uses of the evidence of one complaint in proof of another. Reference was made to context and relationship evidence. The Tribunal noted again that the Board had submitted it was not relying on propensity reasoning before saying (Reasons [150]): We agree with the complainant’s submissions that where, if we were satisfied for example that the respondent had touched a student inappropriately on one occasion, that it may become relevant to consider that finding when assessing whether on another occasion we should accept the explanation of the respondent that touching was accidental. That is not to say that we would reason by saying that several disputed accidents must mean non accident, or that just because the respondent touched someone inappropriately on one occasion, he did so on another. Rather it is to look at the evidence as a whole, taking into account multiple occasions where he admits to being a ‘touchy’ or ‘tactile’ person, the occasions where he touches people in a non-sexual way admittedly without their consent, occasions where we find that he touched people inappropriately without their consent, and then, in assessing whether he did so on other occasions take into account that as background when assessing the particularity of what was alleged on a separate occasion, the likelihood of the competing versions of events, and the explanation provided by the respondent. 138 Respectfully, some aspects of the reasoning in that paragraph are open to differing interpretations. It is fair to say, however, as the Board did, that it does not explicitly invoke propensity reasoning. It is more illuminating to consider the Tribunal’s reasons in respect of particular allegations. Particular 3.1 (AA) 139 In respect of particular 3.1, the Tribunal set out the competing bodies of evidence, the main features of which I have reproduced earlier. The Tribunal then stated that it found that contact was made with AA’s buttock. It identified that the issue was whether it was intentional (Reasons [178]-[180]). The dispositive reasoning is then contained in the following passages: [182] We find that [AA] was an impressive witness, and we accept her evidence on particular 3.1. [183] The question is whether her evidence substantiates the allegation. [184] The description of the touch as a swooping action across her bottom coupled with her disquiet afterwards, coupled with the evidence of more than one witness who has -- 40 of 48 -- [2026] SASC 11 B Doyle J 37 experienced a touch on their bottom provides support for the allegation. The findings in relation to allegation 3.3 set out below are also significant. We do not suggest however that just because more than one person makes an allegation that two allegations that are otherwise unsubstantiated become substantiated in combination. [185] Having regard to the principles in Briginshaw there are also good arguments to be raised by the respondent. The best points made are: [185.1] The acceptance by [AA] that it would not be unreasonable for him to walk behind her in the theatre. [185.2] That the room was crowded. [185.3] [AA] initially thought that it was accidental but felt differently about it later. [185.4] Although she thought it was his hand, she agreed what she felt could have been another flat part of his body. [186] Those are good arguments and give serious pause for thought. They are taken into account by the Tribunal. [187] We have however found that the allegation as charged is proven to the Briginshaw standard. The tipping points are: [187.1] Our positive assessment of [AA] as a witness. [187.2] The description that she felt something like an open hand. [187.3] The description that it was over the width of her bottom. [187.4] It is hard to see how an accidental brush would feel like an open hand with a swooping motion and would be over the width of her bottom if it was an ‘accidental contact’. [187.5] The incident takes place in a wider context. As we set out below, having accepted the evidence the evidence of other witnesses including [BB], the [appellant] has touched other people on the bottom, groin area, breasts, and shoulders. 140 Focusing upon Reasons [187], and confining attention to whether what AA described was an intentional touch or not, it is not entirely clear why the Tribunal’s positive assessment of her as a witness (Reasons [187.1]) assisted in drawing one inference over another as to the appellant’s intent, save to the extent it explains why the Tribunal accepted the factual propositions in Reasons [187.2] and [187.3], which then provide the basis for the proposition in Reasons [187.4]. 