Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Taylor v Medical Board of Australia [2023] NSWCATOD 126 Hearing dates: 3 – 5 May 2023 Date of orders: 25 August 2023 Decision date: 25 August 2023 Jurisdiction: Occupational Division Before: The Hon G Watts, ADCJ (Principal Member) Dr A Reid (Senior Member) Dr S Cowap (Senior Member) D Telford (General Member) Decision: Orders 1. The appellant be given leave to lodge the appeal out of time. 2. The appeal is dismissed and the decision of the Medical Board of 16 May 2022 is confirmed. Costs 3. If the parties are unable to reach agreement within 14 days as to the order for costs: (a) The Medical Board is within seven days to file in writing the order for costs sought and submissions in support of those orders (b) The Practitioner is within a further seven days to file in writing any order for cost sought and submissions in support of those orders (c) The Medical Board is within a further seven days to file any further submissions in reply or indicate in writing that they do not intend to do so. 4. The order for costs is otherwise reserved. Catchwords: OCCUPATIONS- APPEAL- medical practitioner- where the Medical Board has refused the Practitioner's application for specialist registration and the Practitioner has appealed- whether the Practitioner is a suitable person, being a fit and proper person, to hold registration- where the Practitioner was charged in 2004 with criminal solicitation of a minor sexual assault- whether the Practitioner, then age 34, had groomed online a person he believed to be a deaf underage virgin and had gone to meet with her with the intention of having sexual intercourse- whether the Practitioner intentionally failed to disclose to regulatory authorities in Australia and New Zealand the criminal charge pending against him- whether the Practitioner forged the signature of another medical practitioner- consideration of the Practitioner's credibility- where the Practitioner failed to disclose charges and findings of breaches of a violence restraining order- consideration of the Practitioner's insights; his current mental disorders; the public interest and the conditions the practitioner proposes be placed upon his registration- where the Practitioner is not a person suitable for registration- where the appeal is dismissed and costs reserved Legislation Cited: Civil and Administrative Tribunal Act 2013 (New South Wales) Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (Adoption of National Law) Act 2009 Civil and Administrative Tribunal Rules 2014 NSW Cases Cited: Allesch v Maunz [2000] HCA 40 Bahramy v Medical Council of NSW [2014] NSWCATOD 116 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Ex parte Tziniolas (1966) 67 SR (NSW) 448 Percy v Fox [2001] NSWCA 100 Fox v Percy (2003) 214 CLR 118 Gautam v Health Care Complaints Commission [2021] NSWCA 85 HCCC v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 Hornby v Nominal Defendant [2007] NSWCA 222 Kumar v Legal Services Commissioner [2015] NSWCA 161 Lee v Health Care Complaints Commission [2012] NSWCA 80 McBride v Walton [1994] NSWCA 199 Medical Board of Australia v Koulouris [2020] VCAT 348 Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66 Nursing and Midwifery Board of Australia v GMR (Review and Regulation) [2020] VCAT 157 Pridgeon v Medical Council of New South Wales [2022] NSWCA-60 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Schlaepfer v Australian Securities and Investments Commission [2021] NSWCA 129 State Rail Authority of NSW v Earthline Constructions Pty Limited (In Liquidation) [1999] HCA 3 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 Category: Principal judgment Parties: Dr Robert Taylor (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: R Rodger (Applicant) R Francois (Respondent) Solicitors: Newhouse & Arnold Solicitors (Applicant) Clayton Utz (Respondent) File Number(s): 2022/00174792 REASONS FOR DECISION 1. Dr Robert Taylor, also known as Max Munish Mehta [the Practitioner] seeks to appeal [out of time] a decision by the National Special Issues Committee of the Medical Board of Australia [the Medical Board] on 16 May 2022 refusing the Practitioner's application for specialist registration. That application had been made by the Practitioner to the Medical Board under s 77 of the Health Practitioner Regulation National Law (NSW) (the National Law) and if leave is granted to extend time, the Practitioner has a right of appeal under s 175(1) of the National Law. 2. On 3 May 2004 the Practitioner, then aged 34 years (he is now aged 53), was charged in Texas with criminal solicitation of a minor to commit sexual assault on the alleged basis that he had groomed online a person he believed to be a deaf underaged virgin and had gone to meet her with the intention of having sexual intercourse with her. He left the United States prior to the criminal case against him coming to trial. He obtained registration as a medical practitioner both in New Zealand and in Australia and citizenship in New Zealand without disclosing that he was the subject of the criminal charge in Texas. He changed the name to be known in Oceania as Dr Robert Taylor. 3. On 9 March 2016, after the Texas charges had come to light, the Practitioner's registration was cancelled in Australia, and he was disqualified from reapplying for a period of two years. 4. In December 2017, the Practitioner was extradited from New Zealand to the United States. On 11 March 2020 the criminal charge was dropped due to chain of custody issues in the evidence against him. He was re-registered as a medical practitioner in Texas in September 2021, subject to conditions. 5. On 12 May 2016, the Practitioner had been charged in Western Australia and found guilty of multiple breaches of a violence restraining order. He failed to disclose these charges and findings when reapplying for his Australian registration as a practitioner on 16 July 2021. 6. The Practitioner currently resides in Illinois, United States of America at his parent's home but wishes to reside and have the right to practise in Australia. 7. Central to our consideration of the factual history of this case are two current contentions made by the Practitioner. The first is that in April/May 2004, when he was 34 years old, he did not engage online with someone he believed was a 15-year-old deaf virgin nor on 3 May 2004, did he go to her home with the intention of having sexual intercourse with her. Rather, he thought he was engaging with an adult fantasising about being 15 years old and his intention was to have sexual intercourse with an adult. Secondly, the Practitioner contends that his various non-disclosures about the Texas criminal charge to New Zealand and Australian regulatory authorities between 2004 and 2014 were because he had engaged in "magical or wishful thinking" about the charge. The Practitioner at different parts of his evidence, asserted on the one hand that he had not realised he'd been charged at all and on the other, that he had formed the belief that, knowing that he'd been charged, those charges had been abandoned by the prosecution in Texas. 8. The Practitioner suffers from a social anxiety disorder and at the hearing for the first time lead evidence that he also suffered from a personality disorder with avoidant, obsessive and narcissistic features. POSITIONS OF THE PARTIES 1. The Practitioner argues he should be granted registration for the following reasons: 1. The Practitioner's criminal history does not make him unsuitable to hold registration. 2. The Practitioner is an appropriate person to practise. 3. It is in the public interest for the Practitioner to practise. 4. Cancellation of the New Zealand registration does not render the Practitioner unsuitable. 5. A pattern of dishonesty has not been established so as to preclude registration. 6. Any impairment from which the Practitioner suffers can be dealt with by the imposition of conditions. 1. The Medical Board contends: 1. in April/May 2004, the Practitioner groomed someone he believed to be a 15-year-old girl with a disability and went to meet her for the purposes of having sexual intercourse with her. 2. Having moved to another hemisphere, the Practitioner practised medicine, having failed to disclose for a period of 10 years that there was an outstanding criminal charge against him. 3. The Practitioner is a person who has consistently demonstrated that his statements cannot be relied upon unless they are independently corroborated and that he has no insight into his past misconduct, and is thus not a suitable person to hold registration:(relying upon s 82(1)(c)(i)(C) of the National Law). 4. It would be improper to register the Practitioner because he gave the Medical Board information that was false or misleading in a material particular with respect to his charges and finding of guilt in Australia in his application for re-registration on 16 July 2021:(relying upon s 82(1)(c)(ii) of the National Law). ORDERS SOUGHT Orders sought by the Practitioner 1. The Practitioner seeks the following orders: 1. Given the appeal is lodged out of time, by implication, the Appellant seeks he be granted an extension of time to lodge the appeal. 2. The appeal be allowed. 3. Pursuant to s 175C(1)(c) of the National Law, the Board's decision of 16 May 2022 be set aside and a new decision be substituted, granting the application by the Practitioner for specialist registration pursuant to s 82(1)(a) of the National Law, subject to conditions. 1. The Practitioner provided a document (Exhibit 9; Appendix 1 of these reasons) which sets out a set of conditions for supervision and therapy which he submits should be placed upon his registration. There is also a note in Appendix 1 of a discussion between Senior Member Reid and Counsel for the Practitioner during final submissions about difficulties arising from the set of conditions and of the Practitioner's willingness to amend them to cater for those concerns. Orders sought by the Medical Board 1. Whilst the Medical Board highlighted in their written submissions the need for the Practitioner to obtain leave to appeal, it does not object to the Tribunal extending time for the lodging of the appeal. However it seeks that the appeal be dismissed and the decision of 16 May 2022 be confirmed. THE PRACTITIONER IS GRANTED AN EXTENSION OF TIME TO FILE THE APPEAL 1. The Practitioner was notified of the Medical Board's decision of 16 May on 17 May 2022. Rules 25(4)(c) and 6(2) of the Civil and Administrative Tribunal Rules 2014 NSW (CAT Rules), provide an appeal must be lodged within 28 days after the day on which the Practitioner was notified and given reasons for the decision. Reasons were provided on 15 June 2022. The Practitioner filed the appeal one day late and requires an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 NSW (CAT Act). 2. The Practitioner has not adduced any evidence as to why the appeal was not filed in time. Usually, explanation of delay is important but in circumstances of such minimal delay and having regard to the potential prejudice to the Practitioner if the extension of time is not granted and the arguments the Practitioner seeks to put, on our own motion we extend time for the filing of the appeal to 16 June 2022. THE LEGISLATIVE FRAMEWORK AND LEGAL PRINCIPLES The objectives and guiding principle 1. The overarching objective and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public as its paramount consideration (s 3A(1)). The first stated objective of the national registration scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)). The Practitioner draws attention the guiding principle of the national registration scheme that restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (s 3A(2)(c)). The nature of the appeal 1. The Practitioner made his application for registration under s 77 of the National Law. The Medical Board refused his application under s 82(1)(c) of the National Law. 2. The Practitioner has a right of appeal under s 175(1)(a) of the National Law. The appeal is to proceed by way of hearing de novo and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Medical Board may be given (s 175(3) National Law). Consequently, the Practitioner does not have to identify the grounds upon which the Medical Board erred when reaching its decision to refuse specialist registration (Allesch v Maunz [2000] HCA 40 at [23]). 3. Pursuant to s 175(2) of the National Law and s 6C of the Health Practitioner Regulation (Adoption of National Law) Act 2009, this Tribunal is the "appropriate responsible tribunal" given the Practitioner's proposed principal place of practice is Bowral, NSW. 4. Section 175C of the National Law provides that following this hearing, the Tribunal may confirm or amend the decision of the Medical Board or substitute another decision. In substituting another decision this Tribunal exercises the same powers as the Board which made the decision. Applications for specialist registration 1. The eligibility requirements for specialist registration are set out in s 57 of the National Law. Section 57(1)(a), (b) and (e) deal with meeting proficiency standards and s 57(1)(d) deals with disqualification from applying for registration, none of which are an issue in this case. The focus in this case is the requirement that to be eligible for specialist registration under s 57(1)(c) the individual must be "a suitable person" to hold registration in the health profession. Section 57(2)(a) provides that without limiting subsection (1), the National Board may decide the individual is eligible for registration in the recognised specialty by imposing conditions on the registration under s 83. 2. The National Law sets out the obligations on a practitioner when making an application for registration and also describes the circumstances in which the National Board may conclude that a practitioner is not a suitable person to hold registration in the health profession. 3. Applications for registration are lodged pursuant to s 77 of the National Law. Section 77(3)(c) provides that the practitioner must disclose his criminal history. 4. Criminal history is defined in s 5 of the National Law as meaning: (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. (emphasis added) 1. As (b) makes plain, every plea of guilty and finding of guilt must be disclosed. The final words of (b) [reinforced by s 77(4) of the National Law and the definition of "criminal history law" in s 5] make it clear that spent convictions must be disclosed. Subparagraph (c) provides that every charge must be disclosed. Section 55: unsuitability to hold registration 1. Section 60 of the National Law provides that s 55 applies to the making of a decision by a National Board (and in the context of a s 175 appeal, this Tribunal) that an individual is not a suitable person to hold specialist registration in a recognised specialty. 2. Section 55(1) of the National Law relevantly provides: A National Board may decide an individual is not a suitable person to hold general registration in a health profession if: (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia (s 55(1)(e)); … (h)(i) in the Board's opinion, the individual is for any other reason ... not a fit and proper person for general registration in the profession. Does s 55(1)(b) or s 55(1)(h)(i) apply to the factual circumstances underlying the criminal charge and offences? 1. The parties disagree as to whether the underlying factual events and circumstances which ground a charge or finding of a criminal offence should fall for consideration by us under s 55(1)(b) or s 55(1)(h)(i) of the National Law. The parties have each taken the position that these events and circumstances should not be considered twice under each of the sections. This seems to be a novel question which has not been the subject of earlier consideration in the context of these two subsections. 2. If the Practitioner is correct, then the test as to whether he is not a suitable person is whether he is not an appropriate person to practise the profession and/or whether it is not in the public interest for him to practise the profession (s 55(1)(b)). If the Medical Board is correct, the appropriate test is whether the Practitioner is a fit and proper person for registration in the profession s 55(1)(h)(i). 