SAMANTHA ANGELAKIS v PSYCHOLOGY BOARD OF AUSTRALIA [2024] SASC 133

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER RAINFORD, MEMBER GROSS-PARSONS AND MEMBER GOLDING) 2021/SHP000033 Appellant: SAMANTHA ANGELAKIS Counsel: MS G WALKER SC WITH MR D GARDNER - Solicitor: GARDNER LEGAL & REGULATORY Respondent: PSYCHOLOGY BOARD OF AUSTRALIA Counsel: MR C JACOBI KC WITH MR A SCHATZ - Solicitor: AUSTRALIAN GOVERNMENT SOLICITOR Hearing Date/s: 19/09/2024 File No/s: CIV-24-004493 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. ANGELAKIS v PSYCHOLOGY BOARD OF AUSTRALIA [2024] SASC 133 Judgment of the Honourable Justice B Doyle 27 November 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 PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - OTHER RELATIONSHIPS WITH PATIENT The appellant, a registered psychologist, appeals against part of a decision of the South Australian Civil and Administrative Tribunal ('the Tribunal') pursuant to s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA). The appeal concerns the Tribunal's finding (and orders recording) that the appellant engaged in professional misconduct by providing false or misleading information to the Australian Health Practitioner Regulation Agency and to the respondent about the timing and circumstances of boundary violations and her relationship with a former client, CA. The appellant appeals against the relevant finding and order on grounds that: 1. The Tribunal failed to undertake a subjective assessment of the appellant’s actual state of mind at the time of her self-notification and the first interview; -- 1 of 113 -- 2. The Tribunal erred in failing to engage with the expert evidence regarding shame-based cognition and its capacity to explain the appellant’s failure accurately to describe the timing and circumstances of her earlier transgressions; 3. The Tribunal erred in failing to consider the impact that the reflective education undertaken by the appellant might have had on her evidence; 4. The Tribunal erred by attaching significant weight to the appellant’s demeanour in making findings that attracted the principles associated with Briginshaw v Briginshaw (1938) 60 CLR 336; 5. The Tribunal erred by drawing an adverse inference against the appellant for not calling CA as a witness; 6. The Tribunal erred by making adverse findings against CA; 7. The Tribunal erred in considering the evidence relevant to the appellant’s state of mind selectively, including by failing to consider or attach weight to aspects of her conduct or evidence which contraindicated a finding that she deliberately or recklessly misled regulators. The appellant submitted that those errors, considered in the light of miscellaneous additional errors made by the Tribunal, either individually or collectively, were material to the ultimate finding and order challenged and that the Court should set aside the finding and order and: 1. decline to remit the matter for further hearing and dismiss the relevant grounds of the complaint against the appellant; or 2. accept the appellant’s admission that she was negligent or careless in providing the self- notification and the statements made during the first interview and, consequently, determine that a finding of unprofessional conduct is appropriate; or 3. remit the question of the characterisation of the appellant’s conduct to a differently constituted Tribunal. Held, dismissing the appeal: 1. The Tribunal did not fail to consider and make findings with reference to the appellant’s actual state of mind at the relevant times. The references in the Tribunal’s reasons to the objective likelihood of particular facts and circumstances were steps in the reasoning to a conclusion about the appellant’s actual state of mind. 2. The Tribunal did consider the expert evidence regarding shame-based cognition. In any event, when considered in the context of all the evidence, it ultimately lacked cogency and significant explanatory value in this particular case. 3. The Tribunal did not err by finding that the appellant had a tendency to minimise events or to acknowledge their significance only with the benefit of hindsight, and thereby implicitly rejected the proposition that it was only the process of reflective education that had brought certain realisations to light. It did not err by failing to set out, more explicitly than it did, the reasons why it reached that finding of fact. 4. The manner in which the appellant gave evidence, as distinct from the content of her answers, did not play a large or decisive role in the Tribunal’s reasoning, and it did not err by placing undue reliance on adverse impressions about the appellant’s demeanour. 5. The Tribunal did not treat the appellant’s failure to call CA as generally undermining the appellant’s evidence on all matters. It was open, in particular respects, to treat the failure to call CA as warranting an inference that evidence he may have given on those matters would not have assisted the appellant. The limited weight given by the Tribunal to the failure to call CA on particular matters, as well as the Tribunal’s adherence to the approach described in -- 2 of 113 -- Briginshaw was evident from its failure to be satisfied that any inappropriate touch occurred during the treatment session on 19 July 2019. 6. The Tribunal’s observations respecting CA did not amount to appellable error. 7. The Tribunal did not err by engaging in a selective or incomplete consideration of the evidence relevant to the appellant state of mind. 8. Such errors as were made by the Tribunal in the course of its reasons were not material. 9. On an independent review of the evidence, it is not demonstrated that the Tribunal erred in making the impugned finding or order. Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 196; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39 and s 71, referred to. Giudice v Legal Profession Complaints Committee [2014] WASCA 115, distinguished. Boulton v Delpech [2008] WASCA 245; Boyle (a pseudonym) v The Queen [2022] SASCA 50; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; DL v The Queen (2018) 266 CLR 1; Jamil v Medical Board of Australia [2024] SASC 90; Law Society of South Australia v Jordan (1998) 198 LSJS 434; Lee v Lee (2019) 266 CLR 129; Manly Council v Byrne [2004] NSWCA 123; Mealey v Power [2015] NSWSC 1678; Medical Board of Australia v Shah (a pseudonym) [2023] SACAT 105; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Nguyen v Tran (2018) 86 MVR 16; [2018] NSWCA 215; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Psychology Board of Australia v Angelakis [2024] SACAT 24; R v Mayger (2013) 116 SASR 488; Return to Work Corporation of South Australia v Wastell [2024] SASCA 98; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Testel Australia Pty Ltd v Goulding [2023] SASCA 116; Walsh v Legal Practitioners Conduct Board [2016] SASCFC 52; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, discussed. Briginshaw v Briginshaw (1938) 60 CLR 336; Fox v Percy (2003) 214 CLR 118; Hutchinson v Van Den Berg [2024] SASCA 117; Jones v Dunkel (1959) 101 CLR 298; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77; New South Wales Bar Association v Kalaf [1988] NSWCA 101; Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339; Terry v Leventeris (2011) 109 SASR 358, considered. -- 3 of 113 -- -- 4 of 113 -- ANGELAKIS v PSYCHOLOGY BOARD OF AUSTRALIA [2024] SASC 133 Civil: Appeal B DOYLE J: Introduction 1 The appellant, Dr Samantha Angelakis, is a registered psychologist. Following a contested ‘stage one’ hearing,1 the South Australian Civil and Administrative Tribunal (‘the Tribunal’) delivered reasons on 9 April 20242 in which it made findings that she engaged in professional misconduct by failing to maintain proper professional boundaries in the course of treating CA, a former client,3 and by entering into an intimate and sexual relationship with CA within two years after the termination of the professional relationship.4 2 Most relevantly for the purposes of this appeal, the Tribunal also found that the appellant engaged in professional misconduct by providing false or misleading information to the Australian Health Practitioner Regulation Agency (‘Ahpra’) and the Psychology Board of Australia (the respondent) about the timing and other circumstances of the boundary violations in her self-notification and during the first interview she attended with Ahpra investigators.5 3 On 10 May 2024, the Tribunal made formal orders recording its findings. In respect of the appellant’s statements in her self-notification and in the first investigation interview, the orders record that: … the [appellant] has behaved in a way that constitutes professional misconduct for the purposes of s 196(1)(b)(iii) of the National Law in that: … the [appellant] provided false/misleading information to the Board and Ahpra about the timing and other circumstances in which the boundary violations and relationship with CA occurred in: (a) her self-notification of 7 February 2020; and (b) her first interview with Ahpra on 27 May 2020. 4 The appeal to this Court concerns this part of the Tribunal’s orders.6 1 That is to say, a hearing conducted for the purposes of making findings as to the conduct of the practitioner and the characterisation of that conduct. 2 Psychology Board of Australia v Angelakis [2024] SACAT 24 (‘Reasons’). 3 The allegations in relation to boundary violations during the appellant’s treatment of CA comprised Ground 1 of the respondent’s amended referral under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘Amended Referral’). 4 Amended Referral, Ground 2. 5 Amended Referral, Grounds 3 and 4. 6 Alternatively, the appellant appeals against the paragraphs of the Reasons in which those findings are set out. In order to guard against the possible expiry of the time within which she was required to appeal, the appellant filed her first Notice of Appeal at a time when the Reasons had been published, but the formal orders had not been made. -- 5 of 113 -- [2024] SASC 133 B Doyle J 2 5 The appellant does not challenge the findings or conclusions of the Tribunal to the effect that she was guilty of professional misconduct in failing to maintain proper professional boundaries with CA during the last eleven days of her treatment of him. Nor is there any challenge on appeal (nor was there a dispute before the Tribunal) that the appellant entered into an intimate and sexual relationship with CA within two years after terminating the professional relationship (indeed, they subsequently married), and that the entry into that relationship amounted to professional misconduct.7 6 It is common ground that the account given by the appellant in her self- notification and during the first interview was inaccurate and misleading in various respects. The central question on appeal is whether the Tribunal erred in finding that the appellant deliberately or alternatively recklessly misled Ahpra and the respondent. That was the basis upon which the Tribunal characterised the appellant’s conduct as ‘professional misconduct’.8 7 Each of the appeal grounds pressed by the appellant is directed to that issue. The appellant’s contentions may be summarised as follows: (1) The Tribunal failed to undertake a subjective assessment of the appellant’s actual state of mind at the time of her self-notification and the first interview.9 (2) Further, and in any event, the Tribunal: (a) failed to engage with the expert evidence regarding shame-based cognition and its capacity to explain the appellant’s failure accurately to describe the timing and circumstances of her earlier transgressions;10 (b) failed to consider the impact that the reflective education undertaken by the appellant might have had on her evidence;11 (c) erred by attaching significant weight to the appellant’s demeanour in making findings that attracted the Briginshaw12 principles;13 (d) erred by drawing an adverse inference against the appellant for not calling CA as a witness;14 (e) erred by making adverse findings against CA;15 7 On 17 May 2024 the appellant filed a document titled Appeal Grounds – Revision 1 (‘Revised Grounds’). Ground 9, which challenged the findings relating to boundary violations during the period of CA’s treatment, was not pressed. 8 Reasons [140]-[142], [171]-[179]. 9 Amended Grounds [2]. 10 Amended Grounds [1]. 11 Amended Grounds [3]. 12 Briginshaw v Briginshaw (1938) 60 CLR 336. 13 Amended Grounds [4]. 14 Amended Grounds [5]. 15 Amended Grounds [6]. -- 6 of 113 -- [2024] SASC 133 B Doyle J 3 (f) erred in considering the evidence relevant to the appellant’s state of mind selectively, including by failing to consider or attach weight to aspects of her conduct or evidence which contraindicated a finding that she deliberately or recklessly misled regulators.16 8 The appellant submits that these errors, either individually or collectively, are material to the finding of professional misconduct in providing false or misleading information to the respondent and Ahpra about the timing and circumstances in which the boundary violations and relationship with CA occurred.17 9 The appellant submitted that whereas demonstration of error in the fact- finding process might otherwise lead to the matter being remitted to a differently constituted Tribunal, in the particular circumstances of this case, the Court should decline to remit the matter for further hearing, and should dismiss the grounds of the referral relating to her conduct in connection with the self-notification and first interview because the Tribunal would not now be able fairly to make a subjective determination of the appellant’s state of mind at the relevant times. 10 The appellant alternatively submits that the Court could accept the appellant’s admission that she was negligent or careless in providing the self- notification and in the statements she made whilst attending the first interview, and find that a finding of unprofessional conduct is appropriate. 11 In the further alternative, it is submitted that the Court should remit the question of how the appellant’s negligent and careless reporting should be characterised to a differently constituted Tribunal. 12 In brief outline, the respondent’s submissions may be summarised as follows: (1) The Tribunal made a subjective assessment of the appellant’s state of mind at the time she made the self-notification and was interviewed. Whilst its reasoning included that, in light of documentary and other evidence, it was objectively unlikely that the appellant was either confused or unable to access her memory of the timing, nature and circumstances of her ethical transgressions, there was nothing impermissible about that form of reasoning. (2) In respect of the specific complaints made about the Tribunal’s reasoning: (a) the expert evidence relating to shame-based cognition was inconsistent with acceptance that the appellant was not suffering from an inability accurately to recall the relevant events (such as might be explained by shame-based cognition) and that process would not explain the giving of a false, as distinct from an incomplete, narrative; 16 Amended Grounds [7]. 17 Amended Grounds [8]. -- 7 of 113 -- [2024] SASC 133 B Doyle J 4 (b) there was no need to weigh the effect of reflective education in circumstances where it was rightly found that the appellant in fact understood her conduct was unethical at the time it was undertaken; (c) there was no error in making adverse findings about the way the appellant gave evidence; (d) it was open to the Tribunal to consider that various findings it made were buttressed by a finding that the evidence of CA would not have supported the appellant’s evidence or case, and, in any case, the same findings were and are available without reasoning in that way; (e) the Tribunal made no adverse finding against CA and, to the extent that it did, that does not detract from the findings made against the appellant; (f) the Tribunal did not engage in selective consideration of the evidence. It considered and found persuasive the objective evidence from which inferences of deliberate falsity were drawn. 13 The respondent submits that the Tribunal’s ultimate conclusion was correct and, to the extent that this Court on appeal considers any aspect of the Tribunal’s reasons for reaching that conclusion was erroneous, the Court should, making its own independent assessment, reach the same result. 14 It was submitted that the Court should only consider remitting the matter if, having concluded that one or more aspects of the Tribunal’s reasoning was problematic, and considering for itself the correctness of the ultimate findings, the manner in which the appellant gave evidence (as distinct from the content of the evidence) assumes significance. Approach on appeal to this Court 15 The appeal to this Court is by way of rehearing.18 The Court may draw inferences of fact from evidence or material before the Tribunal.19 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.20 18 South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’) s 71(3a). 19 SACAT Act, s 71(3b). 20 SACAT Act, s 71(4). -- 8 of 113 -- [2024] SASC 133 B Doyle J 5 16 In accordance with the principles governing an appeal of this kind,21 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.22 17 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.23 18 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.24 19 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.25 20 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.26 21 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.27 22 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 21 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). 22 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). 23 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). 24 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). 25 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). 26 Terry v Leventeris (2011) 109 SASR 358 at [15] (Gray J, Sulan and Vanstone JJ agreeing). 27 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). -- 9 of 113 -- [2024] SASC 133 B Doyle J 6 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,28 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. 23 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:29 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. 24 In a similar vein, in Murray v Sheldon Commercial Interiors Pty Ltd,30 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 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. 28 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). 29 (2015) 73 MVR 257; [2015] NSWCA 339 at [93]. 30 [2016] NSWCA 77 at [62] (Leeming and Payne JJA, Schmidt J). -- 10 of 113 -- [2024] SASC 133 B Doyle J 7 25 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.31 26 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. 27 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. 28 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. 32 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. Summary of the facts 29 Before turning to consider the challenges made to the Tribunal’s reasoning, it is necessary to summarise those facts, and the evidence led at the hearing. 30 Whilst the ultimate conclusions to be drawn with respect to the appellant’s state of mind when she self-notified and was first interviewed are contested, the surrounding facts and circumstances were, to a large extent, not in dispute before the Tribunal and, to the extent that the Tribunal made findings about matters that were not agreed, those findings are, with very limited exception,33 not challenged on appeal. 31 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). 32 Hutchinson v Van Den Berg [2024] SASCA 117 at [148]-[153] (Kourakis CJ, Lovell and Doyle JJA). 33 The parties agree that the Tribunal made an incorrect finding at Reasons [177] that the spouses of the appellant and CA were aware by 20 July 2019 of the relationship between them. The appellant also submits that the Tribunal made miscellaneous errors identified in a schedule to the appellant’s submissions. -- 11 of 113 -- [2024] SASC 133 B Doyle J 8 31 The summary of the facts that follows is drawn from unchallenged findings made by the Tribunal and a review of the entire record of the proceeding at first instance.34 Background 32 The appellant was born on 22 November 1987. She holds a Bachelor of Psychology (Honours) and Doctor of Philosophy (Clinical Psychology) degrees. 33 At relevant times she was registered as a psychologist with an endorsement in clinical psychology on the register maintained by the respondent pursuant to Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘National Law’). She practised as a clinical psychologist at PsychMed Pty Ltd (‘PsychMed’), specialising in the treatment of trauma recovery through cognitive therapy. 34 The appellant was at relevant times subject to the professional standards set by the Australian Psychological Society Code of Ethics (2007) (‘Code’). The Code was adopted by the respondent pursuant to s 39 of the National Law. 35 CA is an Inspector of Police with South Australia Police who in or around April 2019 was referred by a human resources consultant to the appellant for treatment in connection with work-related post-traumatic stress disorder. He underwent clinical treatment in the form of 17 treatment sessions with the appellant between 17 April 2019 and 19 July 2019. 36 By the end of June 2019, the appellant formed the view that CA no longer required treatment, but he was encouraged by a consultant to his employer to attend further ‘catchment sessions’ with the appellant, which were more in the nature of preventative therapy rather than active treatment. At the session on 6 July 2019 it was agreed that CA’s next session, which ultimately occurred on the afternoon of 19 July 2019, would be his last. 37 CA and the appellant were both married at the time the appellant treated CA. Each of their relationships came to an end around the time of the last treatment session on 19 July 2019. Their respective former partners, who have not been involved in or given evidence in these proceedings, will be referred to in these reasons, without any intended disrespect, as W and H. 38 The appellant and CA exchanged numerous emails between 8 July 2019 and 19 July 2019 which manifested a failure on the appellant’s part to maintain proper professional boundaries. In respect of this period, in findings not challenged on 34 There were two primary exhibits in the hearing before the Tribunal, exhibits A1 and A2. These, together with the other exhibits, were with limited exceptions reproduced in a Supplementary Appeal Book (‘SAB’) prepared for the purpose of the appeal. The Court has also had access to the transcript of the proceeding below which occupied five hearing days. There was a separate transcript for each hearing day, and where references to transcript are made in these reasons they take the form [hearing day]TR[page number]. -- 12 of 113 -- [2024] SASC 133 B Doyle J 9 appeal, the Tribunal concluded that the appellant had engaged in non-clinical and personal communication and a social and/or close personal relationship with CA. 39 On the day following the last treatment session, the appellant and CA commenced an intimate and sexual relationship. Ultimately, they became married. The commencement of a sexual relationship within two years after the termination of the professional relationship amounted to professional misconduct. That was not in dispute before the Tribunal. 40 Although the characterisation of the interactions up to and including 19 July 2019 and the fact of a sexual relationship more or less immediately following the end of the termination of the professional relationship are not in issue on the appeal, it is necessary to canvass aspects of those interactions in some detail. That is because they bear on the question whether, to the extent that the appellant, in later disclosures to regulators, omitted or misrepresented aspects of these interactions, she might have done so other than deliberately or recklessly. 41 The respondent submits, without hyperbole, that these were ‘life-changing and dramatic’ events. This is relevant, on the respondent’s case, to the implausibility of the appellant’s claim that although her self-notification and first interview created an incorrect and misleading impression about the timing and proximity of events (to one another), this was careless, but not deliberate nor reckless. Interactions prior to the ‘catchment period’ 42 The appellant and CA had a treatment session on 11 June 2019 at which CA discussed the death of his grandmother and the appellant reciprocated by disclosing her feelings when her grandmother died. 43 At around this time the appellant provided CA with a ‘gmail’ address which was then used in some of the subsequent email communications between them, their earlier email communication to that point having occurred using the appellant’s ‘psychmed’ email address.35 In the first email sent to the appellant’s gmail address, CA said he genuinely believed she was a really a good person and that he hoped he had not abused the purpose of her providing the address.36 44 The appellant responded politely the following day indicating he was in no way abusing her email.37 CA responded saying he was glad that his email had meant the appellant’s day had started well, and remarking that the trust he felt in her was not just a result of her profession, it was ‘you personally’.38 35 Reasons [41]. The appellant submits that there was only one email prior to this time, and that, subsequently, the appellant sometimes continued to communicate using the ‘psychmed’ email address. 36 Reasons [38], Exhibit A2, p 1216 [SAB 1210]. 37 Reasons [39], Exhibit A2, p 1217 [SAB 1211]. 38 Reasons [40], Exhibit A2, p 1218 [SAB 1212]. -- 13 of 113 -- [2024] SASC 133 B Doyle J 10 45 In her evidence before the Tribunal the appellant said that if she had a chance to go back she probably would not have responded to CA’s email and would have had a conversation in session about email contact.39 In relation to CA’s subsequent email about trusting her personally, her evidence was that she saw things differently now and, without saying that she should not have at that time, her evidence was that she just did not catch the meaning at the time.40 46 CA attended sessions with the appellant on 15, 18, 21 and 29 June 2019.41 Amongst other topics there was discussion about CA’s relationship with his wife. 47 In a letter of report prepared on 18 June 2019, the appellant opined that CA was now ready to return to work on a return to work plan and that whilst he had demonstrated considerable improvement in his mental health, his role carried considerable risk of vicarious trauma and he should continue to attend sessions with the appellant.42 Interactions during the ‘catchment period’ 48 On 6 July 2019, CA attended a session with the appellant. Her notes of the session record that CA had been going well and found himself feeling much happier. The main stressor noted related to his partner. It was noted that he wanted to stay in the relationship for his children. CA was noted as saying that he felt ready to stop further sessions as symptoms had reduced and he felt ready to re- engage in work. It was agreed that the next session (which was held on 19 July 2019) would be the last session.43 49 In the period between 8 and 19 July 2019, the appellant attended ‘F45’ exercise classes with CA on 3 or 4 separate occasions and, on one occasion, briefly met with CA afterwards whilst they purchased takeaway coffee.44 In her response to the Amended Referral, the appellant accepted these interactions involved ‘boundary violations’.45 50 Over the same period, there were a large number of emails exchanged between the appellant and CA46 in which they shared their personal interests, social 39 4TR60. 40 4TR63-64. 41 Exhibit A1, p 172-179 [SAB 276-283]. 42 Exhibit A2, p 1224-1225 [SAB 1218-1219]. 43 Exhibit A1, p 182 [SAB 286]. 44 2TR20-24. The appellant said that this was across the road from the F45 class and she was ‘going to guess he said or I said, ‘Do you want coffee?’, went across the road, got a takeaway coffee, and then we both went our separate ways’: 2TR23. 45 Amended Response [3.1]. 46 The appellant’s senior counsel put to Dr Angelakis that there were 54 emails sent by her during that period (not including emails from CA to her), and she did not cavil with the proposition: 2TR18-19. -- 14 of 113 -- [2024] SASC 133 B Doyle J 11 activities and values, and discussed common interests and things they would like to do together.47 51 These exchanges include the appellant providing CA with a self-knowledge worksheet which stated that better self-knowledge would lead to, amongst other benefits, better decision making including with respect to big decisions such as ‘which partner you’ll spend your life with’.48 The appellant made comments on the self-reflection undertaken by CA including by way of observations in an email sent on 9 July 2019:49 Hi [C], Below are some really brief, quick notes. I thought you might find the task useful and you’re exactly right as to why I thought of it now, rather than earlier … you’re getting pretty good at this therapist thing. You’ll always be an amazing dad, and of course your kids will be your #1, you just can’t forget yourself. … Interest … • … I’m starting to see why we click so much, I think my values and interest are identical Temperament … • It is such a testament to your character that you have been able to be ‘vulnerable’ in this process, and I hope you have not felt humiliated or judged at any time. o P.s., I find it hard to believe that you’ve had many knock backs from girls … 52 In emails exchanged on 10 July 2019, CA and the appellant both said that they would enjoy talking to each other outside of ‘this’ (a reference to treatment).50 In a later email that day, the appellant wrote:51 47 These included going for walks in the hills and botanic gardens, drinking gin, getting a house in the Adelaide Hills, travelling (skiing, camping and overseas), yoga, and maintaining a ‘debt list’ of things to do together including going for walks, travelling, drinking gin, yoga, sitting in front of the fire at the Stirling Hotel, watching gangster movies and other film and television productions set in New York: Reasons [42]. 48 Exhibit A2, p 1227 [SAB 1221]. 49 Exhibit A2, p 1248-1249 [SAB 1242-1243]. The appellant accepted that typically worksheets filled out by a client would be placed on their file. She said she should have done so here and could not explain why she had not done so: 3TR110-111. 50 Exhibit A2, p 1257, 1259 [SAB 1251, 1253]. 51 Exhibit A2, p 1263 [SAB 1257]. -- 15 of 113 -- [2024] SASC 133 B Doyle J 12 I should probably have thought first before putting anything in an email/in writing! I feel like some of my ‘witty’ comments are probably not the most therapy focused and someone else would use them against me. 53 The appellant was cross-examined to the effect that, contrary to the proposition that it was only with the benefit of reflective education that she had come to appreciate how non-therapy focused her communications were, this email showed that she had that appreciation at the time. Her evidence was that:52 … I appreciate where that’s coming from and can understand that conclusion, but I think even when I said, like, this isn’t the most therapy focused, I think I was also, I think it was just to more, I don’t know, just to kind of suggest that it was just, like, humour. Just that it was humorous. I don’t know whether I actually even understood what the gravity of those words were there. But I can’t argue that they aren’t my words. 54 She went on to acknowledge that by this time she should have recognised that things were not therapeutic.53 55 In an email on 11 July 2019, the appellant said that she should not have favourite clients, but that CA made her smile and laugh the most, and that she had never pushed herself to work out with anyone else.54 56 Later the same day they swapped emails about gin, with the appellant joking ‘[t]herapy with gin, maybe that’s something I should keep in mind for our upcoming sessions’.55 On 12 July 2019 in response to a reference in CA’s email to thinking about walking in the hills, the appellant responded:56 If you ever need a hills walking buddy I’m you[r] gal! Unfortunately the weather seems to have spoiled my plans for a lofty walk today, not particularly great weather for a 3 months old to be in … Maybe this means I need to cosy up by the Stirling Pub’s fire :) If you end up going tomorrow let me know, and I’ll swap yoga for F45, otherwise I’ll see you Monday morning bright and early! 57 CA responded saying he might hold her to that one day and, in reference to Stirling Pub, saying ‘I so wish that was an invite’.57 Later that day, the appellant joked that she would happily join in on a weekend by the beach in a ‘shack’ but that CA’s kids and wife might find it ‘extremely strange if the little too friendly psychologist joins’. The appellant went on to say ‘I know she already has a pretty rubbish idea of me/therapy’. In relation to the walk in the hills, she said:58 52 3TR56. 53 3TR58. 54 Exhibit A2, p 1266 [SAB 1260]. 55 Exhibit A2, p 1268 [SAB 1262]. 56 Reasons [82], Exhibit A2, p 1272 [SAB 1266]. 57 Reasons [83], Exhibit A2, p 1273 [SAB 1267]. 58 Exhibit A2, p 1274 [SAB 1268]. -- 16 of 113 -- [2024] SASC 133 B Doyle J 13 Go ahead and hold me to it. I’m always happy to go for walks in the hills … who know [sic] we could end up at Stirling in front of the fire anyway! Plus, I’d love to see you try and interrogate me. … 58 CA responded, inter alia:59 Done! You are now in ‘Hills walk and Stirling fire’ debt. I took the liberty of including the last bit even though you threw it in as more of a ‘you never know’ … 59 Over the weekend that followed they exchanged emails with the appellant commenting that he had earned her trust, that she was glad she had come into CA’s mind and that she had thought of him earlier.60 60 The following Monday (15 July 2019), the appellant and CA swapped emails about the possibility of a ‘cheeky coffee break’ together, with CA commenting that she had his number.61 In an email sent early in the morning on 16 July 2019 after they had attended an F45 session together, CA referred to having liked their ‘catch up with the butterflies …’62, which, in context, was a reference to a previous occasion when they had purchased coffee together after F45.63 There was some contention before the Tribunal about what the appellant understood by the reference to ‘butterflies’.64 At all events, in response, the appellant said she would have loved a morning coffee with CA but had to duck off. She added:65 I promise for some self-disclosure when we finally organise a catch up; you can use your interrogation skills. What are you [sic] plans for this weekend? 61 In subsequent emails CA explained he had plans Saturday, as did the appellant during the day, and she indicated she was free all Sunday, commenting that if he ended up having some free time he should let her know and ‘maybe we can work out some of that debt’.66 CA responded, commenting how at ease and happy he felt being around her, and saying he was ‘really going to try to align the stars for Sunday’.67 62 In emails exchanged on Tuesday 16 July and Wednesday 17 July 2019, CA commented that Friday (the planned therapy session) seemed a long way away, and he was having ‘Sam-Withdrawals’, to which she responded that if he was 59 Exhibit A2, p 1275 [SAB 1269]. 60 Exhibit A2, p 1282 [SAB 1276]. 61 Exhibit A2, pp 1287-1289 [SAB 1281-1283]. 62 Exhibit A2, p 1305 [SAB 1299]. 63 4TR76. 64 In cross-examination, the appellant said that, much later, CA had told her that he used the word ‘butterflies’ as a way of changing topics in an otherwise awkward situation. However, the appellant’s evidence of her understanding when she received the email was that she ‘didn’t actually respond to that, to the term butterflies, I don’t know what I thought or – I can’t answer that’: 4TR13. There was later cross-examination about their subsequent use of the term ‘butterflies’ in a romantic context: 4TR20-21. 65 Exhibit A2, p 1306 [SAB 1300]. 66 Exhibit A2, p 1308 [SAB 1302]. 67 Exhibit A2, p 1309 [SAB 1303]. -- 17 of 113 -- [2024] SASC 133 B Doyle J 14 running low on his dose of ‘Sam’ he could come to yoga (also joking in the email that he was ‘far too fit and handsome’ to be a rent-a-cop).68 63 In another email on that date CA said he was standing at his computer ‘pretty much non-stop so I see your emails pop up’, and that he tries to hold off replying so as not to look ‘too eager’.69 The appellant responded, inter alia:70 I thought I was alone in hoping that I saw an email from you at the end of each client session. And justification and validation is completely a thing – just another reason as to why you would make a great therapist (or just be a good catch). 64 In CA’s response and the appellant’s reply to that email there were references to being in each other’s heads, jokes exchanged about CA stalking her, and further discussion of common interests such as New York.71 65 On Thursday 18 July 2019, the day prior to CA’s last session with the appellant, a number of further emails were exchanged. CA said that he had had an interesting evening and that a ‘solid break-up plan has been formulated and we just need to implement’.72 The appellant responded by asking if anything had prompted it, and commented:73 Sounds like an interesting session tomorrow or vino at Stirling to be had. My offer to catch up Sunday still stands. 66 She inquired whether he had a rental he would move into. CA responded saying he must admit he was looking forward to their session, continuing:74 Can we just have the session at Stirling? Ha ha! I really want Sunday to happen too. I actually look forward to when it does happen – even if it’s not this Sunday, it will happen! I would love to see you kicking back relaxed and just enjoying the down time. 67 They then exchanged several further emails throughout the course of the day on various topics including hills, wineries, restaurants, and movies and jokes about CA keeping the appellant captive in a cellar. 68 The appellant accepted in her evidence that it was inappropriate to be planning interactions with CA whilst he was in the process of breaking up with partner (and where there were children involved).75 69 The next morning, the appellant and CA exchanged further emails which included a comment by CA that his daughter had ‘figured out’ what was going on, and CA explaining that he would have to come to the session in his uniform. The 68 Exhibit A2, pp 1315-1316 [SAB 1309-1310]. 69 Exhibit A2, p 1319 [SAB 1313]. 70 Exhibit A2, p 1320 [SAB 1314]. 71 Exhibit A2, pp 1320 -1328 [SAB 1314-1322]. 72 Exhibit A2, p 1330 [SAB 1324]. 73 Exhibit A2, p 1331 [SAB 1325]. 74 Exhibit A2, p 1332 [SAB 1326]. 