141 The issue, so far as this ground of appeal is concerned, is with Reasons [187.5] and, in particular, reliance upon the evidence of the witness [BB] and her evidence that the appellant deliberately touched her on the breasts and groin area. 142 If the Tribunal had confined attention to those instances where the appellant accepted that contact had been made but said that it was accidental or unintentional, the reasoning in Reasons [187.5] might have involved reasoning that -- 41 of 48 -- [2026] SASC 11 B Doyle J 38 it is improbable that there should have been so many innocent incidents involving the appellant that have caused concern to female colleagues. But the appellant made no contention of unintentional touching of BB’s breast or groin. He flatly denied it. 143 It is hard to see what relevance BB’s evidence, about an event in 2014, could have to the improbability of the appellant having made accidental or non- accidental contact with AA in 2012. A person who is found to have deliberately touched A is not for that reason inherently less likely to make innocent contact with B (as a stand alone proposition). They may be more likely to have made deliberate contact with B, but only if the contact with A manifests an interest to make uninvited inappropriate contact with female colleagues and a preparedness to act on it. That is propensity reasoning. 144 It is also difficult, given the sequence of events, and the fact that particular 3.1 is the first occasion in time, to see how later allegations could provide relevant context, or explain why the appellant might, notwithstanding the risks, have believed, in 2012, that he might suffer no consequence if he touched a female colleagues’ bottom. 145 It seems to me, therefore, that the Tribunal has engaged in a form of probability reasoning that involved reliance upon a propensity to touch people deliberately.45 In other words, whilst it might seem surprising or improbable that a senior practitioner would deliberately touch the bottom of a female colleague in the presence of others, that becomes less likely when it is considered that on another later occasion he deliberately touched a female colleague’s breast, torso, groin and leg. Certainly there is nothing strikingly similar about AA and BB’s allegations such as to suggest that the fourth type of reasoning identified earlier might be appropriate, and for reasons I gave earlier, AA’s credibility and reliability was not really in issue on this question. Particular 3.4 (CC) 146 In relation to this particular, after setting out the relevant bodies of evidence and noting that it raised similar issues to particular 3.1, the Tribunal said: [245] There are some good arguments put forward by the [appellant] as to why the particular is not made out. Even if one accepted [CC’s] evidence the [appellant] has a fair point that she herself did not know whether the contact was intentional or not; it was brief; and it is possible it was accidental. [246] It is not enough to say that particular 3.1 and particular 3.4 are examples of two incidents where there was a hand on the bottom and whilst either could be an accident, two incidents prove the likelihood of intention. The touches in 3.1 and 3.4 are not the same. 45 As was earlier acknowledged, an acceptance of BB’s account was potentially relevant to the credibility of the appellant’s evidence, but the Tribunal’s use of the BB evidence appears to go beyond this. -- 42 of 48 -- [2026] SASC 11 B Doyle J 39 [247] Two events that could be accidents do not in combination by themselves prove intention. There could easily be two accidents. [248] We pay close attention again to the description of the touching as a slap or smack. [CC] was clear that she felt a slap or smack. A slap or smack on the bottom is different to what one would feel from an accidental knock (making that finding on the balance of probabilities even if it is possible that the contact was accidental). The location of the slap or smack is telling. [249] Having regard to the evidence as a whole, including the admitted occasions where the [appellant] has touched female registrars, and our findings as regards particular 3.3, together with our assessment of the [appellant] as a witness has led us to find the smack or slap was intentional. [250] The particular is made out as charged. 147 In Reasons [246]-[247], the Tribunal appeared to consider but not rely upon what I have described as the third kind of reasoning, at least with respect to particulars 3.1 and 3.4. The Tribunal seems to have based its decision, to a significant extent, on the unlikelihood that something that felt like a smack would be accidental. But then, at Reasons [249], the Tribunal appeared to bring to bear its findings as regards particular 3.3, being the deliberate touching of BB. For the same reasons as I expressed in relation to particular 3.1, this appears to have involved an element of propensity reasoning. Particular 3.12 (DD) 148 In relation to particular 3.12, the Tribunal summarised the trial evidence of DD and the appellant. 