3. Counsel for the Practitioner submits that the words "criminal history" in s 55(1)(b) of the National Law should not be construed narrowly as relating only to those matters strictly falling within the definition in s 5 but should also more widely encompass all conduct leading to or relevant to that criminal history. 4. In response, counsel for the Medical Board argues that s 55(1)(b) only relates to the individual's "criminal history" which is plainly and strictly defined in s 5 as meaning convictions, pleas of guilty, findings of guilt and charges for an offence and that those words have an ordinary grammatical meaning which does not include the underlying circumstances leading to or relevant to that criminal history. 5. The Medical Board refers, by way of analogy, to settled jurisprudence with respect to complaints under s 144(a) and (e) of the National Law. Under (a), a complaint can be made that a registered health practitioner has been convicted of or made the subject of a criminal finding for an offence and under (e), that a practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. In Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [110]-[114] the Court of Appeal observed at [112] that the starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way but went on to approve a statement at [60] in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177, which had earlier been cited with apparent approval in Health Care Complaints Commission v Holbrook [2019] NSWCATOD 146 at [43]; Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [52]; Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 at [23]-[24]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [48]-[57].The Tribunal in Haasbroek said at [60]: [O]n a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration. 1. We accept the Medical Board's position that the underlying factual events and circumstances which ground a charge or finding of a criminal offence should fall for consideration by us under s 55(1)(h)(i) and that "criminal history" is plainly and strictly defined in s 5 in words with an ordinary grammatical meaning and is confined to that meaning (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]). This interpretation of s 55(1)(b) and s 55(1)(h)(i) is a similar interpretation to that given to the analogous ss 144(a) and (e) in the cases referred to in the preceding paragraph. 2. Consequently, evidence of the underlying conduct that led to the criminal charge in Texas and the underlying conduct that led to charges and findings in relation to breaches of the family violence restraining orders is relevant to whether the Practitioner is a fit and proper person for registration in the profession pursuant to s 55(1)(h)(i) of the National Law. 3. In the event that we are wrong about that interpretation, will shall alternatively consider, whether on the underlying facts in relation to the charges, the test set out in s 55(1)(b) of the National Law is otherwise satisfied. As discussed later, on the facts of this case the outcome is the same whichever test is applied. 4. There does not seem to be any dispute that s 55(1)(h)(i) is applicable to the allegations that the Practitioner has made false statements to regulatory authorities over the years. Decision about the application for registration 1. Section 82(1)(c) of the National Law provides that, after considering an application for registration and any submissions made to it, a National Board (and in this appeal this Tribunal has the same powers as the National Board) must refuse to grant the applicant registration in the health profession if, relevantly the applicant is "not a suitable person to hold registration" (s 82(1)(c)(i)(C) or "it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular" (s 82(1)(c)(ii)). Section 82(1)(c)(ii) of the National Law 1. Before us, the Medical Board relied upon s 82(1)(c)(ii) based upon the Practitioner making a false statement on the current application for registration on 15 July 2021. 2. Section 82(1)(c)(ii) provides that the Board must decide to refuse to grant the applicant registration in the health profession if it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular. Onus and standard of proof 1. At [75] of his written submissions, the Practitioner acknowledged that the onus of proof in this appeal rests on him (Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183 at [49]), and we accept the Practitioner needs to establish on the balance of probabilities the requirements of s 57 including that he is a suitable person to hold registration in the health profession. 2. However, in so far as the Medical Board seeks findings against the Practitioner that he is not a suitable person, then the forensic onus shifts to the Medical Board. This is particularly so in relation to the findings sought by the Medical Board arising from the serious allegations against the Practitioner in relation to the underlying circumstances of the Texas charge and to a lesser extent in relation to the alleged forgery of Dr Yousaf's signature. The question of whether that level of proof has been reached is to be assessed having regard to all the relevant evidence. 3. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J (as he then was) said in civil cases: … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences… 1. In Briginshaw, Rich J used the expression "comfortable satisfaction". The phrase "comfortably satisfied" is commonly used as shorthand in the context of proceedings such as the present (Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [87] citing Kumar v Legal Services Commissioner [2015] NSWCA 161 at [60]. 2. The plurality in Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66 at [2] said: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (authorities cited omitted). 1. In Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41, at [126], the Court of Appeal referred to the issue as to whether the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applied to fact finding in a tribunal to which the rules of evidence do not apply. After quoting from Neat Holdings, the Court of Appeal recorded that the "strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply" should not "be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT". MORE DETAILED UNCONTROVERSIAL BACKGROUND 1. The Practitioner was born in India and is 53 years of age. After moving to the United States, he studied at Boston University between 1990 and 1994 and qualified as Doctor of Medicine. Following the completion of his specialist qualification in diagnostic radiology at the Baylor College of Medicine, Houston, Texas, he was registered to practise as a consultant radiologist in Texas, US, between 15 October 1999 and 12 August 2008, then in New Zealand between January 2005 and 19 June 2015. (The assertion by the Practitioner in paragraph 5(b) in his statement of 31 July 2022 and in his CV (Annexure A) that he was registered to practise and working in New Zealand commencing January 2004 must be a typographical error, as it is uncontroversial that the Practitioner failed to disclose the May 2004 Texas criminal charge when first making his NZ application for registration. It is also inconsistent with the other statement made in the CV that he worked at the Medical City Hospital Dallas Texas from June 2000 to May 2004.) The Practitioner moved to New Zealand in January 2005 to begin employment as a consultant radiologist in Christchurch and he also held a role as a tele-radiologist, reporting remotely on imaging. The Practitioner was subsequently registered to practise in Australia as a consultant radiologist between 22 February 2011 and 19 June 2015. The Practitioner says that he started to co-reside in Australia and New Zealand in about 2011 and that he worked in Australia from January 2011 to December 2013 as a consultant radiologist. The Practitioner says he thinks he ceased renting a home in Christchurch NZ in about 2013. 2. On 3 May 2004 the Practitioner was arrested and charged in Dallas, Texas, with criminal solicitation of a minor to commit sexual assault contrary to Texas Penal Code S22.011/15.031. He provided a record of interview to the police that day. The Practitioner had engaged online with a detective posing as a 15-year-old girl, "Molly" (Molly). It was alleged that the Practitioner had engaged in sexually explicit messages in a chat log (the text messages) and emails culminating in arranging to meet her in person. When the Practitioner went with condoms and a camera to the place that he thought was Molly's home, a group of police officers was waiting for him. 3. In early 2005, whilst the charges were pending against him, the Practitioner travelled to New Zealand and applied to the Medical Council of New Zealand (the NZMC) for medical registration to work as a locum tenens, a registration which he held until May 2006 when he was granted registration in diagnostic and interventional radiology. He did not disclose the criminal charge in his applications for registration. 4. In 2007, the Practitioner formally changed his name by statutory declaration from Dr Max Mehta to Dr Robert Taylor. The Practitioner advised the NZMC of the name change. 5. In April 2009, the Practitioner applied for New Zealand citizenship but failed to disclose he had been charged with the Texas criminal offence. 6. In 2010 the Practitioner applied for registration as a health professional with the Australian Health Practitioner Regulation Agency (Ahpra). He did not disclose the criminal charge in his application (or his subsequent applications to Ahpra in 2011-2013). 7. In about 2011, the Practitioner commenced co-residing in Australia and New Zealand, performing roles as a remote tele-radiologist for Gisborne Hospital, New Zealand, and as a Consultant Radiologist in Western Australia and then Newcastle, before moving permanently to Australia. 8. In February 2013, Ahpra was notified by Dr Rauf Yousaf that the Practitioner had falsified documents relating to an application for specialist registration. The falsification related to 'signing' Dr Yousaf's name to adopt as true copies the Practitioner's medical school diploma, radiology registrar diploma, and imaging fellowship diploma. 9. Upon consideration of the notification together with the Practitioner's application for specialist registration in March 2013, the Board resolved to defer a final decision and required the Practitioner to complete a 10-week ethics course. At its meeting on 7 May 2013, the Board recorded the course had been successfully completed and the Practitioner's application for specialist registration was granted. 10. In October 2014, the media reported that the Practitioner had been charged in the United States with grooming a 15 year old online and had left the USA. The media reports also included reference to the notification in 2013 by Dr Yousaf. 11. An investigation was conducted by the NZMC, and on 19 June 2015, the NZMC cancelled the Practitioner's New Zealand registration. In a letter to the Practitioner dated the previous day, the Council indicated it was not persuaded that he did not have knowledge of the charge against him in the United States when he applied for registration in 2005 and thereafter. In Australia, on that same day, Ahpra wrote to the Practitioner outlining his immediate suspension based on the complaint received by Dr Yousaf raising the criminal charge. 12. On 9 March 2016, the State Administrative Tribunal of Western Australia cancelled the Practitioner's registration pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (WA) Act 2010 and disqualified him from applying for registration as a health practitioner for a period of 2 years. The Practitioner had agreed that the criminal charge remained pending in Texas and the WA Tribunal found that in failing to disclose the criminal charge in his applications to Ahpra in 2011-2013 and by declaring he had never been charged with a criminal offence he behaved in a way that constituted professional misconduct. 13. On 12 May 2016 the Practitioner was charged and entered guilty pleas to six counts of breach of violence restraining order. The restraining order had been obtained in April 2016 by the Practitioner's ex-fiancé of five years. The breaches each related to individual text messages sent by the Practitioner to his ex-fiancé between 28 April 2016 and 11 May 2016. Following findings of guilt, a fine of $1,000 was imposed, together with "spent convictions" for each of the charges. 14. The Practitioner was arrested in June 2017 in Auckland, New Zealand, on the basis the State of Texas had requested his extradition. The Practitioner waived the extradition process and on 22 December 2017 was returned to Dallas, where he spent one month in custody until he was granted bail pending trial. 15. On 11 March 2020, the solicitation charge was dismissed by the District Court of Dallas County, Texas, on the motion of the Assistant District Attorney. This was on the basis of a "lack of chain of custody documentation necessary to lay the predicate for the evidence to be admitted." 16. On 16 July 2021, the Practitioner applied to Ahpra for specialist registration under the National Law. He disclosed the Texas criminal charge, the finding of professional misconduct and the NZ cancellation. He did not disclose the 2016 charges of and findings of guilt to breaches of a domestic violence restraining order. 17. In September 2021, the Texas Medical Board granted the Practitioner a medical licence, subject to conditions relating to the updating of his skills, restriction on his ability to supervise or delegate to mid-level practitioners and requiring him to be evaluated by a Board approved psychiatrist and to comply with any treatment recommendations. 18. On 16 May 2022, the Medical Board refused the Practitioner's application for specialist registration as a medical practitioner "under s 82(1)(c) of the National Law". The Board found the Practitioner was not a fit and proper person to hold registration, had not discharged the onus to demonstrate he was a suitable person and that it would be contrary to the public interest to grant registration. THE PRACTITIONER'S CREDIBILITY 1. For the purposes of the Practitioner's evidence in chief, he relied upon two statements. One made 31 July 2022 (tab 2 of Exhibit 1) and a supplementary statement on 20 April 2023 (Exhibit 4). The Practitioner had made other statements about relevant issues in other documents which are before us. We had the advantage of seeing and hearing the Practitioner give evidence during the first two days of the hearing. 2. A fundamental overall problem in the Practitioner's oral evidence was identified by Dr Galambos who opined that the Practitioner may be more candid in a one-to-one therapeutic session as compared to statements he makes publicly when under pressure. It goes without saying that this creates an obvious problem when we are assessing the Practitioner's evidence given publicly before us. 3. Some of the Practitioner's evidence was chronically inconsistent. A glaring example is on a central question of whether, between 2004 and 2014, the Practitioner knew he had been criminally charged in Texas in 2004 and that the charge remained outstanding against him. So far as we can tell, the Practitioner has had at least three positions on this issue and at the end of the hearing it seems he was settling with the third position although given his oral evidence we are not entirely confident about that. The first position was that he knew of the charge but thought it had been dismissed, the second was he thought that there had not been any charge at all and the third position was that he is now aware that he had been charged and that he had been properly informed, from time to time, about the progress of his criminal proceedings but that he was in "denial and withdrawal" and applied "magical or wishful thinking" which led him to believe either of the first two positions. On the one hand he said on the first day of the hearing that for that 10-year period he thought there had not been any charge compared with his oral evidence on the second day of the hearing which was that he knew of the charge during that time but thought that it had been dismissed. We have concluded that not only were neither of those beliefs true, it is also not true that the Practitioner held either of those beliefs between 2004 and 2014. We don't discount the possibility that he actually holds one of those false beliefs today. 