75 4TR37-38. -- 18 of 113 -- [2024] SASC 133 B Doyle J 15 appellant responded, referring to a number of movies she liked, and commenting that she could not wait to see him in uniform. The email concluded: ‘Bet you drive the ladies mad’.76 70 This prompted an email from CA in which included:77 You just rattled off some of my favourite movies. That’s awesome! I have not seen Heat for soooooo long. It’s on the list! Hey, when we talked about watching movies set in New York, I actually messed around and googled ‘movies set in New York’ so I could say – “let’s do our ‘New York’ themed catch up watching this one”. The first one that came up was “When Harry Met Sally” and I thought, nah, too suggestive and possibly a little unnerving for you. The next one that came up was “Friends with Benefits” and I thought, that’s restraining order material!!!! So I gave up and mentioned Suits. Ha ha ha…. I did have a good chuckle to myself. Season seven Suits has a storyline that will make you laugh - I won’t say what it is but the timing is hilarious. … Ha ha. The current uniform is a little weird. I’ll say nothing when I see you but then I’ll point out the flaws [smiley face emoji]. Uniform used to be ‘of interest’ but I don’t see it as much now. I have two funny uniform stories - my favourite being when I went to a Noise Complaint job. I went out the back to get this 21st birthday party to turn the music down and the birthday girl thought I was a stripper. She came over and provocatively danced a little and then tried to tear at my shirt. Ha ha!!! I kept saying “hang on, real gun, real gun”. I’m not silly though - had I gone to the same party one hour later in plain clothes, I wouldn’t have raised an eyebrow. People like the ‘idea’ of it I believe. 71 The appellant responded by an email that included:78 I love When Harry met Sally. Who can say no to a good rom-com with Meg Ryan?!? Not to rub it in, but I did go to the diner in the movie when I was in NY. They had a great Ruben sandwich and matzo ball soup. … I would have loved to have seen you being mistaken for the sexy stripper. 72 The appellant accepted in her evidence that when she received CA’s email she was aware what the references to ‘When Harry Met Sally’ and ‘Friends with Benefits’ meant in a general sense.79 The reference to the seventh season of ‘Suits’ was to a plot line involving a relationship between a female therapist and her former patient. The appellant’s evidence was that she was not aware of that.80 Final treatment session 73 CA attended his last treatment session with the appellant from approximately 4 pm to 5 pm on Friday 19 July 2019.81 The notes prepared by the appellant in 76 Reasons [45](b), Exhibit A2, pp 1337-1339 [SAB 1331-1333]. 77 Reasons [45](c), Exhibit A2, p 1340 [SAB 1334]. 78 Reasons [45](d), Exhibit A2, p 1341 [SAB 1335]. 79 4TR67. 80 4TR67. 81 The appellant’s evidence was that sessions would typically run for 50-60 minutes: 2TR96. -- 19 of 113 -- [2024] SASC 133 B Doyle J 16 relation to the session record that CA felt ready to end sessions and that his mental health was stable. The notes record that treatment termination was discussed and that the file would be closed and that the professional relationship would cease, with closure letters to be sent.82 A letter was prepared to CA’s general practitioner reporting on the treatment and noting that his file had been closed.83 74 The records on the appellant’s patient file did not include any of the emails that had been exchanged relating, amongst other things, to CA’s relationship with his wife.84 The appellant accepted85 that the emails between 8 and 19 July 2019 constituted records of client contact that she was required to keep for a minimum period under the Code.86 75 Before the Tribunal, there was an issue as to whether there was any inappropriate physical contact between the appellant and CA at this session. That issue arose by reason of CA’s reference in an email the following day to him ‘thinking back to your touch as I type’.87 Ultimately, and notwithstanding the inference drawn that CA’s evidence on the topic would not have assisted the appellant on the issue, the Tribunal was not comfortably satisfied, having regard to Briginshaw principles, that any touching of a sexual or intimate nature occurred.88 76 There was also a question as to whether, as the appellant had said to Ahpra investigators, CA asked for her telephone number at the end of the session. That issue was relevant to an account, given by the appellant to Ahpra investigators in her first interview, that her catch up with CA on Saturday 20 July 2019 was the result of him calling her number on that day. As will be explained, it is apparent from the emails later produced that they discussed when and where to meet by exchanging a number of emails.89 Communication following final treatment session 77 Within approximately an hour after the session, the appellant sent an email (the subject line of which was simply an ellipsis) as follows:90 Running the risk of appearing too eager. I’m all free Saturday if you’re still keen I had no idea of what the subject line is meant to be. This is completely foreign to me 82 Exhibit A1, p 184 [SAB 288]. 83 Exhibit A1, p 188 [SAB 292]. 84 Reasons [71]. 85 3TR64-65. 86 Clauses B.2.1-B.2.2, Exhibit A1, p 1168 [SAB 1160]. 87 Reasons [50], Exhibit A2, p 1352 [SAB 1346]. 88 Reasons [99]-[100]. 89 Whilst the appellant agreed in her evidence at trial that the meeting on that day was not precipitated by a phone call from CA, she did maintain that he had asked for and had given CA her phone number and that he still had the piece of paper on which she had written it: 2TR115. 90 Reasons [46], Exhibit A2, p 1347 [SAB 1341]. -- 20 of 113 -- [2024] SASC 133 B Doyle J 17 78 Later that evening, CA responded:91 Hello you. What a day, huh?? [Smiley face emoji] Sorry for slow response. Everything came out here so kids, family and friends aware. It’s all happening!!! Not too eager - equal eager if that makes sense. [Smiley face emoji] Will chat/email to fine tune tomorrow. Have a great night/morning. 79 The following morning, on 20 July 2019, the appellant sent an email to CA saying:92 So I was your silver bullet? I thought something like that might unfold when you got home. I ended up having a shocker of a night. We went to a festival with friends and ended up having a huge fight over god knows what. I just left and now I’m spending the weekend at my parents. I guess I’ll just have to hide in the teepee at the party Don’t feel any pressure for this arvo/night. I really would just like to chill with you 80 CA responded a few hours later:93 … I am definitely keen to go back over closing comments from yesterday!! Very much. [Smiley face emoji] Can U think of anywhere we can go where we just won’t be seen. Would be pretty bad if we get recognised somewhere. This weekend in particular. Your thoughts? 81 The appellant responded shortly after that, saying, amongst other things:94 You sound like an excited school boy!! But I must admit I do have butterflies too. Is it bad that I’m really struggling to think of somewhere that I don’t regularly frequent for a beverage? I’m staying down at prospect right now but I’m happy to travel wherever. 82 CA responded, inter alia:95 91 Reasons [47], Exhibit A2, p 1348 [SAB 1342]. 92 Reasons [48], Exhibit A2, p 1349 [SAB 1343]. 93 Reasons [48], Exhibit A2, p 1350 [SAB 1344]. 94 Exhibit A2, p 1351 [SAB 1345]. 95 Reasons [50], Exhibit A2, p 1352 [SAB 1346]. -- 21 of 113 -- [2024] SASC 133 B Doyle J 18 Not sure there are too many school boys with my hairline. But yeah, I can see what u r saying. I keep thinking about yesterday and I close my eyes so I can remember the details – not good when driving but no crashes yet. … I am going to throw up the question Is it too risky?? As hard as it is (and thinking back to your touch as I type), do we call it? (Ouch). We would need to figure something else out ASAP that’s for sure!! I’m ok for a call if u r clear? 83 He then sent a further email asking if she could catch up that night.96 The appellant responded that she was at a party that finished at 5 pm and could not speak but would really like to see him.97 A few minutes later, the appellant emailed CA again saying that because her sister was out of town they could meet there.98 He responded: 99 Naughty girl!!!!! OK. [Smiley face emoji] No chance of random apologetic visitors? 84 In subsequent email messages they confirmed the details and both confessed to feeling butterflies.100 In fact, the appellant referred to her butterflies ‘coming back’.101 Commencement of sexual relationship and deletion of emails 85 When they met at the appellant’s sister’s house in the evening of 20 July 2019 the appellant and CA spent several hours talking on the couch, drinking gin, touching, holding and (ultimately) kissing each other.102 86 There is and was no dispute that this amounted to ‘sexual activity’ for the purposes of clause C.4.3 of the Code and that, as the Tribunal found, the appellant commenced an intimate and sexual relationship with CA from 20 July 2019, albeit they did not have intercourse until 26 July 2019.103 87 CA sent an email to the appellant the following morning referring to having had the perfect evening with the perfect person and observing that ‘I know we are 96 Exhibit A2, p 1353 [SAB 1347]. 97 Exhibit A2, p 1354 [SAB 1348]. 98 Exhibit A2, p 1355 [SAB 1349]. 99 Exhibit A2, p 1356 [SAB 1350]. 100 Exhibit A2, pp 1357-1362 [SAB 1351-1356]. 101 Exhibit A2, p 1359 [SAB 1353]. 102 Reasons [110]. 103 Reasons [112]. -- 22 of 113 -- [2024] SASC 133 B Doyle J 19 stuck with email for a little while but it’s what we have so use it to tell me your thoughts and how things go’.104 88 The appellant’s response included that she was going to come up with a bit of a plan, in reference to her own marital circumstances. She said she would be on her laptop for the day and ‘wouldn’t say no’ to more emails from him. Her email concluded:105 On a side note are you deleting these? 89 In his responding email, CA said:106 I hope things are going as best they can. I feel really bad for you in all of this. … I am being super cautious so getting space for emails has been tough. Hang in there. This is the worst of it. Noooooo. I have not been deleting because i am the sentimental type. But I know the story and will clear all off. Boooooooooo…..!! Hope u r doing well. Thinking of u. 90 In an email later on Sunday, 21 July 2019, the appellant said, inter alia:107 I thought it was just me who was sentimental about the emails. If I’m being completely honest, sometimes I scan over them when I’m alone just so I can think of you some more [Smiley face emoji] But, it’s the safest thing to do. I couldn’t stop thinking about you even if I tried. 91 There were later emails between CA and the appellant the following day in which the appellant said she even thought about saving them as a PDF and putting them in a hidden password-protected folder.108 92 Before the Tribunal, the appellant’s evidence was that CA had asked her to delete the emails and that was for the purpose of ensuring his wife or her husband did not see or stumble onto the emails. She said CA was worried about the implications for access to his children if his wife saw the emails. However, the appellant’s evidence was she deleted all the emails with CA (by doing a search for his name) including emails in respect of which she said there was no need for concealment.109 104 Exhibit A2, p 1363 [SAB 1357]. 105 Reasons [118], Exhibit A2, p 1364 [SAB 1358]. 106 Reasons [118], Exhibit A2, p 1365 [SAB 1359]. 107 Reasons [118], Exhibit A2, p 1366 [SAB 1360]. 108 Exhibit A2, p 1373 [SAB 1367]. 109 2TR28-29, 4TR53, 56-57, 65. -- 23 of 113 -- [2024] SASC 133 B Doyle J 20 93 Later in the evening of 21 July 2019, the appellant sent an email to CA saying:110 … I had a good chat to my sister just before (just about [H], I may have omitted my unethical behaviour [smiley face emoji]) and I feel a bit better. I just wish I could be with you! This seems so cruel. I know if you were next to me all of the ‘yuck’ would just fade away. … You just say the day and I’ll find a ‘yoga class’. There’s no way I can go too long without a dose of Mr A. I don’t think I’ve ever felt this way befor [sic] xx 94 On 23 July 2019, CA wrote:111 So I have no emails to go back over …. all our pre-planning for the cellar, the movie list, the debt list – all gone!! Don’t worry though, I have it stashed away in my little brain. I have added ‘date’ to the debt list. Just so you know. [Smiley face emoji.] … I envisage a cinema night coming up soon. Russell and Hobbs? 95 The appellant said in her evidence that she would not have described the earlier emails as ‘pre-planning’ emails.112 96 Over the course of the week commencing 22 July 2019 the appellant and CA exchanged a large number of emails in which they discussed their own personal circumstances and discussed finding times to speak and catch up. In an email sent on 24 July 2019, CA said:113 … In real terms, we need to keep things clandestine for quite some time. I do have kids. I do have to start from a rough place in setting myself up and finding balance between my new life and keeping kids on track. Regardless of how long we leave things, there will always be suspicion that we got together before end of therapy. … 97 On 26 July 2019, CA emailed:114 … I think it would be madness for either of us to ‘give things another go’ [a reference to their relationships with their spouses] – things are too far gone – we have been quite intimate and connected and I think even if we didn’t work out – our short history would be a lot to carry if we tried to go back to our respective spouses. Neither of us are intrinsically deceitful and it would be a lot of weight to carry. … 110 Reasons [119], Exhibit A2, p 1369 [SAB 1363]. 111 Reasons [121], Exhibit A2, p 1395 [SAB 1389]. 112 4TR44. 113 Exhibit A2, p 1417 [SAB 1411]. 114 Exhibit A2, p 1449 [SAB 1443]. -- 24 of 113 -- [2024] SASC 133 B Doyle J 21 Make sure you delete these emails – I actually feel a bit guilty saying this stuff – but it also feels good to get it out. … 98 In a responding email, the appellant confirmed that she was deleting emails,115 and later that morning, CA wrote that he had just deleted all emails, commenting that it was ‘[h]ard to do but know I have to’.116 99 In another email exchange on 26 July 2019, CA asked: ‘we are together aren’t we – I like to think so – don’t correct me’,117 and the appellant responded: ‘I like to think we are together in our complicated way’.118 100 It is common ground that the appellant and CA met that evening at a house at which CA had arranged to stay and that they had intercourse for the first time.119 In emails the following day they expressed their love for one another.120 101 In an email sent on 31 July 2019, CA asked whether the appellant was going to leave her husband and whether she was truly intending to stay with him. He went on to ask:121 Is it truly 2 years or is it a ‘guide’? What does that two years look like? (102 weeks to go) 102 The appellant’s email in response included:122 I’m not 100% sure on the ethics thing. I think there’s an ethics line I can call but I can’t quite figure out how I ask the questions … “I’m asking for a friend?” Ethical guidelines state: C.4.3 Psychologists: • do not engage in sexual activity with a client or anybody who is closely related to one of their clients; • do not engage in sexual activity with a former client, or anybody who is closely related to one of their former clients, within two years after terminating the professional relationship with the former client; • who wish to engage in sexual activity with former clients after a period of two years from the termination of the service, first explore with a senior psychologist the possibility that the former client may be vulnerable and at risk of exploitation, and encourage the former client to seek independent counselling on the matter; and • do not accept as a client a person with whom they have engaged in sexual activity. 115 Exhibit A2, p 1450 [SAB 1444]. 116 Exhibit A2, p 1452 [SAB 1446]. 117 Exhibit A2, p 1451 [SAB 1445]. 118 Exhibit A2, p 1453 [SAB 1447]. 119 3TR13-14, 24. 120 Exhibit A2, pp 1472-1473 [SAB 1466-1467]. 121 Exhibit A2, p 1567 [SAB 1561]. 122 Exhibit A2, p 1569 [SAB 1563]. -- 25 of 113 -- [2024] SASC 133 B Doyle J 22 I also don’t really know what the actual repercussions are, and if there are only repercussions if you say I took advantage of you (which I obviously did J).123 103 Shortly thereafter, CA sent an email in which he commented:124 I see an important factor if [sic] that’s the wording. The main point is that there has been no ‘sexual activity’ between us – ever. Our interactions started out as friendship after we ceased seeing each other professionally. We were both going through break-ups and our friendship developed into a romance however we are acutely aware of the ethics around this and we would honour the requirements stipulated. I am more than prepared to seek further, independent counselling where it will come out that my symptoms were strongly affected by a failed relationship exacerbated by her dismal behaviour. At the end of the day, I am a strong and resilient person per the reports from you, James and my GP and I am in the senior management levels of SAPOL where capability testing has proven I am a strong leader and suitable to make critical decisions and structured / strategic decisions. As such, the risk of me being vulnerable is extremely low, if not, non-existent. … Whilst it is our intent to continue to see each other at a romantic level, there will be no ‘sexual activity’ as we both agree that your passion for your job and your benefit to those in need, far outweighs the need to breach any ethical barriers. Lucky we held out, huh? … 104 The appellant sent a return email stating:125 Ha! I’m going to need to keep that paragraph in case I ever have to go up in front of the psych board! 105 CA’s response included:126 It’s all true!!!! That’s the best thing. Although my words probably didn’t talk up just how much you did genuinely help me … 106 In her evidence, the appellant said that her comment that she would keep the email was just bad humour and a joke, and that she never intended to or was going to keep the sexual relationship a secret.127 She said that she treated CA’s comments about there not having been sexual activity as ‘tongue in cheek’ and that he was joking.128 107 It is apparent from further emails exchanged at this time and subsequently that whilst CA was living separately from his wife,129 the appellant, whilst frequently staying over with CA, was still involved in discussions with H, and was finding it difficult to navigate an end to her relationship. 123 The appellant explained that this was a smiley face emoji that had been converted to a ‘J’: 2TR33. 124 Exhibit A2, p 1570 [SAB 1564]. 125 Exhibit A2, p 1571 [SAB 1565]. 126 Exhibit A2, p 1572 [SAB 1566]. 127 2TR34. 128 4TR69-70. 129 He moved into a rental premises in Coromandel Valley on 2 August 2019. -- 26 of 113 -- [2024] SASC 133 B Doyle J 23 108 The appellant and CA continued to communicate extensively by email and telephone and to see each during the day and on some evenings over the following weeks. On 13 August 2019, CA forwarded to the appellant the emails they had exchanged back on 12 June 2019 (that is, before their professional relationship had ceased), describing it as an ‘early gem’ and commenting on how difficult he found it to delete their chats.130 She responded that he had ‘totally abused the ‘privilege’ of having [her] email’.131 109 In cross-examination the appellant said that this was a ‘joking email’ and that she could not recall what she was thinking at the time but:132 … I do think that I was still not appreciating like the hugeness of my deviations within all of that. … 110 On 1 September 2019, the appellant booked flights to Bali as well as accommodation for her and CA to stay there between 13 and 19 September 2019, which they subsequently did.133 111 The appellant’s evidence was that she told her husband she was seeing someone else probably in around September or October 2019.134 CA told his colleagues and his wife about his relationship with the appellant in February 2020.135 Self-notification to the respondent 112 Under cover of a letter from a solicitor retained on her behalf dated 7 February 2020, the appellant made a self-notification to the respondent in which she stated, inter alia:136 My name is Dr Samantha Angelakis … I am writing to notify the Board of a breach of APS Code of Ethics (Code C.4.3). I am, and have been since August 2019, engaging in a romantic relationship with a past, terminated client ([CA]) prior to the passing of two years since the termination of our professional relationship. … [CA] attended 17 regular, weekly sessions from 17 April 2019 to 19 July 2019. Sessions followed an evidence-based Cognitive Behavioural Therapy format including strategies such as thought challenging, exposure, value exploration, and activation. Symptoms were monitored using psychometric assessments and symptoms showed significant reductions over the course of treatment. From his 14th session (held on 21 June 2019) [CA] advised that he considered that he had recovered and no longer required ongoing sessions. He denied experiencing PTSD symptoms (i.e., reexperiencing, hyperarousal, affective, avoidance symptoms) and reported levels of anxiety and depression within the mild range. 130 Exhibit A2, p 1720 [SAB 1714]. 131 Exhibit A2, p 1722 [SAB 1716]. 132 4TR62. 133 Exhibit A2, p 1768-1782 [SAB 1762-1776], 3TR22. 134 3TR42. 135 3TR48, Exhibit A2, p 1795 [SAB 1785]. 136 Exhibit A1, p 16 [SAB 123]. -- 27 of 113 -- [2024] SASC 133 B Doyle J 24 [CA] advised that he felt ready and able to re-engage with his work on a fulltime basis and that he had learnt multiple therapeutic tools to maintain good mental health without therapy. [CA]’s personal reports were corroborated by objective assessments taken throughout treatment. On 19 July 2019, his treatment was terminated, and his file was closed by PsychMed. Termination was clearly discussed with [CA] and closure letters were sent. Following the termination of treatment, communication between [CA] and I continued and eventuated to social interactions and then romantic interactions. The connection and feelings between [CA] and myself eventuated faster than either of us could have anticipated, and it was not until these feelings became quite profound that the gravity of these ethical issues became obvious (shortly after which this notification has been made). [CA] and I both share the same core values and engage and communicate in an intellectual, respectful, and equal manner. We could not have predicted this, but we both truly feel lucky to have found one another. We deeply respect and love one another and believe that the bond we share is incredibly special. Specific Considerations for the Board I understand that engaging in a relationship with [CA] is a breach of the Code. I believe it to be imperative for me to make this notification voluntarily. I recognise that the Board’s role is to protect the public, so it must evaluate the risk I pose to the public. I wish to be transparent with the Board by giving full and frank disclosure of all facts which the Board may consider material to this breach. In considering the relationship between [CA] and myself I have reflected on a number of factors. In summary, I have considered the following: • Exploitation – [CA] and I do not believe there to be exploitation by myself of [CA] in the context of our relationship. I acknowledge that there is always a power imbalance inherent in the professional treating relationship. However, I do not believe that I have exploited this power imbalance. [CA] and I do not believe there is a power imbalance in our ongoing relationship. Our relationship is based on mutual trust and respect. • Duration and Termination of Professional Relationship – I saw [CA] for a reasonably short period of time (4 months) on a regular basis. Treatment was terminated in a formal manner, prior to the commencement of the romantic relationship, as a result of [CA] no longer requiring psychological treatment. • Self-Notification – I willingly and voluntarily have provided my honest notification to the board. • Disclosure to Employer - I will willingly and openly discuss my breach to my employer and seek ongoing supervision and consultation. • Professional Development – I will continue to engage in online courses, presentations/seminars, peer consultation and supervision. … Absence of a Power Imbalance I am aware that as a psychologist, I generally hold a position of power over my patients as I am able to exert a significant degree of influence over them. I understand that [CA] trusted me to have the skills and tools necessary to treat his PTSD and that it is my paramount duty to ensure that [CA]’s wellbeing is not harmed. I do not believe that at any point in time, I -- 28 of 113 -- [2024] SASC 133 B Doyle J 25 used my position and power to unethically pressure or coerce [CA] into a relationship with myself. Treatment sessions were always focused on his PTSD, treatment sessions were circumscribed, and it was understood that treatment would be terminated once PTSD symptoms subsided. No romantic interactions took place while treatment was ongoing. … Duration and Termination of Professional Relationship [CA]’s treatment consisted of 17 sessions, occurring between 1 April 2019 and 19 July 2019. I consider that his treatment cycle could be seen as being, objectively speaking and compared to the standard patient which I treat, of a relatively ‘short’ duration. [CA]’s treatment was terminated because he no longer required continued treatment. He advised of his PTSD, anxiety, depression symptoms being in the mild/normal range. He self- reported that he was ‘well’ and no longer needed to attend sessions. When [CA] and I continued to communicate following the termination of his treatment, I advised him that if he required further psychological treatment in the future, I would be unable to see him professionally. [CA] understood this and agreed. Although my personal relationship with [CA] commenced following the clear termination of treatment, I acknowledge that the relationship initiated inside the timeframe proscribed as a breach by the Code. It was never my intention to commence a relationship within that timeframe, however our connection developed quicker than we could have anticipated. The feelings that [CA] and I share for one another have caught us off guard and we truly have an incredible love and respect for one another. I entirely understand that this is not the healthiest way to develop a relationship. I have never experienced such feelings for any present or past clients and I wholeheartedly believe that this situation will never be repeated. [CA] and I consider ourselves to be in a committed relationship with one another and we have discussed multiple long-term plans, including moving in together and the potential for marriage. I would like to emphasise that this behaviour is not typical nor in my nature. In my professional career as a trauma-focused therapist, I have often needed to talk about and reflect upon professional boundaries with my clients and other therapists. I have often needed to consider the vulnerability of the clients I work with as many have experienced significant trauma including child sexual abuse (CSA) and sexual abuse. Further, there have been times in the past in which it has become apparent that clients’ have formed some kind of emotional or sexual attraction towards me. In line with my ethical obligations, I transferred their care to another practitioner and consulted with peers. I have not had any issues with boundary violations prior to this, and I understand that boundary violations are unethical and detrimental. I have not before, and never will again engage in this form of relationship. I believe that the relationship that I have with [CA] is truly a once off and whilst it occurred soon after his treatment finished, the relationship is genuine and equal. Self-Notification In order to ensure that this situation does not happen again, and that I continue develop and reflect on my experiences I am engaging in a number of matters which will reinforce my commitment to ensuring that I have appropriate boundaries in place with my clients. I believe that it is imperative for me to be honest with the Board and for me to voluntarily notify the Board of this breach. Whilst my feelings for [CA] are honest and true, I am aware that my prior position as [CA]’s psychologist causes our relationship to be unethical. In an -- 29 of 113 -- [2024] SASC 133 B Doyle J 26 effort to be completely transparent I have provided this detailed report, along with [CA]’s report, and have documented the evolution of our relationship honestly. [CA] and I are completely willing to offer additional information to the Board that it may consider relevant. I also acknowledge that the Board and AHPRA will likely wish to discuss the matter with [CA] independent of me, and I undertake not to involve myself in those discussions, so that [CA] can discuss the matter with AHPRA and the Board freely and without any involvement from me. … Conclusion In closing, while I am aware of this breach, [CA] and I are in a committed and genuine relationship. We believe there to be no power imbalance or exploitation on my part. I have taken considerable steps to further develop my personal and professional growth and unequivocally believe that this situation will not occur again. I do not pose an ongoing risk to the public, and am a conscientious, caring practitioner. I thank the Board for taking the time to read and consider this notification. 113 As will be explained in more detail, the Amended Referral identified various respects in which the self-notification was alleged to be inaccurate or misleading. The appellant accepted in her Amended Response,137 and in her evidence,138 that the self-notification was not entirely accurate and was inaccurate about the timing of certain events. She denied, however, that she had been deliberately dishonest. 114 The letter to the respondent from the appellant’s solicitor also included a letter from CA in which he stated:139 I write to you to provide an important perspective to accompany the letter provided by Doctor Samantha Angelakis (Sam). … With regard to Sam’s demeanor [sic] during treatment, at no time did she say anything that made me feel she was attracted to me nor did I feel she was steering me to a position that would benefit her. She was always professional, understanding and kind however I knew very little about her during treatment and at no time did I feel invited to probe into her personal life. It is fair to say that I had felt an attraction to Sam early however I was capable of ‘burying’ these thoughts as my focus was on dealing with my PTSD coupled with the fact, I did not feel the attraction was reciprocated. I was eager to find methodologies to deal with my PTSD. I answered all of her questions, undertook all ‘homework’ she provided me, and I developed my own strategies that helped me disclose information better to Sam and allowed me to more deeply process the issues and solutions. It is without a doubt that Sam led me to a full recovery and, since therapy finished, I have had very few nightmares and intrusive thoughts. I have not felt anxiety that has been beyond my control. I have full confidence that the treatment was nothing short of professional and effective. In the weeks after therapy had finished, I continued communication with Sam, and it is reasonable to 137 Amended Response, [20]. 138 2TR38-39. 139 Exhibit A1, p 22 [SAB 129]. -- 30 of 113 -- [2024] SASC 133 B Doyle J 27 acknowledge I wanted to engineer a situation whereby a romantic relationship became possible. I believe it were these interactions that led to the feelings becoming shared and within about 4-6 weeks, we entered into a relationship. The relationship has been ongoing, and it is built on genuine mutual respect, a strong connection in our core values, emotional needs and trust. I care very deeply for her and I believe those feelings are wholly reciprocated. I would describe us as very deep love. Our relationship is fair and equal and there is no power imbalance. We have made many long-term plans, including plans to live together. Whilst I wish I did not need to disclose this in such a formal and impersonal way, the magnitude of our relationship is best highlighted by the fact it is my intention to marry her in 2021. … I submit that this letter was my idea due to the fact I feel it is paramount the board has all the facts when considering Sam’s notification. I wrote this letter independently and alone albeit we have obviously discussed our thoughts in the lead up to notification. In discussion with Sam, I am also making arrangements to see an independent psychologist for the purpose of reflecting on the situation and to ensure my mental health is still satisfactory. I am very confident this is the case. I will make myself available to any representative of AHPRA for the purpose of openly and honestly answering questions relating to this or to clarify points made. 115 Again, the respondent alleged that CA’s letter was inaccurate and misleading in various respects. The appellant accepted in cross-examination that she had read CA’s letter and wanted the respondent to rely on it.140 116 On 9 February 2020, the appellant met with Dr Quentin Black and other PsychMed staff, informed them about her relationship with CA, and gave Dr Black a copy of her self-notification. She did not inform him of any unprofessional conduct during the treatment period or that she and CA had kissed on 20 July 2019, the day after the last session.141 Dr Black and, later, on 21 February 2020, another confidential notifier, made notifications to Ahpra. Ahpra investigation 117 On 6 March 2020, Ahpra wrote to the appellant notifying her of the respondent’s decision to investigate her conduct, enclosing copies of the notifications received, and requiring her to provide documents and other information by 18 March 2020 under Schedule 5 of the National Law,142 including a complete copy of her patient file regarding CA, including all clinical notes with respect to his treatment between 17 April 2019 and 19 July 2019 and details of all the telephone numbers and telecommunications providers that she and CA had used to contact one another. 118 By around 20 March 2020 the appellant CA commenced living together on a full-time basis. In the following month, they contracted to buy a house together. 140 3TR67. 141 3TR51-52. 142 Exhibit A1, p 40 [SAB 147]. -- 31 of 113 -- [2024] SASC 133 B Doyle J 28 119 On 27 May 2020, the appellant attended the first interview with Ahpra investigators.143 The appellant was informed of her right not to answer questions that might incriminate her, and that it was an offence to provide false or misleading information to an investigator. 120 The interview is lengthy and it is important not to read any particular passage divorced from the surrounding context. It is, however, convenient to extract a number of questions and answers that are relied upon by the respondent as being knowingly or recklessly false and misleading. 91 [AF] … And during that treatment period did [CA] discuss details of his family life with you? 92 [SA] … So whilst we did discuss his family in brief it didn’t become a big issue for his treatment. … 97 [AF] And did you discuss any of your, details of your personal life with [CA] during treatment? 98 [AF] No. … 111 [AF] Can you briefly or tell me how your relationship with CA started? 112 [SA] So, so I’ll go from like the last treatment session, so during the last treatment session we had finished the session and we were just kind of doing like a typical chit chat before he left the therapy room and he asked for my number. I know how that sounds and I you know would never recommend anyone do that but at that moment I guess I was quite surprised by it. He was a friendly person, he had good connections with SAPOL as well and I thought he was someone who was quite safe and not vulnerable so I gave him my number. Then in, and I think this is important to the context too, so he left the room and then that night I was with my partner and I had this humungous argument with him and he kind of left me on the road with my dog and my bags so I from that point started living back with my parents. The on the, and this is something that’s not actually in your phone records, so this is actually, I don’t know what was going on here but [CA] actually called me on the 20th. … 114 [SA] So yeah it would be … … 116 [SA] … easy to say the convers-, the conversation started on the 24th but he did call me on the 20th, so I don’t know whether that was on a work phone or a different phone. 143 Exhibit A1, p 220 [SAB 322]. -- 32 of 113 -- [2024] SASC 133 B Doyle J 29 … 122 [SA] … So he called me on the 20th and, actually no, I was staying at my sister’s house, he called me on the 20th and just said hey do you want to catch up. He had mentioned that something had like busted up at home and I was just obviously not in a good way so I said yeah. So he came to visit me at my sister’s house on the 20th, so probably got there maybe four or five and we just, it was one of those things that you known when you talk to someone and it just flows so so smoothly and we were just talking about what had happened to him and obviously he, he didn’t know a great deal about me at that point. Like it was a shock for him to find out that I was married, because at the time I was wearing my engagement ring but I wasn’t wearing my wedding band so he just thought I was engaged. So that was like quite a shock to him so we, you know we just spent the night just talking and we had a couple of drinks but no, we both didn’t get drunk, like he drove home. But when he, so I walked him to the door to say goodbye and you know I think we were both in that stage of, you know I didn’t really want him to go, he didn’t really want to go but he had to go and he grabbed my hand and that was the first time we kissed. So the first time we kissed would have been on the 20th and then he went back home. And then I would say probably for the next week or two weeks we were talking on the phone, we, I remem-, I can’t give you specific dates but I remember we went to like the Botanic Gardens for a walk, we caught up for maybe a couple of coffees but also just because his partner, her name’s [W], was quite, she could be quite aggressive and she would always tell him you know if you do something I’m taking the kids and you’re never going to see them again and he, she would have, like find(?) on your phone, on his phone and she would look through his phone. So we were very careful about where we met up So sometimes we would just meet up in a car and just talk. Then I think it would have been, actually I think I wrote it down, so it would have been say the 25th, 26th-ish … … 128 [SA] So at that point, I don’t know the intricate details, so you’ll have to ask [CA] but she kicked him out and he then started living at a mate’s house, I think his friend was away, and then probably the weekend, so the 27th, 28th-ish I would have gone over to his friend’s house and you know we were obviously talking and we were kissing and that would have also been the time we first had sex as well. And then from there he got a rental. I think he got the rental like the 1st of August, very very early August. And from there he was very much separated and I guess from that point it just ended up that I was at his house more than I wasn’t. … 153 [AF] … 20th what did he call you for, what was the purpose, do you know? 154 [SA] I know in hindsight what it was because he had spoken to me about it so I know in hindsight or I know from what [CA] has told me that he wanted to instigate a situation of just meeting up together, at the time I, it was kind of phrased as like I’m going through something tough, you’re going through something tough, you know we, we you know can talk to one another, let’s just meet up and have a chat and kind of like a friendly catch up which in retrospect I know even just that is inappropriate. But I think it was that notion of just like a perfect storm what was going on. -- 33 of 113 -- [2024] SASC 133 B Doyle J 30 155 [AF] And how did he know you were in a, in a bad spot at that stage? 