SHAMAYAL HAROON JAMIL v MEDICAL BOARD OF AUSTRALIA [2024] SASC 90

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (M STEVENS) [2023] SACAT 104 - 2022/SHP000017 Appellant: SHAMAYAL HAROON JAMIL Counsel: MR A CROCKER - Solicitor: GILCHRIST CONNELL Respondent: MEDICAL BOARD OF AUSTRALIA Counsel: MR T P DUGGAN KC WITH MS E HOLMES - Solicitor: MINTER ELLISON Hearing Date/s: 22/04/2024 File No/s: CIV-24-000102 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. JAMIL v MEDICAL BOARD OF AUSTRALIA [2024] SASC 90 Judgment of the Honourable Justice McIntyre 10 July 2024 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - APPEALS PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY This is an appeal from a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’). The appeal is made under s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) (‘SACAT Act’). The ultimate finding of the Tribunal was that the Appellant had engaged in professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (National Law) by reason of a combination of one or more matters which it found proven. The appellant appeals on eight grounds, four of which relate to the Tribunal’s findings that the applicant breached patient confidentiality, fabricated documents, and sent a sexually explicit image to a student who was undertaking a work placement. The remaining four grounds of appeal are complaints that the Tribunal failed to make certain findings, placed undue reliance on evidence and made adverse findings regarding the appellant’s credibility and reliability. The respondent contends that the Tribunal properly understood and considered the appellant’s case. Its rejection of the appellant’s case is not a reflection that it did not understand the appellant’s position, but instead that it did not accept his position. -- 1 of 25 -- Held: 1. Appeal dismissed. South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) ss 5, 39, 193, 196; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) r 218.17, referred to. Medical Board of Australia v Jamil (No 2) [2023] SACAT 104; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Rajagopalan v Medical Board of South Australia [1988] SASC 7142; Testel Australia Pty Ltd v Goulding & Ors [2023] SASCA 116; Maroulis v Psychology Board of Australia [2020] SASC 51; Coulton v Holcombe [1986] HCA 33; 162 CLR 1; Lee v Lee [2019] HCA 28; 266 CLR 129; 93 ALJR 993, considered. -- 2 of 25 -- JAMIL v MEDICAL BOARD OF AUSTRALIA [2024] SASC 90 Civil: Appeal 1 McINTYRE J: This is an appeal under s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) (‘SACAT Act’)1 against findings of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) made on 1 December 2023, in relation to an amended complaint (‘the Complaint’) filed by the Medical Board of Australia (‘the Board’). 2 The Tribunal upheld allegations of professional misconduct contained in the Complaint. In reaching the decision, the Tribunal made a number of findings of fact. The appellant appeals some of those findings of fact and the ultimate finding of professional misconduct. For the reasons that follow I dismiss the appeal. Background 3 The Complaint arises out of events in June and July 2020. At the time, the appellant was a recently registered medical practitioner working at an Adelaide hospital. Two medical students, who were undertaking three week placements at the same hospital, complained to the appellant’s employer about his conduct. The first, AB, was at the hospital between 22 June 2020 and 10 July 2020. The issues raised by AB arose out of events on 10 July 2020. The second, CD, commenced at the hospital on 13 July 2020 and completed her placement on 31 July 2020. The allegations made by CD occurred between 16 July 2020 and 31 July 2020. 4 The appellant’s social media communications with AB and CD using two Facebook accounts ‘Candrink Omar’ and ‘Sam Jam’ are at the heart of the matters raised in the Complaint. The Tribunal received evidence of messages sent on Facebook Messenger between the appellant and AB and between the appellant and CD. The evidence was in both documentary and electronic form. The appellant accepted that most of the messages were genuine but contended that some records were incomplete, that some had been doctored by the removal or deletion of parts of the conversation and that some had been falsified. 5 The appellant was stood down by his employer pending investigation of the allegations. Subsequently, the Australian Health Practitioner Regulation Agency (‘AHPRA’) conducted an investigation which resulted in the Complaint. The Complaint proceedings were referred to the Tribunal by the Board under s 193 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘the National Law’).2 The National Law provides for a national legislative scheme for the regulation of health practitioners and for local matters associated with the regulation of health practitioners in South Australia. Amongst other things the 1 South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) (‘SACAT Act’). 2 Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘National Law’). -- 3 of 25 -- [2024] SASC 90 McIntyre J 2 National Law imposes standards of conduct and requirements for the notification of conduct issues in relation to registered health practitioners. AHPRA was established to implement the national scheme and to provide support to the Board. This includes comprehensive powers to investigate notifications concerning registered health practitioners.3 6 The Board alleged that the appellant behaved in a way that constitutes professional misconduct. The appellant admitted some factual allegations. He also conceded that his admitted conduct amounted to “unprofessional conduct” as defined in s 5 of the National Law. The appellant denied the remainder of the allegations made against him and denied that he behaved in a manner that constitutes “professional misconduct” as defined in s 5 of the National Law. 7 Section 5 of the National Law relevantly provides the following definitions:4 professional misconduct, of a registered health practitioner, includes— (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes— (a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and (b) a contravention by the practitioner of— (i) a condition to which the practitioner's registration was subject; or (ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and (c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and 3 National Law Part 8. 4 National Law s 5. -- 4 of 25 -- [2024] SASC 90 McIntyre J 3 (d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and (e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and (f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and (g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and (h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation. 8 The Board developed and approved under s 39 of the National Law a code of conduct, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’, and a social media policy, ‘Social Media: How to Meet Your Obligations under the National Law’. Both were in operation at the relevant time and set out the standard of conduct expected of medical practitioners. The SACAT proceedings 9 The Tribunal heard evidence from four witnesses: the appellant, AB and CD and Mr Jean-Pierre du Plessis, an expert in computer technology. The evidence was completed on 20 January 2023 and final submissions were made on 30 May 2023. The Tribunal reserved its decision. Prior to the delivery of the decision, the parties made a joint application to reopen the case owing to the discovery of further relevant evidence. The application was granted, and all four witnesses gave further evidence on 10 and 11 October 2023. The parties made further closing submissions on 16 October 2023 and the Tribunal reserved its decision. The decision was delivered on 1 December 20235 and the within appeal was lodged on 8 January 2024. The SACAT decision 10 The allegations against the appellant were set out in an amended complaint filed on 29 November 2022. The Tribunal, in its decision, summarised the allegations against the appellant as follows:6 5 Medical Board of Australia v Jamil (No 2) [2023] SACAT 104 (‘SACAT Reasons’). 