4. The Practitioner also had a number of conflicting positions which we discuss below about the extent to which he had been advised by his lawyer about the progress of the criminal case against him and his participation with his lawyer in the preparation of that case. Again, the Practitioner relied upon magical or wishful thinking to explain away the previous inconsistencies. 5. However, the question that arises in respect of the Practitioner's credibility is how do we know, when the Practitioner gives evidence about any disputed or unconceded fact, that he is not in denial or applying magical or wishful thinking? 6. There is a disconnect between the things the Practitioner says he can remember from April and May 2004 and those he cannot. For example, he said in cross examination that he could not remember who initiated the contact between himself and Molly [although he told Dr Galambos that he discovered Molly in a chat room] but he asserts he can remember that specific lines of text have been removed by the police from a particular page of a 47-page transcript of text messages. 7. The Practitioner says in his May 2004 record of interview that his only desire in talking to Molly was friendship with a 15 year old. This is an incompatible position to the one now being put by him, namely that he thought he was going to meet an adult involved in fantasy play. The Practitioner claimed that in 2004 he was a young man with little "life experience". But by April/May 2004, the Practitioner had been married, had a child, was divorced, was in another relationship with a woman he described in the record of interview as his "girlfriend" with whom he had had sex on the night before. During cross examination, the Practitioner denied his regular sexual partner was his "girlfriend" and said he lied to police in the record of interview about having had sex with her the night before his arrest. 8. As shall be discussed, there are significant parts of the Practitioner's evidence which are central to the case which the Practitioner advances, which we are unable to accept, given the objective evidence pointing in the opposite direction. The most important parts of evidence relate to the Practitioner's state of mind as to how old the Practitioner thought Molly was in 2004 and again about his knowledge about the criminal charge in Texas when making representations to regulatory and other authorities. Another example is our conclusion that the Practitioner is being untruthful when he asserts that he had Dr Yousaf's prior permission to place Dr Yousaf's signature on a document the Practitioner submitted to Ahpra. Our inability to accept the Practitioner's evidence on these matters further erodes our confidence in the Practitioner's credibility generally. 9. In a letter written by the Practitioner on 28 January 2015 to the Medical Council of New Zealand he made at least three untrue assertions. First under a heading "US charge re grooming a 15 year old" the Practitioner states "After spending a night in custody I was released. I was not charged with an offence and nor was I placed on bail". In cross examination the Practitioner agreed that that was a false statement to the Medical Council of New Zealand and it was described by him as a "fine example" of his "'magical thinking' or 'wishful thinking' that the charges had been dropped" even though he was actually asserting that he had never been charged at all. Second under the same heading the Practitioner wrote "The media reporting about this has been a consequence of a smear campaign undertaken by a former friend and colleague Dr Rauf Yousaf". It was put to the Practitioner that Dr Yousaf's reporting of his outstanding US charge was not a "smear" but a "fact". The Practitioner attempted, we find disingenuously, to rationalise his use of the words "smear" by referring to matters not associated with the USA charge. Third the Practitioner asserted that [in March 2013] Ahpra dismissed the complaint that Dr Yousaf had made against him when actually it had found the complaint established. 10. We conclude that unless the evidence given by the Practitioner is uncontroversial, we are unable to rely upon any assertion he makes unless it is inherently likely or corroborated by objective evidence which we accept. THE EVIDENCE Our approach to the evidence given the relevant standard of proof The serious nature of the offence 1. We are mindful that the allegations made against the Practitioner arising out of the Texas charge are extremely serious. Inherently unlikely 1. We accept, based upon the standards of reasonable human behaviour, it is inherently unlikely for a person to act in a manner in which the Practitioner is accused. Bearing that in mind, our task is to determine whether we are comfortably satisfied on the evidence that the accusations are established. Gravity of the consequences flowing for the Practitioner 1. We are further mindful of the gravity of the findings the Medical Board seeks us to make against the Practitioner in relation to the underlying circumstances of the Texas charge. Notwithstanding the Practitioner now has his licence to practise in Texas, we are mindful that the findings the Medical Board invites us to make against the Practitioner will, if made, be extremely damaging to his professional status and reputation. The other effect is that he will lose the opportunity to work, as he desires, as a medical specialist in Australia with the prospect of earning a salary of $660,000 per annum (although we are unaware of what level of salary he would likely earn as a Practitioner in Texas.) Inexact proofs, indefinite testimony, or indirect inferences 1. The great bulk of the evidence before us has in fact been tended by the Practitioner. The transcript of the electronic exchanges between the Practitioner and Molly (with one small exception) is accepted by the Practitioner as being an authentic record of those exchanges. Nor is any question raised by the Practitioner about the authenticity of the transcript of the record of interview. Documents written by the Practitioner, including to regulating authorities, and particularly those parts which contain admissions and statements adverse to the Practitioner's interest in the outcome of the proceedings, would have been admissible under the Evidence Act. Whilst the records produced, prepared by Detective Marshall, and the letter written by the Practitioner 's former lawyer to his father are hearsay, they may be afforded some weight, particularly given the conclusion we have made in respect of the Practitioner's credit. The written evidence and oral evidence 1. The written and oral evidence is described in Appendix 2. The Practitioner gave evidence on the first two days of the hearing by audio/visual link. There was no problem with the Tribunal being able to see and hear the Practitioner during the hearing and in particular, whilst he was giving evidence. The Practitioner had applied to immigration authorities in September 2022 for entry to Australia so that he could participate in the hearing in person, but that permission had not been granted by the date of the hearing. Dr Galambos's evidence 1. The Practitioner relies heavily upon the evidence of Dr Galambos, which as we mentioned below was filed on the eve of the hearing. 2. Dr Galambos is a consultant psychiatrist who was engaged by the Practitioner to provide a report for him to use in these proceedings. Dr Galambos also offers himself as a therapist and a gate keeper to the team he proposes to intensively treat the Practitioner over a period of two years. 3. Dr Galambos has recorded in his report the matters that he was asked to address and the documents with which he was provided (also see the letters of instruction at Tabs 14 and 15 of exhibit 8). Dr Galambos provided a report dated 20 April 2023 and gave oral evidence. 4. The Practitioner saw Dr Galambos for interview and assessment (via video conference) on 17, 18 and 19 April 2023 for a total period of five hours 15 minutes. 5. Dr Galambos says at pages 7 and 8 of his report that he assessed the Practitioner with a view to considering not only whether he appears to suffer a mental disorder or impairment, but focused on his character and in particular, examined his capacity to engage in a therapeutic relationship to address his personality vulnerabilities and thereby, get an impression of the potential risk of harm to the public currently and in the future, and the risk of damage to the reputation of the profession should the Practitioner be granted conditional registration. 6. As discussed below, whilst Dr Galambos was initially cautious in his comments about the history given to him by the Practitioner as to what happened in 2004, Dr Galambos ultimately gave opinions about disputed factual matters, particularly about the Practitioner's state of mind in 2004 and then between 2004 and 2014, which favoured the Practitioner and has developed a case theory, which has accepted as fact, propositions asserted by the Practitioner. We have reached findings about historical facts that are different from those opined by Dr Galambos. THE TEXAS CRIMINAL CHARGE The electronic communication between 20 April 2004 and 3 May 2004 1. In the period between 20 April 2004 and 3 May 2004, the Practitioner was involved in communications and behaviour which led to him being charged with the offence of "solicit minor, sexual assault, third degree felony". The Practitioner electronically communicated with Detective Bruce Marshall who was posing as a 15-year-old child named "Molly Shaw" (Molly) and on 3 May 2004 went to a location where he believed she lived. 2. The Practitioner asserts that at all relevant times he believed Molly to be an adult engaged in online fantasy. The Medical Board contends, on balance to the requisite standard, the documents do not support the Practitioner's assertion. 3. The central relevant documents are: 1. The "Yahoo" profile pages of the Practitioner and Molly (Exhibit 1; tab 3.31) 2. Copies of photographs sent between the Practitioner and Molly (Exhibit 1; tab 3.31) 3. A 47-page transcript of the text messages between the Practitioner and Molly (Exhibit 1; tab 3.31) 4. Copies of emails between the Practitioner and Molly (Exhibit 1; tab 3.31) 5. Transcript of the Practitioner's interview with police on 3 May 2004 (Exhibit 1; tab 3; annexure C) 6. Garland Police Department incident/investigation report written on 6 May 2004 (Exhibit 1; tab 3.29) 7. Bail bond dated 4 May 2004 (Exhibit 5; page 118: tendered by the Medical Council) 1. With two exceptions referred to below, (two lines he claims were redacted from the 47-page transcript and the last line of Detective Marshalls report dated 10 December 2004), the Practitioner does not contest the authenticity of the words recorded in the text of any of these documents and in particular in the text messages, the emails and the record of interview. The weight to be placed on contemporaneous records 1. In Percy v Fox [2001] NSWCA 100 the NSW Court of Appeal overruled the trial judge's decision substantially because of his failure to give proper weight to the contemporary evidence about the position of skid marks in the notebook of the constable who attended the scene of the accident. The High Court in Fox v Percy (2003) 214 CLR 118 upheld this decision, emphasizing the importance of analysing and weighing uncontested contemporaneous documentary evidence. See also State Rail Authority of NSW v Earthline Constructions Pty Limited (In Liquidation) [1999] HCA 3. 2. In Schlaepfer v Australian Securities and Investments Commission [2021] NSWCA 129 at [166], the NSW Court of Appeal recently observed: "Contemporaneous records are rightly recognised as being inherently more reliable than the recollection of an interested party facing legal action". See also Hornby v Nominal Defendant [2007] NSWCA 222 at [10]; Australian Securities and Investments Commission v Westpac Banking Corporation (ACN 007 457 141) (No 2) [2018] 127 ACSR 110 at [933] to [936]. The profiles (Tab 3.31; pages 269 and 270) 1. The Practitioner had created an online presence in a "Yahoo" profile page which contained his photograph and a Yahoo email address "d_knight30" (the Practitioner was a fan of Batman aka the dark knight); described the Practitioner as being located in Dallas, Texas, being an unmarried male with a professional occupation. 2. Molly Shaw's profile has a Yahoo id of "sweetmollygirly" who is located in Garland, Texas, aged 15, being a single female and a high school sophomore. The transcript of the text messages and emails between the Practitioner and Molly 1. Between 20 April 2004 and 3 May 2004, there were extensive exchanges between the Practitioner and Molly. The 47-page transcript of text messages are at the following times: 1. 20 April 2004 between 3:24:16pm and 5:49:07pm 2. Five attempts by the Practitioner on 22 April 2004 to make contact with Molly 3. On 24 April 2004 between 8:15:09pm and 9:52:01pm 4. An attempt by the Practitioner on 27 April 2004 to make contact with Molly 5. On 3 May 2004 between 10:15:35am and 11:18:12am 1. Whilst the whole of the 47 pages are considered by us in their entire context, it is useful to provide as an appendix to these reasons a substantial part of the relevant exchanges (see Appendix 3). Their content and context support the conclusions that we have reached as to the Practitioner's state of mind on 3 May 2004. 2. In addition, there are 12 emails exchanged between the Practitioner and Molly between 21 April 2004 and 3 May 2004, including the emails forwarding photographs. These emails were sent during the same period covered by the text messages and should be read together with the text messages. Appendix 4 sets out the text of the emails and some commentary about them. 3. During the email exchanges the Practitioner sent Molly four photographs of himself: two were of him naked from above the waist and one of him naked from the bottom of his neck to the top of his groin. The Practitioner agreed that he sent the photographs in Exhibit 1, tab 33.31. At page 272 there is a photograph of the Practitioner with no clothing above the waist. When it was put to him that he sent this photograph because he thought it was sexually enticing, he initially said he didn't remember but when pressed said, "I guess I did". In relation to the photograph of his fully nude body from the neck down to just below the line of his pubic hairs (page 274), he agreed that he sent that photograph for the purposes of it being sexually enticing and in relation to the photograph on page 275, (another photo of the Practitioner with no clothing above his waist), it was again suggested that by sending that photograph he was attempting to be sexually enticing. The Practitioner responded to Ms Francois: "I don't think that's a very sexually enticing photo but if you think it is, thank you". 4. The photograph sent by Molly was a photograph of a colleague of Detective Marshall when she was 15, wearing makeup with her hair styled. 