156 [SA] That would have just been something that I said on the phone. So you know I think that that was at the point where he was actually starting to probably get a bit more information about what I was going through, he didn’t know any of that during treatment, that that would have all been fresh information for him. 157 [AF] Okay and that was on that phone call then? 158 [SA] Yeah I assume so, yeah. 159 [AF] So had you during treatment at all mentioned [H]? 160 [SA] No. 161 [AF] And did you ever mention that you were in a relationship? 162 [SA] No. So obviously my ring probably indicated that I was in a relationship but there was no discussion about my relationship. … 169 [AF] So when he asked you for your number… 170 [SA] Mmhmm. 171 [AF] … did you guess why he was doing that? 172 [SA] I think I was probably actually quite naïve at the time. He phrased it from memory just as you know it would be nice to be able to, I know in therapy he talked about you know Monday, going back to the SAPOL office and actually having a look at the domestic violence unit and things and that area because he knows that’s my specialty, so I think when he gave or when he gave me the number I just thought it was just possibly more of a professional thing but I, I must admit I think that there was a notion of like some kind of friendship or catch up there. … 239 [SA] … as the night kind of went on it became more apparent that there was like a deeper connection, yeah I don’t think that, well no I can’t speak for [CA]. I know that that’s, that was quite surprising that something so quickly happened there. So we would have talked about that it was a boundary crossing and that it was inappropriate and risky and I know that has been, that’s been something that we’ve spoken about quite openly [CA] and I. Like we’ve had so many conversations about this and we’ve been thinking about obviously getting to this point of the notification and the interview for a really long time. I don’t think either of us, well we both knew it wasn’t something we were just going to be able to do and then just nothing was going to happen there. But I think there was so many other factors also going on as well that just like the fear and the worry and his ex-partner and just [ui] the perfect storm too. I’m not saying it’s, it’s right because it’s not right but I think that that was where I was at at the time. 273 [AF] [In the context of the appellant not having informed anyone apart from family about the relationship prior to the notification] … And why was it kept confined? -- 34 of 113 -- [2024] SASC 133 B Doyle J 31 274 [SA] Mmhmm, I, there are probably two main reasons. One just being my fear and anxiety surrounding AHPRA, the other really big one was [W]. … … 346 [AF] And when would you say it transitioned from this professional relationship to a personal relationship? 347 [SA] Oh early, I think, I’d be lying if I, like I think from that 20th like I definitely felt an attraction or a non-professional connection at that point, like in, yeah that’s not professional. 348 [AF] Yeah yeah. When would you consider, I know it’s not exactly black and white but where would you consider the relationship, the relationship formed? 349 [SA] Ah yeah? I would say maybe about like the month mark, like four, five weeks I think. I think we both knew we liked each other, I think it was very obvious that there was like a really lovely connection there but I, look I, look I know when like from that 19th there was no going back to my marriage. But I do have suspicions that possibly [CA] still thought that that was some, or a worry that that was something that could happen and you know I know he was still worried a lot about his kids, he didn’t want to leave his kids. I think it was probably about a month mark where we both really got to that point of alright, I, we want to be together and it’s just like you and me now yeah. … 426 [AF] … this might be a self evident question but whilst you were in a, whilst he was a patient of yours or during that treatment period did you speak to each other outside of formal therapy sessions at all? 427 [SA] No. Oh sorry, I will say there would have been like a couple of emails where I would have just sent him worksheets, the therapy, was very much therapy. … 432 [AF] But there was nothing outside of those ordinary professional … 433 [SA] Not during that time … 434 [AF] … discussions at that time? 435 [SA] … during treatment, yeah. But it was treatment focussed. 436 [AF] Yeah. 437 [SA] I think that’s one of the things that’s very apparent in [CA]’s case is that I acknowledge that things transpired pretty much the day after therapy but therapy was therapy for [CA]. … 444 [AF] During that treatment period did you discuss the possibility of a relationship with each other? -- 35 of 113 -- [2024] SASC 133 B Doyle J 32 445 [SA] No. 446 [AF] Was it apparent to you that [CA] had some sort of attraction towards you period, during that treatment period? 447 [SA] No. 448 [AF] Did you have an attraction toward [CA] during the period of treatment? 449 [SA] I can say like we had a good therapeutic rapport and connection but not an attraction. … 578 [AF] … you obviously didn’t self notify straight away. It took a few months or so. 579 [SA] Yeah. 580 [AF] Is there a reason for that? 581 [SA] Yeah there’s probably a few reasons. One I was terrified. One I think part of it was probably I procrastinated on it. You know we, [CA] and I would talk about it and then, this is not an excuse but there would just always be something that would happen. So whether that be, you know there’d be an issue with the kids or [W] would create some kind of drama or I was moving in or he was, like there were just so many different things and I think also juggling when to tell the kids, how to tell the kids, like all of these things are kind of happening in the background at the same time. And I also think like when we, there was a big lag between you know knowing we were going to make the notification and then actually making the notification. So I know I probably spent far too long actually writing my notification. So think you know very quickly weeks just turned into months and it was probably, yeah I, it should have happened sooner but I think there are lots of other factors going on as well. … 601 [SA] Because I didn’t actually notice the attraction during therapy, obviously those conversations didn’t happen. I, I have been in a couple of situations in the past with clients that have just blatantly said that they find me attractive or they’ve looked at my ring and said oh it’s such a shame you’re married and I’d like to go on a date with you. And I can tell you from those situations that I have very much talked about like how intrusive to the therapy process, how it kind of very much changes the dynamic here and how it might not be helpful for them and those clients have been triaged to other practitioners. … 608 [AF] And then you did discuss it with him once it was evident that boundaries had been crossed? 609 [SA] Mmhmm. This would have been at my sister’s house, there. … -- 36 of 113 -- [2024] SASC 133 B Doyle J 33 121 CA voluntarily participated in an interview with Ahpra investigators later on the same day of the appellant’s first interview.144 122 Amongst other things, he said that: • during treatment the appellant had only disclosed superficial things about her personal life; • he asked for her phone number at the end of the conversation on 19 July 2019 and was not sure whether she was going to give it to him – asking for her number was something he only thought about that day or maybe the days leading up; • they never spoke to one another outside of treatment sessions in the period between 27 April 2019 and 19 July 2019, nor discussed the possibility of a relationship during that period. He never told her he was attracted to her during the treatment period and she exhibited no signs of attraction towards him; • they met on the evening of 20 July 2019 at the appellant’s sister’s place and as he was leaving he kissed her at the front door; • ‘hands down’ it was CA pursuing the appellant rather than the appellant pursuing him; • the main driver of keeping the relationship secret for a period was CA’s concern about the implications for access to his children if his wife found out. In relation to notification, it was something they talked about all the time and it was almost a case of procrastinating, but they were ‘always going to do it’; • the reason he said 4 to 6 weeks in his letter was that just because they had kissed and it was really nice, it did not mean his feelings were reciprocated in the same way, so that period was to allow for the early or superficial stage of a relationship to settle a bit. 123 A little over two weeks after the interviews, the investigator who had conducted the interview wrote to the appellant’s solicitor providing a copy of the transcript and inviting the appellant to confirm that it was accurate. On 1 July 2020, the appellant’s solicitor indicated that it had been reviewed and transmitted a signed final page of the transcript.145 At around this time there was a change in staffing arrangements within Ahpra and the investigation was reallocated to a different investigator. That investigator sought CA’s permission to obtain 144 Exhibit A1, p 271 [SAB 373]. 145 Exhibit A1, p 334 [SAB 436]. -- 37 of 113 -- [2024] SASC 133 B Doyle J 34 independent information from a psychologist he had been consulting, and he provided that consent.146 124 The psychologist provided a report dated 24 September 2020.147 It was noted that CA had reported that the last therapy session was on 19 July 2019 and that he stated that ‘the two ‘got together’ at the end of August after his final consultation’. It also stated that he had initiated the contact and that he did not know what to expect because he had no idea if she was married or not. The report noted that CA had said they had caught up the following day at her sister’s house, that it had felt right at the end of the night, and that ‘Sam and I started catching up’ and that contact was maintained ‘over a period of months through phone calls and messages [and] meeting up with things like coffee’. CA had reported that the appellant had not revealed anything about her personal, private life and that he ‘knew very little about her’ and that she remained strictly professional and any non-treatment comments she made were ‘not unlike anything other psychologists would say’. 125 It will be recalled that in the appellant’s email on the morning of 20 July 2019, she had said ‘We went to a festival with friends and ended up having a huge fight over god knows what. I just left and now I’m spending the weekend at my parents’. Whilst the terms of that email do not convey that she was married, the email strongly suggests that the appellant had already explained to CA that she was in a relationship and that he knew something about her private life.148 126 In early November 2020, CA sought access to the transcript of his interview but the Ahpra investigator declined to provide it.149 127 On 17 November 2020, Ahpra sent a letter to the appellant requiring production under Schedule 5 to the National Law of any and all email correspondence between her and CA from all personal email accounts between 27 April 2019 and 23 July 2019 and details of whether she corresponded with CA between 27 April 2019 and 23 July 2019 by any other means and, if so, copies of that correspondence.150 128 On 4 December 2020, the appellant’s solicitor produced emails the subject of the notice of 17 November 2020 to Ahpra investigators.151 The covering letter explained that the appellant often deleted personal emails but in this case had been asked by CA to do so because he was concerned about his former partner accessing and making use of the emails. Despite this, CA had been able to recover his deleted emails and had provided them to the appellant. The letter advised that the appellant had only recently reviewed the emails after CA had recovered them. 146 Exhibit A1, p 342 [SAB 444]. 147 Exhibit A1, p 356 [SAB 458]. 148 This inference was put to the appellant in cross-examination: 4TR15. 149 Exhibit A1, p 367 [SAB 469]. 150 Exhibit R3 [SAB 2578]. 151 Exhibit A1, p 372 [SAB 474]. -- 38 of 113 -- [2024] SASC 133 B Doyle J 35 129 The letter advised that: • she was surprised to note that professional boundaries began to become blurred earlier than 19 July 2019, and that a little over a week before then the emails began discussing matters unrelated to CA’s case; • she believed that this may have happened because of the fact that she and CA considered that his PTSD had resolved as of 24 June 2019; • the reference to attending an F45 session together on 10 July 2019 should be understood in the context that they arrived and left separately and it was something the appellant had been considering attending for some time, with CA’s suggestion pushing her to finally do so. 130 In the latter part of 2020, the appellant was supervised by Professor Jacques Metzer and met on a number of occasions to discuss boundary violations and ethical decision making in psychology. She prepared and provided to Ahpra a self- reflective document the appellant had prepared over the course of the consultations,152 which was enclosed with the appellant’s solicitor’s letter of 4 December 2020. 131 That document disclosed that the appellant recognised ‘in hindsight’ that there were clues of a boundary violation that she should have been aware of, with feelings of friendship and curiosity developing closer to the end of the treatment. She stated: I also found that there was more email contact with CA then other clients. Initially this was related to worksheets, reports etc. But, closer to the end of treatment (whilst in catchment phase) I recognise that there were far more bantering and friendly emails. This is no way is my common practice. Whilst I do email clients from time to time this is specifically related to checking in or providing worksheets and reports. I now recognise the inappropriateness of this – I think that whilst it was happening, I did not give much weight to it as there was never any intention to ‘cross a line’, but these communications, feelings etc. were part of the slippery slope. I can now see that very clearly. I have found it very eye-opening and confronting to reflect on these emails as until previously I very much discounted and minimised their content. I am very confident that I will not allow this form of contact to occur again. The ethical decision-making model speaks about “Would I be comfortable if my colleagues knew about this situation?”. This is a question I will continue to use in my current and future practice. The situation with CA is something I was uncomfortable discussing. Feelings of embarrassment, shame, and minimising all had a role to play in not contacting colleagues. I can now see that these feelings were actually strong indications of why I needed to contact a colleague. In reflection I think that there was some awareness of what was going on, but this was blurred by minimising, conflicting feelings, possibility some naivety, and personal difficulties in my own relationship. As a result of this learning I am acutely aware of the 152 Exhibit A1, p 489 [SAB 485]. -- 39 of 113 -- [2024] SASC 133 B Doyle J 36 clues for boundary violations. If this situation were to repeat, I feel that I would be able to act more swiftly, seeking consultation and terminating the therapeutic relationship if needed. I have learnt now to pay significant attention to changes in my emotion and action, and to specifically think about how I would feel discussing this with others. 132 Professor Metzer provided a supportive letter to Ahpra investigators shortly after on 18 December 2020.153 133 The appellant and CA married on 8 January 2021. 134 The appellant participated in a second interview on 12 February 2021.154 At the outset of that interview, the appellant explained that a lot had happened in the 19 months since the events in question and she had had the ability to reflect not only on the matter with CA but on her life overall, and was now seeing things through a different lens. 135 In respect of her earlier statement that she had not communicated with CA outside therapy, she said: … obviously that’s wrong 100%. I, in my mind I think before I actually got the emails, really just thought there were like a scattered handful, like I mean I just minimised and avoided you know, and just, cause everything was kind of deleted, I didn’t like go back and look at things, so like that is obviously incorrect, but at the time, I actually, I actually thought there wasn’t much correspondence there. 136 She said that although she had now taken significant steps towards the realisation of various matters including a power imbalance in her previous relationship, she did not think ‘at the time of the first interview [she] actually really had embraced that’. She added: When I review the situation and how the relationship between [CA] and I developed, I think there must have been some awareness of what was going on but I think that was very much blurred by me minimising and dismissing my feelings. 137 In relation to the number and content of the emails during the ‘catchment phase’, the appellant said: Most of the emails, especially those more banterish emails, happened really during his catchment stage of treatment. Once his PTSD symptoms resolved and like that no way excuses the behaviour, but I think that [CA] doing so well at the end of treatment somewhat caused me to kind of lower my guard, probably become like a little bit more open and friendly than I typically would. I can only say that at the time I remember these emails fluctuating between being professional and then just like fun and banter. [CA] and I are quite naturally chatty, banter-ish people and kind of that just is evident in our relationship and our interactions today. And whilst in hindsight I agree that the number of emails exchanged is inappropriate, most of them can be described as generally being friendly. I also want to say that [CA] has a very unusual and creative sense of humour. And I think I 153 Exhibit A1, p 493 [SAB 485]. 154 Exhibit A1, p 511 [SAB 503]. -- 40 of 113 -- [2024] SASC 133 B Doyle J 37 probably fed off of his banter and his humour and got kind of involved in some of those emails in a very silly way. There are a number of emails that now and due to my development and constant consideration of what a boundary violation is, that I very much cringe at. I know that some of these emails appear to make light of the situation but I assure that is not the case and I think some of those comments were just made out of anxious fear and probably trying to minimise the situation. Overall interpreting these emails is actually quite difficult because I think I read them now through the lens of my being [CA]’s wife, it’s hard to really backtrack and to kind of think about what was going on then and because just so much has changed in terms like how I feel about [CA] and just actually how clear like a boundary violation is to me. 138 In the course of the interview, the appellant was taken to, and commented on, a number of the emails. In respect of the email sent on 10 July 2019, she said that with the benefit of hindsight she thought it seemed ‘a little bit flirty but … in that moment … it was just about my being friendly and providing like a compliment there’.155 139 In relation to the email sent on 17 July 2019, she acknowledged that that was when she ‘kind of thought things were probably being a little bit more on the like blurry line there, yeah’. 140 In relation to the attendance at F45 sessions, the appellant said that whilst she probably should not have attended there was no intention for it to be more than just trying F45 and then realising it was not for her. She said she was not arranging to attend the classes with CA – rather, the only time she could attend he was there anyway, and it was not ‘like we had made this date to go there together’. She said she could not remember speaking with him before or after the classes. 141 Later in the email she referred to having caught up for coffee briefly after one of the F45 sessions, indicating she ‘completely forgot about that’. 142 When asked why she had not mentioned, in the first interview, the interactions that had occurred outside of treatment, she said: Like it was simple as I just didn’t think about, I think when I, and this is a presumption, but I think when I was kind of asked that question, I was thinking like you know, intimate setting where we actually have a conversation intimately, so I just didn’t think about F45 and like in hindsight, I definitely should have said something, but I just didn’t think about it. 143 When taken to references in emails on 16 July 2019 to catching up on the coming Sunday, she said: I notice like some of those, like those kind of, like those sorts of statements in the emails but I think like I actually didn’t ever imagine, like again, I shouldn’t have put it out there, I don’t want, I don’t want to sound like I’m making excuses for it. But I just didn’t imagine like it would ever happen there and like obviously like so you put that as the 16th, so we ended up seeing each other on the Saturday, but, was it the Saturday? Anyway, one of those days. I just don’t think I ever put it out there thinking anything would come of it and again, 155 Exhibit A1, p 748 [SAB 740]. -- 41 of 113 -- [2024] SASC 133 B Doyle J 38 my naivety, I think it was still, even though like still inappropriate, was like from that idea of like a friendly catch up there. 144 In relation to her reference to him being a ‘great catch’, when asked how she thought that came across, the appellant responded: Oh, now I think it’s like wildly inappropriate, but again, like I know cause [CA] and I obviously talked about this a lot. Like he thought there was no way that I would give him my number when he asked and so I know like so he just actually thought that this was all friendly banter and I think I thought much the same up onto that point. And in no way like do I think it’s justified, but like I think some of those questions about being a catch was just like you know, just to try and be like funny and friendly and nice in that setting. 145 In relation to the account given in the first interview about how it came to be that the appellant and CA met up on 20 July 2019, the appellant said that she had not at that time looked at the emails and had assumed or pieced together that it must have been as a result of CA ringing her. She said that in her first interview there was ‘confusion’ in this respect. She was now no longer sure that there was a phone call on 20 July 2019, although she still thought she had a memory of talking to him on the phone. 146 At all events she said that she no longer agreed with the account she had given the first account. The appellant said that: in line with the interviews, I agree that he asked for my number, I gave him my number, it kind of triggered something off, and then like I sent this, I, this email about being eager to see him and then it kind of snowballs from that and on top of that we both kind of, it’s so, like it’s, like the truth is stranger than fiction, like we both just had fights on the same day with our like, our spouses and like it just kind of went from there. 147 The interviewer raised with the appellant that neither she nor CA had mentioned the emails in the earlier interview and inquired whether they had spoken prior to the interviews to ensure that their stories were consistent. Whilst she said that although they spoke, it was not for the purpose of ensuring they corroborated one another, and when asked whether she could explain them both overlooking the emails she said: Not, like not really from memory, like I think I actually just believed that it must have been like something was missing in the phone records and that he called me and I think that’s probably why there’s this memory of like having had a chat with him at one of those earlier points there. In and maybe it’s like you know, when we were doing it, we just ended up kind of corroborating that story together, cause I guess it’s something that happens but like in all honesty, like I actually just thought that that’s how it happened until obviously like this is in front of me. -- 42 of 113 -- [2024] SASC 133 B Doyle J 39 Imposition of condition, referral and expert reports 148 Following the second interview, the respondent imposed a condition on the appellant’s registration requiring her to undertake counselling, supervision and further education.156 149 At the request of Ahpra, a report was prepared by Dr Lisa Warren, a clinical and forensic psychologist, dated 6 April 2021 (‘first Warren report’).157 She opined that: • the appellant’s conduct in forming a personal and intimate relationship with CA was in contravention of provisions of the Code and APS Ethical Guidelines; and • her conduct was substantially below the ethical and professional standards expected of registered psychologists of equivalent training and experience. 150 The respondent then referred the matter to SACAT on 2 December 2021.158 151 The appellant commenced supervision and education sessions with Dr Tony McHugh on 21 June 2021, continuing through to March 2022. 152 The appellant requested and received a report prepared by Dr Christopher Lennings, a clinical psychologist, dated 12 December 2021 (‘first Lennings report’).159 For the purposes of that report, Dr Lennings did not interview the appellant. A significant focus of the report was the extent to which CA had been vulnerable and the extent to which the email communication during the catchment phase could be characterised as ‘sexualised’, from the appellant’s perspective. 153 Amongst other things, Dr Lennings expressed the view that those interactions involved ‘boundary breach’ but not one that exhibited sexual behaviour, or sexual images, comments or language such as is required if it were to be regarded as ‘sexual activity’. He said that: …[a]t the risk of being accused of semantics, flirting is said to be demonstrating an interest in a person for a relationship or for amusement. It is not necessarily an inducement to sexual activity. Indeed, my reading of the emails indicate that amusement and a sense of fun permeated the inappropriate exchanges rather than an inducement or suggestion of sexual activity. 154 On 25 March 2022, Dr McHugh reported to Ahpra.160 The conditions on the appellant’s registration were removed shortly following this. 155 The respondent filed the Amended Referral on 13 October 2022. 156 Reasons [13]. 157 Exhibit A2, p 575 [SAB 749]. 158 Referral dated 2 December 2021, Exhibit A1, p 1 [SAB 108]. 159 Exhibit R2, p 3 [SAB 2410]. 160 Exhibit A2, p 2506 [SAB 1981]. -- 43 of 113 -- [2024] SASC 133 B Doyle J 40 156 Dr Lennings provided a further report dated 13 November 2022 (‘second Lennings report’).161 For the purposes of the second Lennings report, Dr Lennings interviewed the appellant for 90 minutes. He noted that the appellant largely accepted the first two grounds in the Amended Referral, but observed that ‘she firmly seeks to rebut’ the other two grounds. 157 The second Lennings report records that he had been asked to accept assumptions, including that: • the appellant does not believe that she purposely misled the respondent and will not be admitting to deliberately doing so; • the appellant agrees that some of the information she initially provided to the respondent was not accurate; • the appellant’s position with respect to Grounds 3 and 4 is that: she did not intentionally mislead the respondent and, to the contrary, sought to bring the matter to the attention of the respondent; any information that was incorrect was as the result of one or more of the effluxion of time, the short period of time between the initial weakening of boundaries and the commencement of a full-blown relationship, and as a result of a sub-conscious minimising of the boundary crossings that occurred in the days leading up to 20 July 2019; she agrees that some of the information provided to the respondent was not accurate, but that she was focused on the ‘core matter’ that she brought to the attention of the respondent – her relationship with CA and that any inaccuracies were inadvertent errors on her behalf; and she believes that she sought to correct matters where she knew them to be incorrect. 158 Having regard to the complaint that Dr Lennings’ evidence was not sufficiently considered by the Tribunal, it is convenient to extract the most relevant parts of the report in some detail: [42] At the time of the first interview, she now accepts she was minimising her behaviour, but her first interview was dealing with her recognition that she had made an irrevocably bad decision about getting involved in the relationship inasmuch: in that she had done so as a psychologist with a client. She said around that time she had been having nightmares, and she continues to have nightmares, about that interview. She agrees that at the time of the interview she was minimising her behaviour but seemingly not as a deliberate strategy to mislead her interlocutors but rather minimising the implications of her behaviour to make it possible for her to talk about it, and, without the full knowledge of the emails that surfaced later. In other words, she was engaging in shame-based cognitions, which are not atypical for people involved in major behavioural transgressions, frequently encountered in psychology, and at least within forensic psychology there is an awareness that confession is a process the person has to go through over time to cut through the shame-based cognitions, cognitive distortions and rationalisations that develop to protect the self from psychological injury. It takes time and repetition for a person to come closer to 161 Exhibit A2, p 2359 [SAB 1847]. -- 44 of 113 -- [2024] SASC 133 B Doyle J 41 the heart of the nature of their behaviour particularly if they are young and have not prior encountered such situations. Typically, insight is not gained overnight. [43] Dr Angelakis agrees that she was terrified to talk about what she had done. At the time it was the biggest challenge she had ever experienced in her life. She said that she did want to give information about what she had done but in a way that was driven by a desire not to be judged as a horrible person, which goes to the heart of how a shame-based feeling can impact upon how a person not only is able to account for their behaviour but integrate memories and aspects of their behaviour. … [45] It is a psychological principal [sic] and a well-known effect in cognitive psychology that memory becomes more elaborated with retelling. It is not unusual for a person to not recall information in the first interview or even the second interview but as time goes on the continual process of having to reflect upon the event leads to increasing association strength between memories, and therefore better recall of information and the gradual elaboration of the memory. It is not unusual, for instance, in forensic environments to find the statements given by both witnesses and suspects are varied, initially lacking in detail, and become more elaborated across time as multiple statements are taken. This is a natural phenomenon which also appears to in part explain some of the difference between the first and second interview that Dr Angelakis gave. Certainly, by the second interview she was more accepting of her inappropriate behaviour and had the advantage of having been able to now view the recovered emails, which acted as cues to memory, likely strengthening associations and allowing her to recall more information. She also had the advantage that between the interviews she had engaged in supervision and thus had become more used to, and more able to provide prejudicial to the self-detail [sic]. [46] In that regard I thought to find a timeline from her of the real nature of her discussions about these events. The sexual behaviour occurred between the 20th July and the 27th July from the first kiss to the time when the sexual relationship begins. This was what she was most focussed on initially. She said she knew (from the 20th) it would be a problem, although at the time she didn’t know how big it was. Her initial response to inform that the relationship had begun in August was misleading. Clearly the sexual relationship had begun at least a few days before August. The complaint found great fault with what was seen as deliberate obfuscation of when the relationship began and took that as proof that Dr Angelakis had been initially dishonest in her notification. [47] From Dr Angelakis[’] perspective her concept of boundary breaching at the time she made the notification was primarily the sexual relationship which began towards the end of July. When I indicated that there were likely four to five days difference, and why then indicate August instead of end July if that was her pre-occupation, she indicated that in that period (end of July) she was still disentangling herself from her relationship with her husband, and it was, generally, a confused period for her. She acknowledged that she had blurred the date between the end of July and August largely because at that time she was still separating herself from [H] and she wanted to make an official date of August so that she had a clear sense of separation from [H]. To my mind her claim of August was to place some psychological distance between what she did and having to acknowledge what she did, and was therefore misleading and unnecessary, but from a self-protection stance explicable. It was in August she told her family about her behaviour and August was the pivotal point from which her confessions began. -- 45 of 113 -- [2024] SASC 133 B Doyle J 42 [48] In January 2020 she had her first full conversation with her manager and CEO at work and also with a solicitor. In February 2020 she made the notification. There had not been much in the way of an opportunity to rehears or elaborate the account between the times that she had come to the realisation that she needed to talk to people and then make the notification. It was until March 2020 and after the notification, she began the first of a series of ethical consultations with Professor Meltzer and others as she tried to work her way through what she had done and come to understand her behaviour. Her initial interview was in May 2020, and her focus in that interview remained the sexual relationship and how to handle the ramifications of that personally and professionally. [49] Dr Angelakis concluded the interview with me reflecting on how much she had learnt because of this experience and how it has motivated her towards ethical practice. She was trying to be open in her communications with the board, and that psychological and life experience issues impacted upon her ability to be open as would have been desired in the initial stages of the process. By the time she got through to the interview which was three months after notification she did not appreciate all of the information that then became available after the first interview and her growth in reflective ability since, which also impacts upon how she was seen. … [56] (1.4) What Dr Angelakis’ level of insight is with respect of the information provided to the Board in the initial notification and in the interview that was not correct. At the time of the notification and her first interview in May 2020 Dr Angelakis was lacking in insight and awareness of the full range of errors she made in her professional practice. She has reflected on that, in detail and from both reading her reflections and speaking with her, she seems to have come to understand how it was that her earlier accounts were deficient. … [57] I earlier in this report noted it is typical for information to grow more elaborated with repetition. I believe that Dr Angelakis was deeply shamed by her behaviour, and also deeply concerned for [CA] and his relationship with his children, and the impacts of it on her career. Her focus at the time was narrow, centred on the events between 20th July 2019 to 27th July 2019 and ongoing. Shame based cognitions tend to act in the way that is not conducive to a full recounting in the early stages of confession, particularly in people with low life experience or prior exposure to similar behaviour. Over time Dr Angelakis’ insight grew as she went through this process. [58] It is not my view that Dr Angelakis was consciously deceptive. It is my view that she was minimising, to herself as a protective mechanism and consequently minimising to the Board. Whilst that is an eye of the beholder view and clearly there are alternative explanations that can be arrived at, nonetheless it remains my view having interviewed her and having read the material and having an understanding of these things from the perspective of an experienced forensic practitioner that Dr Angelakis’ behaviour and insight and awareness had to grow over time, which it has. … [61] (2.1) Do you consider that the conduct alleged in [grounds 3 and 4] with respect to the Board (rather than in respect to her dealings with [CA]) is below the standard reasonably expected of a psychologist with equivalent experience and training. Dr Angelakis, at the time that she was self-reporting her transgression, was still a -- 46 of 113 -- [2024] SASC 133 B Doyle J 43 relatively inexperienced psychologist albeit a well-trained one. In my view because of her benign history and lack of life-adversity as well as inexperience as a clinical psychologist, was naïve. It seems she simply did not know how to respond to the deep feelings of shame and fear that she was experiencing. Under those circumstances I do not think that the conduct alleged in complaint 3 is deliberately deceptive. It is to be expected that people will grow into the realisation of the ramifications and extent of their wrong-doing, and this is what has happened. I therefore do not see her behaviour and information in her notification as below the standard of a psychologist of her experience. [62] As regards the first interview, Complaint 4 it appears that Dr Angelakis was not as forthright as she should have been – in part because she was still focussed on the sexual transgression, and in part because, at that stage she had it seems little awareness of the extent and content of the emails that form a subtantial [sic] part of the 4th complaint. It is the case that in the first interview Dr Angelakis was misleading in that she appeared to lack insight into her behaviour, motivations, and feelings in regard to her relationship with [CA]. Such lack of apparent candour is a function of knowledge (of the emails), lack of reflection on aspects of her behaviour, lack of self-knowledge, and fear of the process and unfamiliarity with it. Subject to findings of fact, it is not my view that there was a deliberate deception to the investigators the first interview, despite the information being inaccurate. Her behaviour was, however, below expectations in that, painful as it would have been, deeper reflection on her behaviour at the time would have been expected from someone even with her relative inexperience but good level of training and responsibility in her company. [63] (2.2) If so how far below the expected standard do you consider that conduct to be. In responding to this question, I am mindful that I am referring to Dr Angelakis’ notification and the content of her first interview with the investigators. Subject to any finding of fact I believe that her behaviour in her notification was essentially open but limited by her shame cognitions, lack of insight (at the time) and inexperience. I do not believe that the expected standard was well below what might be expected for a person of limited clinical and life experiences but nonetheless was disappointing and below the standard expected. … [70] Dr Angelakis sought advice and ultimately notified and went through a process of gradually coming to terms with her behaviour. Her initial notification and interview minimised some aspects of her behaviour, largely understandable in the context of a relatively inexperienced psychologist struggling with shame and fear as she came to understand in greater detail the implications and actions that have brought her into such discredit. It is not my view that Dr Angelakis engaged in deliberate deception but lacked apparent candour due to multiple mitigating circumstances as detailed in my response to the Terms of Reference. 