6 SACAT Reasons at [7]-[11]. -- 5 of 25 -- [2024] SASC 90 McIntyre J 4 7. The first allegation is that [the appellant] transgressed professional boundaries by engaging in sexualised and/or inappropriate conduct with respect to AB and CD. 8. In respect of AB, this allegation relates to text messages exchanged between [the appellant]and AB on Facebook Messenger on the evening of 10 July 2020, the last day of AB's placement. The messages are alleged to have been of an inappropriate and sexualised nature. It is further alleged that [the appellant] sent to AB a disappearing message which contained a nude photograph of [the appellant]. It is further alleged that he sent another disappearing message which contained the same photograph but with his genitals blurred or obscured and arrows added to demonstrate muscle groups. [The appellant]admits that some of his messages were inappropriate, but he denies sending either of the nude photographs. 9. In respect of CD, the allegation relates (in very summary form) to the following matters: (a) Sending messages to CD both during and after her placement that were inappropriate and/or sexualised. (b) Sending a message to CD that contained a photograph of his genitalia. (c) Sending messages to CD that contained a nude photograph of the respondent. (d) Touching CD's thigh whilst in the work environment. (e) Grabbing CD's hand whilst in the work environment and rubbing it along his thigh. (f) Asking CD to accompany him to an empty meeting room to "debrief”. (g) Asking CD, on a number of occasions, to go for a drive with him. (h) Purchasing a vibrator and giving it to CD at the Clinic. (i) Driving CD to his home where he propositioned her for sexual intercourse and played pornography on his laptop. 10. The second allegation asserts that [the appellant] breached patient confidentiality by disclosing the name of a patient of the Clinic and making disparaging comments about the patient's mental health to AB during the text message exchange on 10 July 2020. [The appellant] denies this allegation. 11. The third allegation asserts that [the appellant] created and provided two false documents to the relevant authorities in the context of investigations into his conduct. The first alleged false document was a copy of a purported screenshot (the purported screenshot) of an exchange in the Secret Messages function of Facebook Messenger between himself and AB. [The appellant] provided this document to his employer on 27 November 2020. The second alleged false document was a purported screenshot of messages sent to [the appellant] by CD (the apology message). He provided this screenshot to AHPRA on 25 March 2021. [The appellant] denies fabricating these screenshots and asserts that both documents are genuine. 11 In relation to the first allegation, the Tribunal found all of the allegations in respect of AB proven, and some, but not all, relating to CD proven. Specifically, the Tribunal was not satisfied to the requisite standard about the allegations that -- 6 of 25 -- [2024] SASC 90 McIntyre J 5 the appellant grabbed CD’s hand whilst in the work environment and rubbed it along his thigh and that he drove CD to his home where he propositioned her for sexual intercourse and played pornography on his laptop. The Tribunal considered that the conduct of the respondent in relation to AB constituted professional misconduct.7 In relation to the aspects of the appellant’s conduct it found proven concerning CD the Tribunal said:8 It is not necessary to categorise each element of that conduct. It was a continuing course of inappropriate conduct. It included inappropriate messaging, inappropriate purchase of the massager, inappropriate touching, and sending of uninvited intimate photographs of the respondent. The respondent persistently propositioned CD for sexual interaction. Regardless of CD’s willing participation in sexual banter, the respondent’s conduct clearly constituted professional misconduct. 12 The Tribunal found the second allegation proven finding that the appellant breached patient confidentiality by disclosing the name of a patient and making disparaging comments about the patient’s mental health to AB during a text message exchange on 10 July 2020. The Tribunal found that this conduct constituted professional misconduct.9 13 The Tribunal also found the third allegation proven. Specifically, the Tribunal found that the appellant created and provided two false documents to the relevant authorities in the context of investigations into his conduct.10 The first was a screenshot of a purported exchange in the secret messages function of Facebook Messenger between himself and AB in which it appeared that AB initiated a conversation about personal matters with the appellant. The second was a screenshot of messages purportedly sent to the respondent by CD in which CD appears to be offering an apology to the appellant that she “took your nude” and requesting that he tell the police to stop asking about it (‘the apology message’). The Tribunal further found that each aspect of this conduct, the purported message with AB11 and the apology message12, constituted professional misconduct. 14 In making the findings, the Tribunal assessed the credibility of each of the witnesses who gave evidence. The evidence of the expert, Mr du Plessis, was accepted by the Tribunal. The Tribunal considered AB to be an impressive witness who gave evidence in a careful and measured way. The Tribunal found that AB was an honest and generally reliable witness and said that it had a “high level of confidence” in her evidence concerning the critical issues in the case. The Tribunal found CD to be a less impressive witness, concluding as follows:13 In summary, we have significant reservations concerning the honesty and reliability of CD's evidence, particularly in relation to areas where she might perceive that the truth would 7 Ibid at [167]. 8 Ibid at [344]. 9 Ibid at [166]. 10 Ibid at [160] and [323]. 11 Ibid at [168]. 12 Ibid at [345]. 13 Ibid at [37]. -- 7 of 25 -- [2024] SASC 90 McIntyre J 6 harm her. On the other hand, we observe that much of her evidence concerning the conduct of the respondent receives strong support from other evidence in the case. Her evidence must be treated with considerable caution, but it does not necessarily follow that any or all. of her allegations were fabricated. We have only been prepared to act on her evidence where it has support from other evidence in the case and appears to us to be plainly truthful and reliable. 15 The Tribunal did not find the appellant to be a credible or reliable witness for a variety of reasons set out in the decision. The Tribunal noted that rejection of the appellant’s evidence did not prove the matters alleged against him nor did it mean that the evidence to the contrary should be accepted. Grounds of appeal 16 Not all of the findings made by the Tribunal are complained of on appeal. In particular, the appellant does not appeal against findings of fact with respect to AB, that: • on 10 July 2020 he sent messages which were inappropriate and sexualised; • he sent a disappearing message via the secret messages function which contained a nude photograph of himself; • he sent a further disappearing message which contained another nude photograph but with his genitals blurred and arrows added to demonstrate muscle groups. 