5. On the face of the extensive electronic communication between the Practitioner and Molly between 20 April 2004 and 3 May 2004, the following emerges: 1. There are multiple references to Molly being under the age of 16 and the Practitioner seemingly accepting that was so. Those references include: * Explicit references to the age of 15, including her actual date of birth * That Molly was not old enough to obtain a permit to prepare to obtain a driver's licence * That Molly was at school as a sophomore and the following year she was to be going into grade 11 as a junior * The Practitioner made various inquiries as to how Molly was doing at school * Molly's mother thought of her as a "baby" * Molly thought [in the context of possibly having unprotected sexual intercourse with the Practitioner] that 15 was too young to be a "mommy" * The discussion about Molly being "jail bait" * The Practitioner's view that 15 year olds have sex all the time and no one goes to jail * The Practitioner's encouragement over the time for Molly to have a day off school so they could meet at her home when her mother was not there * Reference by the Practitioner to Molly practically being an adult * The Practitioner pretends to Molly that he is 30 not 34. That is a curious thing to do if the Practitioner indeed thought he was dealing with an adult 1. There are extensive references in discussion between the Practitioner and Molly about the supervision provided by Molly's mother; the Practitioner's wish that Molly not to talk to the mother about his interaction with Molly; the discussion between the Practitioner and Molly about how they can meet without Molly's mother or teachers becoming suspicious, with much discussion about possible logistics to ensure secrecy and again the Practitioner's desire to ensure Molly is home alone when they meet. Molly develops an elaborate and inherently consistent and believable narrative in relation to her mother, progressively during the course of 47 pages of text messages. 2. Molly on two occasions suggests to the Practitioner that they should cease their interaction, saying "lets 4get it" (20 April 2004, 5:21:50pm; 3 May 2004, 10:20:54am and 10:43:50pm) but the Practitioner continues to encourage Molly to meet him. The Practitioner's assertion, that "whilst I was communicating with Molly, I was of the belief that she was an adult" 1. Notwithstanding what is on the face of the transcript of the extensive electronic communications between himself and Molly, the Practitioner asserts before us that from about page 2 of the 47 pages of text messages he was of the belief Molly was an adult. He asserts he thought it was most likely an adult woman but could have been an adult man, because the Practitioner asserts you never really know who you are communicating with online. 2. In his statement of 31 July 2022 at [11], the Practitioner sets out a number of reasons why he says he held that belief: (a) I conversed with Molly in an adult chatroom. The chatroom required users to confirm that they were an adult, being over the age of 18 years of age, before entering the site (b) Very early in the communication I started asking Molly for a photograph to try and find out more about the person I was communicating with. I received a photograph which looked like it had been taken in the 1980s. I put to Molly "d_knight30 3:43:10 PM THAT IS not your picture… you are not 15… is that your mum? (emphasis added) (c) When describing her appearance, Molly said that her height was 5' 4" (1.62 metres) and weight of 120 pounds (54.4kg). I consider this to be more likely the height and weight of an adult.(20.04.2004 @ 3:34:28 PM). (d) During my interactions with Molly there were inconsistencies which led me to believe that Molly was an adult, engaging in fantasies, pretending to be a 15 year old. These inconsistencies are as follows: i. Molly stated in a message that she had blue eyes, however the photo sent of Molly shows green eyes ii. Molly stated in a message that she was deaf. In later messages, Molly refers to being able to hear things. 1. We shall consider each of these contentions in turn. Adult chat room? 1. We only have the Practitioner's uncorroborated assertion that the chat room required users to confirm that they were adult before entering the site. During cross examination the Practitioner volunteered he was in the "Texas Nine Adult Chatroom". Consistent with our findings in relation to the Practitioner's credit, we are not prepared to rely upon his uncorroborated assertions. Even if the chat room asked the question as to whether those entering were adults, the Practitioner does not give evidence that he had to prove his age to enter the chat room. In fact, Molly's profile on the site was a 15-year-old single female and a high school sophomore. 2. During the record of interview [at the 22-minute mark], Detective Marshall asked the Practitioner what chat room he was in when he meet Molly and he responded: "I think it was an adult chat room." Detective Marshall, who we find was quite familiar with the site, then queried whether it was "a city chat" room and the Practitioner replied "It may have been" and when Detective Marshall checked "So it was a city chat?", the Practitioner replied "I think so". 3. There was clearly some contact between the Practitioner and Molly prior to the commencement of the text messages where he became aware that she was a child because one of the initial things that the Practitioner texts on 20 April 2004 is "are you off from school?". 4. As mentioned above, in cross examination, the Practitioner said he did not remember who made the initial contact between himself and Molly. However, tellingly, the Practitioner told Dr Galambos (page 9 of his report) "He had entered the [chat] room after being on call for the past day and night. It was the mid to late afternoon and he had got about 4-5 hours sleep. He hopped between a few rooms and there was no woman until he came to the room where a person identifying as female told him she was 15". The first line of the text messages which are in evidence is Molly saying "yep" which we find is a response to a communication she had received from the Practitioner. 5. Pausing there, it is the case, that even if the Practitioner had not seen Molly's profile, he was the one who first made contact with her and immediately became aware that Molly asserted that she was 15. The Practitioner agreed in cross examination that the words at 3:25:01 pm "are you off from school" clearly indicate that he wanted to chat to a schoolgirl. 6. The Practitioner goes on to assert to Dr Galambos that he quickly came to form the opinion that the alleged "child" was in fact an adult engaging in a fantasy during the chat; upon seeing her photo he did not believe "Molly" to be a child and that he maintained that belief during the two weeks of conversation, explaining to Dr Galambos that he was catching out the person. We will deal with these assertions by the Practitioner immediately below. 7. We place no weight upon the Practitioner's evidence the chatroom required users to confirm that they were adults, being over 18 years of age, before entering the site and no weight on the Practitioner's assertion that he thought only adults entered these chat rooms or the name he now gives the chat room. The Practitioner knew that Molly asserted she was 15 when he came upon her in the chat room. Molly's photograph 1. As indicated, the photograph sent by Molly was a photograph of a colleague of Detective Marshall when she was 15 wearing makeup with her hair styled. The Practitioner asserts the photograph looked like it had been taken in the 1980s. The Practitioner did not voice that suspicion when shown the photograph during the record of the interview. During the text exchange, Molly tells the Practitioner that her mother curled her hair for three hours to get it looking like it was for the photograph. It is not obvious to us that the Molly's hairstyle was from the 80s. 2. The Practitioner also relies upon the following line from the text messages:"d_knight30 3:43:10 PM THAT IS not your picture… you are not 15… is that your mum?". (The Practitioner's emphasis added). 3. That line of text has to be seen in the context of the immediate exchange as well as the totality of the 47 pages of text messages. The immediate context is as follows: Practitioner: ….where did you send your picture to? My email? Molly: Yes i sent 2 ur email Practitioner: THAT IS not your picture…you are not 15…is that your mom? Molly: no silly thats me 4 real Molly: and i m 15 Practitioner: I can't believe it…you look *hot* Molly: my mum is 365 Molly: *35 Practitioner: I'm in shock…do you have a boyfriend? Molly: no we broke up like 3 mos ago Practitioner: are guys consistently hitting on you? Practitioner: are you a virgin? Molly: technically 1. He then asks whether or not she is a cheerleader and then goes on to question her about what she means by the word "technically". 2. When read in its immediate context, the more likely interpretation of the line relied upon by the Practitioner is that the Practitioner was attempting to groom Molly, whom he accepted was 15, by flattering her and telling her she looked older and *hot*. This conclusion is fortified when this passage from the text messages is seen in the total context of the overall text messages and the record of interview. For example, the Practitioner accepted in cross examination that when he said in the text messages "I wasn't very popular in school either. I was one of the brainiacs" his intention was to try to bond with Molly. 3. We are of the view that the Practitioner accepted at the time that the photograph Molly had sent was a genuine representation of what she looked like as a 15 year old at that time. The Practitioner's assertion that "he was catching out" Molly during the text messages; The description by Molly of her height and weight 1. The Practitioner asserts that he considered Molly's statements as to her height and weight were likely to be that of an adult. When describing her appearance, Molly said that she was 5' 4" and 120 (20.04.2004 @ 3:34:28 and 3:34:32: PM). It is relevant to note that the Practitioner is not asserting that a height of 5' 4" (1.62 metres) and weight of 120 pounds (54.4kg) is not within the normal range for a 15-year-old female. We do not consider that this is something upon which the Practitioner had caught Molly out. Alleged inconsistencies in the colour of Molly's eyes 1. The Practitioner asserts Molly stated in a message that she had "blue eyes", however the photo sent of Molly shows green eyes. The actual entry on the text is "blue" not "blue eyes" but we accept that when read in context that's what Molly meant. 2. We only have in evidence a black and white photograph of Molly. The Practitioner is implying that he received a colour photo. He did not tender in evidence a colour photograph of the image that was sent. Assuming that was because he currently does not possess one, the Practitioner is asking us to accept his memory from 18 years ago that in the photograph Molly had green eyes. Given the Practitioner's evidence on the first day, that for the first ten years he had not even remembered that he had been charged with a criminal offence and our other findings in relation to the Practitioner's credibility generally, we are not prepared to accept his assertion of inconsistency in the colour of Molly's eyes, without corroboration. Molly saying she was deaf but then allegedly saying she was able to hear things 1. The Practitioner relies upon a line of text from Molly which says "i could hear like big noise" to found an assertion that he had caught Molly out when she disclosed she was deaf. 2. That line of text needs to be read in the context in which it was written, namely, a discussion about Molly going for a ride on the back of a Harley: Practitioner: How was the Harley ride? Molly: exciting Practitioner: did u fall off? Molly: no sillyboy Molly: it felt really vibrating Practitioner: So probably don't know how LOUD those things are! Practitioner: they are very loud too! Practitioner: How old is your neighbour? Molly: I could hear like big noise Molly: So I knew it must b very loud Practitioner: My neighbor has one and I can hear him 1 mile away Molly: wow Molly: lol Practitioner: It wakes me up when I am sleeping… 1. The Practitioner also refers to a line of text in which Molly says, "it makes noises". Again, that line of text requires context. The Practitioner and Molly are discussing the Practitioner making a telephone call when he arrives at Molly's residence. 2. The full text of that exchange is as follows: Practitioner: if I call, you won't be on the computer will you? I don't want to get a busy tone Molly: [telephone number redacted] Molly: no it wont b busy Practitioner: is that your house phone? Molly: u mite get the tty Molly: yes Practitioner: What happens if I get the tty? Molly: it makes noises Practitioner: Will you still know it's still me? Molly: yes from caller id Molly: umite get my mums answering machine also 1. As is plain from earlier text exchanges, the Practitioner understood that "tty" was the reference to tele-typewriter, a communication device used by people who cannot use a regular telephone due to hearing loss. The expression "it makes noises" is in the context of what happens when that equipment is being used. As is obvious from the earlier exchange, Molly could hear some noise. 2. Again, it cannot be objectively concluded on the face of the text messages that the Practitioner had caught Molly out about having a significant hearing impediment. 3. It is also significant to note that in the Practitioner's record of interview on 3 May 2004 shortly after he had been arrested and charged, the following exchanges took place: Detective: You wanted to be her friend. [Practitioner]: I was curious about her, I was curious about her deafness, I was curious about how she did everything in the world. I was curious to learn more about her. Curiosity killed the cat… Detective: Sure, so why, what is so compelling about a friendship with this girl? [Practitioner]: She's deaf. I guess, I just felt sorry for her. 1. We do not accept the Practitioner's assertion that he had caught Molly out when she disclosed she was deaf. Dr Galambos' acceptance of the Practitioner's assertions as to his state of mind and that there were detectable multiple inconsistencies in the text messages 1. Dr Galambos records that the Practitioner quickly came to form the opinion that the alleged "child" was in fact an adult engaging in a fantasy during the chat and that upon seeing the photo of the "child' he did not believe the person to be a child. The Practitioner asserted to Dr Galambos that during the two weeks of conversation, he continued to believe the person was over 18, explaining that he was "catching out the person". The Practitioner told Dr Galambos he had a "strong suspicion of 90%" that it was an adult pretending to be a 15 year old in order to be provocative and naughty. He even considered that it might have been a male who was "catfishing" – putting on a 'fictional personae'. 2. Initially at page 9 of his report Dr Galambos uses some cautious language to describe his possible acceptance of the Practitioner's story about his state of mind in April/May 2004 saying "it cannot be discounted" and he "would not be surprised" if what the Practitioner was saying was true. However, by page 15, Dr Galambos seems to have wholeheartedly embraced the Practitioner's story when he concluded as fact: He was lured by the police officer masquerading as an underaged girl in an adult chat room to engage in sexual conversation and meet up. [The Practitioner] was able to recognise that it was highly unlikely he was in fact interacting with an under aged person. He was suspicious from the outset, disclosed personal details about himself, appeared to get lost in the fantasy – conversing with a childish manner as if he were a teenager himself, and threw caution to the wind in wanting to meet up with the person who he considered could even be an adult male posing as a female. 