159 Dr Lisa Warren prepared a second report (‘second Warren report’) dated 21 March 2023.162 It largely addressed the question of the characterisation of the communications and conduct of the appellant during the ‘catchment phase’. However, Dr Warren was asked whether she agreed with the opinions expressed about ‘shame-based cognitions’ potentially explaining any false, misleading or 162 Exhibit A2, p 2643 [SAB 2118]. -- 47 of 113 -- [2024] SASC 133 B Doyle J 44 otherwise inaccurate statements made by the appellant to Ahpra investigators in her initial interview. She answered: Dr Lennings had the advantage of directly interviewing Dr Angelakis in forming his opinion. Therefore, he was able to assess the nuances of Dr Angelakis’s thinking beyond what can be understood from the provided documents. That said, a shame-based cognition is not a defence to an ethical transgression. I do not accept the argument that shame was an excuse for unprofessional or unethical behaviour. If Dr Angelakis was so ashamed of her behaviour that she misremembered, minimised, or distorted her thinking and behaviour her competence to practice at the time should have been questioned. 160 Dr Warren was asked to consider address a number of further opinions expressed by Dr Lennings and she commented as follows. a. Is it ‘not atypical’ for people involved in ‘major behavioural transgressions’ to engage in ‘shamebased cognitions’ by ‘minimising’ their behaviour without any deliberate strategy to mislead (p 9,[42])? Shame is a complex emotion. It is accepted that feeling ashamed of thoughts and behaviours as a professional can interfere with taking responsibility and seeking help from colleagues and supervisors. If Dr Angelakis was ashamed this could help explain why she did not follow the requirements of the Code with [CA] and did not self-correct and act accountably at the time or when discussing the case with Ahpra interlocutors. b. Is there a ‘psychological principle’ and ‘well-known effect in cognitive psychology’ that ‘memory becomes more elaborate with ‘retelling’ (p10, [45])? Yes. I defer here to the work of colleagues in the field of memory and investigative interviewing as this is an area of research where telling and re-telling narratives, particularly for distressing events, has been scientifically examined. As an example, it has long been acknowledged that retelling and schema activations during retelling changes the memory of the events (Marsh, 2016). c. Is it ‘not unusual, in forensic environments’ for statements given by witnesses or suspects to be varied and initially lack detail before becoming’ more elaborated across time as multiple statements are given’ (p 10, [45])? Not necessarily. The recall of events in ‘forensic contexts’ is complex with a range of influences on what people choose to disclose, how they calculate their own advantage, and what they recall based on their state of mind at the time of the event and the time of various re-tellings. d. do you agree with the opinion expressed by Dr Lennings to the effect that the Respondent’s statement in the Notification to the effect that she had been ‘…since August 2019, engaging in a romantic relationship with a past, terminated client [emphasis added]’ may have been ‘misleading and unnecessary’, but it was also ‘explicable’ from a ‘self- protection stance’ (p10, [47]). I am unable to comment on the reasons Dr Angelakis chose to ‘place some psychological distance between what she did and having to acknowledge what she did’. e. can any ‘growth’ in the Respondent’s ‘candour’ between the 1st Interview and the second interview of 12 February 2021 be explained by ‘natural psychological processes that occur with people recovering from shame-based behaviour, the nature of memory and recall in preference to deliberate duplicity…’ (p 11, [51])? -- 48 of 113 -- [2024] SASC 133 B Doyle J 45 For this argument to be tenable Dr Angelakis needed to be ‘recovering’. If this follows then her competence to practice at the time of thinking and behaving in a manner of which she was later so ashamed she minimised or deceived Aphra is at issue. f. do you agree with the opinion expressed by Dr Lennings to the effect that the Respondent was not ‘consciously deceptive’ deceptive’ [sic], and was instead ‘minimising’ her behaviour to herself and the Board (p 12, [58])? If Dr Angelakis was minimising her behaviour to the extent that she deceived herself, and therefore Ahpra, then other ethical issues should be considered, such as her competence to practice at the time of her transgressions and the Aphra investigation. Not being aware of your own behaviour is not a reasonable explanation of not being responsible to follow the Code. Question 22. Do you agree with the opinions expressed by Dr Lennings at pp 13-14, [61]- [66] of the 2nd Lennings Report to the following effect and if not, why not: a. the Respondent was ‘naïve’ and did not know how to respond to the deep feelings of shame and fear she was experiencing at the time? Dr Lennings is in a better position to naivete as he has interviewed Dr Angelakis. This enables an assessment of why she did what she did. Reviewing the documentation enabled me to comment on what she did, rather than why she made her choices. b. the Respondent was not ‘deliberately deceptive’ in the Notification? I am unable to comment on deliberateness. c. the Respondent’s behaviour did not fall ‘below the standard of a psychologist of her experience’? As per my original report, I remain of the opinion that Dr Angelakis’s conduct in this matter was found to be substantially below the ethical and professional standards expected of registered psychologists of equivalent training and experience. d. the Respondent was not as forthright as she should have been during the 1st Interview because she was, in part, still focussed on the ‘sexual transgression’ and had ‘little awareness’ of the extent and content of the emails (i.e. the emails that are enclosed in tab 1)? I am unable to comment on why Dr Angelakis was not as forthright as she could have been with Ahpra. e. during the 1st Interview, the Respondent was ‘misleading in that she appeared to lack insight into her behaviour, motivations, and feelings in regard to her relationship’ with the Client, but any such ‘lack of apparent candour’ was a ‘function of knowledge (of the emails), lack of reflection on aspects of her behaviour, lack of self-knowledge, and fear of the process and unfamiliarity with it’? I am unable to comment on why Dr Angelakis was not as forthright as she could have been with Ahpra. f. the Respondent did not engage in ‘deliberate deception’ during the 1st Interview, despite information she provided being ‘inaccurate’? I am unable to comment on why Dr Angelakis was not as forthright as she could have been with Ahpra. -- 49 of 113 -- [2024] SASC 133 B Doyle J 46 g. the Respondent’s behaviour was ‘below expectations’ as ‘deeper reflection on her behaviour at the time would have been expected from someone even with her relative inexperience but good level of training and responsibility in her company’? I concur with Dr Lennings that deeper reflection was required by Dr Angelakis. 161 Dr Lennings and Dr Warren both gave evidence before the Tribunal. Dr Warren qualified aspects of what she had said in her reports relating to shame- based cognition. In cross-examination, she said:163 … I think I used the word ‘excuse’ for the behaviour itself. As I said I think that’s where I’ve overstepped in my answer, reflect on that now … So, if I could reflect on that now, is a shame-based cognition, so your thoughts are that you are ashamed, but what that refers to is that your thinking includes that you are ashamed of the behaviour and that that shame explains why you might provide false, misleading or otherwise inaccurate statements. Yes, that’s true. 162 Later, Dr Warren was asked whether, if she were to assume that Dr Lennings’ opinion that the appellant was engaged in a shame-based cognition process was correct, it would follow that the appellant was not positively aware or deliberately minimising her behaviour in the interview. She answered:164 Yes, and to clarify that final sentence of my question-of my answer, sorry, does not say that that is what Dr Angelakis did, rather to say that if her or any psychologist for that matter were to do that, that that in and of itself would be something that would fall substantially below what we would expect, being that if you deliberately misled and interlocutor or an investigator, that is a problem. And deliberately minimising, you’ve got to be aware that you’re doing it. So, I wasn’t saying she did that, but I was explaining that if that had happened, it would have been particularly concerning. 163 It is apparent from Dr Warren’s evidence that she did not purport to express an opinion, in fact, that the appellant was or was not deliberately or recklessly misleading in the evidence she gave. Proceedings before the Tribunal 164 As has been noted, the allegations against the appellant that provided the foundation for the respondent’s case before the Tribunal were contained in the Amended Referral. 165 Relevant to Ground 3, the Amended Referral identified a number of aspects of the self-notification that were said to be misleading or inaccurate. Focusing upon the appellant’s letter (as distinct from the letter from CA which was provided together with that letter), the Amended Referral alleged: 51. Some of the information at [49] was false and/or misleading as to: 51.1. how and when the ‘romantic relationship’ with CA began; 163 1TR66. 164 1TR68. -- 50 of 113 -- [2024] SASC 133 B Doyle J 47 51.2. when social interactions with CA commenced; 51.3 when her personal relationship with CA commenced, 51.4. whether non-therapeutic communications occurred during the Treatment Period; 51.5. when the [appellant’s] “connection” with the “feelings” towards CA eventuated; 51.6. when the relevant “ethical issues became obvious”; 51.7. how soon after the “ethical issues became obvious” the Self-Notification was made; 51.8. whether the [appellant] ever intended to “commence a relationship” with CA within 2 years of the end of the Treatment Period; and 51.9. whether the Self-Notification made “full”, “frank” and “honest” disclosure about the matters referred to at [51.1]-[51.8] above as claimed. in circumstances where: 51.10. the ‘romantic relationship’ with CA did not begin in ‘August 2019’ as stated in the Self-Notification and had already begun by 20 July 2019 (at the latest); 51.11. personal and non-clinical communications and a personal relationship and/or social interactions between the [appellant] and CA had already occurred prior to the end of the Treatment Period; 51.12 the [appellant] became aware of her “connection” with, and “feelings” towards CA before the end of the Treatment Period; 51.13. the [appellant] knew her non-therapeutic, social, romantic and sexual activities with CA were unethical before they occurred and, in any event, by the time she referred to “unethical behaviour” in her email of 7:55pm on Sunday, 21 July 2019; 51.14. despite knowing her behaviour was “unethical”, the [appellant] began having sexual intercourse with CA on Friday, 26 July 2019 and she continued to engage in sexual activity with him until she made the Self-Notification on 7 February 2020; 51.15. the [appellant] was not “caught off guard” by feelings towards CA after the end of the Treatment Period as claimed, and she already had an intention to commence a relationship with CA when she sent the Invitation Emails; 51.16. the Self-Notification was not made “shortly after” the “ethical issues became obvious”, but rather more than 6 months after the Ethics Email was sent; and 51.17. the Self-Notification did not give “full”, “frank” or “honest” disclosure about the nature, timing and extent of the [appellant’s] social, romantic and sexual activities with CA. -- 51 of 113 -- [2024] SASC 133 B Doyle J 48 166 In respect of Ground 4, the Amended Referral identified a number of statements made during the first interview that were said to be misleading or inaccurate. It went on to allege: 65. By providing the answers at [63] during the First Interview the [appellant] provided false and/or misleading information as to: 65.1. the extent, nature and timing of her communications with CA during the Treatment Period (including the amount of personal information she shared about herself); 65.2. the nature of her relationship with CA during the Treatment Period; 65.3. whether she found CA attractive during the Treatment Period; 65.4. whether she communicated with CA during the Treatment Period about terminating his relationship with his wife and/or having a relationship with the [appellant]; 65.5. the timing and circumstances of the commencement of her relationship with CA; and 65.6. her role in instigating inappropriate non-clinical contact with CA or, otherwise, her role in encouraging, soliciting or fostering the same in circumstances where: 65.7. between at least 12 June 2019 and 19 July 2019 the [appellant] sent to and received from CA numerous emails (including the Flirtatious Emails, the Cellar Emails, the Debt List Emails and the Invitation Emails) which were not related to ordinary professional or clinical discussions and were not treatment- focussed, but were instead of a non-clinical and personal nature; 65.8. the [appellant] spoke to CA outside of formal therapy sessions several times during the Treatment Period and, in fact, went to the gym (ie “F45”) with him at least four times as well as having coffee with him at least once; 65.9. one of the emails the [appellant] sent to CA attaching a ‘worksheet’ was an email sent at about 8:46am on 8 July 2019 attaching a worksheet entitled “The Benefits of Self-Knowledge” and … [the referral then sets out aspects of the email and the subsequent responses to it]: 65.10. the [appellant] documented several discussions with CA about family and/or relationship issues at therapy sessions between 27 April 2019 and 6 July 2019 [references omitted]; 65.11. CA stated in an “A-B-C Worksheet” (ABC Worksheet) he provided to the [appellant] during the Treatment Period [various matters relating to his relationship]; 65.12. on 6 July 2019, the [appellant] noted …that CA: … continued to note that main stressor related to partner but that he currently wanted to remain in the relationship for his children … -- 52 of 113 -- [2024] SASC 133 B Doyle J 49 … [the appellant] did not have any formal therapy sessions between when she made the [note above] and the time of the final therapy session on 19 July 2019; 65.13. however, on Thursday, 18 July 2019 (the day before the final therapy session), the [appellant] exchanged several emails … with CA referring to a “plan” to terminate his relationship with his wife …; 65.14. the [appellant] stated in an email to CA of about 10:07am on 23 July 2019 that her “type” was “handsome bald men” … after earlier stating in some of the Flirtatious Emails (sent during the Treatment Period) that … [particulars not reproduced]; 65.15. the [appellant] sent the Invitation Emails inviting CA to “catch up” on the weekend of 20-21 July 2022 several times before the end of the Treatment Period and it was also her, rather than CA, who sent the Meeting Emails arranging to meet at her sister’s house while she was out of town on the night of the Sister’s House Meeting; 65.16. at about 9:42am on Saturday, 20 July 2019 (ie before the Sister’s House Meeting), the [appellant] sent CA an email referring to having had a “huge fight” using terminology that suggested CA already knew she was in a relationship … 65.17. at about 1:30pm on 20 July 2019, CA replied to the [appellant’s] email stating: … I am definitely keen to go back over closing comments from yesterday!! Very much. Can U think of anywhere we can go where we just won’t be seen. Would be pretty bad if we get recognised somewhere. This weekend in particular … 65.18. at about at about 2:01pm on 20 July 2019 (ie before the Sister’s House Meeting), the [appellant] sent an email … to CA about finding a “location” where they could catch up without being recognised relevantly stating: … A few of [H’s] close mates work in hospitality in the city centre (peels [sic] street area) so that’s probably out, and people in Summertown know me quite well … 65.19. the terminology used in the [above email] suggests CA knew the [appellant] was in a relationship with someone named [H] before the Sister’s House Meeting; 65.20. the [appellant] admitted in the Second Interview that: 65.20.1 she gave CA her telephone number with the idea that they were going to catch up outside of treatment sessions; and 65.20.2 she made the first contact with CA after the last treatment session. 167 The Amended Referral alleged that, at the time the appellant provided the information the subject of Grounds 3 and 4, she knew the information was false or misleading in a material particular or was reckless as to the same. -- 53 of 113 -- [2024] SASC 133 B Doyle J 50 168 The hearing before the Tribunal proceeded over a number of days in May 2023, with oral evidence being given by the appellant, Dr Warren and Dr Lennings. Oral submissions were made on 28 June 2023. 169 The Tribunal published the Reasons on 9 April 2024. Contention that Tribunal failed to make findings as to subjective state of mind of the appellant at relevant times 170 The necessity for a consideration of the appellant’s actual state of mind at the time of the relevant communications (if a finding was to be made that she was deliberate or reckless in providing misleading or inaccurate information) was identified by the Tribunal in the Reasons at [141]-[142] and [157]. 171 However, the appellant contends that, as was the case in Giudice v Legal Profession Complaints Committee,165 the Reasons reveal a failure to attend to that subjective inquiry. The appellant contends that the Tribunal instead carried out an objective assessment. 172 The appellant submits that nowhere in the Reasons does the Tribunal make a finding about the appellant’s actual state of mind on 7 February 2020 (when the self-notification was made) or on 27 May 2020 (when the first interview occurred). She submits that the analysis set out in Reasons [172]-[178], which follows the statement by the Tribunal at Reasons [171] that it did not accept her evidence that she did not deliberately or recklessly mislead the respondent or Ahpra, does not reveal or reflect a consideration of her actual state of mind at the relevant times. 173 The appellant submits that, instead:166 • the Tribunal’s reasoning at [172] (that it was obvious from emails exchanged between 21 and 31 July 2019 that she and CA had been aware of her ethical obligations and were concerned about it becoming known that she had breached her obligations by encouraging and commencing a relationship with a client) involved an ‘objective assessment’ occurring 6 months and 10 months before statements made without access to those emails;167 • the Tribunal’s finding at [176] (that the appellant set about deliberately misleading the respondent and Ahpra by distorting the timing and nature of her relationship with CA so as to make it appear that nothing had occurred during the treatment period and that a sexual relationship did not occur until weeks after the treatment period) was made without engaging with whether 165 [2014] WASCA 115 (‘Giudice’). 166 The appellant advanced other criticisms of the reasoning at [171]-[183], which will be addressed, however they were more in the nature of criticisms of the soundness of reasoning about the appellant’s state of mind, rather than criticisms which tended to contraindicate that the Tribunal had made findings about her actual state of mind at the relevant time. 167 The appellant also draws attention, in this context, to the observation made in Reasons [73] to the effect that upon receipt of CA’s email on 11 June 2019 at 6.58 pm ‘it would or should have been obvious to her (as it is now) that CA had overstepped the professional boundary …’. -- 54 of 113 -- [2024] SASC 133 B Doyle J 51 the disclosures in the first interview as to what occurred on 20 and 26 July 2019 were consistent with that objective, and without engaging with other evidence that might explain deficits in her memory or capacity to provide an accurate chronology at that time; • the Tribunal referred at [178] to evidence said to demonstrate that she was reckless as she ‘ought to have known that her statements were not correct’, and the observation in that paragraph that it was ‘incredible that she would not have remembered the contents of the emails’ reinforces a conclusion that the Tribunal’s assessment was ‘objective’; and • the Tribunal imported an objective standard in making the further comment at [183](2) that the appellant was on crucial issues vague, evasive, projecting (deflecting initiative for the relationship on CA) and at times, seemingly lacking insight as to her conduct, and had a tendency to minimise and defer to the benefit of hindsight when the gravity and consequences of the conduct would have been patently obvious ‘to any reasonable, ethical practitioner of any standing’ at the time of treatment. 174 In my view, whatever criticisms may be made as to the cogency of the Tribunal’s reasons about the appellant’s state of mind (which I will consider separately), it is sufficiently clear that the Tribunal considered and made findings about the appellant’s actual state of mind at the time she self-notified and when she attended the first interview. References in the Tribunal’s reasons to what ought to have been known were steps in the process of reasoning about what was in fact known by the appellant. 175 The circumstances in Giudice were quite different. There, a legal practitioner had settled an affidavit sworn by his client and prepared by others under his supervision which contained an inaccurate statement about the terms by which the client’s bail conditions had been varied. The question was whether the practitioner had done so deliberately or with recklessness as to the falsity of the statement. 176 The Tribunal had found that it was unlikely that the practitioner was actually aware of the falsity of the relevant paragraph of the affidavit when he settled it. In the Court of Appeal’s view, the Tribunal’s reasoning strongly suggested that the Tribunal in fact adopted an objective approach to the question it was required to resolve, and had not engaged with whether the practitioner had been reckless. 177 Whilst it had been found the practitioner should have considered that the words of the affidavit warranted further inquiry, as Martin CJ put it, ‘[s]ignificantly omitted [was] any finding that the practitioner did in fact consider that the words warranted further inquiry but made no such inquiry because he was indifferent to their truth’.168 168 [2014] WASCA 115 at [49]. -- 55 of 113 -- [2024] SASC 133 B Doyle J 52 178 Chief Justice Martin went on to say that:169 … The Tribunal found that ‘the practitioner was more than careless and showed a culpable indifference as to whether it was true’. The process of reasoning elucidated by that observation appears to involve a conclusion driven by an objective assessment of the practitioner's conduct, and a characterisation of that conduct as involving a greater degree of culpability than mere carelessness. Put another way, the observation suggests that the Tribunal approached the question of recklessness on the basis that it might be established by careless conduct of a particular quality or character, such that it could be characterised as culpable, rather than by reference to a finding of fact as to the practitioner's state of mind. The conclusions which I have drawn from this analysis of the Tribunal’s reasons are reinforced by the Tribunal's conclusion that the practitioner was not guilty of professional misconduct, but only of unsatisfactory professional conduct, because his conduct did not involve a substantial failure to comply with the standards of competence that might be expected. As I have already indicated, that would be a surprising conclusion if the Tribunal had found that the practitioner was wilfully indifferent to the truth or falsity of the paragraph in the affidavit which he settled. 179 Justice Buss considered that:170 The findings and comments that the appellant ‘ought to have known’, ‘should have been aware’ and ‘should have considered that the words ... warranted at least some further inquiry’ connote negligence or carelessness. They are inconsistent with the notion of an actual ‘awareness’ of a risk and an actual ‘conscious disregarding’ of the risk. Also, the Tribunal's observation, at [71] of its reasons, that 'the words in paragraph 20 of the affidavit were settled by a very senior practitioner with some 30 years' experience who knows the importance of the document being complete, accurate and having no potential to mislead' are concerned with relevant objective circumstances and not the appellant's actual state of mind. Similarly, the Tribunal's statement, at [72] of its reasons, that ‘[b]y not making further inquiry, the [appellant] was more than careless and showed a culpable indifference as to whether it was true and to the consequences’ indicates that the Tribunal made an objective appraisal of the appellant's conduct and the degree of his culpability, rather than undertake an inquiry as to his actual state of mind, in deciding that the appellant had recklessly disregarded whether the statement was true or false. The Tribunal did not in its reasons mention any of the appellant's evidence that was of direct relevance to his state of mind. Also, the Tribunal did not in its reasons make any express findings of fact as to the appellant's actual state of mind in the context of the alleged reckless disregard. No implication can properly be made to overcome this omission. 180 Justice Edelman gave separate reasons that were broadly consistent with those of Martin CJ and Buss JA. 181 The jurisdiction of the Court of Appeal was limited to a question of law. Although the Court considered it was open on the evidence to have found that the practitioner was reckless as to the falsity of the paragraph of the affidavit, the matter had to be remitted for further hearing and consideration. 169 [2014] WASCA 115 at [49]-[50]. 170 [2014] WASCA 115 at [106]-[108]. -- 56 of 113 -- [2024] SASC 133 B Doyle J 53 182 The fact that the Tribunal was not prepared to find that the practitioner had subjectively appreciated that the affidavit was false at the time it was prepared was obviously important in the Court’s consideration of whether, on a fair reading of the Tribunal’s reasons, it had made a finding of recklessness according to the requisite subjective standard171 rather than an erroneously objective standard (characterised by a high degree of negligence). It is significant that the facts set out in the affidavit were not facts about the practitioner’s own conduct, nor was the affidavit sworn by the practitioner. The practitioner could not have been consulting his own direct memory of the underlying events, and the practitioner had no obvious reason to misrepresent the position. Those circumstances tended to highlight the possibility that the conduct was careless (perhaps in a high degree), as distinct from the practitioner having been indifferent to whether the statement in the affidavit was true or false. 183 Unlike in Giudice, where the Tribunal had not specifically referred to the practitioner’s evidence about his state of mind, in the present case, the Tribunal stated that it did not accept the appellant’s evidence that she did not deliberately or recklessly mislead the respondent or Ahpra,172 and the Tribunal also stated that it completely rejected ‘any suggestion that the [appellant] was negligent or careless about the information she provided and the statements she made’: Reasons [179]. It is plain that this conclusion was intended by the Tribunal to convey a rejection of the notion that she was merely negligent or careless. The finding of professional misconduct, rather than unprofessional conduct, further distinguishes this case from Giudice. 184 Whilst the possibility that the appellant had been careless rather than deliberate or reckless conduct was a matter that had to be carefully considered by the Tribunal, a conclusion of that kind was not one which was on the cards to the same extent that it was in Giudice. 185 The reason for that is that, in the present case, and subject to a consideration of the impact on the appellant’s mind as a result of the passage of time, the unavailability of her emails or the effect of shame-based cognitive distortions, she was of course a central participant in the underlying events said to have been misleadingly or inaccurately recounted. In contrast to the position in Giudice, she also had an obvious interest in presenting a version of events which tended to suggest that her personal relationship with CA had commenced after, and had not had its early beginnings in, the period of treatment. 186 The Tribunal effectively reasoned that: 171 It has been held that recklessness in this context connotes indifference to the truth of the relevant statement, or as it has been put ‘not caring in the man’s own heart and conscience whether it was true or false’: Le Lievre v Gould [1893] 1 QB 491 at 501. 172 Reasons [171]. -- 57 of 113 -- [2024] SASC 133 B Doyle J 54 • the appellant knew, when the boundary violations occurred during the treatment phase, that they had occurred; • the appellant had commenced a physical and personal relationship the day after the last treatment session, tending to confirm that a non-professional connection had developed before the conclusion of CA’s treatment; • the appellant appreciated at the time of the relevant events that the sequence of events and the immediacy of the romantic relationship was problematic from an ethical perspective; • for various reasons, it was not credible that she became unable to recall those essential matters or the real sequence of events, whether due to the passage of time, the absence of the emails, or shame-based cognition; • she must therefore have appreciated that her statements to regulators were inaccurate and misleading or, at the least, not cared whether her description of the events and the timing of them was accurate. 187 Whether the ultimate findings were correct, whether the Tribunal made errors in the process of reaching its findings, and whether it overlooked important considerations in reaching its finding, are separate questions. The issue presently being considered is whether the Tribunal did make a finding about the appellant’s subjective appreciation of the inaccuracies in her accounts. It can be accepted that there are references, most obviously in Reasons [178], to things the appellant ‘ought to have known’,173 but reading the Tribunal’s reasons without an eye keenly attuned to the perception of error,174 there can be little doubt that the Tribunal made findings according to a subjective, rather than an objective standard, and propositions about things that she ought to have known were part of the reasoning towards a conclusion about what she did know. 188 The fact that the Tribunal, in several places, referred to email communications which recorded the sequence of events, and pointed to the objective disparity between what in fact transpired and the natural meaning of what was later conveyed by the appellant does not, without more, suggest that the Tribunal engaged in an erroneously ‘objective’ analysis. 189 The circumstance that a person is party to events which differ in their timing and character to an account later given by that person of those events may be a powerful, and in many cases, sufficient, basis, for a conclusion that the later account is deliberately or recklessly false. Tribunals of fact make findings as to a 173 It can also be accepted that, with respect to the Tribunal, Reasons [178] appears to move, confusingly, between concepts of knowledge and recklessness. 174 Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [52] (Martin CJ), Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at [287] (Neaves, French and Cooper JJ), Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] (Brennan CJ, Toohey, McHugh and Gummow JJ). -- 58 of 113 -- [2024] SASC 133 B Doyle J 55 person’s state of mind by inference from what could (superfluously) be described as ‘objective’ facts very frequently. There is nothing remarkable about that. 190 Whether the finding can and should be made will always depend on the circumstances, including, most obviously: the capacity for the underlying events to have been wrongly perceived at the time they occurred; the extent of the passage of time; the likelihood that the person would have reflected on the underlying events in the intervening period so as to ‘lock in’ a memory of the events; the extent to which the person’s memory might for a variety of reasons have been subject to a deficit or contamination in the intervening period; the extent of the disparity between the true events and the later account; the extent to which the person is likely to have had an interest in giving a misleading account; and the confidence with which, or the way in which, the account is later given. That is not intended to be an exhaustive list. Nor is it intended to suggest that the resolution of factual inquiries must be reduced to an overly analytical exercise: in everyday life, considerations of the kind just listed are intuitively brought to bear in making a singular assessment of whether a person’s misdescription of events in which they were involved amounts to a conscious misrepresentation or may be instead be a distorted but essentially honest and genuine recollection of events. 191 Whilst the important reasons for reaching conclusions about an important question should be exposed by the reasons for decision—particularly if the answer is adverse to a party—an overly elaborate description of the reasoning process could in some cases create its own distortion if it ceases to reflect the intuitive and impressionistic process that is legitimately deployed in making findings of fact of this kind. 192 Here, of course, regard also needed to be had to the appellant’s evidence in chief and under cross-examination, with a view to deciding whether adverse findings could properly be made according to the Briginshaw considerations. The Tribunal summarised the effect of the appellant’s evidence as to why she had not been dishonest with respect to the main inaccuracies in her disclosures to regulators at Reasons [143] and [144], and it is apparent from Reasons [171], [181] and [183](2) that the Tribunal rejected her evidence for reasons that were informed by her answers as a witness over nearly two days. 193 As I have said, there are criticisms advanced by the appellant as to the way in which the Tribunal undertook its assessment of these issues, and they remain to be considered, but I reject the more fundamental contention that the Tribunal did not make a finding with reference to the appellant’s actual state of mind and belief at the relevant times. Contentions that Tribunal erred in considering state of mind 194 Before turning to the more specific contentions about the Tribunal’s reasons or reasoning as relates to the appellant’s state of mind, it is convenient to identify the parties’ cases with respect to that issue. -- 59 of 113 -- [2024] SASC 133 B Doyle J 56 The appellant’s case and evidence 195 As has been noted, in relation to the self-notification, the appellant’s letter disclosed that she had been in a romantic relationship with CA since August 2019, when in fact they had first kissed on 20 July 2019 and first engaged in intercourse on 26 July 2019 and expressed their love for one another by no later than 27 July 2019. The self-notification also conveyed that after the termination of treatment, communication between them continued and ‘eventuated to social interactions and then romantic interactions’. That tended to misrepresent that there had been no social interactions during treatment, and tended also to suggest that when social interactions had commenced following treatment, it was not in anticipation of a romantic or sexual relationship forming. 196 The self-notification also suggested that the notification was being made ‘shortly after’ the feelings became quite profound and the gravity of the ethical issues became apparent, when in fact it is apparent from the email communications that by no later than 31 July 2019, if not earlier, the ethical issues were self-evident. As for the strength of their feelings, the appellant had said on 21 July 2019 that she had not felt that way about someone before, and by 27 July 2019, they were expressing love for one another. 197 The appellant gave evidence in chief in relation to the aspects of her self- notification that were said to show a deliberate or reckless misleading of the respondent. 198 It is convenient to reproduce the Tribunal’s summary of that evidence in relation to the self-notification, which appears at Reasons [143].175 The self-notification • The Respondent stated that the relationship between her and CA commenced in August 2019 because in her mind, ‘there was a perception between … meeting and hooking up versus being in a relationship’.176 • The Respondent says that she did not intentionally mislead by stating communication, social and romantic interactions occurred after the treatment period ended, because she thought that was the truth at the time, but she now knows that was not the case.177 • The Respondent says that her statement that the ‘the connections and feelings between her and [CA] eventuated faster than either of them could have anticipated’ and was not misleading at the time as ‘I didn’t see it for what it was at the time. I missed the signs. I missed the information’.178 175 On appeal, the appellant did not take any particular issue with the accuracy or fairness of the summary at Reasons [143] of the appellant’s evidence on the main inaccuracies identified in the Amended Referral. 176 2TR38. 177 2TR39. 