17 The appellant further does not dispute that, between 16 July 2020 and 31 August 2020, he: • sent messages to CD that were inappropriate and sexualised; • sent disappearing messages to CD via the secret messages function which included a photograph of his genitalia; • while in the work environment, touched CD’s thigh, asked her to accompany him to an empty meeting room to “debrief” and asked her on a number of occasions to go for a drive with him and • gave CD a massager at work which he described as a vibrator. 18 Whilst not explicit in the Notice of Appeal14, it further does not appear that the appellant challenges the Tribunal’s finding that these matters constitute professional misconduct. 14 FDN 1. -- 8 of 25 -- [2024] SASC 90 McIntyre J 7 19 There are eight grounds of appeal set out in the appellant’s Notice of Appeal. The first four grounds of appeal set out in the Notice complain of the Tribunal’s findings that each of the following matters was proven: • Breach of patient confidentiality when messaging AB on 10 July 2020 (Ground 1); • Fabrication by the appellant of a screenshot of messaging with AB on 10 July 2020 (Ground 2); • Sending a nude photo to CD on 31 July 2020 (Ground 3); and • Fabrication by the appellant of an apology message from CD on 25 March 2021 (Ground 4). 20 Ground 5 is a complaint that the Tribunal failed to find that CD had posted a nude photo of the appellant to a group chat. Ground 6 is a complaint that the Tribunal placed reliance upon the evidence of CD. Grounds 7 and 8 complain that the Tribunal has made adverse findings about the credibility and reliability of the appellant by reference to matters which were not canvassed at the hearing or upon which there is no evidence. General principles 21 The Tribunal noted that, the appellant is entitled to the presumption of innocence and that it was for the Board to prove the allegations against him to the reasonable satisfaction of the Tribunal. The Tribunal properly said that the burden of proof remains, at all times, on the Board and that the appellant did not have to prove anything. The standard of proof was identified by the Tribunal as follows:15 13. In Rajagopalan v Medical Board of South Australia, the Full Court of the Supreme Court held that the correct standard of proof was proof on the balance of probabilities. Mulligan J (with whom Cox and Williams JJ agreed) stated: “It was contended before Debelle J that the appropriate standard of proof which should have been applied by the Tribunal was proof beyond reasonable doubt when making findings of fact. Debelle J rejected that contention and concluded that the correct standard of proof was the standard in civil proceedings as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which, of course, means that in deciding whether a fact has been proved on the balance of probability, the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequence of a particular finding, must affect whether the fact has been proved: see Dixon J at p. 362. ... In my view, Debelle J was correct in his conclusion.” 15 SACAT Reasons at [13] and [14]. -- 9 of 25 -- [2024] SASC 90 McIntyre J 8 14. The relevant passages from the judgement of Dixon J in Briginshaw v Briginshaw are as follows: “The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …. It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.” [citations omitted] 22 The Tribunal indicated that it approached this matter in accordance with the principles that it cited, noting the gravity of the allegations and the seriousness of the potential consequences for the appellant. The Tribunal further noted that, the appellant has an unblemished record and that the conduct alleged that it was such that the Tribunal should not find it proven without clear proof. 23 There is no error disclosed in the Tribunal’s statements of principle nor in the approach that the Tribunal indicated that it would take. Legal principles applicable to the Appeal 24 This is an appeal under s 71 of the SACAT Act, which relevantly provides as follows:16 16 SACAT Act s 71. -- 10 of 25 -- [2024] SASC 90 McIntyre J 9 71—Appeals (1) Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies— (a) in the case of a decision of the Tribunal— (i) constituted of a Presidential member of the Tribunal; or (ii) constituted of 2 or 3 members including a Presidential member, to the Court of Appeal; or (b) in any other case—to the Supreme Court constituted of a single Judge. … (2) An appeal under this section is only by leave of the Supreme Court (but this principle may be displaced or modified by the provisions of a relevant Act). … (4) The Supreme Court may, on an appeal under this section— (a) affirm the decision appealed against; or (b) vary the decision appealed against; or (c) 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) The Supreme Court may, on an appeal, make any interim, ancillary or consequential order that the Court considers appropriate. … 25 Whilst s 71(2) provides that an appeal under s 71 requires leave of the Supreme Court, this may be displaced or modified by other legislation. Section 6B of the National Law relevantly provides that, s 71(2), (2a) and (3a) of the SACAT Act do not apply in relation to an appeal against a decision of the Tribunal under ss 196 or 197 of the National Law. In these circumstances an appeal under s 71(1) of the SACAT Act becomes an appeal as of right.17 The current appeal is an appeal against a decision made by the Tribunal under s 196 of the National Law and accordingly leave is not required. 26 The parties contended, and I agree, that the approach of this Court, on the hearing of an appeal, should be informed by the principles outlined by the Court 17 Maroulis v Psychology Board of Australia [2020] SASC 51 at [8]. -- 11 of 25 -- [2024] SASC 90 McIntyre J 10 of Appeal in Testel Australia Pty Ltd v Goulding & Ors.18 Those principles are set out as follows:19 26. This Court is not authorised to intervene on an appeal by way of rehearing under s 50 of the Supreme Court Act 1935 (SA) and r 218.17 of the Uniform Civil Rules 2020 (SA) merely so as to substitute its own view as if it were hearing the matter afresh. As was explained in Coulton v Holcombe: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 27. Accordingly, the demonstration of material error in the reasons or approach of the trial judge is indispensable to a successful appeal. 28. This Court is required to conduct a real review of the trial record and an evaluation of the trial judge’s reasons. The Court must form its own view as to the appropriate outcome. In so doing, the Court ought not shy from the task of weighing conflicting evidence, or from drawing its own inferences or conclusions from primary findings which are not disputed, or which are not affected by error. 29. Nonetheless, this Court must proceed by recognising the “natural limitations” of a review proceeding “wholly or substantially on the record”. There is, as a result, a recognised reluctance to revisit factual findings which depend on credibility finding. It is necessary for the appeal court to proceed with restraint when addressing findings such as these because its review is conducted without the benefit of the opportunities available to the trial judge to evaluate the credibility of each witness and to experience the “feeling” of the conduct of a trial which cannot always be “fully shared” from reading the evidence on the page. 30. Having said that, in “some, quite rare, cases” though the facts may fall short of being “incontrovertible”, the appeal court may decide that the conclusion of the trial judge, even though affected by impressions about credibility, was “glaringly improbable” or “contrary to compelling inferences”. These findings may include, as the High Court explained in Lee v Lee: … findings of secondary facts which are based on a combination of these impressions and other inferences from primary fact. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. 31. If in the course of conducting its own review, after making all due allowance for the advantages available to the trial judge, material error is disclosed, the appeal court cannot “shrink from giving effect” to its own conclusions. [citations omitted] 18 [2023] SASCA 116. (‘TesteI’). 19 Ibid at [26] - [31]. -- 12 of 25 -- [2024] SASC 90 McIntyre J 11 27 Accordingly, the appellant must demonstrate material error in the Tribunal’s approach or reasons. In considering whether material error has been shown as contended in the eight grounds of appeal I have reviewed the transcript of the hearings, the submissions, the exhibits and evaluated the Tribunal’s statement of reasons. In considering the complaints about the Tribunal’s assessment of credibility and reliability of witnesses, I recognise the need for appellate restraint noting that I have not had the opportunity to view the witnesses give their evidence. I further note the principles articulated in Testel concerning “glaringly improbable” conclusions or those reached “contrary to compelling inferences”. 28 For the reasons that follow, I reject the appellant’s ultimate submission that the Tribunal erred in relying upon the evidence of AB and CD, in circumstances where the reliability and credibility of each had been undermined. I do not accept that AB’s credit was undermined and, whilst CD’s reliability and credibility was plainly in doubt, the Tribunal was mindful of the shortcomings of her evidence and dealt with it accordingly. It is moreover clear from the detailed and lengthy statement of reasons that the Tribunal properly understood and considered the appellant’s case. Its rejection of the appellant’s case reflects the Tribunal’s significant concerns about his honesty as well as the strength of the other evidence. This appeal is essentially a challenge to the Tribunal’s findings on credit. This is a proper basis for dismissing the appeal.20 Ground 1 – patient confidentiality 29 The appellant contends that the evidence does not prove that he breached patient confidentiality. The Board allegation is that on 10 July 2020, the appellant communicated with AB, revealing the name of a patient, and making demeaning comments about the patient. AB provided screenshots of the messaging between herself and the appellant. The appellant says that the messaging provided by AB to the authorities was incomplete and that the context and content of the messaging was different because certain messages had been omitted. He contends that AB had deleted messages from her phone before taking screenshots. AB denied that she had done so. At the hearing, Mr du Plessis gave evidence about examining AB’s telephone at request of the Board. He did not find the material contained in the screenshots provided by AB. 30 The relevant screenshot material provided by AB is set out in the respondent’s written submissions as follows:21 19. To understand this ground, it is useful to set out the entirety of the exchange as it appears in the evidence before the Tribunal. The exchange, which is contained within a series of screenshots produced by AB to the University of Adelaide, reads: AB: Anyways you enjoying psy? 20 Testel. 21 FDN 6 at [19] and [20]. -- 13 of 25 -- [2024] SASC 90 McIntyre J 12 Appellant: Yeah Not too bad as long as it's under 5 patients Mentally pretty taxing tbh, I'm done by the end of the week, one of the patients just says she's fine but she's not and she's been spitting her meds out we think Confirmed today actually because her levels came back low <emoji> Such a fkn chore to deal with her, she's crazy but she doesn't look it at first glance AB: Hahah is she in open ward? Appellant: Yeah <emoji> Fuck this is why [I/we] shouldn't trust technology AB: HAHAHA Don't get yourself fired 20. AB's evidence was that, in the course of the exchange, [the appellant] sent her the name of the patient using the secret messages function. However, the Appellant did not send the message to disappear after a set period of time. That was why he subsequently sent the message about trusting technology. AB deleted the message with the patient's name herself, as she knew that giving a patient's name is a 'bad thing' that doctors should avoid. [citations omitted] 31 The appellant’s complaint on appeal is twofold. First, he says that the Tribunal should have found that AB deleted material from her phone before it was examined and second, that her contention she had not altered the messaging should not have been accepted. The Board contends that there was ample evidence other than the evidence of AB to support the Tribunal’s findings and that there was no error in respect of the findings on this topic. 32 AB provided a statement to the appellant’s employer dated 10 September 2020.22 The screenshots in question appear at pages 79 to 88 of Exhibit C1. The appellant contends, and I accept, that AB must have had these messages on her phone at the time she provided the statement because she took the screenshots at that time. The appellant responded to AB’s statement by letter from his solicitors dated 3 November 2020 denying that he was referring to his patient and saying that he was speaking about a friend of his that was working at the Margaret Tobin Centre. The appellant says he is referring to his ex-girlfriend who had a borderline personality disorder when he talks about “She’s a chore to deal with, she’s crazy 22 SACAT Exhibit C1 at 593. -- 14 of 25 -- [2024] SASC 90 McIntyre J 13 but she doesn’t look it at first glance”. He said that portions of the exchange with AB, which place his comments in context, are missing. 33 Subsequently, at the request of AHPRA, AB provided her phone for the purpose of it being examined by Mr du Plessis. When Mr du Plessis examined the phone, he did not find the messages. Mr du Plessis suggested that the messages were been deleted, either intentionally or accidentally, prior to his examination. The Tribunal summarised this evidence as follows:23 [48] … He considered that he would have found the messages if they had been on her phone and “active”. It is not entirely clear what he meant by “active” but other historical messages were found. [49] The additional evidence also establishes that at some stage there would have been on AB’s phone some messages (non-disappearing) between the respondent and AB in the Secret Messages function. These were also not found by Mr Du(sic) Plessis. If found, these may have revealed conversations in that function that had not been set to disappear. Further, two screenshots (C32 – screenshots taken 9.18 and 7.15) were very likely to have been in AB’s gallery at some stage and they were not found by Mr du Plessis. We observe in passing that one of these screenshots (the 9.18 screenshot) would have provided strong support for AB’s allegations if it had been provided to authorities. It would have been in AB’s interest to keep rather than to delete it. [50] AB gave clear evidence to the effect she had not deleted any messages with the respondent. She had not deleted the messages that she had earlier provided to the Ms Mountfield by way of screenshots. She could only speculate as to why the messages were not found on her telephone when it was examined by Mr du Plessis. [51] We accept that there must be a scientific explanation for whatever happens on a computer. In our experience, however, such explanation is