1. These opinions expressed by Dr Galambos as to an ultimate issue in this case are based upon his acceptance of the Practitioner's assertions about his state of mind in April/May 2004 and his acceptance that there were detectable multiple inconsistencies in the content of the Policeman's dialogue over four or five hours of chat time over two weeks. We do not accept the Practitioner's assertions either as to his state of mind in April/May 2004 nor that there were detectable multiple inconsistencies in the content of the text messages. We place no weight on the opinions expressed by Dr Galambos about factual matters that are based upon an acceptance of the Practitioner's assertions and the proposition that there were multiple inconsistencies in the text messages. Four other issues arising from the text messages Molly's pubic hair 1. At page 6 of the text messages, the Practitioner asks about the state of Molly's pubic hair. In cross examination, the Practitioner said that he asked these questions because he wanted to test which "Tanner" stage Molly was at. He satisfied himself that Molly was at Tanner stage 5. The Practitioner asserted it was his understanding that Tanner stage 5 was the adult stage of pubic hair maturation. Subsequently, Dr Cowap put to the Practitioner that the median age of achieving Tanner stage 5 in females in pubic hair distribution is 15 years of age. The Practitioner was unable to accept that that was so and asserted that in 2004 he was working on his memory from his medical training. 2. On more than one occasion during the text messages and in oral evidence he indicated that "I don't like it hairy down there" or words to a similar effect. 3. We do not accept the Practitioner's evidence that his questions to Molly about her pubic hair were part of an examination he was carrying out in the text messages to satisfy himself as to Molly's age but rather about the Practitioner's preference in respect of female pubic hair. The provision by the Practitioner to Molly of his personal information 1. By page 15 of the text messages (annexure B to tab 2), the Practitioner had provided to Molly photographs of himself, his real name, his correct telephone number, the location where he lived, and on pages 18 and 20, that he was a medical doctor and more specifically a radiologist. The Practitioner rejected the suggestion put to him in questioning that he was comfortable in giving all this information away because he thought he was dealing with a vulnerable 15-year-old deaf girl who was being truthful with him. The Practitioner's explanation is that he thought that she was an adult and felt comfortable giving this information to an adult. We do not accept that assertion by the Practitioner and find that the Practitioner was comfortable exposing himself in the way that he did because he thought he was dealing with a vulnerable 15 year old. The Practitioner's assertion that the police have tampered with the transcript of the text messages 1. During cross examination the Practitioner was taken to the following passage at page 38 of the text messages: Molly: sorry still sounds like we would b bored Practitioner: should I spell out for you? s e x Practitioner: that is boring for you? Molly: lol nooo 1. In cross examination the Practitioner said that he remembered that in this part of page 38 of the text messages there should have been "an additional line or two lines that have triple asterisk, capital letters and bold-faced "boring" and the triple asterisk after that". The Practitioner asserted that these lines were missing from page 38 and that further he told Detective Marshall during the police interview that "there was a big, bold message, "boring"." The record of interview discloses that the Practitioner made no statement in those terms to Detective Marshall during the police interview. The Practitioner used the word "boring" on one occasion in the police interview in the context of how Molly responded on occasion to day-to-day questions. 2. The Practitioner asserts that the police have removed a line or lines from this passage because they were worried about problems with entrapment. 3. We do not accept that this evidence by the Practitioner is reliable. Given the disconnect in his memory, as asserted by the Practitioner, about what happened to him in April/May 2004, we find it inherently unlikely that he can remember in 2023 there being a specific line of text in the 47-page transcript which is missing. We also do not accept that the police would be motivated to have removed the word. "***BORING***" as asserted given the words "boring" or "bored" remain in the transcript 14 times [used nine times by Molly and five times by the Practitioner]. The Practitioner's understanding of the age of consent 1. In the discussion in the text messages about Molly being "jail bait" [see Appendix 3] the Practitioner on the one hand seems to acknowledge he thought the age of consent in Texas was 18 years but on the other he tells Molly he can only go to jail if she says he raped her and the girls have sex at 14,15 and even 16 all the time and no one goes to jail. He seeks and obtains Molly's assurance that she would not claim that she had been raped. At 4:30:53 in the text messages on 20 April 2 2004 the Practitioner wrote "I thought most girls already had sex by the time they were 15?" We find that is what the Practitioner did generally think in 2004 despite his reluctance in cross examination to accept that was so. At the same time we find he accepted Molly herself was a virgin. We do not accept the Practitioner's oral evidence that he did not know one way or the other whether it was illegal for a 34 year old to have sex with a 15 year old in Texas in 2004. The arrest 1. At approximately 12.08 pm on 3 May 2004 the Practitioner was arrested by two police officers outside what he understood to be Molly's home. The details of how the Practitioner was arrested are more fully set out at tab 3.18. page 211. Upon a frisk the Practitioner had an ultra-ribbed spermicidal lubricant latex condom in his right front pants pocket. He was holding a cellular telephone/digital camera and had in his motor vehicle, amongst other things, a Kodak digital zoom camera and a box containing four more condoms. The Practitioner was taken in handcuffs to the police station and charged with the criminal offence. The Practitioner's record of interview 1. About 50 minutes later, commencing 12:58 pm on 3.5.2004, the Practitioner participated in a 32-minute recorded interview with Detective Marshall. It is an important piece of evidence. 2. At the commencement of the interview the Practitioner confirmed he understood that he had a right to silence and a right to have a lawyer. Then the following exchange occurred: Detective:….If you say that you want a lawyer and don't want to talk to me then I will get out of here. Practitioner:….I can talk to you Detective:…. Okay, uh, now, you know, it suffices to say that if anytime during our chat if you say look, I don't want to talk to you anymore, then we're out of here okay?....So, if at any point you decide you don't want to talk to me anymore, all you have to do is just say the word, OK? Understand? Practitioner:….Yes 1. Detective Marshall then tells the Practitioner that the reason he was there was that he had been charged with criminal solicitation of a minor, to commit sexual assault on a child. 2. Appendix 5 is an edited version of the record of interview which contains extracts relevant to the Practitioner's belief as to Molly's age on the 3 May 2004. The record of interview explicitly proceeded on the basis that the Practitioner believed Molly was a real girl who is 15 years old. The Practitioner accepted that at no point in the record of interview did he say he thought that Molly was an adult. 3. During the interview, the Practitioner's plea to the police was that he was just curious about a 15-year-old deaf girl and wished to befriend her. He also asserted that he felt that this 15-year-old girl had trapped him. The Practitioner's submission that little weight should be placed upon his record of interview 1. In the second minute of the interview the Practitioner indicated that he was "pretty confused" about his right to have a lawyer present but when that right was repeated the Practitioner indicated that he understood. At the 21st and 29th minute of the record of interview, the Practitioner says that he is shocked by what is happening to him (that is that he had been arrested and charged). 2. At paragraph 15 of his statement on 31 July 2022 the Practitioner claims that at the time of the police interview he was extremely distressed, confused and disorientated as it was his first experience being interviewed by police. He offers this as an explanation as to why he initially responded to the question "how many 15-year-old friends do you have?" by replying "Uh about 4 or 5", (then seemingly repeating that [at 17 mins]) but at a later point in the interview recanting: "actually, if I think of it there is no one else that was under age". 3. Paragraph 56(a) of the Practitioner's Outline of Submissions dated 22 August 2022 (exhibit 6), Counsel for the Practitioner submits this alleged state of mind applied to the whole of the record interview: The Appellant's description of the conditions of that interview includes the following: "at the time of the police interview, I was in a state of shock. I was very frightened and petrified. There was significant psychological trauma at the time of the arrest which led to an altered state of mind…I maintain that I lost a capacity to decide material presented during the police interview."[an assertion made by the Practitioner in his Initial response to the Notification 8.10.2015: tab 3.14 para 184 and 186]. Such a response is well within accepted human conduct when in a state of shock such as following arrest, and was likely to have affected the cogency of the Appellant's responses when he was interviewed, and in some instances, effectively cross-examined, by the US police officer. In the Appellant's submission, the record of interview should therefore be attributed little weight. 1. The Practitioner told Dr Galambos in 2023, at the time of the interview he was extremely distressed, confused and disorientated as he had been shocked to be interviewed by police. Dr Galambos said he formed the impression that the Practitioner would have been panicked, overwhelmed, and easily "led" by a professional police interviewer. 2. During his oral evidence the Practitioner was asked why he conducted the record of interview on the basis that he thought Molly was 15. He responded: …this was a shocking experience. I was quite panicked, confused, disoriented, scared, embarrassed, and I think as the police interview shows it, I was sort of - this was worsened by expert detective gaslighting me. I think the interview shows I'm a bit confused; I'm not sure what's going on; and I thought look I've - I'm going to explain myself and try to get out of it because I was scared. So I thought I would tell him what he wanted to hear and I could get out of there. I don't want to be locked in a room, and so I thought okay I'll just say things that he wants to hear and he'll let me go. 1. We accept that it may have been a shock to the Practitioner that instead of meeting a 15-year-old girl he had been arrested, handcuffed, taken to a police station and charged with a third degree felony. But just because the Practitioner, over a decade after the event says, and then continues to maintain, he was extremely distressed, confused and disorientated during the record of interview which meant that he lost capacity to accurately understand and respond to questions, does not mean we have to accept his evidence about that. We have found the Practitioner is not a credible witness. There is nothing of significance on the face of the record of interview, when read as a whole, that would indicate that the Practitioner was in an extremely distressed, confused or disorientated state. Nor has any significant example in the record of interview been put to us in which Detective Marshall has led the Practitioner into responding in a particular way. We give little weight to the opinion of Dr Galambos which is predicated upon the assertion by the Practitioner that he was extremely distressed, confused and disoriented during the record of interview to the extent that he lost capacity to accurately understand and respond to questions. 2. The police record of interview commenced less than one hour after the Practitioner was apprehended. The Practitioner's state of mind, about how old he thought Molly was, could not have been fresher in his memory. We place considerable weight on the Practitioner's statements in his record of interview as to his belief and understanding that Molly was 15 years old. We reject the submission the record of interview should be attributed little weight. 3. On the face of the record of interview the Practitioner freely admitted he thought Molly was 15. If the Practitioner thought on 3 May 2004 that Molly was an adult, we find on balance that it was what he would have told the police during the record of interview. He did not do so because that is not what he thought at that time. His assertion that it was what he then thought is a retrospective reconstruction of his state of mind by the Practitioner and we do not accept it to be accurate. 4. The Practitioner's explanation during his oral evidence as to why he told police in the record of interview that he thought Molly was 15, namely to tell them what they wanted to hear and so he could get out of there, does not sit easily with the Practitioner being told in clear terms by Detective Marshall at the beginning of the interview that the Practitioner did not have to talk to him at all and that he could terminate the interview at any time he wished. 5. The reasons he gave in the record of interview for carrying condoms to his meeting with Molly were entirely unconvincing. Given what is in the text messages, we find that he was carrying condoms because he intended to have vaginal intercourse with Molly. 6. Because we reject the assertion by the Practitioner that he was extremely distressed, confused and disorientated during record of interview to the point that he lost his capacity to know what he was saying, we placed some weight on the admission that the Practitioner initially made that he had had online contact with four other 15 year olds but no personal contact because of the distance they lived away from him, notwithstanding that he subsequently withdrew that admission. A video file entitled "Desi" 1. At approximately 5:30pm on 3 May 2004, police officers executed a search warrant on the Practitioner's residence. They found and confiscated, amongst other things, a DEL XPS COMPUTER. On 4 May 2004 the computer was sent for forensic examination. On 15 November 2004 the police collected the computer and a report of the findings of the forensic examination. This forensic report was reviewed by Detective Marshall on 10 December 2004, and he wrote the following incident/investigation report dated that day: DETECTIVE MARSHALL REVIEWED THE REPORT OF FINDINGS ON THE EVIDENCE SUBMITTED TO NTRCFL. THE RESULTS INDICATE THAT PHOTOS WERE FOUND OF [THE PRACTITIONER] THAT APPEARED TO BE THE SAME ONES SENT TO "SWEETMOLLYGIRLY" WERE FOUND ON THE GATEWAY PERFORMANCE COMPUTER. IN ADDITIONS PHOTOS OF [THE PRACTITIONER] IN THE NUDE WERE ALSO FOUND [THE PRACTITIONER] HAD ASKED "SWEETMOLLYGIRLY" IF SHE HAD WANTED TO SEE NUDE PHOTOS OF HIM. ALSO FOUND (ON THE DEL XPS COMPUTER) WAS A VIDEO FILE ENTITLED "DESI" WHICH DEPICTS A PUBESCENT WHITE FEMALE PERFORMING FELICIO ON A WHITE MALE SUBJECT. 1. The Practitioner tendered all of this report but redacted the last sentence (Exhibit 1 Tab 3.30 at page 261). The text with the final sentence unredacted was tendered by the Medical Board (Exhibit 5, page 87). We do not have a copy of the forensic report. Dr Galambos was not provided with a copy of Detective Marshall's report and found out about it for the first time in his oral evidence. 2. The Medical Board relies upon the last sentence of the report of 10 December 2004 as corroborative evidence of the Practitioner's interest in sexual activities involving pubescent females. 