149 There were two particular credit issues arising. In respect of DD, the issue was that in cross-examination, in response to the suggestion she thought nothing at the time of the contact she described, she responded ‘I did note it down’. However, the notes of the day in question did not refer to that particular incident. It was in these terms: Very aggressive approached first thing in the morning – did you not get my email? Do you not check your emails? Did you now know you have to have all your supervisors and their CVs on your ethics application? You don’t have mine – who are your supervisors? What am I to you? I find it very offensive how exclusive and selective your research is. We are an all-inclusive department and its very disrespectful how you and your current supervisors have gone about this. Did they not tell you about EKM, GRF or Prof GH? Well your supervisor should have told you 150 In respect of the appellant, the issue was that his original response to the allegations was that he did not admit the incident on the basis he could not recall it, but said that if it did happen it was accidental. Yet in his affidavit, as described earlier, he purported to recall walking past DD on the day in question holding a briefcase and papers. 151 The Tribunal’s dispositive reasoning on this particular was in these terms: -- 43 of 48 -- [2026] SASC 11 B Doyle J 40 [329] The [appellant’s] counsel submits that [DD] should not be believed because she kept notes, and the notes of this day record another incident but not this incident. The [appellant] submits that is fatal to her credibility. We agree that it is relevant, but do not consider it to be fatal. Notes are often imperfect records. The incident is recorded in her statement, and she remembered the date by reference to her ethics application. She was definite in her responses to questions in cross examination. [330] Whilst the absence of a contemporaneous note might give pause for thought, we have found [DD] to be a credible witness. She has given detailed evidence of this event. She was not shaken in cross examination, stating that this was not the first time someone has touched her bottom and knows what it feels like. We consider that it is unlikely that she confused a touch with the hand with a knock by a briefcase. We do not overlook that in cross examination she did agree that the touch was consistent with a contact that was either accidental or intentional. However, viewing the evidence as a whole, in particular her evidence as we summarised earlier, the unsatisfactory nature of the [appellant’s] evidence of the topic, combined with the fact that other witnesses have recounted being touched on the bottom, and the [appellant] has touched female staff and students on the shoulders, thighs, and arms, we have found that the touching was intentional and not a mere accident. [331] We find that particular 3.12 is made out as charged. 152 The Tribunal did not in Reasons [330] explicitly refer to the incident the subject of particular 3.3. The reference to other incidents of touching on the bottom might involve reasoning of the third kind described earlier, but the Tribunal also referred to admitted occasions of intentional touching which were not found to have been undertaken with a sexual intent. Having regard to the reasoning of the Tribunal on the other counts, it is difficult to be confident that propensity reasoning did not intrude. Particular 3.15 (EE) 153 In respect of this particular, the Tribunal’s dispositive reasoning was in these terms: [381] We accept that the incident happened. If the only evidence was that there was a brushing past in the corridor, we would be unlikely to be satisfied on the Briginshaw standard that there was a deliberately inappropriate touching in the incident given [EE] made a concession it could have been accidental. However, the corridors were wide enough that there was no need for the [appellant] to be walking close enough to [EE] to touch her. That of itself of course does not rule out the possibility of accidental contact. There was no suggestion of the [appellant] apologising or acknowledging the contact, which one would expect if two people crossed paths and one touched the other where one had not looked where they were going. [EE] did stop and turnaround, and described the contact as ‘purposeful’. The [appellant’s] evidence is curious. He says he does not recollect the incident, but if occurred then he was in close proximity with likely his briefcase in one hand and medical files in the other (similar to his evidence about any touch with [DD] on the backside which he then seemed to retreat from). We do not accept that any touch was with the briefcase. Weighing up the evidence as a whole we find that the contact was deliberate. That evidence includes the evidence of the incident that we have described. It also occurs in the context of the other evidence of touching, including on the bottoms of female registrars, and the circumstances that there was need for a -- 44 of 48 -- [2026] SASC 11 B Doyle J 41 bump given the width of the corridor we are satisfied that there was a touch on the leg that was inappropriate. [382] We accordingly find that particular 3.15 is made out as charged. 154 The Tribunal’s reasoning in relation to this particular does not in terms refer to the incident respecting BB, or to any of the admitted intentional but non-sexual touching of other complainants, but reference is made generally to ‘evidence of touching, including on the bottoms of female registrars’ (emphasis added). Viewed in insolation there would be no sufficient reason to infer that the Tribunal has engaged in propensity reasoning in this paragraph. Viewed in the wider context of the Reasons, however, the picture is less clear. Disposition of appeal ground 3 155 As earlier noted, the appeal ground was primarily framed by reference to notions of procedural fairness. 