not always obvious or ascertainable, even to persons skilled in such matters. Mr du Plessis appropriately expressed his evidence in terms of it constituting his “opinion”. He made no claim to infallibility. Furthermore, he did acknowledge, as we had said, the possibility of accidental deletion. [52] We have carefully considered the impact of this issue on our consideration of the reliability and credibility of AB. The expert evidence does tend to suggest that messages have been deliberately deleted and thus calls into question AB’s evidence that she did not do so. However, the suggestion that she was deliberately untruthful on this issue is at odds with our assessment of her as a witness. More importantly, it is at odds with our view that she gave honest and careful evidence generally concerning the issues in this case. Her evidence was corroborated in significant respects. We have considered whether AB was being deliberately untruthful when she gave evidence that she had not deleted any messages. However, we are not persuaded that this is the case. We do not consider that the general truthfulness and reliability of AB’s evidence is necessarily impugned by reason of the messages not being found on her phone. More importantly, we have a high level of confidence in the honesty and reliability of her evidence on the critical issues in this case. The reasons for our confidence will appear from what follows. 23 SACAT Reasons at [48] – [52]. -- 15 of 25 -- [2024] SASC 90 McIntyre J 14 [citations omitted] 34 The appellant says that the Tribunal’s conclusion does not represent a fair reading of the opinion of Mr du Plessis. The appellant further says that the evidence calls into question AB’s evidence that she did not deliberately delete the messages. The appellant contends that the only logical explanation for the absence of this material is that it had been deleted by AB prior to handing over her phone for examination. 35 The respondent contends that the expert evidence was neutral as to whether deletions had occurred and, if they had, whether this was deliberate submitting that:24 27. Much has been made by the Appellant of the expert's inability to locate the exchange when reviewing AB's phone. The Appellant submits that the expert evidence 'was conclusive that deletions had occurred'. In fact, the expert's evidence was that 'I would like to think that my forensic tools is [sic] sophisticated enough that if it's there and it's active, that I will find it.' An alternative explanation is therefore that the messages contained within the exchange were not active. In addition, the expert gave evidence that deletion could occur by accident. The Appellant's submission that, '[o]nce it is shown that material is not on the phone, the only explanation… is that it was intentionally deleted by AB before examination' misrepresents the effect of the expert's evidence. 28. In truth, the expert evidence was neutral. As set out above, none of the messages contained within the exchange were located on AB's phone. An alternative finding consistent with the Appellant's submission would be open only if some of those messages set out above been located. That none of the messages were reinforces the basis for relying on AB's account and a natural reading of the messages. [citations omitted] 36 I consider that the respondent’s contention that the expert evidence was neutral as to whether deletions had occurred is correct. Mr du Plessis conceded that it was possible that the messages were on AB’s phone and that his forensic tools did not locate them or alternatively that deletion could have occurred by accident. The Tribunal accepted AB’s evidence, finding that she answered questions on this topic cautiously and conservatively.25 The Tribunal’s findings indicate a careful consideration of the content of the messages in the light of the respondent’s version of events.26 As a result of that careful analysis the appellant’s evidence was rejected as “clearly fanciful”.27 The Tribunal said that on a natural reading of the exchange it appeared complete and “appears to have inherent integrity”.28 I agree with both the conclusion as to the appellant’s evidence and as 24 FDN 6 at [27] and [28]. 25 SACAT Reasons at [85]. 26 Ibid at [74]-[93]. 27 Ibid at [85]. 28 Ibid at [84]. -- 16 of 25 -- [2024] SASC 90 McIntyre J 15 to the natural reading of the exchange. I detect no error in the Tribunal’s approach to this issue. Ground 2 – fabrication of screenshot 37 During the investigation by his employer, the appellant provided a screenshot of what he said was messaging between him and AB on the evening of 10 July 2020. The Board alleged that this screenshot is a fabrication. The Tribunal considered this allegation in some detail in its reasons including consideration of the details of the purported conversation, the timing and context of the production of the screenshot by the appellant and the oral evidence of both AB and the appellant.29 The Tribunal found this allegation proven. 38 The appellant submits that his argument on this topic was not adequately addressed by the Tribunal for the reasons set out in the appellant’s written submissions.30 In particular the appellant says that his explanation of the circumstances in which he located the screenshot ought not to have been rejected; that the screenshot is material because it is inconsistent with the tenor of AB’s complaints about him, and that there are several aspects of the content and features of the screenshot that suggest it is authentic. Further the appellant says that the new evidence tendered upon the reopening of the case weakened the Board’s position as to this allegation in that the new material suggested that there had been messaging between AB and the appellant, which was used the secret conversation function, but which was not set to disappear contrary to AB’s earlier evidence. The appellant contends that the Tribunal erred in not concluding that there was a portion, if not a whole thread, of secret conversation deleted by AB prior to handing over her phone for forensic analysis. Finally, the appellant contends that even if one might be suspicious that the screenshot is a fabrication, having regard to the approach articulated in Briginshaw v Briginshaw,31 the Tribunal could not be satisfied to the requisite standard that the allegation of fabrication was proven. The screenshot was just as likely to be genuine as it was to be a fabrication. 39 The respondent on the other hand says, that the appellant’s argument begins on the premise that he did not retain any conversations with AB aside from the screenshot. The respondent contends that this premise is implausible and that this is not improved by the appellant’s evidence. It is further contended that the timing of the production of the screenshot is telling. 40 I have carefully considered the evidence and the Tribunal’s reasons. The Tribunal’s conclusion that the screenshot was fabricated by the appellant is underpinned by its credibility assessment of AB and its rejection of the appellant’s evidence. I see no error in the Tribunal’s conclusion that the appellant’s account of taking a screenshot that he sent to gaming friends to prove that he was speaking to a female was unlikely. Likewise, I see no error in the conclusion that the timing 29 Ibid at [137] – [164] 30 FDN 5 at [51] – [59]. 