3. There were inconsistencies in the Practitioner's evidence about the extent of his communications with his lawyer in 2004-2006 and his knowledge of the results of the forensic report. Initially he said that his lawyer had not kept him informed at all. Subsequently however he changed that to say that "every three, four, six, months" he would call his lawyer or his lawyer would call him. Mr. Martin had filed a discovery motion on 27 April 2006 on his general instructions. In oral evidence the Practitioner said in one breath his lawyer mentioned "the possible child pornography that was found in the police report" but in the next, "In 2004, 2006 I'd never even seen that material. I didn't even know the police had made an accusation of possible child pornography contraband on my hard drives". 4. The Practitioner said the "Desi tape" was not on his computer. Given our findings in relation to the Practitioner's credibility we do not place any weight on his denial that this file was on his computer. 5. The Practitioner submits that there is no evidence that the computer and mobile phone was returned to him by police and asserts that he lost his ability to present material on those devices. Again, without more, we do not accept the Practitioner's assurance that his devices were not returned to him. 6. There is no apparent reason why Detective Marshall would fabricate his recording of what was in the forensic report. On its face it is corroborative of the narrative that the Practitioner in 2004 had an interest in sexual activities involving pubescent females. We are mindful however that the report is second hand hearsay tendered by the Medical Board in circumstances where the rules of evidence do not apply. The Practitioner was never charged with any offences arising from what is in the forensic report. We do not rely upon it to reach the findings that we have about the Practitioner's involvement with Molly. Conclusion that in 2004 the Practitioner believed that Molly was 15 years old. 1. We conclude that the assertion by the Practitioner that he believed at all relevant times in 2004 that Molly was an adult engaging in fantasy is the Practitioner retrospectively reconstructing a possible explanation of his then state of mind. The overwhelming weight of the communication in the text messages indicates that the Practitioner at the time thought he was dealing with a 15 year old. This is consistent with the state of mind expressed by the Practitioner in his contemporaneous record of interview with Detective Marshall on 3 May 2004. 2. On the face of the documents, we are unable to accept that objectively these extensive electronic exchanges between the Practitioner and Molly are explainable on the basis now asserted by the Practitioner; namely he was engaging in fantasy role playing, having concluded at an early stage in their interactions that Molly was an adult. WHAT WAS THE PRACTITIONER's KNOWLEDGE ABOUT THE CRIMINAL CHARGE? The Practitioner's position from time to time about his knowledge of the charge 1. As earlier indicated, the Practitioner has had at least three positions about his knowledge of the Texas criminal charge. 2. Firstly, in his earlier statements to authorities and in his 31 July 2022 statement before us (para 17), the Practitioner's position was that "in the past I have mistakenly failed to disclose the criminal Charge in Texas due to a genuine misunderstanding". The Practitioner claims that his failure to disclose the criminal Charge when making an application for registration in New Zealand in 2004 was due to "a genuine mistake as I had assumed the Charge had been withdrawn and I was not required to disclose the information". The Practitioner then goes on to give the following particulars: 1. I sought advice from my previous Texas criminal lawyer, E.X.Martin, and understood that the Charge would be withdrawn and I was free to travel to New Zealand (and so I did); 2. After initially appearing in court in Texas, I had not received any further information in respect of the Charge from either my lawyer, the court or the prosecution; 3. In April 2006 I had been able to freely travel to and from the US with no issues. 1. At paragraph 18 of his statement of 31 July 2022, the Practitioner reflects: In hindsight, I should have been less naïve and more proactive in ensuring I was up to date and aware of what was happening with the Charges against me. I can see that in retrospect, this failure on my part has significantly impacted my life and my career. 1. At paragraph 28 of his statement of 31 July 2022 he says: I have now had about a decade to reflect upon my conduct. In hindsight, I should have disclosed the Charge or at least I should have checked with AHPRA [Ahpra]. I accept with embarrassment, it was an error not to disclose the Charge and I have often thought about this over the last decade. 1. In relation to this first position, the fundamental question is whether the Practitioner's assertion that his Texas criminal lawyer had told him the charges would be withdrawn and that he had not received any further information from his lawyer or the court after the 4 May 2004 can be believed given the objective evidence. 2. The second position taken by the Practitioner arose for the first time in his oral evidence before us on the first day when he asserted that between 2004 and 2014 he had not been aware at all that he had been charged with the criminal offence in Texas. 3. The Practitioner's third position was in paragraph 15 of his statement of the 20 April 2023 at paragraph 15, "I am now aware that I was properly informed at the time of these facts (the pending charge against me bought by the state of Texas) but I was likely in denial and mentally withdrawn from the circumstances surrounding me regarding the charge". By this means the Practitioner now asserts that although he understands now that neither position one nor position two was accurate at the time he thought either or both of those positions were true due to wishful or magical thinking [paragraph 13]. 4. On occasions during the second day of the trial, the Practitioner reasserted his first position namely that his state of mind between 2004 and 2014 had been that he knew of the charge of the 3 May 2004 against him, but he thought this had been withdrawn. At the end of his oral evidence the practitioner mused that he thought he switched between two states of mind, a fluid transition between thinking the charge was dismissed and thinking that there was nothing to worry which presumably included not remembering he had ever been charged at all. Did the Practitioner know he had been charged? 1. Given the Practitioner's oral evidence on the first day of the hearing that between 2004-2014 he had no knowledge that he had been charged in 2004, some analysis of the objective evidence is warranted. That evidence consists of documents filed and the expert evidence in an affidavit sworn 5 June 2015 by Louis Murat Newman, IV (pages 41 – 51 of Exhibit 5), relied upon by the Medical Board. 2. There was no indication that the Practitioner required Mr Newman for cross examination and his evidence and expertise is unchallenged. As part of his legal experience, he worked in the Texas DA's office for nine years prosecuting criminal matters, particular felony offences, including sexual assault, aggregated sexual assault of a child and indecency with a child. We accept that Mr Newman was very familiar and had an intimate knowledge of the criminal processes and procedures for felony criminal offences in the State of Texas in the relevant period. Mr Newman confirms that criminal solicitation of a minor to commit sexual assault of a child is a third-degree felony in the State of Texas, carries punishment of two to ten years imprisonment and a fine of up to $10,000. Under Texas law, a minor is any person younger than 17 years of age. 3. We are satisfied that sometime between 12.08 pm and 12.58pm on 3 May 2004 the Practitioner was charged with the criminal solicitation of a minor, to commit sexual assault on a child (which was a third-degree felony with a possible punishment of two – ten years' imprisonment.) and the Practitioner was informed of the charge brought against him. 4. This is consistent with Mr Newman's evidence at paragraph 11 of his affidavit, that in Texas, criminal procedures, including methods and processes by which an accused is arrested and must be informed of any charges brought against him, are set forth by the Constitution and the laws of the State of Texas. 5. The Practitioner was arrested, handcuffed, taken to a police station. 6. In the record of interview (Exhibit 1, tab 2, page 95), at about 1.01pm Detective Marshall again tells the Practitioner, "the reason you are in here, is that you have been charged with criminal solicitation of a minor, to commit sexual assault of a child". 7. We find that by 1.01pm on 3 May 2004 the Practitioner had been twice told that he had been criminally charged and what that charge was. 8. The Practitioner spent the night of 3 May 2004 in the watch house. 9. By 4 May 2004 the Practitioner had engaged Mr E.X. Martin as his legal counsel. Mr Newman says that the Practitioner's counsel had a duty to advise the Practitioner of the charges brought against him and the severity of the charges, including the range of punishment for the offense and that his lawyer must ensure that the Practitioner fully understood the charges brought against. We are comfortably satisfied that these explanations were provided to the Practitioner by Mr Martin. On 4 May 2004 the Practitioner appeared before Judge Galberth with Mr Martin. We accept Mr Newman's evidence, the judge would have informed the Practitioner in clear language, of the charges brought against him (Mr Newman's affidavit at paragraph 16). 10. At that hearing, Judge Galberth set a bail. The specific charge brought against the Practitioner is noted on the bail bond. The Practitioner acknowledged the charge by executing the bail bond (at page 118 of Exhibit 5). We are satisfied that the Practitioner was provided a copy of the bail bond. He provided surety in the sum of $50,000 to secure his release from custody on the promise of his personal appearance to face the charge. The bond was co-signed by a person who was providing surety. 11. After completion of the law enforcement agency's investigation of the crime, the Practitioner's criminal case went to the District Attorney's office for consideration of continuation of the prosecution. In this case, the prosecutor obtained an indictment from the grand jury dated 20 May 2004 where at least nine out of twelve of whom must concur that the evidence collected against the Practitioner was sufficient to require the Practitioner to stand trial for the offence. A copy of the indictment signed by the foreman of a grand jury and by the Criminal District Attorney of Dallas County, Texas indicting the Practitioner on the criminal charges is at page 121 of the Respondent's bundle (Exhibit 5). The indictment was filed on 20 May 2004 and refers to the offense being committed on or about 3 May 2004. The particulars included the offense arising from the text messages from 20 April 2004 to 3 May 2004 and the Practitioner's attendance on 3 May 2004 at the address he thought was Molly's. 12. As we will next discuss, the proceedings continued on multiple occasions between 2004 and 2006. Given that history and our finding about the Practitioner's involvement in his case, we also accept Mr Newman's opinion that the Practitioner would have been informed of the continuing charge brought against him in Texas on well over a dozen occasions. 13. We are comfortably satisfied that that Practitioner knew in 2004 that he had been charged with a serious criminal offence. Given that the Practitioner knew that he had been charged did he think the charge had been dismissed? 1. As earlier indicated in his 2022 statement, the Practitioner asserted that in 2006 he "sought advice from my previous Texas criminal lawyer, E.X. Martin, and understood that the Charge would be withdrawn and I was free to travel to New Zealand (and so I did)" and "After initially appearing in court in Texas, I had not received any further information in respect of the Charge from either my lawyer, the court or the prosecution". 2. The Practitioner does not say what words Mr Martin used to cause an understanding in the Practitioner's mind that the Charge would be withdrawn. There is nothing in the corroborative material that would indicate that Mr Martin would have had that view in 2004 and onwards. 3. In oral evidence, the Practitioner asserted that he only appeared in court once and that was on 4 May 2004 and any further work done on his criminal case, including the April 2005 motion for discovery of evidence, was done without his instructions or his knowledge. He subsequently agreed that he had given general instructions to his lawyer to handle the case and that Mr Martin had general instructions to seek discovery. 4. The Practitioner points to court records which do not contain his signature, asserting that is corroboration he was not in court. The Practitioner further asserted that because only his lawyer had signed some of the court documents his lawyer had without his instructions interacted with the Criminal Court without the prosecutor knowing. We find the second proposition inherently unlikely and there is no reasonable foundation for such an inference. We do not accept the assertion by the Practitioner that he only appeared in court on one occasion in relation to the Texas criminal charge and prefer Mr Newman's evidence (who reviewed the documents to which the Practitioner refers), that upon the filing of an indictment, the Practitioner who was under a bond, would have been ordered to appear in court (Mr Newman at paragraph 22). This first appearance is called an arraignment and during that formal hearing a judge will again in clear language, inform the accused of the charges brought against him by giving him a copy of the indictment and the Practitioner is given an opportunity to enter a plea (Mr Newman at paragraph 23). 5. In the respondent's bundle of documents (Exhibit 5) at page 126, there is a document which sets out the dates that the criminal charge against the Practitioner came before the court. After the date of the indictment there were 12 court dates. Those dates were 8 July 2004, 5 August 2004, 25 August 2004, 27 September 2004, 4 October 2004, 19 October 2004, 26 October 2004, 22 November 2004, 11 January 2005, 17 February 2005, 30 March 2005 and 1 June 2005. The matter was set for trial on 26 July 2005 then again on 26 September 2005 and then again on 26 January 2006 (see documents in Exhibit 5 pages 126 to 155). The trial that was scheduled for 26 January 2006 did not proceed. 6. On 27 April 2006, in preparation of the case, the Practitioner through his attorney, filed a motion for discovery of evidence. We find, based on Mr Newman's opinion, that counsel for the Practitioner would have reviewed the file and evidence obtained and communicated with the Practitioner to assess the charges and the strength of the prosecution's case against the accused. 7. The documentation that we have does not allow us to understand what happened to the criminal proceedings after that date apart from knowing that they had not been concluded. 8. In 2015, it appears the Practitioner's father made an inquiry of Mr Martin to attempt to obtain his file. On 14 August 2014 Mr Martin wrote a letter in response informing the Practitioner's father that the whole file that he had initially created in 2004 had been destroyed. In that letter, Mr Martin says to the Practitioner's father: I remember your son's case and I did represent him. I got to know your son pretty well while working on the case and preparing for trial. 1. The Practitioner denied what Mr Martin wrote in the letter of 14 August 2014 was true. It is to be observed that Mr Martin's letter was actually tendered by the Practitioner. The Practitioner has not attempted to call Mr Martin to give evidence to recant or clarify his statement. This statement in the letter by Mr Martin stands in stark contrast with the Practitioner's 2022 statement that "After initially appearing in court in Texas, I had not received any further information in respect of the Charge from… my lawyer". We accept that what Mr Martin wrote was what he remembered and what he remembered was getting to know the Practitioner pretty well while working on the case and preparing for trial. We don't accept the Practitioner's assertion that Mr Martin was not being truthful in the statement that he made to the Practitioner's father in the letter of 14 August 2014. 