178 2TR39. -- 60 of 113 -- [2024] SASC 133 B Doyle J 57 • Regarding the statement ‘it was not until these feelings became quite profound that the gravity of these ethical issues became obvious shortly after which notification has been made’, the Respondent says that she did not intend to mislead despite her email of 21 July 2019 in which she acknowledged her unethical behaviour the night before, despite knowing it was unethical to have sex with CA on 26 July 2019 and despite not notifying the Board until six months later, because she ‘did not see these things at the time’, her ‘perceptions and understanding of time’ and her behaviour was inaccurate.179 • Regarding the statement that she had made “full and frank disclosure”, this was not misleading and she does think she was being open and honest at the time.180 • Regarding the statement about when a personal relationship commenced, the Respondent now acknowledges that her statement was inaccurate but says:181 ... there was a confusion in my brain to the timeline of things. When I wrote this, I didn’t have the emails, I didn’t have the ability … or didn’t look through them all, and I do wonder whether in part maybe I thought emails that happened before had happened later or that things that had happened earlier had happened later … there was just a lot of confusion … I agree it’s not accurate, but I didn’t mean to be misleading. • The Respondent says she was not reckless but ‘I should have done better’.182 199 It is important to appreciate that there are several distinct aspects to the explanations given by the appellant. The first aspect identified above concerns what the appellant said she meant to convey in the self-notification. It relates to what she intended by ‘relationship’ and involved a claimed distinction between ‘hooking up’ and being in a committed relationship. It is not based upon any confusion in the appellant’s own mind about what in fact had occurred. The second involves an assertion that at the time of self-notification the appellant was not appreciating the facts as they had occurred. The third involves an assertion that at the time of the actual underlying events, the appellant was not properly appreciating what was occurring. 200 The concept of shame-based cognitive distortion may have a potential role to play in some aspects of the appellant’s explanation for the inaccurate or misleading disclosure she made, but it was not, on the appellant’s evidence, a complete explanation. 201 Likewise, the unavailability of emails at the time of making the self- notification may have significance for some, but not all, of the aspects of the appellant’s explanation. To the extent that the appellant maintained before the Tribunal not that she had forgotten the nature of interactions, but rather that she had not accurately perceived their significance at the time, the credibility or 179 2TR40-41. 180 2TR41. 181 2TR43. 182 2T5R1. -- 61 of 113 -- [2024] SASC 133 B Doyle J 58 otherwise of such an assertion is unaffected by the fact that, at the time of the self- notification, she no longer had, and therefore had not reviewed, the emails. 202 In respect of the first interview, and therefore before she had reviewed the email correspondence, it is important to recognise that the appellant did disclose that she and CA had met and kissed on 20 July 2019, and further that they engaged in intercourse approximately a week after that. Whilst this presented a more accurate chronology of events, her answers remained inaccurate and misleading in some respects. For example, the appellant: • maintained that discussion of CA’s family arrangements was not a significant feature of his treatment; • maintained that there were no interactions outside of the treatment sessions (without disclosing the three or four F45 sessions and the interaction following one of those sessions); and • gave an account of how she came to meet him on 20 July 2019 that effectively commenced with him asking for her phone number at the end of treatment (without disclosing that they had been discussing catching up by email prior to the last session). 203 Most importantly, she did not disclose her role in instigating or encouraging non-clinical contact with CA. 204 Again, it is convenient to reproduce the Tribunal’s summary of her evidence at the hearing about the respects in which her statements during the first interview were alleged to be misleading or inaccurate (which forms part of Reasons [143]). The First Interview: • Stating that CA phoned her to arrange their catch-up on 20 July 2019, the [appellant] says that she believed they had a conversation on the phone (and not via email) and that it was only when she received the phone records (requested by Ahpra) she realised this was not the case.183 • Her response to the allegation that she sent numerous emails to CA which were not treatment focussed, non-clinical, personal and outside of therapy sessions, the [appellant] says that she actually believed that the relationship developed outside of the treatment period as she was focussing on ‘the big stuff’. She did not think attending F45 Gym, having take-away coffee or bumping into CA at a carpark were boundary violations.184 • Her denial of the allegation that she had discussed her personal life with CA during treatment sessions, the [appellant] acknowledges that she did make a misleading statement but says:185 183 2TR55. 184 2TR58-59. 185 2TR61-62. -- 62 of 113 -- [2024] SASC 133 B Doyle J 59 … I didn’t have the emails to understand that there had been such a big level of communication outside of treatment sessions and that had involved disclosures at the time. • In response to the question of whether the [appellant] and CA had discussed the possibility of a relationship during the treatment period and her denial to that suggestion, the [appellant] says:186 I don’t think I clocked that we had been actually, like, speaking openly about, like, catching up, but I still don’t-I don’t know, if there was, like, this explicit conversation that we were going to be in a relationship either. I know that that’s kind of what’s suggested once you look at the emails, but I think I said at the time from the perspective of not having the emails and not catching actually what was going on at the time. • Expanding on her statement that ‘we had a good therapeutic rapport and connection but not an attraction’ the [appellant] says:187 I believe I did have attraction to [CA], but I don’t-I did not acknowledge that as the fact at the time of the interview, I for some reasons I’ve discussed previously, think I have minimised it as being maybe somewhat of-well, not even friendly, like at the time I just thought of it as treatment and then relationship. So I said that because I actually didn’t acknowledge the attraction at the time of the interview. • In response to her statement ‘I don’t do relationship counselling’ and whether the Respondent had communicated with CA about terminating his relationship with [W], his wife, the [appellant] says that at the time of the interview she did not recall CA mentioning ‘a solid break-up plan’ but also, her recollection is that:188 … the treatment did not spend a lot of time talking about [W] and talking about the relationship…and I did not provide advice either way … I didn’t remember at the time … it was my truth to say that I hadn’t given him advice about the relationship or told him what to do in relation to his relationship with [W]. • The timing and circumstances of the relationship, and her statement that CA phoned her to arrange the 20 July 2019 catch-up, the [appellant] says that she was mistaken and she now agrees that CA did not call her on that day. Her evidence is:189 Firstly, I said he called me because that’s what I thought happened, but now I know that that’s misleading-well sorry, not misleading, it was incorrect. I also-in all honesty, like I think this was me trying to fill a gap in my memory. I think that I had thought he called me and that’s what I at the time a hundred per cent believed and I think this was just like a derivative of what I think happened there. • The statement that she had not mentioned [H] at all during the treatment period and that it was “like a shock for him [CA] to find out I was married”, the [appellant] says:190 I didn’t outwardly speak to [CA] about being in a relationship and that I was married to [H], but there was an assumption that I was wearing a wedding ring, that he knew I 186 2TR63. 187 2TR69. 188 2TR70-71. 189 2TR75-76. 190 2TR77-78. -- 63 of 113 -- [2024] SASC 133 B Doyle J 60 was in a relationship …Yep. And again, like I know that’s inaccurate now, because the emails … I didn’t clock that at the time, yeah … The [appellant] in her evidence goes on to say that she didn’t realise at the time of the interview how much she had disclosed to CA about herself in those emails (8-19 July 2019). • In response to the statement:191 … I think … it was probably [CA], probably pushed, well not pushed, kind of set up the first couple [of catch-ups after treatment ceased], but I think we really quickly, it was both of us just wanting to meet up. The [appellant] says: … that statement is incorrect, but I said that at the time based on thinking that [CA] had called me and not being-not remembering the email where I had said something along the lines of being eager to catch up. • In response to the statement ‘I think [CA] pursued me’ (in answer to the question “are you able to say whether one person pursued the other?”), the [appellant] says:192 I thought that was the truth, but I wouldn’t say that now … I remember conversations with [CA] where [CA] said, “I pursued you, this is what I wanted”. 205 As with the self-notification, it may be observed that the explanations given by the appellant partly relate to a lack of access to the emails at the time, partly involve a dispute as to characterisation of underlying events and partly rely upon a subconscious process of ‘minimising’ in the course of the interview. In relation to the circumstances of how the 20 July 2019 catch up was arranged, she described this as ‘gap filling’. 206 The appellant submitted that, when considering the proposition that the appellant had been deliberately or recklessly misleading: • her unchallenged evidence was that when she self-notified she expected that she would need to answer further questions or provide more information; and • it is significant that at the time of the first interview, when she volunteered that they had met and kissed on 20 July 2019 when, the records available to the regulators did not contain direct evidence of contact (by telephone) until a few days later. In other words, the fact that the appellant was volunteering information that might otherwise not have been available to the respondent counts against a suggestion that she was intending to deceive. 207 In that regard, the appellant complains about the finding made by the Tribunal at Reasons [176], that ‘the [appellant] set about deliberately misleading the [respondent] and Ahpra by distorting the timing and the nature of her relationship with CA so as to make it appear that nothing had occurred during the 191 2TR79. 192 2TR80. -- 64 of 113 -- [2024] SASC 133 B Doyle J 61 treatment period and that a sexual relationship did not occur until weeks after the treatment period had ended’. The appellant submits that this cannot reflect the appellant’s intention during the first interview, given what she said on that occasion about the timing of events. The respondent’s case and arguments 208 The respondent, for its part, contended that irrespective of the fact that the appellant did not have ready access to the numerous emails that had been exchanged between her and CA when she made her self-notification and later participated in the first interview, she well remembered the events in question, which she appreciated, from an early time, involved ethical transgressions. 209 The respondent submits that it was not credible for the appellant to say that when she wrote that she had been in a romantic relationship with CA since August 2019, she had in mind the distinction between a sexual relationship that could be characterised as ‘hooking up’ and a more stable or meaningful romantic relationship.193 The respondent submits that the 31 July 2019 emails show that the appellant and CA were both well aware that the Code placed emphasis on sexual activity, irrespective of whether it was love or lust. 210 The respondent submits that the emails (and their contents) were memorable and not likely to have been forgotten because they addressed significant matters and, further, it was apparent from the emails themselves that they had been read and re-read, with the appellant and CA both attaching some sentimental significance to them which caused them to express regret about having to delete them. 211 In any event, the respondent submits that ‘the primary source of her knowledge’ was not the emails but ‘her participation in [the] events’ and ‘[t]hese were life-changing and dramatic events in her life that she was involved in’. 212 In relation to the appellant’s reliance upon not having had access to her emails at the time of the self-notification and the circumstance that, in the interview, the appellant volunteered that a romantic relationship had commenced on 20 July 2019 (and that this is consistent with the appellant being candid with the regulator, and inconsistent with her consciously or recklessly misleading), the respondent makes a number of further submissions: • the inaccuracies in the self-notification account cannot be treated as merely matters of timing (that is, the difference between a romantic or sexual relationship commencing on 19 or 26 July as distinct from the start of August); 193 In addition to the evidence in chief on this topic at 2TR38 (referred to in Reasons [143]), the appellant said in cross-examination that she referred to August as ‘symbolic of when the relationship started but I do, I do believe that, that I have said that we were having sex before’: 3TR13. -- 65 of 113 -- [2024] SASC 133 B Doyle J 62 • rather, the inaccuracies went to the circumstances of how the relationship came to be, and its overlap with the coming to an end of their own marriages; • it could not be said that the appellant simply forgot (or became unable to recall) matters of detail because forgetting is not an explanation for a false narrative; • even her account in the first interview involved a positive and different narrative, with the request by CA at the end of the last session coming as a surprise, when in fact they had earlier planned by email to meet up on the weekend in any event and it was the appellant who, shortly after the last session, emailed about catching up and expressing her anxiety that it made her look ‘too eager’; • that access to the emails was not critical to the appellant being able to recall the timing of the events of 20 July 2019 was demonstrated by the fact that the appellant had not reviewed the emails at the time she gave an account of that occasion at the first interview.194 In her interview account she had also said, without the benefit of reviewing the emails, that boundary violations had been discussed with CA as early as 20 July 2019, whereas the appellant had said in her self-notification letter that the gravity of the ethical issues only became obvious when feelings had become quite profound, shortly after which the notification had been made. 213 The respondent emphasises that there is a significant difference between the self-notification and the first interview account. In the former there is a ‘run-up’ (a reference to her account of communications following treatment eventuating to social interactions and then romantic interactions). In the latter there is a spontaneity about the events of 20 July 2019, precipitated by a phone call from CA, following on an unexpected request for her phone number the previous afternoon. 214 The respondent makes the further submission that, although closer to the truth, the first interview account was, and was found by the Tribunal to be, improbable. The Tribunal found, at Reasons [101](c), that: It is incomprehensible that on the Saturday night when the [appellant] and CA did meet up, that they would embark on a sexual relationship by sitting on the couch drinking Gin, passionately kissing and hugging for hours then continue to see each other after that night and consummate their relationship six days later by having sexual intercourse, if they had not already formed an emotional attachment to each other and that could only have occurred during the treatment period. 194 The proposition that her recall of the 20 July 2019 meeting could not have been prompted by reviewing the emails was put to the appellant. Her explanation was not so much that she had independently recalled this detail in the intervening period but that its omission from the self-notification was not intended to be misleading. She added that when she made the notification, ‘I was assuming that I was going to be talking through those details’: 3TR66. -- 66 of 113 -- [2024] SASC 133 B Doyle J 63 215 That finding was made in the context of resolving contested questions of characterisation of the appellant’s interactions with CA during the treatment period, but its significance in the present context is said to be that just as it seems incredible that these events, if essentially instigated by CA in a spontaneous and unexpected way, could have progressed so quickly, it is also not likely that the appellant would have misremembered the events in that way. 216 Ultimately, the respondent submits that even if the Court on appeal disagrees with some ‘strands’ in the Tribunal’s reasoning towards the conclusion that both accounts were deliberately or recklessly misleading, those findings are ‘amply supported’ by the evidence, together with the Tribunal’s correct findings that: • the email correspondence on 31 July 2019, in which CA contemplated the giving of a false account to the respondent, was not in jest (Reasons [173]); • the appellant’s delay in self-notifying despite having recognised the ethical transgression at an early stage was consistent with a preparedness to mislead (Reasons [177]); • the appellant’s deletion of emails was with the knowledge that the exchanges between her and CA between 8 and 19 July 2019 were client records that she had an ethical obligation to keep confidentially for seven years in her capacity as a psychologist (Reasons [147], see also Reasons [178](d)). 217 Against this background I turn to the more particular arguments made by the appellant on appeal. Failure to engage with expert evidence regarding shame-based cognition 218 The appellant contends that the experts were agreed that shame-based cognition is a process by which a person involved in a major behavioural transgression minimises the implications of their behaviour to make it possible to talk about it, and whereby cognitive distortions and rationalisations develop to protect the self from psychological injury. This may not conduce to a full recounting in the early stages of confession, and may mean that a person giving an inaccurate or incomplete account is not consciously deceptive, but is sub- consciously minimising. 219 The appellant submits that the Tribunal’s engagement with Dr Lennings’ evidence to that effect (which was not relevantly contested by Dr Warren) was inadequate, and that its rejection of Dr Lennings’ evidence more generally was unjustified in various respects. She submits that the Tribunal failed to consider all of the material relevant to a particular issue on which a finding was made.195 195 Boulton v Delpech [2008] WASCA 245 at [20] (Le Miere AJA, Wheeler and Miller JJA agreeing), referring to Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [28]-[30] (Ipp JA). -- 67 of 113 -- [2024] SASC 133 B Doyle J 64 220 The effect of Dr Lennings’ reports was set out earlier. In evidence in chief, he elaborated as follows:196 A From my understanding of these things, you go back to the context in which the issue arises. So she has transgressed. She experiences shames, she experiences fear, a whole range of different kinds of emotions and then undertakes the first interview. At the time of the first interview she was very much focused, as far as I could tell, on the sexual transgression. This is what was front and centre in her mind at the time, it was causing her a great deal of shame. I also mentioned in my report a existential crisis but that’s not taken up. So she was experiencing a cognitive state at the time that was context specific. That is in having to deal with the issues that account for her behaviour to the interview. Now we know that when people have transgressed with severe consequences as a result of that, a range of different factors inhibit a person’s ability to access memory, to focus attention and concentration and to provide full accounts of behaviour. And this is what was happening, in my view, at the time. It is not that the shame as such that it crippled her capacity to function in multiple other areas but it certainly impacted significantly on the context whereby she had to discuss and dwell on the specific issue that was causing her intense shame. Q And that was in the context of the first interview. Would that A Mm. Q also apply at the time that Dr Angelakis provided her self-notification to the regulator? A Mm, yes. Of course it would. Q And you mentioned in your answer an existential crisis. A Yep. Q What were you referring to? A Well I indicated that there are multiple context, for want of a better word, in having to deal with such a transgression. One of those existential, one of those consequences is fear that she would not be able to practice as a psychologist. Her identity, her future, her sense of self was bound up in a particular kind of vocation. When all of a sudden that is deeply threatened, a person goes through an existential crisis. They don’t know who they are in terms of where they have positioned themselves and their future. They experience a great deal of anxiety as a result of the threat that through her behaviour she has exposed herself to. That is what I was, that is what was meant by the existential crisis. 221 As the respondent submits, in the body of Dr Lennings’ reports, he acknowledged that his opinions were subject to findings of fact that might be made by the Tribunal. He acknowledged in particular that alternative inferences, not involving cognitive distortions, were available.197 222 In cross-examination, Dr Lennings confirmed that whilst he was expressing opinions about how misleading or inaccurate disclosures could be explained 196 4TR84-85. 197 See, in particular, paragraph [58] of his second report, extracted earlier in these reasons. -- 68 of 113 -- [2024] SASC 133 B Doyle J 65 without findings of dishonesty or recklessness being made, the findings of fact were for the Tribunal to make.198 223 The appellant’s senior counsel clarified that the appellant’s complaint on appeal is not that the Tribunal necessarily erred by failing to accept an opinion that shame-based cognition was the explanation for any inaccuracies in the account she gave in her self-notification and the first interview. Rather, it is that in circumstances where the concept of shame-based cognition was not relevantly in dispute, its potential application as an explanation for the inaccuracies in the appellant’s accounts had not been properly grappled with by the Tribunal. 224 In order to consider that contention it is necessary to identify those aspects of the Reasons that are relevant to Dr Lennings’ evidence and the significance of shame-based cognition in resolving Grounds 3 and 4 of the Amended Referral. The Tribunal’s treatment of Dr Lennings’ evidence and shame-based cognition 225 First, the Tribunal referred to Dr Lennings’ two detailed reports and the fact that Dr Lennings had the benefit of a 90-minute interview with the appellant (Reasons [63]). The Tribunal noted that unlike Dr Warren, Dr Lennings had given evidence about the appellant’s state of mind ‘by way of explanation as to why certain aspects of both the self-notification to the [respondent] and her first interview with the Ahpra investigators were not accurate or false’. 226 The Tribunal noted, however, that as Dr Lennings himself had acknowledged, if the Tribunal were to make findings based on its assessment of the evidence which differed from matters assumed or found by Dr Lennings, that would render his opinions irrelevant (Reasons [64]). 227 Next, the Tribunal summarised the effect of Dr Lennings’ evidence in relation to Ground 1 (Reasons [65]-[67]). An issue that arose in that context was the significance to be attached to the references to movies or television series in email exchanges between the appellant and CA in considering whether they were to be characterised as ‘banter’ or as having a more suggestive connotation. Dr Lennings was not familiar with the titles referred to, and so was shown snippets of them during the course of his evidence. This was evidently the basis for the Tribunal’s later observation that Dr Lennings had ‘limited understanding about popular culture’ (Reasons [174]). 228 In the context of dealing with Ground 1, the Tribunal observed that the appellant had said in her evidence in chief that she allowed the boundary violations that occurred in the period between 8 and 19 July 2019 to occur because she was ‘kind of influenced by my feelings of like shame, anxiety, embarrassment and I didn’t seek consultation and I should have sought consultation’199 (Reasons [68]). 198 4TR86. Dr Lennings also said that ‘once you get to the point where there’s a finding of fact, then the expert opinion becomes less important’: 4TR97. 199 2TR24. -- 69 of 113 -- [2024] SASC 133 B Doyle J 66 The Tribunal went on closely to consider that evidence and, having revisited some of the email communications it regarded as most telling, observed: [73] We note that consistently throughout her evidence, whilst making retrospective concessions about her conduct, the [appellant] had a tendency to minimise the seriousness of her behaviour and to defer to the benefit of hindsight and reflection. We do not consider from our observations of her as a witness over a period of near on two days, that she was being entirely honest and we don’t accept her explanation about why she allowed the boundary violations to occur or for that matter when the violations commenced. We fail to understand how feelings of shame, anxiety or embarrassment would have been prominent and prevented the [appellant] from seeking consultation as she asserts or not putting appropriate measures in place from 11 June 2019 when it would or should have been obvious to her (as it is now) that CA had overstepped the professional boundary by sending that email to her personal email address at 6.58 pm, after the treatment session had concluded. 229 In my view, this finding, although most obviously relevant to Ground 1, also has significance in respect of Grounds 3 and 4. 230 The Tribunal went on to conclude that it was not the case that the appellant had only realised later that the boundary violations that occurred during the treatment period involved ethical transgressions. Referring, inter alia, to her evidence that she had in other contexts been able to read the signs of clients who were attracted to her (and refer them to another practitioner) and to her reference in her email of 10 July 2019 that some of her comments were not ‘the most therapy focused and someone else would use them against me’, the Tribunal found that, contrary to the tenor of her evidence before the Tribunal to the effect that it was only with the benefit of hindsight and reflection that she fully appreciated these transgressions, she in fact had a degree of insight about the boundary violations at the time. Her email of 10 July 2019 was found to reflect her ‘true level of understanding of her ethical obligations’ (Reasons [79]). 231 The Tribunal also referred to other aspects of the appellant’s evidence that it found unsatisfactory,200 before referring further to Dr Lennings’ evidence (Reasons [89]-[91]) and then concluding, with respect to Ground 1, that it rejected Dr Lennings’ opinion that the appellant did not engage in sexualised behaviour in the period between 8 and 19 July 2019, and did no more than engage in inappropriate banter or flirting with CA (Reasons [104]). It also rejected Dr Lennings’ evidence that the conduct during that period only fell below, rather than substantially below, the accepted professional standard (Reasons [105]). 232 Later, in the context of Grounds 3 and 4, the Tribunal returned to the expert evidence of Dr Lennings and his second report (Reasons [151]). The Tribunal went on to observe that Dr Lennings: 200 The Tribunal referred to her evidence to the effect that some of the emails foreshadowing a catch up were with a view to ‘networking’ or just socialising and getting to know CA (Reasons [80], [85]), and her evidence that she was not 100% sure that she had thought about the ‘orgasm scene’ when reference had been made to ‘When Harry Met Sally’ (Reasons [86]). -- 70 of 113 -- [2024] SASC 133 B Doyle J 67 [151] … having interviewed Dr Angelakis, expressed the following opinions: Subject to any finding of fact I believe that her behaviour in her notification was essentially open but limited by her shame cognitions, lack of insight (at the time) and inexperience. As regards the first interview, Complaint 4 it appears that Dr Angelakis was not as forthright as she should have been-in part because she was still focussed on the sexual transgressions, and in part because, at that stage she had it seems little awareness of the extent and content of the emails that form a substantial part of the 4th complaint. … Her initial notification and interview minimised some aspects of her behaviour, largely understandable in the context of a relatively inexperienced psychologist struggling with shame and fear as she came to understand in greater detail the implications and actions that have brought her into such discredit. It is not my view that Dr Angelakis engaged in deliberate deception but lacked apparent candour due to multiple mitigating circumstances as detailed in my response to the Terms of Reference (fear, apprehension and an existential crisis because her career is on the line). [152] Dr Lennings opines that at the time of the first interview, the [appellant] was minimising her behaviour and ‘engaging in shame-based cognitions, which are not atypical for people involved in major behavioural transgressions …’. It should be noted that Dr Angelakis was interviewed on 7 November 2022 after she has undergone supervision and reflective education as part of the immediate action taken by the Board following its investigation. [153] Dr Warren in her second report dated 21 March 2023, in response to Dr Lennings above opinions states that: … shame-based cognition is not a defence to an ethical transgression. I do not accept the argument that shame was an excuse for unprofessional or unethical behaviour … [154] Dr Warren went on to revise her opinion when under cross-examination she stated: … So, if I could reflect on that now, is a shame-based cognition, so your thoughts that you are ashamed, but what that refers to is that your thinking includes that you are ashamed of the behaviour and that that shame explains why you might provide false, misleading or otherwise inaccurate statements. Yes, that’s true. 233 The Tribunal’s conclusions in relation to Grounds 3 and 4 are summarised in Reasons [171]-[182]. As has already been observed, the Tribunal stated, at Reasons [171], that it did not accept the appellant’s evidence that she did not deliberately or recklessly mislead the respondent or Ahpra. There were a number of strands to the Tribunal’s reasoning. In the course of summarising those strands, the Tribunal observed, with respect to Dr Lennings: [174] We also reject Dr Lenning’s [sic] opinions and evidence regarding shame based cognition. Dr Lennings struck us as a somewhat eccentric academic who has limited understanding about popular culture and, in particular, CA’s references to ‘When Harry Met Sally’, ‘Friends With Benefits’ and ‘Suits’ - productions which he had not -- 71 of 113 -- [2024] SASC 133 B Doyle J 68 seen and had limited understanding about except in a very general sense and from the short excerpts provided by the [respondent’s] solicitors as previously mentioned. [175] We disagree with Dr Lenning’s [sic] interpretation of the nature of the email exchanges between the [appellant] and CA, especially those between 8-19 July 2019. He did not have the benefit of our observations and assessments of Dr Angelakis over a two day period, a much greater period of time than 90 minutes. We do not accept Dr Angelakis as a witness of truth. CA’s comments in his email of 19 July 2019 regarding the episode of ‘Suits’ is particularly telling with reference to the timing and the remarkable similarity in the storyline to his and the [appellant’s] relationship. The episode concerns a relationship which develops between a doctor therapist and her former client. There can be no doubting from that reference that CA was aware that it was wrong for him and the [appellant] to engage on a personal level given their professional association and even if we accept that the [appellant] did not know about the ‘Suits’ episode, from the other references she would have also known that it was unethical for her to personally relate to CA. We simply do not accept her evidence of ignorance or naivety in sharing that knowledge. 234 The Tribunal also made the following concluding comment in relation to Dr Lennings: [183] In concluding we wish to make the following further comments: … (3) We place little to no weight on the opinions expressed by Dr Lennings regarding his assessment of the nature or characterisation of the email correspondence between the [appellant] and CA during the period from 8-19 July [2019], his assessment of her level of skill and experience and his assessment of Dr Angelakis’ state of mind at the time of her self-notification and first interview with Ahpra for the reasons previously stated. We found Dr Warren to be a more impressive expert witness notwithstanding the fact that she did not have the benefit of personally interviewing the [appellant]. Consideration of whether Tribunal failed to grapple with evidence 235 The foregoing summary shows that the Tribunal certainly did not overlook that there had been evidence about shame-based cognition as a possible explanation for the making of inaccurate or incomplete statements. As the Tribunal had emphasised, whether shame-based cognition was operative was ultimately a question of fact for the Tribunal to resolve. 236 Read fairly and as a whole, the rejection of Dr Lennings’ evidence should be understood as a rejection of the proposition that, in this particular case, shame- based cognition explained how the appellant came to make misleading and inaccurate statements about her earlier conduct. 237 Neither expert suggested that a person who commits a major transgression in respect of which they might be expected to experience shame and fear will necessarily or even commonly experience an impaired capacity to give an account of the transgression that is not materially inaccurate. The viability of shame-based -- 72 of 113 -- [2024] SASC 133 B Doyle J 69 cognition as an alternative explanation to deliberate or reckless recounting of events could only be undertaken in a highly fact-specific way. 238 Here, of course, the particular role that shame-based cognition might have played could not be considered in the abstract and divorced from the explanation for the inaccuracies given by the appellant herself. 239 Her explanation for stating that the romantic relationship commenced from August 2019 was not that at the time of the self-notification she had forgotten that they had first kissed on 20 July 2019 (whether on account of the passage of time, shame, or for some other reason), the day following the last treatment session. Rather, it was that what she was wanting to convey was the commencement of a relationship, and not the timing of their first intimate contact.201 That explanation may or may not have been cogent,202 but it does not appear to be the product of an inability to access memory due to shame. If it were to be rejected as an explanation for why the disclosure was made in those terms, it did, however, have the capacity to undermine the credibility of the appellant’s claim that without having reviewed the emails she was surprised at the level and nature of the communications undertaken during the treatment phase. The Tribunal made clear that it did not find the appellant to be an impressive witness, and it found that she set about deliberately distorting the timing and nature of her relationship with CA so as to make it appear that nothing had occurred during the treatment period and that a sexual relationship did not occur until weeks after the treatment period had ended (Reasons [176]). 240 Such a finding was inconsistent with a finding that shame-based cognition caused the appellant to misremember whether their sexual or romantic interactions had commenced more or less immediately following the final treatment session, as distinct from a little while afterwards, but the more important point is that the appellant did not in fact claim to have forgotten that she and CA had met and first kissed on 20 July 2019. 241 Further, it is important to appreciate that whilst the appellant contended that the effect of the expert evidence was that shame-based cognition affected one’s ability to access memory, it would not explain ‘gap filling’. That was submitted to be simply part of human fallibility, albeit perhaps related to or more likely to occur where there was an underlying gap in memory. The evidence about shame- based cognition did not distinctly suggest that a person experiencing shame and 201 This was also the basis upon which the appellant said that she did not, at the time of the self-notification, regard CA’s statement that they entered into a relationship ‘within about 4-6 weeks’ after treatment finished as false and misleading. She said that ‘I believe that was the truth in line with what I was saying about that relationship starting in August, so though that to be the truth’: 2TR51. 202 There are two issues with respect to the credibility of the explanation: the first relates to whether it is credible that the appellant considered that the matter of significance to be notified was when a committed relationship began, as distinct from when sexual interactions commenced; the second relates to whether the appellant and CA were, in any event, in a relationship before August. In that regard, the appellant was cross-examined by reference to the emails of 26 July 2019 (Exhibit A2, pp 1451, 1453 [SAB 1445, 1447]): 3TR15. -- 73 of 113 -- [2024] SASC 133 B Doyle J 70 fear associated with that shame would wrongly recall a false sequence of events, such as how the meeting on 20 July 2019 was initiated and arranged. It should be recalled in this context that not only was the account given wrong in suggesting that the meeting had been initiated in a phone call from CA,203 it was wrong in suggesting that, independently of that phone call, the appellant had been staying at her sister’s house when, in truth, she proposed that they go there so that they would not be seen by H or W.204 On the appellant’s evidence at trial, these incorrect details involved ‘gap filling’.205 Dr Lennings’ evidence did not explain whether a person suffering a shame-based inability to access their full memory of events could, without being reckless as to its accuracy, make the positive claim that the account being provided amounted to ‘full and frank disclosure’, as the appellant’s self- notification had purported to be. 242 Against that background, shame-based cognition was not a viable explanation, and certainly not a complete explanation, for many of the inaccuracies in the appellant’s account. The potential explanatory value of shame-based cognition primarily arose for consideration in connection with the appellant’s failure to disclose the extent of the email correspondence that both comprised and evidenced boundary violations during the treatment period. 