31 (1938) 60 CLR 336. -- 17 of 25 -- [2024] SASC 90 McIntyre J 16 of the production of the screenshot was significant. The appellant only produced the screenshot after providing submissions to both his employer and AHPRA in which he did not refer to the existence of a screenshot. There was no satisfactory explanation of this. 41 Even putting the appellant’s unsatisfactory account to one side, the finding of fabrication was clearly open on the evidence. This evidence included AB’s evidence that she did not recall sending these messages and considered it unlikely, given the content, that she did send them, and Mr du Plessis’s evidence that such documents can be easily fabricated. Further, the purported screenshot itself appears incomplete and the content, as the Tribunal observed, appears to reverse the roles of AB and the appellant when compared to other communications that the appellant accepted passed between him and AB. I do not consider that the Tribunal fell into error in finding this allegation proven on the requisite standard. Ground 3 – nude photograph 31 July 2020 42 The appellant contends that the Tribunal erred in finding that he sent a nude photograph of himself to CD on 31 July 2020. He further contends that the Tribunal ought to have found that CD sent this photograph to herself from his phone. He relies on AB’s evidence that CD told her, either in the car on the way to dinner on 31 July 2020, or at the dinner, that the appellant had sent a “fully nude photograph” of himself to her before she opened it. The appellant submits that CD could only have known there was a nude photo because she sent it to herself. The appellant further relies upon the Tribunal’s failure to make a positive finding as to whether CD said to AB that the appellant had sent her “a fully nude photo” and then concluding that, if CD did, she was in fact referring to a “dick pic”. 43 The Tribunal summarised its findings as follows: 279. We find that the nude photo was sent from the respondent’s phone to CD’s phone on 31 July 2020 at 11.13 am. It was sent as a disappearing message. The timer would not start to run until CD opened the account in the secret messages function and thus opened the message. We must consider who sent the message. 280. The evidence establishes that CD sent a message from her phone to AB at 11.10 am on 31 July. The respondent admits that he sent a message in the normal message function containing memes from his phone to CD’s phone at 11.12 am. His phone was in his custody then. This may have been as early as 11.12.00 am. The secret message was sent from his phone to CD’s phone at 11.13 am. This may have been as late as 11.13.59 am. There is a possible window of up to two minutes between these two events. CD also sent a message to AB at 11.13 am. 281. The respondent deposed that he was in his office writing up medical notes and CD was with him. She had previously asked if he had any nude photos of himself. He said he had taken one the night before. She asked to see it, but he declined. She asked him to send the memes and he did so. He placed his phone on the table. Shortly after, he observed that CD was holding his phone in one hand and her own phone in the other. He asked her what she was doing. She stated that she was sending something to herself to remember him by. He said words to the effect of “If you’ve taken the photo please delete it”. He went back to writing his notes. -- 18 of 25 -- [2024] SASC 90 McIntyre J 17 282. He suggests that within the window of up to two minutes, CD had picked up his phone, opened the Facebook secret message account to send a message to herself, located the nude photo within his gallery, attached it to the message, set the message to disappear, and then sent it. She had then deleted the secret message from his phone. Within that window, she had also sent a message from her own phone to AB at 11.13 am (either before or after the secret message was sent). 283. Despite suspecting that CD had sent his nude photo to herself, the respondent did not ask to see her phone or take any other steps to address the situation. He messaged her at 2.16 pm, 2.42 pm, and 3.27 pm, enquiring whether she would go out with him that night or on the weekend. No mention is made of the photo. 284. The respondent submits that his account is supported by CD’s confidence that the secret message she opened at dinner on 31 July would be a nude photograph. He submits that she knew that as she had sent the message. CD states, however, that the only secret messages he had sent previously were nude photographs and this caused her to be confident that this would be the same. Much was made of evidence from AB in which she stated that CD had told her before the secret message was opened that the respondent had sent her a “fully nude photo”. This could only be a reference, it was said, to the photo sent on 31 July and not to the previous intimate photo(s) because the previous photos were “dick [pics]” and not “fully nude photos”. We do not find this submission to be compelling. CD confirmed that the previous photos were “dick [pics]”, meaning photographs taken by him looking down at his uncovered genitals. She described them as photographs “of him fully naked with his genitals showing”. She described the photo sent on 31 July as “the fully naked photograph of Dr Jamil with his genitals exposed”. This was a mirror image photo of Dr Jamil as distinct from a “dick [pics]”. In fact, the respondent was not fully naked in that photo as he was wearing briefs which had been pulled down to expose his genitals. We consider that both types of photos could be loosely described as “naked” or “nude” photos. If CD did say to AB that the respondent sent her a “fully nude photo”, we consider that she could well have been referring to a “dick [pics]”. 44 The respondent contends that that the Tribunal did not err in its assessment of this issue. There was objective evidence which supported a finding that the appellant sent CD the nude photograph. This includes that the message was received on CD’s phone at 11:13am on 31 July 2020, at the same time CD was sending messages to AB and also the appellant’s message sent to CD in the evening of 31 July 2020, which requested CD not to open “my secret message”. 45 The respondent says that the Tribunal was entitled to reject the appellant’s account on the basis of implausibility. It is said that, for this account to be accurate, a number of matters had to be accepted. These included acceptance that, during the morning of 31 July 2020, CD asked the appellant if he had any new nude photographs on his phone to which he responded he had taken one the previous night. Following this exchange, it further had to be accepted that the appellant left his phone unlocked next to him with Facebook Messenger open and that CD grabbed his phone and sent the nude photo to herself and then deleted any trace of her sending the photograph from the appellant’s Facebook Messenger account. 46 The respondent further says that the appellant initially denied sending explicit photos of himself to CD using the disappearing message function on Facebook messenger until 6 September 2022. On that occasion he admitted, for -- 19 of 25 -- [2024] SASC 90 McIntyre J 18 the first time, sending a photograph of his genitals to CD on 19 July 2020. The respondent contends that the timing of this admission gives rise to serious concern regarding the appellant’s credibility and that it was proper for the Tribunal to find on the basis of its timing that the admission was made in order to provide him with an alternative explanation for the message to CD on the evening of 31 July 2020 requesting that she not open his secret message. 