156 In my view, when hearing a disciplinary matter, the Tribunal will not always be bound to limit its reasoning to the approach urged by the relevant disciplinary body. As I observed in Angelakis v Psychology Board of Australia:46 A disciplinary matter involves the public interest, with the result that, to a greater extent than is the case in ordinary litigation involving private interests, the forensic choices of the parties cannot bind the tribunal.47 157 However, if the Tribunal is to engage in reasoning of a kind that has been disavowed by the disciplinary body, there may, depending on the importance and nature of the issue, be a failure to afford procedural fairness of a kind that vitiates the result, if the parties are not provided an opportunity to make submissions in response to the proposed reasoning. 158 I express no concluded view about the position that would or should have been reached if the Board had given notice that it would invite the Tribunal to rely on propensity reasoning, or if the Tribunal had invited the parties to explain why it should not do so. The important point for present purposes is that the appellant did not have a full opportunity to develop submissions about whether and if so how the Tribunal might embark on reasoning of that kind. 159 Even in a criminal case, it is not inevitable that an issue of this kind will require the appeal to be allowed. The case must be looked at realistically and in context.48 46 [2024] SASC 133 at [317]. 47 See, eg, Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 465 (Doyle CJ, Millhouse and Nyland JJ agreeing). 48 See, eg, Kirkland v The Queen [2021] SASCA 14 at [171] (Lovell JA, Bleby JA agreeing), Nelson (a pseudonym) v The King [2025] SASCA 79 at [195]-[201] (S Doyle and David JJA). -- 45 of 48 -- [2026] SASC 11 B Doyle J 42 160 In the present case, the Tribunal by no means staked its entire reasoning on the fact that each allegation formed part of a broader context of allegations of touching, but it does seem that the evidence relating to particular 3.3 was significant to the Tribunal’s resolution of the four particulars under consideration. 161 This appeal ground falls to be considered in the context of my assessment of appeal ground 1 in respect of particular 3.3. Because there were relevant misapprehensions affecting the Tribunal’s findings in respect of that particular, the risk that the evidence relating to that particular was deployed in connection with the other four particulars in a way that was not anticipated by the Board’s case carries with it a greater risk of injustice than might otherwise have been the case. It makes it difficult, and in my view inappropriate, for the appellate court to make an assessment as to whether, excluding any notion of propensity reasoning from consideration, the Tribunal’s reasoning (including by having regard to other allegations as providing ‘wider context’) can be sustained. 162 Accordingly, unless appeal grounds 4-7 succeed, I consider that the findings concerning the four particulars in question are relevantly vitiated, and that the question of whether they are made out should be remitted for further hearing. Appeal grounds 4, 5, 6 and 7 163 Whereas appeal ground 3 complained of the Tribunal’s approach to the use, as between complainants, of evidence of touching, appeal grounds 4, 5, 6 and 7 more directly challenge the findings that the appellant committed the conduct alleged in particulars 3.1, 3.4, 3.12 and 3.15. 164 Absent any suggestion of a process error of a material kind in relation to the findings in question, the appellant would face a considerable burden in challenging these findings, influenced, as they were, to an extent, by impressions of the witnesses. In saying this, I appreciate that to differing extents each of AA, CC, DD and EE accepted that the contact they felt may have been consistent with innocent contact or accident and, to that extent, their credibility was not critical. 165 However, in the case of particulars 3.4, 3.12 and 3.15, at least, the accounts of the complainants were of contact that seems somewhat unlikely to have been accidental. In the case of particular 3.4, if it is accepted that CC’s perception that what she experienced was a ‘smack’, as distinct from some other kind of contact to her buttocks, as a matter of ordinary experience, and even in a crowded space, that reasonably strongly contra-indicates accidental or incidental contact. In the case of particulars 3.12 and 3.15, there would not appear to have been any particular reason to come in sufficiently close proximity to the complainants for there to have been a material risk of incidental or accidental contact. And in the case of particular 3.15, the point that, if the contact was incidental or accidental, it would likely have been known to the appellant, and that it is therefore somewhat surprising that he did not acknowledge or apologise for it, has some force. -- 46 of 48 -- [2026] SASC 11 B Doyle J 43 166 In the case of those three allegations in particular, it seems to me that in the absence of contrary evidence, it would at least be open to a trier of fact reasonably to be satisfied, bearing in mind the Briginshaw standard, that there was deliberate contact in each case. However, there was contrary evidence, in the form of the appellant’s sworn denial that he made intentional contact with each of the complainants. 