243 The expert evidence justified the proposition that, potentially, feelings of shame, coupled with a lack of immediate access to the emails, may have impaired the appellant’s ability to access her memory of the emails and the facts and circumstances they revealed. 244 But whether shame-based cognition did provide a non-dishonest explanation for the failure to relay that there had been extensive non-therapeutic interactions during the treatment period was a question of fact. 245 The Tribunal found that: [178] … We find it incredible that she would not have remembered the contents of the emails given: (a) she and CA were exchanging so many emails of a very personal nature on a daily basis after 8 July 2019; (b) she and CA acknowledged they are both sentimental people and sentimental about each other’s emails; (c) she stated in an email and in evidence that she would sometimes re-read their email exchanges; 203 The appellant accepted in her evidence at trial that she had in fact instigated the catch-up: 2TR79. 204 The appellant acknowledged the account was false: 2TR28, 3TR10-11. 205 3TR10-12. In that context, the appellant said: ‘I think it’s important so that, so I have come to learn about my tendency to want to appease and like fill in the gaps, but that wasn’t something intentional or something I was aware of at the time’. -- 74 of 113 -- [2024] SASC 133 B Doyle J 71 (d) she and CA actively discussed deleting the emails and referred to the ethical implications of their relationship; and (e) the fact that a relationship of a sexual nature commenced within one day of the treatment period ending. 246 Although that passage is expressed in terms that speak to what the appellant ‘would not’ have remembered, read together with the earlier findings at Reasons [171] and [176], it is clear enough that the Tribunal did not accept that the appellant had been unable to recall the extent and significance of the emails. 247 A finding that the appellant would have recalled and did in fact recall that there had been a significant volume of email communication in which they had shared personal interests, arranged to attend the same F45 classes and discussed the possibility of social interactions following the last treatment session, was inconsistent with a finding that shame-based cognition had distorted the appellant’s memory of or capacity to recall those events. 248 In her written submissions in reply on the appeal, the appellant submits that whilst that may be so, it was necessary for the Tribunal to consider the possible explanatory value of shame-based cognition when deciding whether to make those findings. 249 I accept the logic of the appellant’s submission. It would be erroneous to make findings about whether the appellant did or did not suffer any defect in her capacity to recall relevant events by reference to evidence excluding the evidence about the nature of shame-based cognition, and then discount the potential application of that concept on the basis that a finding has been made that the appellant did not suffer any defect in her capacity to recall the events. That would be to ignore the fundamental requirement to bring to bear all relevant evidence when making a finding about a contentious issue. As the Court of Appeal recently observed in Hutchinson v Van Den Berg:206 A judge is required to consider all the evidence and assess the capacity of the individual items of evidence to circumstantially increase (or decrease) the probability of material facts. The rational resolution of an issue involving the credibility and reliability of a witness requires every item of evidence in the case to be judged and weighed. No single item of evidence can have its proper significance considered if it is assessed disengaged from the circumstances of time, place and behaviour supplied by all the evidence. If evidence supports or is consistent with a witness’s evidence, the judge must take it into account before a conclusion is reached on that witnesses’ credibility and reliability as the evidence may tend to make it more likely that the asserted fact is true. That is, assessing the credibility and reliability of a witness requires reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.207 A judge’s fact-finding exercise should not be approached in a segmented way.208 206 [2024] SASCA 117 at [45]-[46] (Kourakis CJ, Lovell and Doyle JJA). 207 Camden v McKenzie [2008] 1 Qd R 39 at [34]. 208 Alubaid v Kilani (2022) 100 MVR 282 at [88]; Ngyuen v Tran (2018) 86 MVR 16 at [44]-[54]; Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [66]. -- 75 of 113 -- [2024] SASC 133 B Doyle J 72 This is not to say that a judge must accept supportive or consistent evidence as true or probable. The supportive or consistent evidence may be impeached. But unless impeached, it should not be ignored. Importantly, in the process of reasoning, a judge must not ignore the supportive evidence in deciding whether the evidence of a witness was true or probable and then use that conclusion to impeach the supportive or consistent evidence.209 250 The Reasons do not explicitly state that the possibility of the appellant’s memory being affected by shame was borne in mind when making factual findings to the effect that the appellant’s inaccurate and misleading statements were not merely negligent or careless but were misleading and reckless. 251 However, in my view, on a fair reading of the Reasons as a whole, there is no sufficient reason to doubt that the Tribunal did so. The structure of the Reasons does not suggest a segmented approach to the evidence was taken.210 252 The Tribunal referred to the evidence about shame-based cognition including the evidence of Dr Warren that acknowledged the concept and its potential explanatory value, but the Reasons emphasise that it was a question of fact whether it was operative in any particular case. Whilst I accept that the Reasons are not explicit about the matter, the better view of the Reasons is that the possibility that inaccuracies in the appellant’s statements to the respondent and Ahpra occurred due to a subconscious minimising or inability to fully access memory caused by shame was not ignored, or wrongly excluded by a form of compartmentalised reasoning. 253 However, in case I am wrong in this, and because on an appeal by way of re- hearing it is appropriate that I should consider all the evidence bearing on the findings of deliberate or reckless conduct, I will independently consider the cogency of shame-based cognition as an explanation for the appellant’s non- disclosure of the extent and nature of the boundary violations during the treatment phase, with a view to considering whether the Tribunal’s ultimate decision was incorrect. Consideration of whether shame-based cognition was operative 254 The respondent submits that any substantial reliance on shame-based cognition can be discounted in this case because the foundation for its operation, namely, the experiencing of shame, was not established. 255 The respondent emphasises the observation made by the Tribunal at Reasons [73] that it failed to understand how feelings of shame, anxiety or embarrassment would have been prominent and prevented the appellant from seeking consultation or not putting appropriate measures in place from 11 June 2019. Bearing in mind the context in which that observation was made, I do not consider it was intended 209 Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424. 210 Whilst such a statement could never be conclusive, it may also be noted that the Tribunal stated, at Reasons [183](1), that in coming to its decision regarding each ground, it had taken account of the totality of the evidence. -- 76 of 113 -- [2024] SASC 133 B Doyle J 73 to constitute a finding that the appellant was not at any time experiencing shame (or a sense of anxiety and embarrassment that might contribute to cognitive distortions or deficits). 256 The respondent also submitted on appeal that a reading of the appellant’s emails during the treatment phase does not support a finding of shame or anxiety and that, on the contrary, they show that the appellant was ‘allowing a relationship to commence … with some excitement’. 257 I agree that the emails do appear to manifest a sense of excitement about non- clinical interactions with CA, but I do not consider that that necessarily contraindicates an experience of shame. It is possible to be be ashamed about conduct that, in the moment, was a source of excitement and approached with enthusiasm. 258 But it remains to be considered, in all the circumstances, how realistic an explanation shame-based cognition is in respect of the appellant’s claim that she had not recalled engaging in non-therapeutic interactions with the appellant during the treatment phase. 259 The distortion needing to be explained here was not a mere question of timing or degree; it involved the appellant shutting out of her conscious memory the very substantial quantity of personal email correspondence in which they had established their mutual interests and begun guardedly to acknowledge their interest in one another, the beginnings of a non-clinical relationship by arranging to attend F45 sessions together, and the regret-filled decision to delete a very substantial volume of email correspondence, all of which had occurred only a handful of months earlier. In assessing the likelihood that a sense of shame brought about such a significant distortion, it is reasonable to scrutinise how clearly the evidence actually established that the appellant was suffering from shame. Further, in my view, a finding that the appellant in fact suffered from a deep or acute sense of shame would not lightly be made based on the mere fact that a person has engaged in conduct that might be said to be shameful. In making this observation I do not overlook that the alternative conclusion, that the appellant was aware that her disclosures were misleading, is a serious finding to which Briginshaw considerations apply. 260 The appellant’s senior counsel emphasised that the appellant was not directly challenged on her evidence to the Tribunal that, immediately before the first interview, she was ‘really terrified’ and that, previously:211 I typically follow the rules, I don’t – like if anything. I’ve probably been guilty of being a goody-two-shoes, this is the worst thing I’ve done in my life, and I was really scared to go in there. I remember feeling nauseous and as if I was going to throw up. 211 2TR54. -- 77 of 113 -- [2024] SASC 133 B Doyle J 74 261 The appellant also refers to the statement made during the first interview (extracted earlier) that part of the explanation for her delay in self-notifying was that she was terrified. 262 I accept that Dr Lennings referred in his evidence not only to shame but to ‘a whole range of different kinds of emotions’ before the first interview, and that he also expressed the view that his evidence would also apply to the appellant’s state of mind before the self-notification, but the fact remains that the direct evidence given by the appellant is focused more on fear than shame. It is scarcely surprising that the appellant would have been fearful about attending the first interview, and anxious about the outcome of the self-notification, but it is not self-evident that this amounted to a sense of shame which, alone or together with other emotions, was likely to have caused significant cognitive distortions in respect of the email communications and other interactions prior to 20 July 2019. To the extent that the appellant continued to maintain, even at trial, that she had not ‘clocked’ the true import of some of the email communications when they occurred, that tends to complicate the thesis that shame about those interactions subsequently caused the memories of them to be suppressed. 263 As well, it is one thing to accept that a person might struggle to recall (or bring themselves to recall) detail when first confronted, perhaps without notice, with behaviour about which they have a sense of shame, it is another to find that an account which they themselves describe as manifesting a desire to be ‘transparent … by giving full and frank disclosure of all facts which the [respondent] may consider material to this breach’ was materially incomplete by reasons a suppression of memory caused by shame. 264 On the appellant’s case, at the time of self-notification, she recalled the events of 20 July 2019, and did not mention them because she was focused on when it could be said that a romantic relationship of a more substantial or stable kind formed.212 The question is whether it is credible that although she remembered what had occurred on 20 July 2019, she was experiencing shame of a kind that caused her to suppress or be unable to recall memories of the interactions of a non- therapeutic kind which in laid a foundation for things to progress as quickly as they did immediately following the cessation of treatment. 265 I accept that the appellant was fearful and anxious about the process of self- notifying and attending an interview with investigators, but in my view the facts and the evidence render it unlikely that a cognitive distortion would have caused one aspect (but not other significant aspects) of the relevant events to be subconsciously minimised or forgotten. That is essentially what the Tribunal 212 As elsewhere explained in these reasons, the appellant’s disclosure of the events of 20 July 2019 at the first interview cannot have been prompted by a review of emails. Although one answer she gave in evidence may have suggested confusion, as at the date of the self-notification, as to timing (3TR67), the preponderance of her evidence was to the effect she always recalled they had kissed on 20 July 2019 and that her failure initially to mention this was explained on other grounds: see, eg 2TR38, 2TR51, 3TR13, 3TR66. -- 78 of 113 -- [2024] SASC 133 B Doyle J 75 found, and on my independent review of the evidence, I consider the finding is soundly made. 266 To the extent that the appellant otherwise complains about the basis upon which the Tribunal expressed a preference for the evidence of Dr Warren over Dr Lennings on other issues, I consider that no error is established. 267 The primary significance of the Tribunal’s observation that Dr Lennings was a somewhat eccentric academic who had a limited understanding of popular culture was in explaining the Tribunal’s preference for Dr Warren’s characterisation of the appellant’s conduct the subject of Ground 1. Whether or not a lack of familiarity with the movies or television series that featured in the evidence in this case renders one ‘somewhat eccentric’,213 the Tribunal was entitled to take the view that Dr Lennings’ preparedness to express views about the characterisation of the email correspondence without knowing the full context supplied by a familiarity with the popular culture references214 meant that his evidence was less helpful than it might otherwise have been. 268 Indirectly, this also had the capacity to detract from the cogency of Dr Lennings’ evidence about Grounds 3 and 4, because if one adopts a reading of the emails that attributes to them the character of banter without sexual innuendo suggestive of a more serious boundary violation, it becomes less surprising that the communications might have been forgotten as part of a distortion caused by the shame associated either with that conduct or the fact of entry into a sexual relationship within two years of the end of treatment. 269 Ordinary human experience suggests that significant thought is likely to have attended the crafting of emails between two married individuals who felt an attraction to one another and who were treading carefully in relation to any express declaration of interest at least before the professional relationship had been 213 The appellant also submitted that the Tribunal was wrong to characterise Dr Lennings as an ‘academic’. It is not apparent that this description was intended to convey that Dr Lennings had no clinical experience. 214 Dr Lennings had some awareness of ‘the scene in a restaurant’ in ‘When Harry Met Sally’ but ‘didn’t find the movie all that interesting’ and when asked about the other material said: ‘I’m afraid you’ll find that I’m a person who doesn’t tend to watch movies very much. … you sent me an email with all sorts of clips and I hadn’t seen any of them’: 4TR102-103. When asked to watch a trailer of one, he said: ‘If I have to. I really dislike movies’: 4TR103. In respect of the joking references to CA keeping the appellant in a cellar and the allusion to ‘Silence of the Lambs’, Dr Lennings said: ‘I avoid all of these kind of things. Believe me. I know, I’m very boring’ and ‘You may wonder what it is that I do with my time. I spend it mostly, I write reports or read documents. I don’t watch TV if I can possibly help it. And so I’m totally reliant upon my wife reading summaries of media’: 4TR110. Dr Lennings did make clear, however, that he understood the drift of the emails and the references in them: 4TR111. And when it came to whether the appellant’s responses were just banter or whether there was more to it, he said ‘it will eventually be the Tribunal that makes that decision’: 4TR113. -- 79 of 113 -- [2024] SASC 133 B Doyle J 76 terminated. Casual as the emails may have been designed to appear, they were not likely casually prepared.215 270 In that context, the Tribunal did not err by considering that Dr Lennings’ limited familiarity with the nuances of the references to the films and television shows referenced in the emails bore not only on the characterisation of those communications but upon the likelihood that the communications would come to be forgotten or minimised. 271 This is in circumstances where, as they both stated at the time, they were anxiously awaiting each others’ emails and where, as they both later indicated, they had re-read many of the emails and were reluctant to have to delete them, showing that they treasured the memories of those early interactions. 272 I conclude that the Tribunal did not fail to engage with the evidence about shame-based cognition, and I further conclude that, in all the circumstances, the evidence about shame-based cognition ultimately lacked cogency and significant explanatory value in this particular case. Whilst, of course, it had to be considered, there were good reasons, with which I agree, to conclude that it was not operative in this case. Failure to consider impact of reflective education 273 The Tribunal made adverse findings about the appellant’s evidence in part because she had a tendency to minimise the seriousness of her behaviour and to defer to the benefit of hindsight and reflection (Reasons [73], [183](2)). 274 As has been noted, following her self-notification, the appellant engaged in two processes of psychological supervision and reflective education. The first was the period of supervision undertaken with Professor Metzer, and the appellant prepared a self-reflective document in that context to which reference has already been made. The second was undertaken with Dr Tony McHugh as a result of conditions imposed on the appellant’s registration by the respondent. 275 The appellant submits that in making the criticisms of the appellant’s evidence it failed to engage with the impact of the processes of reflection upon her memory and perception of events. 276 The appellant’s senior counsel points to examples of passages of the appellant’s evidence in which she refers to the effect of reflection and supervision on her perception of events. 215 The proposition that the appellant was putting a lot of thought into the emails to the extent of using the same words that CA had used was put to the appellant in cross-examination. Respectfully, her answer that she could not say there was conscious thought in using particular phrases because she was ‘just spitting off quickly, often without a lot of thought to them’ is, on a reading of the emails, not easy to accept: 4TR7. -- 80 of 113 -- [2024] SASC 133 B Doyle J 77 277 Whilst each of those answers has its nuances, generally speaking, when the appellant referred to the impact on her evidence of supervision and reflection, it was as part of an answer which involved saying that whilst she could understand, with the benefit of reflection, the seriousness of deviations that were occurring at the time, she could not be sure whether, as they were occurring, she had the same appreciation. 278 The tenor of the evidence was not so much that the process of reflection might have caused her to no longer recall actual realisations she had at the time of the underlying conduct, but rather that the process of reflection enabled her now to more fully explain the context in which the conduct had occurred and also to realise and grapple with the seriousness of it. 279 At the risk of oversimplification, the tenor of the appellant’s evidence about the impact of self-reflection was that it had assisted in revealing to her the true picture of what had occurred over time, rather than having clouded authentic memories of her thought process at the time. As I have said, that is a description of the thrust of her evidence. There are some instances of the appellant saying that she was having difficulty in recalling her thought processes at the time of the underlying events, and finding the process of accurately relaying her thinking at the time of events confusing and difficult. 280 Ultimately, however, it was necessary for the Tribunal to form a view about whether, to the extent that the appellant gave answers that suggested that, when the underlying events occurred, she was not conscious of engaging in boundary violations, that evidence was to be accepted. That required the Tribunal to consider whether it was in fact the case that some things had only become apparent to the appellant with the benefit of hindsight and reflection. 281 The Tribunal undertook that exercise and reached a conclusion that was adverse to the appellant. The Reasons contain a number of findings that are important to that conclusion, but it is also apparent that the conclusion was reached having observed the appellant give evidence over a lengthy period. 282 The particular findings in the Reasons which militated against an acceptance that the appellant’s awareness of the extent of her boundary violations only emerged with the benefit of time and reflection include: • the appellant’s evidence (contained in her self-notification) that she had previous experience in dealing with clients who had formed some form of attraction towards her (Reasons [75]) and that as a specialist trained in cognitive therapy clinician, she understood her ethical obligations in that context (Reasons [76]); • the appellant’s implicit recognition in her email of 10 July 2019 that some of her ‘witty comments’ might be said to be inappropriate (Reasons [77], [79]); -- 81 of 113 -- [2024] SASC 133 B Doyle J 78 • the appellant’s reference in her 21 July 2019 email to her ‘unethical behaviour’ (Reasons [119]); • the appellant’s deletion of emails (Reasons [122]); • the appellant’s email of 31 July 2019 referring to clause C.4.3 of the Code (Reasons [125]). 283 It is apparent that the Tribunal considered the appellant’s evidence in light of these matters and the objective unlikelihood that a practitioner in the position of the appellant would not have more accurately perceived the nature of her interactions with the appellant at the time they were occurring when rejecting the appellant’s evidence to the extent it suggested that it was only with the benefit of hindsight that she had come to understand more fully what had occurred. 284 The Reasons contain examples of the appellant’s answers in which she tended to defer to the benefit of hindsight, namely: • her evidence in relation to the email sent by CA on 11 June 2019 (Reasons [72]); • her evidence to the effect that her 10 July 2019 email referring to ‘witty comments’ being used against her was an ‘off the cuff comment’ (Reasons [78]); • her evidence that she was not 100% certain whether she thought about the ‘orgasm scene’ when the ‘When Harry Met Sally’ emails were exchanged (Reasons [86]); • her initial evidence to the effect that some of the emails exchanged between 16 and 18 July 2019 reflected her intention to catch up with CA ‘for networking’ before adding that she wanted to ‘socialise with CA and get to know him in a non-therapeutic way’ (Reasons [80], [85]). 285 In relation to the last example given, the evidence given by the appellant about what she meant by her email of 19 July 2019 immediately following the last session (set out earlier in these reasons) is illustrative.216 Q … ‘Running the risk of appearing too eager, I’m free Saturday if you’re keen’ is because you’re moving the catch-up from Sunday to Saturday. A I don’t know if that’s completely the case. Like, ‘Running the risk of appearing too eager’, like, I think I just was organising to see him on the Saturday. I don’t think I had pieced together, like, the Sunday comments. And some of these things, I know when you read them now they have a very different kind of tone to them, but some of these I said in joking, and at the time I do think there was part of me that also just didn’t imagine that they would come to fruition. So I do stand with the, like, the 216 2TR122. -- 82 of 113 -- [2024] SASC 133 B Doyle J 79 notion that I sent that email, now I know I sent that email, to catch up with [CA], I can’t – I’m not denying that, but I don’t know whether it was – and this might just be a semantics thing – I don’t think it was me just pushing, like, trying to push forward the Sunday comments, if that makes sense? Q Well, when you say you ‘don’t think’ that. You don’t have any recollection, do you, because in evidence-in-chief you were asked what ‘too eager’ meant and you didn’t know? A I am saying that I didn’t know – like, I can’t recollect exactly what I was thinking at the time, but I think a comment like, speaking like that, ‘I’m too eager to catch-up’, and, like, with all my reflections I can piece together that that’s probably what I meant there. Q Sorry, what’s what you meant? A That I was – sorry, that I was too – like, I’m eager because I was wanting to catch- up with [CA] on that Saturday. Q For what purpose? A At the time I think I was somewhat suggesting it was for, like, networking, but I wanted to catch up with him to socialise and to get to know him more outside of therapy in, like, a non-therapeutic way. Q Well, to be clear, when you send this email you’re not inviting him to catch up for the purpose of what ended up happening at the sister’s house? A No, and I don’t think I saw that coming. I think I was – when I say, like, I was being eager, like I was eager just to catch up with him. Q And so when the subject line is three dots – which is at 1347, you should still have it open – and then your email says, ‘I had no idea of what the subject line is meant to be. This is completely foreign’ … A Yes. Q ---you’re saying we shouldn’t interpret that as saying you know what you’re doing at this point, you know you’ve, as it were, you’ve crossed the line --- A Mmm. Q --- you’ve never done this before, you don’t know, you know, what to say the subject line is, because you know that something’s going to happen that’s not professional, right? A I think the message (indistinct) that certainly, but I think, like, I, you know, I don’t give my numbers – I don’t give my numbers to men, let alone patients. So I think – like in hindsight, I can see that I sent that with the kind of connotation of catching up, but I don’t think I put those together when I was sending that email. 286 In my view, the conclusion that the appellant had a tendency to minimise events, or to acknowledge the significance of events only with the benefit of -- 83 of 113 -- [2024] SASC 133 B Doyle J 80 hindsight and reflection, was fairly reached.217 Implicit in that conclusion was a rejection of the proposition that it was only the process of reflective education that had brought certain realisations to light. 287 The Tribunal was not obliged to set out, more explicitly than it did, the reasons why it reached that conclusion, which is a finding of fact. The Tribunal referred to the process of reflective education, and indicated that it was not inclined to accept as reliable answers that were prefaced by the qualification that certain matters had only become clear to the appellant with the benefit of reflection. No more detailed analysis of these issues was required than was given. My independent review of the material does not cause me to doubt the findings made. Error in attaching significant weight to demeanour in making findings that attracted the Briginshaw standard 288 The appellant submits that the Tribunal relied heavily upon the appellant’s demeanour in rejecting her evidence, contrary to the authorities which caution against over-reliance on demeanour. The appellant submits that reliance on demeanour was particularly problematic because there was an 11-month delay between the appellant giving evidence and the delivery of the Reasons, and because the adverse findings ultimately made attracted the principles associated with Briginshaw. 289 The High Court has emphasised that whilst a finding based partly or wholly on the demeanour of a witness may require the exercise of appellate restraint, trial judges should limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.218 290 In relation to delay, the question of what amounts to substantial or excessive delay, so as to bring into consideration the principles of ‘operative delay’ can be difficult; it will require a consideration of the circumstances of the case and the 217 Further examples may be noted. In respect of whether the appellant’s reference to herself as the ‘little too friendly psychologist’ in her email of 12 July 2019 was a sign that she was in fact ‘too friendly’ she said: ‘It should have been a sign, but I again, didn’t judge it to be a sign then’: 3TR100. In relation to whether her comment by email that she was a ‘die-hard romantic’ was not appropriate, her evidence was ‘I don’t think I clocked that at the time but I appreciate that’s very, it’s not professional to say’: 4TR6. When it was put to the appellant by reference to the emails immediately preceding the catch up on 20 July 2019 that she knew what was going to happen was more romantic than professional, she said: ‘Like I’ll talk from like me now that I think I, like looking at these emails it would appear that way but again I’m going to have to say, I don’t remember sending the emails but I agree that there must have been some sense of that. But again I can’t speak to where I was at the time’: 4TR21. The appellant also gave evidence that she had been wanting to try F45 for some time and that whilst she did not see it at the time, her attendance was ‘part of me probably just wanting to see [CA] there as well’: 2TR21. This is to be compared with her statement in her email of 11 July 2019 that she had never pushed herself to workout with anyone else: Exhibit A2, p 1266 [SAB 1260]. On the question whether she was shocked to be asked for her phone number on 19 July 2019 she said: ‘Like all of this says, like, it shouldn’t have been a shock whatsoever, but I didn’t expect it at the time’: 2TR25. Again, this evidence may be compared with the tone of her last email sent on that day and the first email sent on the morning of 20 July 2019, set out earlier. 218 Fox v Percy (2003) 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ). -- 84 of 113 -- [2024] SASC 133 B Doyle J 81 complexity of the legal and practical issues arising.219 The reasons themselves may give rise to, or alternatively may by their thoroughness and logical structure assuage, a concern that too much has been made to turn on impressions recorded in a judgment published long after the witness has left the witness box. 291 In the present case, the Tribunal had the benefit of making observations of the appellant over a period that could not be described as brief. It also had the unusual benefit of being in a position to compare the appellant’s evidence with contemporaneous statements of the appellant by way of the vast email correspondence that was produced and tendered. 292 The delay between final submissions and the publication of reasons was approximately 10 months, with the appellant having given evidence about a month prior to the final submissions. The Reasons disclose that the members of the Tribunal convened to consider the evidence and submissions and deliberate in September 2023, approximately two months after final submissions. 293 In all the circumstances, I do not regard the delay in this matter as substantial or excessive, such as to heighten any concern that I might otherwise have in relation to the question whether the Tribunal erred in placing undue reliance on the appellant’s demeanour. Whilst every case must be considered on its own facts, I note that this accords with the conclusion reached in Walsh v Legal Practitioners Conduct Board220 in respect of a similar length of delay in a disciplinary proceeding. 294 In considering the complaint that unwarranted reliance was placed upon the appellant’s demeanour, it is important to appreciate the forensic context in which the way in which the appellant gave evidence fell to be considered, and then to consider the extent to which demeanour played a part in the Tribunal’s reasons. Finally, it is necessary to consider whether that analysis reveals error on the Tribunal’s part, either because the extent of the reliance on demeanour was unjustified or because the Reasons suggest error in forming an adverse view about demeanour. 295 As has been observed, before the Tribunal, the objective facts (by which I mean the events and interactions that occurred) were, with limited exceptions, not in dispute. One example of an outstanding disputed matter was whether an inappropriate touch or physical interaction occurred on 19 July 2019. 296 The main issues for resolution were: • in respect of Ground 1, the extent to which, in the context of her non- therapeutic interactions with CA, the appellant came to engage in communications that were imbued with a sexual connotation, which in turn 219 The relevant principles were summarised in Terry v Leventeris (2011) 109 SASR 358 at [15] (Gray J, Sulan and Vanstone JJ agreeing). 220 [2016] SASCFC 52 at [60] (Stanley J, Parker and Doyle JJ agreeing). -- 85 of 113 -- [2024] SASC 133 B Doyle J 82 bore on the question of whether the conduct was substantially below the standard expected of a psychologist of her level of training and experience; and • in respect of Grounds 3 and 4, whether the concededly inaccurate and misleading accounts given in the self-notification and first interview involved conduct which could be described as deliberate or reckless. 297 In respect of both matters, there was, in the form of the email correspondence, objective evidence bearing on the inferences that could be drawn about the appellant’s state of mind. I have earlier extracted a number of important aspects of that material, but it should be understood that there was a very substantial quantity of that material tendered in evidence, which the Tribunal has indicated in its Reasons it reviewed, and which I have also reviewed. 298 So extensive is the material, and so powerfully does it reveal a gradual escalation of the communications from tentative flirting to less guarded reference to the attraction and connection felt towards and between the appellant and CA that, subject to a consideration of evidence from the appellant (and a consideration of any expert evidence led on her behalf), a number of inferences would readily be drawn, including, that: • at the time of her interactions up to and including on 19 July 2019, the appellant appreciated that she was engaging in non-therapeutic interactions that involved an ethical transgression; • at the time that she deleted the email correspondence she likely appreciated that a review of the email correspondence would suggest that the commencement of their physical relationship on 20 July 2019 was not entirely unheralded; • the appellant would not likely have forgotten about the email communications and the essence of what they tended to reveal by the time she came to prepare the documents which came to comprise her self- notification less than six months later; • the appellant understood that by not disclosing in the self-notification that there had been extensive non-therapeutic communications prior to the end of treatment and that she and CA had first kissed on 20 July 2019, the notification would not involve full and frank disclosure of all facts which the respondent might consider material; • by the time of the first interview, the appellant would not likely have recalled that they first kissed the day following the last treatment session but wrongly recalled the circumstances of how that meeting was arranged and the extent to which, in preceding fortnight or so, they had engaged in non-therapeutic -- 86 of 113 -- [2024] SASC 133 B Doyle J 83 interactions which laid the foundation for the relatively immediate and intense romance which commenced, in a physical way, on 20 July 2019. 299 The relevance of the credibility and demeanour of the appellant lay in considering evidence of the appellant which presented an alternative to those possible inferences. Much of the cross-examination was undertaken by reference to the appellant’s own emails and her accounts to the regulators. 300 Against this background, and unsurprisingly, the Tribunal’s rejection of the appellant’s reliability and credibility on key issues appears principally to have been based on the difficulty that the Tribunal had in reconciling that evidence with the inferences fairly powerfully suggested by the objective material. That is most apparent from the propositions at Reasons [178], which were extracted earlier, and which constitute reasoning by reference to the ‘apparent logic of events’.221 301 Whilst the Tribunal referred to having observed the appellant as a witness over a period of near on two days, the reasons given by the Tribunal for not accepting that her evidence was entirely honest drew particular attention to her tendency to defer to the benefit of hindsight and reflection (Reasons [73]). That observation primarily, if not exclusively, concerns the content of the evidence given, rather than the way in which it was given. 