47 The Tribunal rejected the appellant’s evidence for the reasons set out in its decision. I see no error in the Tribunal’s approach and indeed agree with the conclusions reached on that topic. Putting the appellant’s evidence to one side, there was evidence capable of supporting the Tribunal’s finding that the appellant sent the photograph to CD. This included the fact that the appellant admits he had previously sent explicit images of himself to CD via the secret messages function on at least two occasions prior to 31 July 2020, the evidence of AB who the Tribunal considered to be a reliable witness, the timing of the message, and the evidence of CD whose evidence on this topic was supported by the objective evidence and the evidence of AB. As to the contention that the Tribunal erred in its handling of CD’s evidence about a “fully nude photo”, the Tribunal plainly considered the distinction between “a fully nude photo” and a “dick pic” to be semantic and far from compelling.32 I agree. All of the photographs under consideration exposed the appellant’s naked genitals and could be described as naked or nude photographs. A description of a photograph as “fully nude” does not preclude a photograph that depicts the appellant nude apart from briefs which had been pulled down to expose his genitals. Ground 4 – fabrication of apology message 48 The respondent alleged that the appellant fabricated the apology message. The appellant contends that, contrary to the Tribunal’s finding, the evidence does not establish that he fabricated the apology message. 49 The apology message is a screenshot that purports to show messages sent by CD to the appellant at about 10.44am on 25 March 2021. The messages read as follows:33 CD: I’m sorry I took your nude please just tell the police to stop asking about it I’m really sorry I was scared I’m getting really stressed about this I’ll make it right I promise 32 SACAT Reasons at [284]. 33 SACAT Exhibit C1 at 766. -- 20 of 25 -- [2024] SASC 90 McIntyre J 19 50 The Tribunal considered this allegation and the evidence relating to it in some detail34 before concluding that:35 319. Having regard to: (a) the anomalies in the alleged screenshot of the apology message and the improbability of the respondent’s explanation for the second of those anomalies; (b) our view that CD was unlikely to have sent the apology message and her evidence that she did not do so; (c) the likelihood that the respondent was referring to the secret message on 31 July 2020 as being his message; and (d) our general view as to the credibility of the respondent, we have no hesitation in rejecting the evidence of the respondent in relation to the apology message and rejecting the suggestion that it records genuine messages sent by CD. … 322. Counsel for the respondent submitted that, if we found that the respondent sent the nude photograph on 31 July to CD, it would follow that the allegation of fabrication would be made out. There is force in that submission. Given our finding that CD did not send the nude photograph to herself, it is extremely unlikely that she would have apologised for taking his nude. She had not done so. This strongly suggests that the apology message was fabricated. We would add to that our comments about the inherent unlikelihood of CD sending the apology message and her denial that she did so. Further we refer to the anomalies in the apology message identified by Mr du Plessis and the use of capital letters at the start of sentences in the message. 323. We accept the evidence of CD that she did not send the apology message. We reject the respondent’s evidence on this topic. On the whole of the evidence, we are comfortably satisfied that the apology message was fabricated by the respondent. 51 The appellant contends that the Tribunal erred in concluding that the apology message is a fabrication saying that there is nothing about the message which suggests it is not genuine and that his actions after he says he received the message are consistent with his receipt of it. The appellant contends that the metadata evidence does not prove a fabrication and is consistent with his account.36 He says that moreover CD’s evidence that she could not have sent the apology message because she had blocked him on both Facebook and Facebook Messenger on 20 November 2020 and that she never unblocked him was contradicted by the evidence of Mr du Plessis. Mr du Plessis said that, because he found messages on CD’s phone from the appellant to CD in December 2020 and January 2021, CD could not have blocked his account and kept it blocked from 20 November 2020. It is said that CD’s claim that she had blocked the appellant was a false attempt to 34 SACAT Reasons at [287] – [322]. 35 Ibid at [319], [322] –[323]. 36 FDN 5 at [80]-[84]. -- 21 of 25 -- [2024] SASC 90 McIntyre J 20 distance herself from the damaging admission she had made in the apology message.37 The appellant contends that the timing of the apology message just days before CD was to be interviewed by police concerning the appellant’s complaint that she had stolen the photograph from his phone is telling and that the Tribunal erred in rejecting the submission that the chronology was significant.38 He concludes by saying: 39 90. In these circumstances and with all the reservations about the credit and reliability of CD, it is not possible for the Tribunal to have been satisfied of such a serious allegation of fabricating evidence. 52 The respondent, on the other hand, contends that the appellant’s evidence on this topic is an attempt to account for the fact that, upon analysis by Mr du Plessis, the metadata of the screenshot indicated that it was taken at 11:20am rather than 10:44am as appears on the face of the screenshot. The respondent further contends that, Mr du Plessis’ concerns were not allayed as he identified an issue with the times on the disappearing timers in the messages. In particular he was concerned by the fact that the first in time message had more seconds left on the timer than the subsequent messages. The Tribunal considered the evidence given by Mr du Plessis in some detail.40 I have reviewed that evidence and the Tribunal’s reasons. I accept the respondent’s submission that Mr du Plessis’ concerns were not allayed. 53 The respondent further contends that far from being clear in her evidence, CD was in fact equivocal as to when she blocked the “Sam Jam” account for the reasons set out in the respondent’s written submissions.41 Whilst this may be so, I note that the Tribunal did not proceed on the basis that CD’s evidence on that topic was accurate noting that “the evidence does not appear to corroborate this”.42 54 I do not consider that the appellant has demonstrated error in relation to the Tribunal’s finding that he fabricated the apology message. Mr du Plessis’ evidence leaves open the possibility that the apology was a fabrication and the evidence in support of this finding was compelling. It was not confined to CD’s denial. The evidence included Mr du Plessis’ expert evidence concerning anomalies in the screenshot and the content of the messages including comparison with other messages sent by CD. Particularly telling was the Tribunal’s assessment of the unlikelihood of CD sending an apology in circumstances where the Tribunal formed the opinion that CD had “adopted an approach of self-preservation”43 throughout the investigation and subsequent proceedings. The appellant’s account was rejected because of the reference to the secret message on 30 July 2020 as “his” message; the improbability of his explanation and his poor 37 Ibid at [85]. 38 Ibid at [86] – [89]. 39 Ibid. 40 SACAT Reasons at [288] – [299]. 41 Ibid at [50]. 42 Ibid at [305]. 43 Ibid at [304]. -- 22 of 25 -- [2024] SASC 90 McIntyre J 21 credibility generally including his initial “categorical” denial of sending explicit pictures of himself to CD and of using the disappearing messages function on Facebook” until his response to the proceedings in the Tribunal was filed on 6 September 2022. Ground 5 – CD posting nude photograph. 