2. In any event during his oral evidence the Practitioner changed his assertion that he had not received any further information in respect of the progress of the criminal charge from his lawyer saying that he had communication with his lawyer every three, four or six months. 3. The Practitioner gave a third version in his supplementary statement of 20 April 2023 where he referred to the pending charge against him and his understanding of how the charge was dismissed and said: "I am now aware that I was properly informed at the time of these facts" (at para 15). The Practitioner's assertion of denial, withdrawal and wishful or magical thinking Dr Galambos' alternate hypothesis as to why the Practitioner failed to divulge the criminal charge 1. Dr Galambos in his report of 20 April 2023 says at pages 9 and 10: With regard to [the Practitioner] not divulging the charge to the Medical Board, [the Practitioner] claims that he believed the charge to have been dismissed. I note the Medical Board came to the position that the Practitioner was being untruthful. That may be the case but there is another possibility that does not appear to have been considered. My impression is that [the Practitioner] uses 'wishful thinking' as a coping mechanism and he might have been engaging in 'autistic fantasy' to convince himself that the charge has 'disappeared' because it was too terrifying to incorporate it into his self-identity as a good person and because he clearly believed [it] had been unfair to charge him for engaging in fantasy play. If he believed he had been unfairly accused of a heinous crime, then perhaps it is not so surprising that an emotionally immature and socially anxious person with a strong conviction in his own ethical values might be tempted to avoid disclosing that information to avoid further scrutiny or stress about negative evaluation. Whilst it was wrong for [the Practitioner] not to disclose the charge, anxiety may have played a large part in his belief that the charge had been dismissed. 1. The fundamental difficulty that we have with Dr Galambos' hypothesis is that it is predicated largely upon his acceptance that in April/May 2004, the Practitioner had been engaging in fantasy play believing Molly was an adult. We've found as a fact that was not so. The Practitioner's statement about "wishful" or "magical thinking" 1. In paragraph 13 of the Practitioner's statement of 20 April 2023, the Practitioner for the first time says: With hindsight analysis, I admit that there was an element of personal denial in acknowledging the criminal charge and engaging in wishful or magical thinking that the charge had automatically dissipated. 1. In paragraph 15, the Practitioner uses the words "denial and mentally withdrawn". 2. The Practitioner applies this theory of him engaging in wishful or magical thinking to both his former statements that he believed he'd never been charged and that he believed that although he had been charged his lawyer had not properly kept him appraised of the currency of the charge causing him to form the view that it had dissipated. At [14] of his 2023 statement, the Practitioner asserted that the threat of being arrested, criminally indicted, being labelled a child molester, was "so antipodal to my innate character that this resulted in significant personal cognitive dissonance". 3. This theory of wishful or magical thinking correlates with Dr Galambos' hypothesis at page 10 of his report (set out above) that "wishful thinking" may be another possible explanation for the Practitioner's failure to make any disclosure to regulatory authorities about the Texas charge between 2004 and 2014. 4. During cross examination, it was put to the Practitioner that given that he had been arrested, handcuffed, taken to a police station, charged, participated in a record of interview during which it was reinforced to him that he had been charged, spent overnight in the watch house and then signed a bail bond the next day which secured his release, that he was well aware that he had been charged on 3 May 2004. The Practitioner said that he did not have that awareness because of "magical wishful thinking" and compared his position with women with breast cancer who delay raising a complaint about their symptoms. In his oral evidence he also said, in relation to magical or wishful thinking, that if he is provided evidence that is contrary to his established belief that clearly indicates that his mental state and his belief was wrong, then he will modify his belief. Conclusion in relation to the Practitioner's knowledge of the charge, the continuing prosecution and his participation in the preparation of his defence of the criminal case 1. The Practitioner has, from time to time, made conflicting statements as to the extent to which he had been aware of the criminal charge, the continuing prosecution and his involvement with his lawyer in the preparation of his criminal case. 2. Notwithstanding his new case theory of magical or wishful thinking in his statement of 20 April 2023, during his oral evidence he veered on occasions back towards blaming Mr Martin for not keeping him adequately informed. 3. Given the various conflicting statements made by the Practitioner about his state of mind in 2004 onwards in relation to the criminal charge, it is difficult to discern what his case is in relation to his state of mind in 2004. As best we can make out, there is a qualified acceptance by the Practitioner that he had been properly informed from time to time about the progress of the active criminal proceedings flowing from the charge made against him but he now asserts that in some way he managed to convince himself either that the charge had been dismissed or that he had not been charged at all. 4. We are unable to accept the case put by the Practitioner on this issue. We find that the Practitioner well knew that he had been charged with a serious indictable offence of solicitation of a minor, sexual assault, a third-degree felony, that he was indicted by a grand jury for that felony, that his lawyer from time to time properly informed him as to the progress of his criminal case, making the Practitioner aware of the continuing nature of the criminal prosecution against him. 5. In his statement of 20 April 2023 at paragraph 16, the Practitioner concludes that he should have done better and sought further clarification and advice from those representing him in the proceedings in Texas in order to correctly disclose to the Medical Board the nature of the charge. We find that that statement is disingenuous in the sense that we have found that the Practitioner was at all times from 2004 onwards kept appraised of the currency of the charge against him, a proposition the Practitioner seems to accept at paragraph 15 of the same statement. 6. At page 9 of his report, before hypothesising about wishful thinking, Dr Galambos concedes that it may be the case that the Practitioner was being untruthful, and we are comfortably satisfied that that is the correct explanation. We also find that the Practitioner's most recent case theory that his previous incorrect statements about his knowledge of the criminal charge and its continuing currency were the result of magical or wishful thinking is a recent invention or construct not based in reality in this case. THE PRACTITIONER'S FAILURE TO DISCLOSE THE CRIMINAL CHARGE Applications for registration in New Zealand and Australia 1. As already set out, in the Practitioner's 31 July 2022 statement at paragraph 17, he conceded he failed to disclose his criminal charge when first applying for registration. in New Zealand. But he said it was a genuine mistake as he had assumed the charge had been withdrawn. We have found that it was not a genuine mistake and find the non-disclosure was deliberately designed by the Practitioner to obtain registration when otherwise he may not have done so. We find that his continued non-disclosure in all the subsequent years was also deliberate. On 19 June 2015 the New Zealand Medical Council cancelled the Practitioner's registration based on his failure to disclose the charge in his applications for registration over the years. 2. In his statement of 31 July 2022, the Practitioner refers to his applications for registration as a medical practitioner in Australia in 2010, 2011, 2012 and 2013. The Practitioner concedes that in each of those applications, he answered "no" to a question which was to the following effect: Have you ever been the subject of an investigation, complaint, disciplinary or other proceeding or inquiry by any court, tribunal board, statutory or other body? 1. At paragraph 22 of the statement of 31 July 2022, the Practitioner says: I answered 'no' because I thought it meant in relation to my work was a radiologist and that the Texas Charges had been withdrawn. 1. Firstly, the Practitioner is intelligent and we do not accept that the Practitioner thought the expression "proceeding……by any court" was confined to proceedings in a court about the Practitioner's work as a radiologist. Secondly, again we have found that the Practitioner did not believe that the charge had been withdrawn. 2. At paragraph 24 of his 31 July 2022 statement, the Practitioner asserts that his assumption that the charges had been withdrawn was reinforced in his mind by the fact that no employer, registration or immigration authority had picked up the fact that there was an outstanding charge against him in Texas between January 2005 and 2014. This is curiously circular logic. The Practitioner is saying that having over multiple years given a false answers to the question about him being the subject of a criminal charge, he was reinforced into thinking that the charge had been dismissed because no employer, registration authority or immigration authority in New Zealand or Australia had picked up the fact that there was an outstanding charge against him in Texas. At paragraph 52 of the Practitioner's Response to Request from information from the National Medical Board of Australia (8 October 2015; tab 3.14 of Exhibit 1) he goes further to assert that he was being overly punished and made an example of for system errors and failure on the part of Ahpra in their application registration credentialing process for foreign applicants who have not trained in Australia. This is a somewhat brazen proposition by the Practitioner given his non-disclosure. Application for New Zealand citizenship 1. The Practitioner admits he failed to disclose on his application for New Zealand citizenship in April 2009 that he had been charged with a criminal offence in the US. He asserts that the Department of Internal Affairs, after a two year investigation, accepted it was not deliberate. Given that we don't accept anything that the Practitioner says to us if it is not inherently likely or corroborated, we are not prepared to accept that the Department of Internal Affairs accepted that his failure was not deliberate. The Medical Board attempted to tender the judgments from two New Zealand High Court cases relevant to the question in which the Practitioner was a litigant and which may have shed light on exactly what questions were asked and answered and the history of the basis upon which the Department proceeded to refuse his New Zealand citizenship. The Practitioner however successfully objected to the tender of those two High Court cases on the basis that they were provided at the commencement of the hearing and notwithstanding the Practitioner had overnight to discuss the contents of those cases with his lawyers, that it was procedurally unfair to allow the tender. Ultimately the full text of the cases are not before us. 2. Because we do not accept on balance that in 2004 the Practitioner either believed he had never been charged or believed the charges "would be withdrawn", we are comfortably satisfied that his failure to disclose that he had been charged with criminal offences in the US at the time of him making an application for New Zealand citizenship was deliberate and was not a mistake by him. The failure to disclose in his application for New Zealand citizenship is consistent with the failure by the Practitioner in his various applications for registration and renewal as a medical practitioner made in New Zealand and Australia as otherwise referred to in these reasons. CHANGE OF NAME 1. In July 2007, whilst he was in New Zealand, Dr Max Mehta changed his name to Dr Robert Taylor. He asserts that his motivation for doing that was that he had a belief that a more Anglo-Saxon sounding name would attract business and would be conducive to social engagement. 2. Currently the Practitioner adopts that name in Australia. He is currently known by his birth name, Max Munish Mehta, in the United States. 3. At paragraph 25 of his 2022 statement, the Practitioner asserted that all of his applications for registration to the medical regulatory authorities were in his birth name of "Mehta". Whilst we have not been provided with a complete set of the relevant documents, there are some which corroborate that assertion. 4. It was put to the Practitioner in cross examination that the reason he changed his name was to make it harder for people to trace him and in particular to connect his name in Oceania with the outstanding charge in Texas. The Practitioner rejected that suggestion. Given the overall factual findings that we have made against the Practitioner we also find that his change of name was significantly linked to making it more difficult for people, particularly the authorities in Texas, who may have been looking for him, to find him. DR YOUSAF'S SIGNATURE Forging Dr Yousaf's signature 1. As indicated above, in February 2013, Ahpra was notified by a Dr Rauf Yousaf that the Practitioner had falsified a document relating to an application for specialist registration. The Practitioner asserts that he and Dr Yousaf were business partners, and the notification by Dr Yousaf did not occur until the Practitioner left the business in acrimonious circumstances. The falsification related to 'signing' Dr Yousaf's name in order to certify as true copies his medical school diploma, radiology registrar diploma, and imaging fellowship diploma which had been previously submitted in 2011 and 2012 with no false signatures. Dr Yousaf was the Practitioner's supervisor at the time. 2. The Practitioner admits to falsifying Dr Yousaf's signature in the application process. 3. At paragraph 29 of the Practitioner's statement of 31 July 2022, he asserts that when he signed the signature of Dr Yousaf on documents in 2013, Dr Yousaf had given him his consent over the telephone to do so because there was a deadline. 4. Importantly however in a letter written by the Practitioner on 12 March 2013 to Ahpra (at tab 12, page 118), the Practitioner said: (1) I had submitted my application to AHPRA [Ahpra ] for unlimited registration around 31 January 2013….However after filling out form AGSP-03, the check list mentioned that I should submit [documents]. (2) In haste, I submitted these documents to AHPRA [Ahpra ] and exercised rather poor judgment by signing on behalf of Dr Yousaf as the certifying agent and alerting Dr Yousaf that I had done so. (3) I am most ashamed of not obtaining the proper certifying signature required for the documents. (Emphasis added) 1. The plain words used by the Practitioner in the expression "and alerting Dr Yousaf that I had done so" is a statement that he told Dr Yousaf after the event. The Practitioner said that he was proficient in the English language. During his evidence he spoke very fluently and the documents before us created by the Practitioner over the years show a high level of fluency in the English language. When asked by Detective Marshall in the record of interview in 2004 the Practitioner confirmed that he could read and write English and had been a naturalised citizen of United States for over 20 years. We are comfortably satisfied in finding that in 2013, the Practitioner would not have used words which would indicate that he only told Dr Yousaf after he had written the false signature on the document. 