302 To the extent that the Tribunal also described her evidence as being vague or evasive (Reasons [183](2)), that is also primarily a reference to the content of the evidence given, albeit it may also involve bringing to bear impressions formed about the way in which the evidence was given. The appellant complains that specific examples are not given to enable the reader (or the appeal court) to know which answers were considered to be vague or evasive, but examples of answers which could fairly be described in that way are reproduced in places throughout the Reasons and, on my review of the appellant’s evidence, that observation could reasonably be made based upon the words spoken, and without reference to the appellant’s appearance, tone or affect when giving evidence.222 221 Fox v Percy (2003) 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ). 222 For instance, when confronted with the positively inaccurate aspects of the narrative she gave to regulators, the appellant said: ‘The narrative, like, the truth of the narrative is different to what I initially stated. And I’m not, I can’t, I’m not arguing or defending that. I think the only, I think I’m getting a bit stuck on whether, and maybe this is like an incorrect thing for me to be getting stuck on, but whether that was my intention or my purpose versus that’s just being a product of like breaking all of this process and these things down to be able to more accurately see it’: 3TR78. It may also be noted that even with the benefit of reviewing the emails and undertaking reflective education, there were some matters about which the appellant said she still had no memory. These included the ‘too eager’ email of 19 July 2019 shortly after treatment (2TR26, and see also 2TR122-123) and what she thought CA meant by his reference to her ‘touch’ in his email of 20 July 2019: 2TR27, and see also 4TR16, 4TR18. The appellant also said she did not recall what she meant when in her 20 July 2019 email she referred to the ‘silver bullet’ and that she ‘thought something like that might unfold when [CA] got home’: 3TR7, and see also 3TR33-34. In relation to her 21 July 2019 email in which she said that in her discussion with her sister she ‘may have omitted [her] unethical behaviour’, the appellant said she had no original memory of the email and could not recall the exact conversation with her sister, but went on to say that ‘I do feel -- 87 of 113 -- [2024] SASC 133 B Doyle J 84 303 It is not apparent that the Tribunal’s reasoning turned substantially on its view of how the appellant presented when she answered questions, as distinct from what the answers were. The focus was on the credibility of the answers she gave, rather than the way in which she uttered the answers, or whether she presented as nervous, fidgety, over-confident or in some other manner that might cause a trier of fact to doubt the truth of a proposition which is otherwise inherently credible. An example is given at Reasons [86], when the Tribunal described an aspect of the appellant’s evidence as not having a ‘ring of truth’ about it. 304 As was recently observed in Hutchinson v Van Den Berg,223 credibility is a larger concept than demeanour. Whilst the Tribunal’s adverse conclusions about the appellant’s evidence no doubt had regard to demeanour, as was appropriate,224 the findings appear to be more broadly based on the credibility of her account, tested against the logic of events, rather than her demeanour in the witness box. 305 The present case might be contrasted with a case in which the only evidence relevant to a question involves a contest between two witnesses each of whom gives an ostensibly plausible account, and where the only basis to prefer one over the other is by reference to their manner of giving evidence. In such a case, if the Briginshaw standard applies, it may be doubted whether demeanour would be a sufficiently secure foundation for an adverse finding. 306 Here, by reference to objective and contemporaneous evidence the Tribunal reasoned that the account given by the appellant was not plausible. The manner in which she gave evidence, as distinct from the content of her answers, did not play a large or decisive role in the Tribunal’s reasoning. 307 I conclude that the Tribunal did not err by placing undue reliance on adverse impressions about the appellant’s demeanour. Error in drawing adverse inference against appellant for not calling CA 308 As has been noted, CA had written a letter to the respondent which formed part of the self-notification and had voluntarily attended an interview with Ahpra that maybe it was just this notion that [CA] and I, we were both – like, we weren’t divorced yet, we were, like seeing each other when we shouldn’t have been seeing each other, and that’s what I meant by ‘unethical behaviour’’: 2TR30-31. In relation to the proposition that she had in the first interview falsely conveyed that CA’s treatment or counselling had not extended to CA’s relationship, the appellant said: ‘I’m a bit stuck, in that because aside from the email that I didn’t remember at the time, it was – it was my truth to say that I hadn’t given him advice about the relationship or told him what to do in relation to his relationship with [W]’: 2TR71. It will be recalled that when explaining to him the virtues of self-knowledge exercises, the appellant had said that that would help with respect to the ‘big decisions’ such as ‘which partner you’ll spend your life with’: Exhibit A2, p 1227 [SAB 1221]. The appellant was confronted with the fact she could apparently recall the brand of Gin that they drank on 20 July 2019, but not these emails: 3TR81-82. 223 [2024] SASCA 117 at [39] (Kourakis CJ, Lovell and Doyle JJA). 224 The appellant’s counsel made submissions in closing address to the effect that the appellant had presented as a witness who was endeavouring to assist, who was not argumentative and who, whilst distressed from time to time, did not use that as an excuse to break up the cross-examination: 5TR36. -- 88 of 113 -- [2024] SASC 133 B Doyle J 85 investigators. In subsequent correspondence he had indicated that he was content to be contacted if there was anything else that was needed.225 309 CA was not called as a witness by the respondent or the appellant. The parties made submissions about the significance to be attached to this. 310 The issue first arises in the Tribunal’s reasons in the context of the question as to whether there had been an inappropriate physical interaction between the appellant and CA during or at the conclusion of the last treatment session on 19 July 2019. 311 That question arose in circumstances where: • the following day, in the course of email exchanges about meeting that evening, CA said ‘thinking back to your touch as I type’; • in an email a little earlier, CA had said he was ‘definitely keen to go back over closing comments from yesterday!! Very much’; and • when the appellant suggested they meet at her sister’s place, CA responded ‘Naughty girl!!!!!’. 312 Those exchanges might be taken to suggest that the appellant made comments at the end of their session that provoked a sense of anticipation on CA’s part about what might happen when they were to meet. The reference to ‘your touch’, without further elaboration, might suggest that there had been some physical interaction which was meaningful or intimate and the happening or significance of which CA expected the appellant would understand without needing to provide an explanation. And, potentially, the appellant’s failure to ask what he was referring to might be thought to suggest that she did indeed understand the reference. 313 The appellant’s evidence, however, was that she did not know what CA was referring to when he mentioned the ‘touch’ in his email, and whilst she conceded there may have been incidental physical contact of a non-sexual nature, she did not recall any physical contact.226 314 The respondent had, in closing submissions, made a submission that the appellant’s failure to call CA entitled the Tribunal to draw an adverse inference that his evidence would not have assisted the appellant’s case. The topic of whether a more-than-incidental touch had occurred was given as an instance of an 225 Exhibit A1, p 342 [SAB 444]. 226 Reasons [93] records that the appellant conceded that there may have been some incidental touching of a non-sexual nature such as a brush of his uniform, a handshake or a hug goodbye. As the appellant has submitted however, that slightly misstates her concession in evidence. The appellant said that she did not think there was a hug but said that ‘it could have been a possibility of some of those other things but I just can’t tell you’: 4TR18. -- 89 of 113 -- [2024] SASC 133 B Doyle J 86 issue in relation to which such an inference might be drawn.227 The respondent submitted that on that and other topics, such as at whose initiative emails had been deleted, the absence of evidence from CA was ‘another reason why [the Tribunal] should [not] accept the explanation that’s been given’ by the appellant where that evidence invited the Tribunal to read the emails in a different way to what, on the respondent’s case, they naturally suggested.228 315 The appellant’s senior counsel, in her closing submission, submitted that no Jones v Dunkel229 inference should be drawn against the appellant in circumstances where CA was equally available to the respondent. The appellant emphasised that even where the circumstances permitted such an inference to be drawn, there was a discretion whether to draw such an inference.230 In respect of the ‘touch’ issue, it was submitted that the evidence did not rise beyond speculation so as to call for explanation, that CA’s account in the form of his letter and interview was inconsistent with there having been a physical interaction at that time, and further that the Tribunal should not draw an inference that there had been any inappropriate physical interaction in circumstances where the respondent could have called, but did not call, CA as a witness.231 316 The principles respecting the drawing of adverse inferences that apply in an ordinary civil inter partes dispute are not to be automatically applied without modification to a disciplinary matter proceeding before a tribunal. 317 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.232 Even in a curial setting, the drawing of an adverse inference, where one is open to be drawn, is not compulsory.233 In a tribunal in which the rules of evidence need not be applied,234 there is greater flexibility. 318 In considering whether to draw a Jones v Dunkel inference by reason of a witness not being called, it will be necessary to consider whether one or other of the parties to the dispute would have been expected to call the witness. That may not be an easy question to resolve in disciplinary proceedings because, on the one hand, a practitioner may owe a duty of candour235 which may in some 227 5-1TR12. 228 5-1TR13. 229 (1959) 101 CLR 298 (‘Jones v Dunkel’). 230 5-2TR14. 231 5-2TR14-16. 232 See, eg, Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 465 (Doyle CJ, Millhouse and Nyland JJ agreeing). 233 See, eg, Manly Council v Byrne [2004] NSWCA 123 at [52] (Campbell J, Beazley JA and Pearlman AJA agreeing). 234 Section 39(1)(b) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) provides that, subject to any contrary enactment, the Tribunal is not bound by the rules of evidence. 235 The duty of candour owed by legal practitioners in disciplinary matters is itself a professional duty: see, eg, A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at [30] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). -- 90 of 113 -- [2024] SASC 133 B Doyle J 87 circumstances require them to bring forward relevant evidence which is available to the practitioner and believed to be credible and reliable.236 On the other hand, however, the body bringing the charge ought act fairly in the presentation of the case, although that is not to say that the body owes all the duties owed by a prosecutor in a criminal prosecution.237 The role of the body bringing the charge is such that it should usually place before the disciplinary tribunal material of which it is aware that is significant to the decision to be made and which it believes to be credible.238 319 The appellant’s submission to the Tribunal was that it should adopt the approach taken by Mahoney JA in New South Wales Bar Association v Kalaf.239 His Honour there said: In the absence of the evidence of [a witness to a telephone conversation which was in dispute], I am not satisfied that the telephone conversation to which [the practitioner] deposed did not take place. I am therefore not satisfied that [the practitioner] was, as suggested by Mr Stitt QC, not telling the truth in this regard. I do not, in so deciding, express any opinion as to the principles which should determine whether there is, in general, an onus upon the Bar Association or similar body to call all available evidence bearing upon the issue of misconduct. Such an issue does not necessarily arise in the present case and there has been no detailed examination of the considerations involved. But, where the issue is whether a party who has given evidence on oath has lied, where his evidence is not inherently unacceptable, and where a witness who could confirm or deny his evidence is not before the court and could have been, the court must consider carefully whether, in the relevant sense, it is satisfied that the deponent gave false evidence. … What [the professional body] should do must be determined by the considerations of the particular case. But where it asks the court to find, and act on a finding, that a party or witness has lied and asks the court to do so upon the basis of matters such as demeanour or upon, as it has been described, ‘word against word’, it should not ordinarily expect that such a finding will be made or acted upon if there is a person who is able to establish the truth of the matter and that person is not called. 320 The appellant submits that the Tribunal misapprehended the effect of her submission to it, treating it as a submission that, on all relevant issues about which CA might have been expected to give relevant evidence, the respondent’s failure to call him justified an inference that it would not have assisted the respondent’s case. With respect to the Tribunal, and having regard to Reasons [170], that submission may well be correct. 236 Indeed even if the material or evidence is not believed to be credible or reliable the practitioner might, in some circumstances, be constrained in the presentation of their case if they are not proposing to disclose the material. 237 See, eg, Law Society of South Australia v Jordan (1998) 198 LSJS 434 at 465; [1998] SASC 6809 (Doyle CJ, Millhouse and Nyland JJ agreeing), Walsh v Legal Practitioners Conduct Board [2016] SASCFC 52 at [34]-[35] (Stanley J, Parker and Doyle JJ agreeing). 238 New South Wales Bar Association v Kalaf [1988] NSWCA 101 (Mahoney JA). 239 [1988] NSWCA 101 (‘Kalaf’). This passage is reproduced at Reasons [169], but wrongly attributed to Samuels JA. -- 91 of 113 -- [2024] SASC 133 B Doyle J 88 321 The ultimate question, however, is whether the approach taken by the Tribunal to these issues was erroneous and, if so, whether the error is material. 322 In the context of resolving the question about whether any inappropriate touching had taken place, the Tribunal reasoned as follows: [98] The flaw in Ms Walker’s submission that it was open to the Board to call CA on this and other issues (which we will discuss further in relation to Grounds 3 & 4), is that as a model litigant, it can hardly be expected that the Board would call CA knowing that his allegiance is to the [appellant] and not accepting him as a witness of truth. Although the Ahpra Model Litigant Policy is silent on the issue of calling or not calling witnesses, the obligations otherwise imposed on a national health regulator to bring referral proceedings, require it to act honestly and fairly in handling litigation, including acting with complete propriety, fairly and in accordance with the highest professional standards in keeping with the objects and principles of the National Law to protect the public and to be accountable. We consider that this requires the Board and Ahpra to ensure that the Tribunal, as the trier of facts has before it all relevant evidence, whether helpful to the Board’s case or not so that the Tribunal can arrive at the truth. That obligation, however, does not extend to calling a witness who the Board does not consider is truthful or reliable, in much the same way as the Director of Public Prosecutions, in accordance with his office’s policies is not expected to call a witness who in the opinion of the prosecutor, is ‘plainly unreliable or untrustworthy’.240 [99] If the Board had called CA on this (or any other issue), then assuming his evidence would be consistent with his letter of support to the Board and his interview with the Ahpra investigators, the Board would have been in the unenviable position of having to apply to cross-examine their own witness. We therefore reject the [appellant’s] submission that it was open to the Board to call CA and that because it did not do so, that the Tribunal should not draw any adverse inferences because the [appellant] did not call him. We are of the view that in relation to the Touch email, CA was not called because he would not have assisted the [appellant’s] case on this issue; that is, that there was no physical touching at the last treatment session. 323 The appellant complains that the Tribunal’s reference to the Ahpra Model Litigant Policy and the Director of Public Prosecutions’ Policy Guideline was made without affording the parties procedural fairness. Relatedly, the appellant submits that the Tribunal erred in proceeding on the basis that the respondent had formed the view that CA was plainly unreliable or untrustworthy, when no distinct submission to that effect had been advanced by the respondent. 324 Whilst it is generally desirable that a decision-maker not refer to documents or material that have not been the subject of submissions by the parties, that principle should not be pressed too far, and, particularly where the documents or material are not relevant to the primary facts but are referred to in the context of the correct legal approach to an issue, a degree of robustness is called for. 325 The Tribunal’s reference to the Ahpra Model Litigant Policy was for the purpose of identifying, at a general level, the respondent’s duties and, stated at the 240 Citing SA Director of Public Prosecutions Policy Guideline Number 8 and Medical Board of Australia v Tan (2022) 106 SR (WA) 115. -- 92 of 113 -- [2024] SASC 133 B Doyle J 89 level of generality that they were, they were hardly controversial. The policy has been referred to in other decisions of the Tribunal.241 The Tribunal’s reference to the limits applying to the policies of the Director of Public Prosecutions was by way of analogy or comparison. The particular exception to the prosecutorial obligation cited by the Tribunal from the Director’s policy was in substantially the same terms as the exception located in Rule 89(iv) of Part B of the South Australian Legal Practitioners Conduct Rules, to which analogical reference was made by the parties in their submissions.242 No substantial injustice was occasioned by the parties not being invited to make a submission about the Director’s policy. 326 In considering whether the Tribunal erred in relation to the significance it attached to the appellant not calling CA as a witness, it is useful to note the conclusion ultimately reached by the Tribunal in relation to the ‘touch’ issue, immediately after it made the observation that it was appropriate to infer that the appellant did not call CA because his evidence would not have assisted her case on this issue. The Tribunal said: [100] That leaves us to consider whether on the evidence before us we can make a formal finding with comfortable satisfaction that there was some form of physical touching (of a sexual or intimate nature) during the last treatment session on 19 July 2019. Whilst we have very strong suspicions that there may have been, we cannot be satisfied to the Briginshaw standard that it did based on the email evidence discussed above and our assessment of the [appellant’s] credibility, not having heard from CA directly or having the opportunity to assess his credibility. The reference to a touch in the emails is vague and ambiguous. 327 It is evident from this conclusion that no substantial weight was attached to the inference that the Tribunal drew in relation to the appellant not calling CA as a witness. In substance, the Tribunal appears to have followed much the same approach as was suggested by Mahoney JA in Kalaf. Recognising that the references in the email were open to various interpretations, the Tribunal evidently considered that the appellant’s testimony on this issue was not inherently unacceptable, and was not prepared, in the absence of having seen and heard CA give evidence on this particular topic, to make an adverse finding in light of the Briginshaw considerations. 328 Whilst the Tribunal’s finding on this aspect of the matter is of course not challenged, it assists in understanding the significance played in the Tribunal’s reasoning on Grounds 3 and 4 of the failure of the appellant to call CA. 329 The structure of the Tribunal’s Reasons in respect of Grounds 3 and 4 may be summarised as follows: • the Tribunal summarised aspects of the factual background relating to the period following CA and the appellant’s meeting on 20 July 2019, including 241 See, eg, Medical Board of Australia v Shah (a pseudonym) [2023] SACAT 105 at [9] (Supplementary Deputy President Parker). 242 TR5:2-16, Written Reply Submissions of Respondence at [63.6] [SAB 2682]. -- 93 of 113 -- [2024] SASC 133 B Doyle J 90 their discussion about deleting emails and their email exchanges in relation to the ethical implications of the relationship (Reasons [118]-[130]); • the Tribunal summarised the respondent’s allegations including the bases on which the respondent contended that the self-notification and the first interview contained misleading disclosures which were inconsistent with facts known to the appellant, together with the appellant’s response to those allegations (Reasons [131]-[139]); • the Tribunal set out the legal framework in which the allegations and the characterisation of the appellant’s conduct fell to be considered (Reasons [140]-[142]); • the Tribunal described the evidence given by the appellant in answer to the proposition that her misleading or inaccurate disclosures were deliberate or reckless (Reasons [143]-[144]); • the Tribunal made reference to the detailed cross-examination of the appellant on these matters and the evidence of the experts (Reasons [145]- [154]); • the Tribunal then referred to submissions made by the parties and, in particular, dealt with a Browne v Dunn complaint (Reasons [155]-[167]) before coming to the submissions on Jones v Dunkel (at Reasons [168]- [170]). That discussion commenced with reference to submissions advanced by the appellant’s counsel in relation to Jones v Dunkel in relation to the matters the subject of Grounds 3 and 4, and then turned to the appellant’s reliance upon Kalaf. In this context, when setting out a passage from Mahoney JA’s reasons (set out earlier), the Tribunal highlighted the reference to the witness’ evidence not being ‘inherently unacceptable’. Immediately following this, the Tribunal said: [170] We consider that it is not appropriate to reasonably expect the Board to have called CA on this issue for the reasons we have expressed previously [referring to Reasons [97]-[99]]. As CA is clearly in the camp of the [appellant] (for want of a better phrase), we consider that she should have called him to corroborate her evidence and the fact that she did not, leads us to the inevitable conclusion that he would not have supported her case. • the Tribunal then set out its conclusions on Grounds 3 and 4, relevantly comprising: the non-acceptance of the appellant’s evidence that she did not deliberately or recklessly mislead regulators (Reasons [171]); a finding based on the email communications that the appellant and CA both obviously understood the appellant’s ethical obligations and were conscious of the implications if it became known that she had played a role in encouraging the commencement of a relationship with a client (Reasons [172]); a rejection of the proposition that CA’s comments in his 31 July 2019 email were meant in jest (Reasons [173]); a rejection of Dr Lennings’ evidence and a rejection of -- 94 of 113 -- [2024] SASC 133 B Doyle J 91 the appellant as a witness of truth (Reasons [174]-[175]); a finding that the appellant set about deliberately misleading the respondent and Ahpra by distorting the timing and nature of the relationship so as to make it appear that nothing had occurred during the treatment period and that a sexual relationship did not occur until weeks after the treatment period had ended (Reasons [176]); a rejection of the appellant’s stated reasons for her delay in self-reporting (Reasons [177]); a finding that it was incredible that the appellant would not have remembered the contents of the emails (Reasons [178]); and an emphatic rejection of the suggestion that the appellant was merely negligent or careless about the information she provided and the statement she made (Reasons [179]). 330 As the respondent has correctly submitted, the conclusions need to be understood in the context of a number of related and supportive earlier findings expressed in the body of the Reasons. However, what emerges from the structure described above is that the Reasons do not appear to have depended in any material way upon the drawing of an adverse inference against the appellant in relation to not calling CA. 331 The issue of an adverse inference appears to have been dealt with in the context of what the Tribunal understood to be a contention made by the appellant either that a Jones v Dunkel inference should generally be made against the respondent, or that the approach in Kalaf should in any case be followed. As has been noted, in respect of the first proposition, that does not appear to have in fact been the effect of the appellant’s submission. But it tends to suggest that the Tribunal did not consider its conclusion in relation to the inference that could be drawn as forming any important part of the respondent’s case. In view of the approach taken in relation to the ‘touch’ issue, it is inherently unlikely that the Tribunal attached much (if any) weight to the inference in proof of the respondent’s case on grounds 3 and 4. On a reading of the Reasons as a whole, the Tribunal found that the objective record of the events, largely comprised in the emails, presented a clear position of what had occurred, presented a clear picture of the appellant’s appreciation of the ethical issues at around the time they were emerging, and revealed a marked disparity between the true events and the effect of the self-notification, such that there was a very strong case that the appellant’s inaccuracies could not readily have been inadvertent. In terms of the approach of Mahoney JA in Kalaf, on these matters, in contrast to the question of the ‘touch’ on 19 July 2019, the Tribunal did regard the appellant’s account as ‘inherently unacceptable’. 332 I am not satisfied that, even if it was, in this case, not proper to draw an inference that CA’s evidence would not have assisted the appellant, the Tribunal’s conclusions in relation to Grounds 3 and 4 are shown to be erroneous for that reason. 333 Insofar as the appellant has submitted that it was not appropriate to make a generalised adverse inference against the appellant, because the analysis required -- 95 of 113 -- [2024] SASC 133 B Doyle J 92 before a Jones v Dunkel inference can be drawn requires an identification of particular issues, I accept the submission. 334 I am, however, satisfied that there were particular issues relevant to Grounds 3 and 4 about which CA could have given relevant evidence, even though, of course, the ultimate issue was the appellant’s state of mind at the time of the self- notification and the first interview. Those issues include, but are not limited to: the circumstances in which he came to state (contrary to the fact, but consistently with the appellant’s initial account) that they had not spoken outside of treatment sessions nor discussed the possibility of a relationship during that period; whether they had spoken with each other about what they were both proposing to say in relation to the timing and circumstances in which their relationship formed;243 at whose initiative the emails had been deleted; and whether the appellant had (to CA’s knowledge) delayed her notification for reasons related to CA’s ongoing concern about how W might react. 335 I am further satisfied that whilst there can be no hard and fast rules governing the approach to be taken in disciplinary proceedings, in the present case, having regard to: • the obvious and close connection between the appellant and CA (he is a paradigm example of a witness in a party’s camp); • the fact that, viewed objectively, CA’s own disclosures to the regulators had been shown in some respects to be inaccurate (giving the respondent pause before considering that if it were to call CA his evidence would be reliable); it would have been open to the Tribunal to conclude, in respect of particular aspects of the evidence about which CA could have given evidence, that his evidence would not have assisted the appellant. 336 I accept that it would be wrong generally to treat the appellant’s evidence as entitled to less weight because she did not call CA to corroborate her account. I also accept that the manner in which the Tribunal expressed itself in one of its concluding comments at Reasons [183](4) (where it refers to ‘adverse findings against the [appellant] for not calling CA as a witness’) might, read in isolation, suggest that that kind of approach has been taken. 243 There was cross-examination of the appellant by reference to the same turn of phrase having been used by each of the appellant and CA in the interviews held in May 2020: 3TR5, 3T83. I accept, of course, that even in a tribunal not bound by the rules of evidence, a Jones v Dunkel inference would not be appropriate in respect of a topic which might be said only to be collaterally relevant to the credit of the appellant, and I accept, as well, that CA’s own interpretation of events was not in and of itself relevant. But in circumstances where it was apparent they had discussed the events prior to the self-notification and the interview, and where there were inaccuracies common to both their accounts, CA’s evidence about those matters was not only collaterally relevant to CA’s credit; it was potentially relevant to her state of mind when making inaccurate statements, a matter which was directly in issue in the proceedings. -- 96 of 113 -- [2024] SASC 133 B Doyle J 93 337 If the conclusion properly to be drawn from the whole of the Tribunal’s reasons was that that was how it in fact proceeded, I would find that that involved error, and it would be necessary to consider for myself whether, bearing in mind the limitations attending a review on the record, I am in a position to make findings about the dispositive factual questions. For the reasons I have set out, I do not, however, take that view of the Tribunal’s reasons.244 I consider that the somewhat inapt language used in Reasons [183](4) is in the context of explaining that adverse findings have not been made against CA personally. I will, in any event, express my conclusions based on my independent review of the materials. Error in making adverse findings against CA 338 The appellant submits that contrary to what it said at Reasons [183](4), the Tribunal did in fact make adverse findings against CA, and she points in particular to Reasons [173] in this regard. 339 In my view, the question whether or not findings are to be characterised as adverse findings against CA is not one the answer to which assists in identifying any relevant error in the Tribunal’s dispositive findings (much less its orders). Whilst care should be taken in decisions of tribunals and courts alike not to express conclusions that are harmful to the reputation of non-parties where that is not reasonably necessary for the proper resolution of the case, the making of an adverse finding against a non-party is not, without more, an error that avails a party. 340 Further, I do not consider that the findings in Reasons [98]-[99] are findings that CA would not have been a truthful witness. The Tribunal was simply stating that the respondent would have been entitled to take the view that if his evidence were to be consistent with the terms of his letter and interview, it would not be reliable or trustworthy when judged against the version of events alleged in the Amended Referral and which, it may be presumed for those purposes, the respondent had a reasonable basis to advance with reference to the email documentation and the later revelations in the appellant’s second interview. 341 I will deal, however, with the complaint the appellant makes as to the Tribunal’s reasoning at Reasons [173] which stands independently of the question whether it involved an adverse finding against CA. 342 With reference to the email exchange of 31 July 2019, the Tribunal said: [173] We do not accept that CA’s comments about their relationship on 31 July 2019 (about them not having engaged in sexual intercourse and being respectful of the [appellant’s] ethical obligations) were meant in jest. As a high ranking police officer, he above all others should be aware of evidentiary matters and records. His email correspondence on that date, smacks of an audacious attempt to deceive the 244 Whilst not decisive, I note that the Tribunal was not asked to reason in that kind of global fashion by the respondent: 5TR1:12-13. And the appellant’s senior counsel rightly cautioned the Tribunal against such an approach: 5TR15. -- 97 of 113 -- [2024] SASC 133 B Doyle J 94 authorities about the true nature of his relationship with the [appellant] and she herself, admitted in evidence that she was aware that it was incorrect and did not accurately reflect their relationship. The fact of that relationship is not in our view, a topic for jocularity especially with the knowledge of Dr Angelakis’ ethical obligations under the Code and the potential ramifications of breaching it, which is evident from the series of emails between them on this topic. We do note that it is very evident from the voluminous emails passing between the [appellant] and CA, that he has a tendency to express his humour by the use of emojis, but that he did not do so when he stated: The main point is that there has been no ‘sexual activity’ between us-ever. 343 The appellant points to a number of contextual matters, and makes a number of arguments, in support of a contention that the Tribunal erred in finding that, at least from the appellant’s perspective, CA’s email was not meant in jest. By way of context, the appellant points to emails preceding and following CA’s email. I have set these out earlier. They include the appellant’s response (‘Ha! I’m going to need to keep that paragraph in case I ever have to go up in front of the psych board!’) and CA’s further response (‘It’s all true!!!! That’s the best thing.’) 344 The appellant contends that the Tribunal wrongly adopted a kind of normative or moralistic approach to determining whether CA was (or could have been interpreted to have been) joking (‘[t]he fact of that relationship is not in our view, a topic for jocularity’), and overlooked language more suggestive of levity (in the preceding and following emails). The appellant contends that because, by this time, they had commenced engaging in sexual activity, and, further, because it would never be credible to suggest that they were in a romantic relationship for two years without engaging in sexual intercourse, the paragraph must have been intended as a joke, as the appellant said she interpreted it. 345 The respondent, on the other hand, points out that the self-notification letter to the respondent created the impression that no sexual activity had occurred until August and that, viewed in that light, CA’s comment, as at 31 July 2019, that ‘there has been no ‘sexual activity’ between us-ever’, was false, but consistent with the false impression ultimately created. 346 Recognising, of course, that the question is not how I would have interpreted the email but its significance in assessing the appellant’s state of mind at relevant times, I would not interpret CA’s email as foreshadowing a plan to suggest there had been no sexual activity in the period up to and including the email. The email is more readily understood not as a plan retrospectively to deny that there was any sexual activity over a past but finite period, but rather as contemplating a report to be made reasonably imminently and framed in terms of a statement of intention not to engage in sexual activity for a further period. The earlier language in the email (‘there will be no ‘sexual activity’ as we both agree that …’) is consistent with that reading. 347 Whether or not a suggestion that they would refrain from sexual activity for a future period of that length might be regarded as realistic (or as so unrealistic that it suggests it was not being seriously floated), there are aspects of CA’s email of -- 98 of 113 -- [2024] SASC 133 B Doyle J 95 31 July 2019 which do appear to reflect the promotion of a narrative that is both inconsistent with the facts as they then knew them to be and which are reflected in the later self-notification. CA’s email stated: ‘Our interactions started out as friendship after we ceased seeing each other professionally. We were both through break-ups and our friendship developed into a romance …’. The email went on to address questions of vulnerability and resilience. None of those topics were likely to have been raised as a joke, even if the proposition that no sexual activity had occurred or would occur might have been, to their minds, a laughable one. 348 Irrespective of how seriously CA was floating a narrative concerning abstinence from sexual activity, the email remains of significance because: • the narrative to the effect that, following the cessation of treatment, there was a distinct ‘friendship’ phase which subsequently developed into a romance was, to their knowledge at that time, false. They had kissed on the first occasion of seeing each other following the treatment session, and, within a week of that occasion, discussed that they were ‘together’ and engaged in sexual intercourse; • whether or not the appellant, at the time of receipt of the email, herself had any particular intention about how she might approach the question of notifying the regulator (or answering a complaint), she could not have failed to appreciate that CA’s email contained a narrative that was false but more likely to be palatable from a regulator’s perspective, because it would be more consistent with a romantic relationship having developed unexpectedly and organically after treatment had concluded, rather than having commenced so soon following the last session that a regulator would naturally be concerned that it may have had its seeds in unprofessional interactions during the treatment period; • if, as may be inferred, the appellant had at least that appreciation at the time of reading the email, it makes it even less likely that she later was not able to recall the real sequence of events and the timing and circumstances of the development of their relationship; • relatedly, it seems inherently unlikely that the appellant and CA would both innocently and coincidentally mischaracterise the real sequence of events and the timing and circumstances of their relationship in a fashion which CA had, seriously or not, expressly floated in the 31 July 2019 email. 