55 The appellant submits that CD posted his nude photograph to a group chat and that this was established by her admission during an interview with the University of Adelaide on 9 December 2022. He further submits that this change in her evidence on the topic, as set out in her email to the University dated 14 November 2022, demonstrates that she was untruthful before both the University and the Tribunal. 56 The Tribunal did not find conclusive evidence that CD posted the nude photograph to a group chat but observed that it may have been posted and that CD’s evidence on this topic may not have been honest.44 This, together with other matters set out in the Tribunal’s reasons led to the its ultimate findings as to CD’s credibility and specifically to the Tribunal’s “significant reservations concerning the honesty and reliability of CD’s evidence, particularly in relation to areas where she might perceive that the truth would harm her.”45 57 I do not consider that this ground is established. There was no need for the Tribunal to reach a firm conclusion on this issue; it did not form part of the allegations against the appellant rather it was a matter relevant to the assessment of CD’s credit. No error has been demonstrated in relation to the Tribunal’s approach to that task. The Tribunal was mindful of issues with CD’s credit and appropriately directed itself as to the use it could make of CD’s evidence. The Tribunal expressly noted that it was only prepared to act on CD’s evidence where it had support from other evidence and appeared to be plainly truthful and reliable. It is apparent from the statement of reasons that the Tribunal was not prepared to act on CD’s uncorroborated evidence, finding certain allegations not proven as CD’s evidence could not be independently corroborated. Ground 6 – CD’s evidence 58 The appellant says that it was an error for the Tribunal to place any reliance on the evidence of CD. In particular, the appellant contends:46 62. During the hearing, there was a substantial challenge to the reliability and creditability of CD. Significant inroads were made in that regard. The complaint on appeal is that the Tribunal erred in placing any reliance on the evidence of CD. It is submitted that the Tribunal failed to consider adequately the consequences of the successful challenge to the credit and reliability of CD when assessing the disputed evidence of CD. 44 Ibid at [35]. 45 Ibid at [37]. 46 FDN 5 at [62] and [63]. -- 23 of 25 -- [2024] SASC 90 McIntyre J 22 59 This ground of appeal raises issues similar to ground 5. As indicated above, I do not consider that the appellant has demonstrated any error in the approach that the Tribunal took to CD’s evidence. Grounds 7 and 8 – Appellant’s evidence 60 The appellant contends that the Tribunal erred in assessing his credit and reliability by making adverse findings about his credit and reliability by considering matters that had not been put to him (Ground 7) and matters in which there was no evidence (Ground 8). The grounds of appeal are particularised as follows:47 7. The Tribunal erred in assessing Dr Jamil’s credit and reliability by making adverse findings in respect of matters not put to him in the hearing and upon which he was unable to comment or respond. In reaching such an adverse conclusion, the Tribunal did not provide procedural fairness to Dr Jamil. In particular, in addition to the instances identified in other grounds of appeal: (a) ‘the respondent could easily have edited the photo by copying the heart drawn by CD’: paragraph [246] Statement of Reasons; (b) ‘he must have deleted (the love reaction) also’: paragraph [247] Statement of Reasons. 8. The Tribunal erred in assessing Dr Jamil’s credit and reliability by making adverse findings in respect of matters about which there was no expert evidence as to whether such a matter was possible, or whether there would be any detectable forensic consequences of such events, in particular: (a) the postulated editing of the photo: paragraph [246] Statement of Reasons; (b) whether the absence of the ‘love reaction’ can only be explained by a separate deliberate act of deletion, or could it be explained in some other way, such as, if the photo is deleted, any ‘love reaction’ attached to the photo also disappears: paragraph [247] Statement of Reasons. 61 In his written submissions the appellant says:48 91. These grounds can be considered together. The complaint made about the erroneous approach of the Tribunal is common to both. 91.1. None of the matters particularised in either Ground 7 or Ground 8 had been put to Dr Jamil. 91.2. It is an error for the Tribunal to have reached an adverse conclusion about Dr Jamil in such circumstances. 91.3. The consequence of these errors was to taint the Tribunal’s view of Dr Jamil when such a conclusion was not open. 47 FDN 1 at [7] and [8]. 48 FDN 5 at [91]. -- 24 of 25 -- [2024] SASC 90 McIntyre J 23 62 These grounds of appeal related to a photograph which was first produced by the appellant on 23 December 2022 in his book of documents49. The photograph does not form part of the respondent’s allegations concerning the appellant rather it was part of the appellant’s response to those allegations. 63 The photograph depicts the naked torso of a female lying on her back and displaying her naked breasts. The appellant’s evidence as to the photograph is summarised at [244] of the Tribunal’s reasons. He said that the photograph was sent to him by CD in a normal conversation on his account. It formed part of the context in which the appellant admits sending a photo of his naked genitals to CD on 19 July 2020. He deleted secret conversations he had with CD from his account on 31 July 2020 but did not delete the normal conversations. He also deleted the photograph from the normal conversations on 31 July 2020 as he did not want the naked photo on his phone. He edited the photograph to obscure the naked breasts and saved it on his computer as evidence. 64 CD denied that it was a photograph of her and denied sending it to the appellant. She gave evidence that certain of her physical characteristics were absent from the photograph. The Tribunal noted that there was no “independent or definitive evidence” about the location of these characteristics and whether they would necessarily have been visible. 65 The Tribunal rejected the appellant’s evidence as implausible. In making these findings, the Tribunal reached conclusions relating to the copying of the “heart” and deletion of the “love” reaction by the appellant, which I accept were not put to the appellant. I also accept that there was no expert evidence on the topic of the editing of the photograph or the deletion of the “love” reaction. However, when the Tribunal’s reasons are taken as a whole these aspects of the evidence were not determinative of the issue or of the Tribunal’s conclusion that the appellant’s evidence on this topic was implausible. Other issues such as the late production of the photograph, the retention of an edited version of the photograph having “selectively deleted” it from the conversation and the Tribunal’s overall assessment of the appellant’s evidence in the context of other allegations. 66 I reject the submission that the finding on this issue tainted the Tribunal’s view of the appellant. The Tribunal reached its view as to the appellant’s credibility and reliability generally with reference to the whole of the evidence before it. Whilst, as a counsel of perfection, the appellant perhaps ought to have had an opportunity to comment on, or respond to, these matters, that does not constitute a reason to interfere with the Tribunal’s broader finding as to the appellant’s credibility. I dismiss these grounds of appeal. 49 SACAT Exhibit R4. -- 25 of 25 --