167 The difficulty on appeal is that in considering the weight to be given to that evidence, it would be necessary to express a view about his general credibility and reliability as a witness. Whilst a review of the record of his evidence, and a comparison between it and any initial responses he made, permits some assessment to be made of his evidence, without having seen the appellant give evidence, a complete assessment is impossible. 168 Of course, the Tribunal formed a relatively negative view of him as a witness, but in circumstances where that view may have been informed by (or at least not counteracted by) a consideration of the possible effect of the agreed facts on the question whether BB had given a previous consistent statement, and if, as I apprehend to be the case, propensity reasoning of a kind purportedly disavowed by the Board has infused the Tribunal’s thinking on some other issues, I do not think I can or should adopt the Tribunal’s assessment of him as a witness. 169 But that does not mean that I must take his evidence at face value. That would be unfair to the Board. It may be that had I seen him give his evidence first hand I too would have formed a negative impression of aspects of it. 170 I have carefully considered the other contentions advanced by the appellant as to why it should be found that the particulars in question were not proved to the requisite standard. 171 In addition to matters that have already been canvassed by me or in passages of the Reasons that I have set out, the appellant emphasised that none of the four complainants described the appellant saying, at the time, or subsequently, anything to suggest that he was attracted to them or wanted to pursue a relationship with them. Nor, even though none of them made a contemporaneous complaint, was he alleged to have made similar contact with them again. 172 In the end, having regard to the natural limitations to which I am subject on appeal, I am not persuaded that I can find that the conduct is not established. I have hesitated in respect of particular 3.1 because it is an allegation which, even if I treat the complainant as credible, might not, in isolation, reach the Briginshaw standard. I do not share the Tribunal’s assessment, at Reasons [187.4], that it is hard to see how an accidental brush would feel like an open hand with a swooping motion over the width of her bottom. As the appellant has submitted, AA had herself agreed with the suggestion in cross-examination that at the time it felt like someone brushing past. -- 47 of 48 -- [2026] SASC 11 B Doyle J 44 173 However, it is conceivable that, were I to have regard to the three other allegations with a view to engaging in reasoning of the third kind earlier described, I might take a different view, in which case an assessment of the appellant as a witness would become more central. In the end I have concluded that in respect of the conduct the subject of particular 3.1, like the other particulars I have addressed, there should a remittal, rather than a finding on appeal that the particulars are not made out. Disposition and orders 174 I have concluded that there should be a remittal for further hearing of particulars 3.1, 3.3, 3.4, 3.12 and 3.15. The Tribunal members who heard the trial would be in an invidious position in giving fresh consideration to these allegations. The trial of those particulars should be before a differently constituted Tribunal. In the event that one or more of the particulars is found proved, this may complicate the question of the imposition of a sanction, but I do not consider that it would create such a difficulty as to require remittal to the Tribunal members who heard the trial. 175 Whilst I will hear the parties as to the precise form of final order, I consider that order 1.1 of the Tribunal dated 24 June 2025 should be set aside with respect to particulars 3.1, 3.3, 3.4, 3.12 and 3.15 (as set out in Schedule A to the Order) and that, pursuant to s 71(4)(c) of the SACAT Act, unless the Board elects not to pursue those particulars, a differently constituted Tribunal should conduct a fresh hearing in order to determine whether those particulars are proved. 176 It will be a matter for the Tribunal, having regard to any submissions of the parties, and consistent with the objects of the SACAT Act, to determine the extent of the oral evidence that is appropriate, and to consider ways of avoiding unnecessary repetition of matters dealt with in the original hearing that are not relevantly in issue. -- 48 of 48 --