349 For these reasons I consider the email is significant and supports the Tribunal’s ultimate findings even if the Tribunal was not correct to consider that every aspect of the email, such as the proposal to suggest that no sex had occurred or would occur for a two year period, was meant by CA or interpreted by the appellant as being serious. -- 99 of 113 -- [2024] SASC 133 B Doyle J 96 350 Further, the appellant’s submission that the part of CA’s email suggesting a narrative in which no sexual activity had occurred means that the email was or was interpreted by the appellant as being ‘in jest’ because it was so obviously false and incredible cuts both ways. To accept that it could not have been serious because it was known to be so seriously false is to attribute to the appellant a mindset that sits somewhat ill with failing to self-notify for a further period of approximately five months. 351 In the end, the email of 31 July 2019, and what it says about the appellant’s state of mind at the time, and later, was one piece in a significant body of evidence. Whilst the way in which the Tribunal expressed its view about the significance of the email may be read as having incorporated an air of disapproval, I do not consider on my independent review of the evidence that it was wrong to regard the email as ultimately fortifying a rejection of the appellant’s evidence to the effect that the inaccuracies in her later account were to be explained in the way that she said. Selective or incomplete consideration of the evidence/demeanour 352 The appellant submits that the Tribunal engaged in a selective consideration of the evidence. In particular, the appellant complains that the Tribunal erred in law, in fact, or in mixed fact and law by finding that the appellant would not have remembered the contents of the emails without considering or giving adequate reasons for rejecting (or rejecting the significance of): • the appellant’s evidence in relation to the impact of having had access to the emails at the time of her self-notification; • the appellant’s evidence about why she did not mention the fact of their attendance at F45 classes together; • the fact that the appellant had volunteered in the first interview that they had first met up on 20 July 2019 even though phone records did not show this; and • the fact that the appellant produced the emails to Ahpra even though they were not in her possession when she was issued with a Schedule 5 notice. 353 To the extent that the appellant contended there was an error of law, it was not entirely clear whether the error alleged was a failure to have regard to a material fact or a failure to give adequate reasons. I proceed on the basis that the appellant argues for either approach. Complaints of this kind often overlap,245 and a consideration of the reasons will usually be necessary to make good a contention 245 Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [98] (Livesey ACJ, Bleby and David JJA). -- 100 of 113 -- [2024] SASC 133 B Doyle J 97 that an aspect of the evidence was not properly considered (putting to one side rare cases where a decision-maker expressly disregards an item of evidence).246 354 But the mere fact that an aspect of the evidence is not specifically referred to in reasons for judgment does not mean it was not considered, particularly where the Tribunal stated, in terms, that all the evidence had been reviewed and considered (Reasons [183](1)). Of course, an appeal court will not uncritically accept a conclusory statement of that kind. It is necessary to consider the nature of the evidence or issue said not to have been considered, first to determine its substantiality and cogency, and then to consider whether it can be concluded that the matter has not been considered, as distinct from considered but not found to be compelling or persuasive. In undertaking this exercise it is appropriate to bear in mind the realities and practicalities adverted to by Leeming JA in the decisions referred to earlier in these reasons. 355 Turning to the obligation to give reasons, the principles were summarised in Boyle (a pseudonym) v The Queen:247 Reasons are to be read as a whole.248 It is not necessary for a judge or magistrate to give extensive and elaborate reasons.249 The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision.250 However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.251 Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge.252 356 Obviously, there are limits to the requirement to deal distinctly with every item of evidence and argument presented. Justice Nettle dissented in the outcome in DL v The Queen.253 However, even on his statement of the principles, it is relevant to consider whether evidence was ‘cogent’, and whether arguments are ‘substantial’. In a passage recently referred to by the Court of Appeal with 246 In Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130], Hayne J explained how reasons that do not refer to or record consideration of an issue may reveal a failure to examine all of the material relevant to a particular issue. 247 [2022] SASCA 50 at [119] (Livesey P, Lovell and Bleby JJA). 248 R v Ricciardi (2017) 128 SASR 571 at [25]. 249 R v Ricciardi (2017) 128 SASR 571 at [25]; R v Mayger (2013) 116 SASR 488 at [21]; R v Keyte (2000) 78 SASR 68 at [52]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–6. 250 DL v The Queen (2018) 266 CLR 1 at [32]. 251 Fleming v The Queen (1998) 197 CLR 250 at [28]. 252 DL v The Queen (2018) 266 CLR 1 at [32]-[33]. 253 (2018) 266 CLR 1. -- 101 of 113 -- [2024] SASC 133 B Doyle J 98 approval in the context of the reasons required to be given by the South Australian Employment Tribunal,254 his Honour said:255 Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law. (citations omitted) Evidence about lack of access to emails and reasons for not disclosing F45 357 The appellant’s submissions on appeal draw attention to three passages in the evidence of the appellant. 358 In relation to her state of mind at the time of her self-notification, the appellant refers to her evidence: • first, in her evidence in chief:256 I think there was a confusion in my brain as to the timeline of things. When I wrote this I didn’t have the emails. I didn’t have the ability – like I didn’t have the, yeah, the ability or I didn’t look through them all, and I do wonder whether in part maybe I thought emails that happened before had happened later or that things that had happened earlier had happened later there too. I think there was just a lot of confusion, but again, when I wrote that I didn’t – like, I agree it’s not accurate, but I didn’t mean it to be misleading. • secondly, in cross-examination:257 When I put [the self-notification including CA’s letter] in, it was, it was my understanding that the relationship had started in August. That we had been, like, friendly, and social ahead of that. I think obviously my timeline there has been wrong but when I put that in, that was what I, that’s what I thought was happening then. So, when you say deliberate or on purpose, like, yes, I wrote those words but in the notion of that’s what I thought was actually happening at the time. 359 In relation to her state of mind at the time of the first interview, the appellant refers to her evidence in chief in answer to the question whether, in light of her 254 Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [102] (Livesey ACJ, Bleby and David JJA). 255 DL v The Queen (2018) 266 CLR 1 at [131]. 256 2TR43. 257 3TR67. -- 102 of 113 -- [2024] SASC 133 B Doyle J 99 evidence that she had seen CA at F45 sessions, her statement during the interview that she had not spoken with him outside formal therapy sessions apart from a couple of emails was false and misleading:258 I’m almost in two parts with this. One is I think I was so focused on the relationship, the sexual relationship with [CA], that I didn’t even think of, like, F45, but also I wonder whether like some part of me maybe got the timeline wrong with that, but that it came from the sense of I just was so focused on the other – I don’t want to say big stuff – but, like, the relationship, sex, like seeing him continuously, like, after the 20th, that I didn’t even think or put gravity on, like, F45 or the takeaway coffee or bumping into him at the carpark. 360 The last of these passages of evidence was referred to by the Tribunal at Reasons [143] in the second bullet point under the heading ‘The First Interview’. The gist of the second of the passages was referred to by the Tribunal at Reasons [143] in the third bullet point under the heading ‘The Self-Notification’. The first passage is set out in the sixth bullet point under the heading ‘The Self Notification’. 361 In respect of the first passage set out above, it is important to appreciate the answer was in response to a question about the absence of reference in the self- notification to their attendances at F45 and their coffee catch up. She was asked, when she wrote the letter, when she thought those events occurred. Just prior to this, the appellant had been asked to respond to the allegation that the statement in her self-notification that her personal relationship with CA commenced ‘following the clear termination of treatment’ was misleading because of the social interactions and communication during the treatment period. The appellant answered:259 When I – again, when I wrote this, I was – I didn’t – I don’t know if this is the right word, but I didn’t appreciate, I didn’t kind of understand and see the – or didn’t even remember, like, all of those emails and see them as boundary violations when I wrote that, it was – which is, like, obviously quite inaccurate, but, like, when I wrote that I was of the opinion that – I don’t know how to put it, but, like, that’s actually what I thought, that, you know, we’d ended treatment and then as of, like the 20th things just kicked off from there. 362 That answer tends to confirm that the appellant was not, on her evidence, before the Tribunal reliant on the emails to recall that they had met and kissed on 20 July 2019, the day following the last session (the date of which was known to the appellant as it is set out in the self-notification). Accordingly, what the appellant was addressing in the first passage of evidence was something she put no higher than a possible explanation for not mentioning (or recalling) that the F45 and coffee interactions had occurred prior to the cessation of training, namely, that she thought these events had occurred after they had kissed on 20 July 2019. The explanation does not appear to be that she had mistakenly placed their first kiss later in time, with the F45 and coffee interactions perhaps occurring between the cessation of treatment and the first kiss. 258 2TR58-59. 259 2TR42. -- 103 of 113 -- [2024] SASC 133 B Doyle J 100 363 Because I would regard it as unlikely that, even without access to the emails, the sequence of events could be mistakenly inverted in this way, and because the appellant herself did not commit firmly to this explanation, I would not regard the evidence in question as cogent and of a kind which, absent distinct recitation and rejection, might be inferred was overlooked. 364 In any event, as noted, the evidence was referred to and it is clear that the Tribunal generally rejected the appellant’s explanations for the inaccuracies in her accounts (Reasons [171]). 365 Further, given the quality of the evidence given by the appellant, I do not consider that the Reasons are deficient for failing to set out why individual passages were not found to be compelling. 366 The appellant’s submissions under this ground of appeal included contentions that: Dr Angelakis’ timeline of the development of the relationship as set out in the self- notification and the first interview was incorrect. The reasons for her confusion as to the whole timeline [are] clear if the end of treatment is considered to be the commencement of the catchment sessions. That is a matter of some six weeks; the Appellant’s self- notification occurs some seven months later. The Appellant gave evidence of ‘not understanding or clocking the level of contact that had occurred during the catchment phase …’ It is entirely plausible that the Appellant incorrectly recalled that the relationship had developed after the end of all sessions, rather than when it did (i.e. after the end of the structured PTSD treatment sessions but before the end of the catchment sessions, which had been required by CA’s employer). (footnotes omitted) 367 The difficulty I have with that submission is that at the first interview the answers given by the appellant show that she did recall that their first kiss had occurred the day following the last treatment session. Under cross-examination she gave an answer to the effect that she recalled that the kiss had occurred on 20 July 2019 when she made the self-notification and that there was nothing intentionally misleading in its omission from the letter because, ‘when I put in the notification, I was assuming that I was going to be talking through those details’.260 The self-notification letter contains a detailed description of the phases of treatment of CA. When I consider those matters in combination I do not find an explanation that the appellant had effectively forgotten about the treatment extending into the catchment period and therefore to the eve of their first kiss to be a plausible or persuasive one. 260 3TR66. -- 104 of 113 -- [2024] SASC 133 B Doyle J 101 Failure to bring to bear or engage with proffering of meeting on 20 August and recovery and provision of emails 368 The appellant submits that in considering whether it could be comfortably satisfied that the appellant had deliberately or recklessly misled the respondent and Ahpra, the Tribunal failed to bring to bear (or its reasons fail to explain what it made of) the circumstance that the appellant volunteered the detail of the meeting on 20 July 2019 at the first interview when it was not revealed by phone records, and that she produced the email communications. 369 In respect of the former, the appellant also submits that the volunteering of the events of 20 July 2019 undermines the Tribunal’s finding at Reasons [176] that the appellant ‘set about deliberately misleading the Board and Ahpra by distorting the timing and the nature of her relationship with CA so as to make it appear that nothing had occurred during the treatment period and that a sexual relationship did not occur until weeks after the treatment period had ended’. 370 Dealing with that point first, I consider that Reasons [176] is to be understood as recording the Tribunal’s finding as to the appellant’s approach preceding the self-notification. It can hardly have escaped the Tribunal’s attention that by the time of the first interview, the appellant’s account included that the appellant and CA had sex sooner than ‘weeks after’ the treatment period had ended.261 371 The real question is whether the Tribunal erred by failing distinctly to address in its reasons the contention that the volunteering of additional information at the first interview and the subsequent cooperation in producing the emails were contraindicative of dishonesty or recklessness in her approach to dealing with regulators. 372 As I have said, reasons need not address every argument and every item of evidence but should address substantial arguments advanced by the parties. Here, the contentions made in relation to these issues were particular strands of the appellant’s argument that the appellant did not act dishonestly or recklessly.262 The reasons why the Tribunal came to the contrary conclusion are clear enough. The extent to which it was necessary to confront and comment on particular strands of the contrary argument is difficult to divorce from a consideration of the force of the argument or arguments in question. 373 In the case of the ‘volunteering’ in the first interview of events on 20 July 2019, a number of observations may be made. According to the telephone records, the first phone call between the appellant and CA was a call from CA to the appellant on 23 July 2019 of 1713 seconds, which equates to nearly half an hour. That information, which was not available to the respondent at the time it received the self-notification, was likely to call for some context or explanation in the first 261 As earlier set out, the appellant’s answers were to the effect that they would have had sex on the ‘27th, 28th-ish’, when, in fact, it was slightly earlier, on 26 July 2019. 262 See the appellant’s closing submission at 5TR1:36-38. -- 105 of 113 -- [2024] SASC 133 B Doyle J 102 interview. The question whether this relatively lengthy call was the first communication following the last treatment session was likely to be asked. 374 That said, the point remains that if the appellant was intent on deceiving the regulators there was no need for her to volunteer that they had met on 20 July, and that they kissed on that occasion (as there was some risk associated with doing so). 375 Against this, however, the appellant’s account of how they came to meet on that evening, and the suggestion that CA rang on a night when she was, in any event, staying at her sister’s place, is problematic for the appellant. Her evidence was that this amounted to ‘gap filling’. 376 To state the obvious, where the account she gave differed from the true narrative, it presented a version of events that was less likely to reflect adversely on her conduct. Her narrative was consistent with CA being the initiator, and with the fact of having been at her sister’s house when he called as adventitious. In fact, she had promoted a Saturday, rather than Sunday, catch up, and had decided to go to her sister’s house for the very purpose of being alone with CA. 377 In my view these circumstances very powerfully undercut any favourable inference that might otherwise be drawn about the appellant’s candour in volunteering the catch up on 20 July 2019. So does the circumstance that none of this was mentioned in the self-notification, despite the appellant stating in her letter that: … I wish to be transparent with the Board by giving full and frank disclosure of all facts which the Board may consider material to this breach. … I believe that it is imperative for me to be honest with the Board and for me to voluntarily notify the Board of this breach. … In an effort to be completely transparent I have provided this detailed report, along with [CA]’s report, and have documented the evolution of our relationship honestly. … 378 In relation to the retrieval of emails, again, the significance to be attributed to this circumstance needs to be seen in context. At the time the appellant received a notice from Ahpra on 17 November 2020, some months had passed since the first interview at which investigators were informed that the appellant and CA had kissed one another the day after the last treatment session. The investigators had had access to phone records, which did not show communication between the appellant and CA until a later time. The terms of the notice made clear that the investigators had reason to think that there might be email correspondence between the appellant and CA that may be of relevance between 27 April 2019 and 23 July 2019. The notice did not only require production of any emails during that period, it required ‘details of whether [she] corresponded with [CA] between 29 April 2019 and 23 July 2019 by any other means, and if so, copies of any and all correspondence’. And the notice was accompanied by provisions of the legislation that set out the powers of investigators and that offence provisions relating to a failure to give stated information without reasonable excuse. -- 106 of 113 -- [2024] SASC 133 B Doyle J 103 379 Whilst it may be that the appellant would not have been in breach of the requirement to produce the emails if she had satisfied herself that they were not recoverable from her own email records, her account of how the emails came to be retrieved suggests that she had, by this time, appreciated that there were relevant emails between her and CA and that they had been deleted. Once the appellant became aware from CA that the emails could be retrieved by him, it is difficult to see that simply adopting the position that they were not required to be produced because they were not in her possession at the date of the notice would have been a tenable approach. 380 That is not to say that the appellant’s production of the emails without obfuscation is not to her credit, but nor, in my view, was it a highly significant matter when considering whether, at the time of the self-notification and first interview, the inaccuracies in her account were inadvertent. Whilst I have hesitated before reaching this conclusion, I have concluded that this issue falls into the category of arguments that was not so central or substantial that it required separate treatment in the Reasons. 381 Had the emails been produced without the appellant having received a compulsory notice at all,263 that would have been a significant and substantial matter. But bearing in mind that the Tribunal had found that when the appellant deleted the emails she had done so with knowledge that the exchanges between her and CA between 8 and 19 July 2019 were client records that she had an ethical obligation to keep confidentially for seven years,264 the contention that her production of the emails was a factor to be weighed before concluding that the appellant had been deliberate or reckless in misleading regulators, whilst fairly made by her counsel,265 was not so substantial or cogent that the Tribunal erred in law by failing in the Reasons to assign a distinct reason for its rejection. 382 In this context it is relevant to note that although the appellant said that one reason for deleting emails was to ensure that neither of their partners saw the communications, the appellant accepted in cross-examination that all of their emails were deleted including emails sent before 8 July 2019 which she said she would not have been concerned about H or W seeing.266 383 For those reasons I do not consider the Tribunal erred in law in the ways contended for by the appellant. Nor, based on my independent review of the evidence, do I consider that the Tribunal erred in fact in its ultimate conclusions, for reasons I have earlier given and return to below. 263 In cross-examination, the appellant said in hindsight she should have ‘given them the emails’ in response to Ahpra’s first documentary request: 3TR65. 264 Reasons [147]; see 4TR56. 265 5TR1:37. 266 4TR57. -- 107 of 113 -- [2024] SASC 133 B Doyle J 104 Miscellaneous errors and contention that errors material in combination 384 The appellant contended that the errors made by the Tribunal were material, both individually and when combined. I address this contention in the concluding part of these reasons. 385 The appellant also included, by way of a schedule to her submissions on appeal, a document titled ‘Schedule of Errors in the Statement of Reasons’. These were not advanced as distinct grounds of appeal but were submitted to indicate a ‘concerning lack of attention to the evidence and the submissions’, which justified this Court treating the Tribunal’s attribution of weight to the delay in self- notification with caution. 386 Having reviewed the schedule, I conclude that some of the instances identified are either not errors or would be better described as infelicities of, or minor inaccuracies in, expression, of a kind that would be expected in lengthy reasons traversing a substantial body of facts and evidence. 387 There are two matters that are more substantive. The first is that in Reasons [71] the Tribunal contrasted the two email addresses used by the appellant when communicating with CA by describing them as her ‘professional and personal email addresses’. As the appellant has submitted, the appellant’s unchallenged evidence was that the ‘gmail’ address was also used for work, meaning that the Tribunal’s labels involved a false contrast. There is force in this, but the Tribunal did note that the appellant’s evidence was that both addresses were used interchangeable with all clients. Considering the matter for myself, I would accept the appellant’s submission that there was little or no forensic significance in the fact that the appellant communicated with CA using her ‘gmail’ address. Given that some of the non-therapeutic communications came from her ‘psychmed’ address, the email addresses used appear not to have been of significance to the appellant. That said, I do not consider that this issue played a significant role in the Tribunal’s reasoning. 388 The second is that in Reasons [177], in the context of finding that the delay in notifying the respondent of her transgressions was ‘corroborative of her intent to mislead’, the Tribunal wrongly observed: There was simply no reason for the [appellant] and CA to remain clandestine about their relationship after 20 July 2019 to protect his contact with his children as the [appellant] stated in her evidence given by that time, according to the email correspondence, their respective spouses were already aware by then. 389 In fact the appellant’s evidence was to the effect that H became aware of the relationship in about September or October 2019 and that W was not told about it until some time between 10 and 25 February 2020. 390 Undoubtedly, anxiety about the implications of revealing the timing and circumstances of their relationship to their respective spouses played a part in the decision of the appellant to keep their relationship clandestine for a period. But it -- 108 of 113 -- [2024] SASC 133 B Doyle J 105 seems equally clear that ethical implications also played a part in the delay in the open disclosure of their relationship. The appellant had said that fear about Ahpra might do was a reason for keeping the details of the relationship closely confined.267 391 The email exchanges between the appellant and CA on 21 July 2019 (in which the appellant commented that when speaking to her sister she ‘may have omitted my unethical behaviour’) and on 31 July 2019 (when the appellant and CA discussed the effect of clause C.4.3 of the Code) make it clear that the appellant had an appreciation by that time that there had been ethical transgressions. That is difficult to square with the statement in the self-notification letter that the notification was being made shortly after the gravity of the ethical issues became obvious.268 One can understand that the appellant would have been anxious not to jeopardise CA’s position with respect to access to his children by alerting W to the existence of the relationship but, as the appellant accepted in cross-examination, that risk remained when, after the appellant had notified the respondent, CA first disclosed their relationship to his wife.269 However understandable that anxiety may be, the fact that the appellant was prepared, with the knowledge that she was committing an ongoing ethical transgression, to delay notification, is a matter which is capable of buttressing a conclusion that inaccurate statements in the ultimate notification were not inadvertent. As well, the appellant did acknowledge, in cross-examination, that a concern that disclosure to others might lead to a report to Ahpra ‘must have been somewhere in there’.270 392 The self-notification did not state that the appellant had wanted to notify earlier but had been concerned about the implication for CA of revealing their relationship. It instead suggested that the timing of the notification was prompted by the relationship only progressing to a serious level after the passage of some time. 393 In those circumstances, the Tribunal’s conclusion that the delay in notifying was corroborative of her intent to mislead is supportable without a finding that there were no other reasons that might have contributed to the delay in notification or in making their relationship more widely known. 394 Standing alone, of course, the delay would not be a sufficient basis to make the relevant findings and, for my own part, given the independent reasons that were no doubt motivating the appellant and CA to keep to themselves, for a period, the 267 3TR52-53. 268 The appellant’s evidence about this was not, with respect, persuasive. When asked in her evidence in chief to respond to the suggestion that that statement was false or misleading, she said: ‘It’s very much, I guess, a bit more of that sense of I should have seen it, I should have seen all of these things, but at the time I didn’t, and in writing that, that comes from that conduct that Sam Angelakis of 2020 that just didn’t see this coming. I in no way meant to be misleading, I didn’t intend it to be misleading, but I think my perceptions and my understanding of the time, like my understanding of my behaviour at the time (indistinct) inaccurate, and when I say that I made this notification ‘shortly after’, I can appreciate now 6 months is not shortly after, but I also think at the time, like, life just went like that – and again, not an excuse, but I think that’s where that term came from’: 2TR41. 269 3TR48-49. 270 3TR50. -- 109 of 113 -- [2024] SASC 133 B Doyle J 106 fact of a developing relationship that had commenced whilst they were still both married, I would not place significant weight on delay. But it did not stand alone. 395 I am not persuaded that these two errors I have referred to are material. Conclusion and disposition 396 I have considered the errors contended for by the appellant individually and collectively and notwithstanding the thorough and thoughtful submissions made on the appellant’s behalf on appeal, I am not persuaded that any material error is demonstrated in the Reasons. I have also considered whether, based on my independent review of the evidence, and making allowance for the fact that I did not observe the appellant give evidence, I would make the same ultimate finding as the Tribunal. 397 In the end I consider, based on an assessment of the evidence and the logic of events, that the appellant must have appreciated or at least been reckless as to the fact that aspects of what she said in her self-notification and then in the first interview were inaccurate or misleading. 398 Without having reviewed the emails, aspects of the detail of them, and perhaps even the full extent of them, may not have been recalled by the appellant at the time of her self-notification. I allow for the possibility that a sense of shame, coupled with a fear of the consequences and a sub-conscious sense of professional self-preservation, may have made it difficult and uncomfortable to revisit the details or the extent of the non-therapeutic interactions that had occurred up to and including on the date of the last treatment session. But it is very difficult to think that the appellant did not remember the key elements of what was a momentous 24 hours which involved their final treatment session being followed by both of their existing marital relationships striking serious, if not terminal, difficulty, followed by the making of arrangements to meet at a private location the following night when they drank together and, ultimately, kissed. Indeed, with the exception of the detail of how the meeting was arranged, the appellant did have a recall of those events when she attended the first interview, and based on her evidence at trial, there is no reason to think that memory was revived only after the self- notification. 399 Once that is recognised, it is very difficult to accept that there could have been any difficulty in recalling that the events of 20 July 2019 were not entirely unheralded. Whilst the fact of there being major developments in both CA’s and the appellant’s marriages within hours of the last session may have been remarkable,271 and whilst this may have acted as an unexpected accelerant to the appellant and CA commencing an intimate relationship, the way in which they communicated on 20 July 2019 about meeting up unmistakeably suggests that by one means or another they had each, prior to that time, made known their mutual 271 In respect of CA’s marital situation, the appellant had herself remarked that ‘I thought something like that might unfold when you got home’: Exhibit A2, p 1349 [SAB 1343]. -- 110 of 113 -- [2024] SASC 133 B Doyle J 107 attraction. The appellant could not have been unaware of the ethically problematic nature of having interacted in that way. The earlier ethical transgressions are part and parcel of how striking circumstances of the events of 20 July 2019 could unfold as they did. The appellant could scarcely have been able to recall the events of 20 July 2019 and their proximity to the last treatment session but have become unsure about or oblivious to the existence or timing of the earlier ethical transgressions. The earlier ethical transgressions were apparent from what likely exceed 100 or so emails in the period to 21 July 2019 when the appellant took the step of deleting them (despite having acknowledged their sentimental significance, a concession that, in effect, they captured the beginnings of their relationship and their shared thoughts about what a perfect future might look like), a step she must separately and repeatedly have taken in respect of a significant number of emails after that date in relation to all the further emails over the following days. Indeed, CA had for his part lamented the need to delete the emails but comforted her by saying ‘Don’t worry though, I have it all stashed away in my little brain’. And, later, in mid-August, when he discovered an email from mid-June that had escaped deletion, he re-forwarded it to her referring to it as an ‘early gem’.272 However difficult it might have been to recall the detail of particular deleted emails, it is more difficult to accept that the appellant could have considered the account she provided in her self-notification without the benefit of having reviewed those emails or without at least alerting the reader to the fact that they had not been reviewed as ‘full and frank’. That is so even if, as the appellant said, her motivation for deleting the emails was focused upon the risk of H reading them, rather than concealing the relationship from Ahpra.273 The emails were not routine communications which incidentally captured details of the kind one might otherwise not recall; they were the way in which the appellant and CA began to express their interest in one another; receipt of them was eagerly anticipated and their deletion was undertaken with regret. 400 The Tribunal’s ultimate findings are consistent with the logic of events and, conversely, the logic of events is strongly contraindicative of accepting the appellant’s evidence about her later state of mind. The expert evidence relied upon by the appellant did not have significant explanatory value given that it could not explain positively false elements of the narrative, as distinct from omissions in it, and given that the more important events were, on the appellant’s account, not in fact forgotten or suppressed. 401 Further, making appropriate allowance for the pressure that comes with giving evidence274 and the fact that some people find the process of giving evidence more difficult than others for reasons that do not reflect the accuracy of their recall 272 Exhibit A2, p 1720 [SAB 1714]. 273 2TR30. 274 It is apparent from the transcript that the appellant did find the process of giving evidence challenging: see, eg, 4TR18. But it is also clear that the Tribunal took appropriate steps to ensure that the appellant understood that if she felt under pressure and needed a break she should not hesitate to ask and it would be facilitated: see, eg, 2TR56-57. -- 111 of 113 -- [2024] SASC 133 B Doyle J 108 or their truthfulness,275 the appellant’s evidence about the inaccuracies in her accounts and the reasons for them was, in its terms, unpersuasive. 402 I would not, in these circumstances, consider that a favourable or unfavourable impression about the appellant’s demeanour in giving evidence to be critical to making a finding that the appellant was aware that the self-notification and aspects of her answers in the first interview were inaccurate and misleading. Put another way, even if I were to assume that there was nothing unsatisfactory about the way in which the appellant presented as distinct from the content of her answers, I would not, in this case, consider myself to be in a position where I could not appropriately make findings on the ultimate issues, even bearing in mind the Briginshaw principles. 403 If I had found material error in the process of the Tribunal’s reasoning, or in the Reasons, I would be prepared to make findings that would make it appropriate to dismiss the appeal, even making allowance for not having seen the appellant give evidence. 404 Further, because I have not found material error, it would be appropriate to apply a degree of appellate restraint to the challenge to the ultimate findings given that those findings were made with the advantage of seeing and hearing the witnesses give evidence. But even without applying appellate restraint, I would reach the same result. 405 None of this is to say that there may not be significant reasons to be sympathetic towards the appellant’s position, nor is it to discount the matters that may appropriately be raised by her in relation to the orders that might be appropriate following upon the findings that have been made. 406 Ethical obligations are uncompromising, but life is complicated. Nothing could be clearer than that the connection formed between the appellant and CA was powerful and mutually felt. That connection has, it seems, been enduring. 407 It is not alleged, and it would not appear to be the case, that CA was in fact particularly vulnerable to any conduct by the appellant in displaying interest in him. Plainly, the appellant did not consciously exploit her position or any power imbalance that existed. To the extent that reference was made on appeal to issues of ‘causality’ in relation to the timing of the end of CA’s relationship, I would indicate that I see no basis for such findings. Those observations are not intended to condone the ethical transgression; but rather to contextualise them and the findings of misconduct in connection with the inaccuracies in her self-reporting and the first interview. 408 Notwithstanding the conclusions I have reached on the grounds of appeal, the fact remains that the appellant did, ultimately, self-notify and has embarked in a 275 See, eg, Mealey v Power [2015] NSWSC 1678 at [4] (Pembroke J). -- 112 of 113 -- [2024] SASC 133 B Doyle J 109 conscientious way on a process of mentoring and self-reflection.276 Although some issues were contested before the Tribunal, the appellant made significant concessions. The ethical transgressions the subject of the notification would appear to have been an aberration in an otherwise promising and worthwhile career. These will be matters for the Tribunal to consider in the context of the principles informing the imposition of appropriate sanctions under the National Law. 409 I consider that the appeal must be dismissed. I will hear the parties as to costs. 276 See, eg, Reflections by Dr Angelakis July 2021 to March 2022 [SAB 2490-2577]. -- 113 of 113 --