2. During final submissions counsel for the Practitioner suggested both the proposition that Dr Yousaf consented over the telephone to him placing the signature on the document before he did it and that he alerted Dr Yousaf once he had done it, can stand together and are not mutually exclusive. 3. The difficulty with that submission is that the Practitioner does not say in the letter Dr Yousaf had given him his consent over the telephone to do so because there was a deadline. We find that he would have done so if that had been what happened and there would have been no reason to mention to Ahpra that he had a subsequent telephone call to confirm that he had done it. Nowhere in the letter of 12 March 2013 does the Practitioner assert that he had Dr Yousaf's permission to place a facsimile of his signature to certify documents provided in the process of registration either prior to or after the Practitioner did so. 4. We are comfortably satisfied that the better interpretation of the expression "and alerting Dr Yousaf that I had done so", is a clear statement by the Practitioner that he placed the signature on documents without Dr Yousaf being informed beforehand. 5. In final submissions, counsel for the Practitioner also commented upon there being no evidence from Dr Yousaf before us. There is no evidence the Practitioner attempted to secure evidence from Dr Yousaf and, given the complaint made by Dr Yousaf, the inference would have been readily open that any evidence given by Dr Yousaf would not have been of any assistance to the Practitioner's case that Dr Yousaf had given prior approval to the falsification of his signatures. But given what we've said about the standard of proof we do not rely upon that inference. We place substantial weight upon the admission made by the Practitioner in his letter of 12 March 2013 and little weight on the fact that we do not have evidence from Dr Yousaf. 6. We conclude that the Practitioner is being untruthful when he asserts that he had Dr Yousaf's permission to place Dr Yousaf's signature on the document. 7. As has already been recorded in the background, this complaint against the Practitioner was resolved by the New Zealand Board by deferring the Practitioner's 2013 registration until after he had completed a 10-week ethics course. The New Zealand Board was not of course aware of that time of the failure by the Practitioner to disclose the outstanding criminal charge in Texas. WESTERN AUSTRALIAN CRIMINAL CHARGES The family violence order and the breaches of that order 1. As already mentioned, on 12 May 2016 the Practitioner was charged and entered guilty pleas to six counts of breach a violence restraining order (VRO). The VRO had been obtained in April 2016 by the Practitioner's ex-fiancé of five years, following a breakdown in the relationship and an incident in which the Practitioner attended her house to attempt to get his belongings, banged on the door demanding to be let in and sending a number of text messages making similar demands. Dr Galambos describes the behaviour of the Practitioner that led to the VRO being made as a "moderate tirade" (page 15). 2. The breaches of the VRO each related to individual text messages sent by the Practitioner between 28 April 2016 and 11 May 2016 in which he asked to speak to his ex-fiancé or provided her with information about his legal situation in Australia and New Zealand ("the VRO breaches"). In his comments at sentence the presiding magistrate observed that the breaches were perhaps not the type of overbearing text messages that some people send to a protected person but went on to comment that having said that, the continued contact in and of itself and the weight of that continued contact can have a tendency to have a sense of threat or intimidation. The messages were not entirely benign. Two of the text messages had emotional content in them (although that content was not abusive). The presiding magistrate also took into account the Practitioner had handed himself in, spent time in custody in the cells and had pleaded guilty at a very early stage. A fine of $1,000 was imposed, together with "spent convictions" for each of the charges. Dr Galambos describes the behaviour of the Practitioner that led to breach of that VRO as being "naively sent communications" but that is underplaying the seriousness of breaching a VRO. 3. In relation to the circumstances surrounding the breaches, Dr Galambos records in his report on page 14: [The Practitioner] believed this conviction was not worthy of notification as it related to texts and cordial conversations with an ex-partner of five years in the context of him leaving the country and his partner's apparent consent to have contact with him. 1. Again, Dr Galambos has accepted the Practitioner's belief and assertions. Apart from the Practitioner asserting it (including to the magistrate) there is no corroboration that the communications were by apparent consent or welcomed. We give the assertion of apparent consent no weight given that it was the complaint of the Practitioner's ex-fiancé that was the source of the charges against him for breaching the violence restraining order. Failing to disclose the VRO breaches in the current application for registration 1. The Practitioner failed to disclose the charges of breaches of the VRO, the findings of guilt and the spent convictions to the Medical Board in his Application for specialist registration dated 15 July 2021 (tab 3.38 exhibit 1). 2. As earlier indicated the Medical Board relies upon section 82(1)(c)(ii) as an independent ground for the refusal of the appeal. That subsection provides that the Board must decide to refuse to grant the applicant registration in the health profession if it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular. 3. The Practitioner makes two arguments as to why he failed to make the required disclosure. He says that he believed the spent conviction was firstly not one that was worthy of notification and secondly not one that required notification. 4. He argues in his statement of 20 April 2023, (see paragraph 17 onwards), that he didn't disclose "the spent conviction of breach of violence restraining order" because he had been informed that there was no criminal conviction recorded against his name. The Practitioner describes this as "a genuine misunderstanding of relevant Australian criminal history". The Practitioner asserts that he did not properly read the question that he was answering and the "red flag" (the Practitioner used that description and it is an accurate one) instruction contained in that section of the application form. 5. In order to assess the Practitioner's explanation/excuse it's important to look at the part of the Application form the Practitioner was filling out. Question 21 asks "Do you have any criminal history in Australia?" There is then a warning which reads "It is important that you have a clear understanding of the definition of Criminal history. For more information see Criminal history in the Information and definitions section of this form." 6. The definition of "CRIMINAL HISTORY" is set out under a bold heading in the Information and definition section of the form in the following terms "Criminal history includes the following, whether in Australia or overseas, at any time: * Every conviction of a person for an offence * Every plea of guilty or finding of guilty by a court of a person for an offence, whether or not a conviction is recorded for the offence, and * Every charge made against the person for an offence. Under the National Law, spent conviction legislation does not apply to criminal history disclosure requirements…" 1. There is also a direction "You must attach a signed and dated written statement with details of your criminal history in Australia and an explanation of the circumstances." 2. There is then the choice of a "YES" box and a "NO" box and the Practitioner the Practitioner ticks the "NO" box. 3. The information in the form accurately reflects the requirements imposed by the National Law. The Practitioner belatedly asserts in his most recent statement that "I can now see why my spent conviction needed to be disclosed and that this was important for the Medical Board of Australia". But it was not only the spent convictions the Practitioner fail to disclose. He also failed to disclose the charges and the findings of guilt. 4. In the Practitioner's written submissions at [81(b)], attention is drawn to the fact that the Practitioner ticked "YES" to question 19 in the Application which is "Since your last declaration to Ahpra, has there been any change to your criminal history in Australia that you have not declared to Ahpra?" Again, there is direction in question 19 that requires the attachment of details. What the Practitioner attaches as being relevant to question 19 is a copy of the Order from the State of Texas dated 11 March 2020 dismissing the Texas criminal charge. The Practitioner nonetheless submits "It does not appear that the inconsistencies in the Practitioner's answers to questions 21 and 19 were queried by Ahpra". This is similar to the complaint made by the Practitioner in 2015 and referred to above that there were system errors and a failure on the part Ahpra in picking up false statements that he had made in earlier applications for registration. We find that by ticking "YES" to question 19 the Practitioner was not intending to disclose the charges and criminal findings for the breach of the VRO. 5. Dr Galambos assessed the Practitioner to be highly intelligent and emphasised parts of the Practitioner's personality which included him being fastidious. 6. So why did the Practitioner not understand and attend to what was required of him when answering question 21? The answer he gives is that he didn't read the question carefully enough (statement of 20 April 2023 para 21). 7. At paragraph 12 of his statement dated 20 April 2023, the Practitioner asserts, "In the past, my erroneous perception of the registration form(s) was that this was a clerical or administrative headache… I did not enjoy filling out the forms and considered this low-level fruit as part of my role as a medical practitioner. I also did not comprehend the gravity of providing false or misleading statements on these forms which could lead to substantive professional misconduct findings." 8. As earlier indicated, on 9 March 2016, the State Administrative Tribunal of Western Australia cancelled the Practitioner's registration because it found that he had failed to disclose the Texas criminal charge in four applications to Ahpra between 5 November 2010 and 30 January 2013 and that by declaring he had never been charged with a criminal offence he behaved in a way that constituted professional misconduct. Yet two months later he pleaded guilty in a Western Australian court to criminal charges which he did not disclose in his 15 July 2021 Application for specialist registration. We do not accept the Practitioner's explanation that this was because he did not comprehend the gravity of providing false or misleading statements on the forms which could lead to substantive professional misconduct findings. He was given that message on 9 March 2016 with the serious of finding of professional misconduct being made against him for similar past breaches. 9. Having made those findings, we are not satisfied that as a standalone false and misleading non-disclosure by the Practitioner, it is such that would lead to a conclusion, under Section 82(1)(c)(ii) that it would be improper to register the Practitioner. Rather we shall apply these findings to the larger question, pursuant to s 82(1)(c)(i)(C) as to whether the Practitioner is not a suitable person to hold registration. THE PRACTITIONER'S MENTAL STATUS 1. The Practitioner has provided evidence as to his mental status from two different psychiatrists, Dr Holiner and Dr Galambos. They provide a significantly different diagnosis of the Practitioner's mental status. 2. The Practitioner tendered in his case two reports from Dr Holiner dated 6 October 2021 and 1 December 2021 (Exhibit 1; tabs 3.5 and 3.6) and a letter from Dr Holiner dated 19 April 2023 (attached to the Practitioner's statement dated 20 April 2023; Exhibit 4). Counsel for the Practitioner indicated that there was no intention of making Dr Holiner available for cross examination. 3. On 6 October 2021, Dr Joel Holiner, Diplomate of the American Board of Psychiatry and Neurology evaluated the Practitioner in accordance with a condition imposed by the Texas Medical Board in September 2021. He diagnosed the Practitioner as suffering from social anxiety disorder and a single episode of a major depressive order which was then in remission. He confirmed medication management was not required, but that he would continue to monitor the Practitioner routinely. 4. After a consultation on 6 October 2021, Dr Holiner opined in his first report that the Practitioner had appeared appropriately concerned and open when discussing his prior history and his current symptoms and anxiety and mood. He concluded that no impairment was observed and he had decided to hold off initiating medication management (Exhibit 1, tab 3.5, page 27). 5. In his second report, Dr Holiner notes the Practitioner reported that he believed in 2004 "an undercover police was catfishing and [the Practitioner] claims entrapment". Dr Holiner's diagnosis of the Practitioner's mental state is of an unspecified anxiety disorder and a single episode major depressive disorder that is in full remission. Dr Holiner noted the Practitioner "declines psychotherapy at this time- 'I don't need it'". Notwithstanding this statement in Dr Holiner's second report, the Practitioner continued attending Dr Holiner. 6. The Practitioner provides a letter from Dr Holiner dated 19 April 2023 (in his statement of 20 April 2023.) That letter indicates that after 6 October 2021, Dr Holiner had appointments with the Practitioner on 11 occasions, the last of which was on 26 October 2022. Dr Holiner confirms the diagnosis in his report of 1 December 2021 and indicates that he has written to the Texas Medical Board indicating that he has no concerns about the Practitioner's mental health. 7. On the eve of the hearing the Practitioner produced a new diagnosis from Dr Galambos. We note the procedural history that led to the tender of that evidence was as follows. On 8 July 2022 the Practitioner had been given until 1 July 2022 to give the Medical Board any material on which he relied. The Practitioner's statement of 31 July 2022 complied with that order. After that time, the Practitioner sought an order that he be able to give further evidence, being psychological/psychiatric report on or before 2 December 2022. The Medical Board agreed and the hearing scheduled to commence Thursday 27 October 2022 was vacated and the hearing was rescheduled to commence 3 May 2023. On 22 December 2022, the Practitioner successfully obtained an extension of time to provide evidence on or before 1 March 2023. On 17 March 2023 the Practitioner's application for vacation of the May hearing date and for a further extension of time to file evidence was adjourned for hearing to 30 March 2023. On 30 March 2023 the Practitioner's application for an adjournment of the hearing was refused but he was given a further extension of time to 20 April 2023 to provide the Medical Board with any further material upon which he intended to rely. The Practitioner provided a report from Dr Galambos on the last available day, namely 20 April 2023. 8. The Practitioner had three consultations with Dr Galambos by electronic means. 9. Dr Galambos opines that he has no concerns that the Practitioner would pose an imminent risk to the public if he be permitted to work in Australia as a radiologist. 10. Dr Galambos however goes on to opine that the Practitioner has "personality vulnerabilities" which could potentially pose a risk to the reputation of the profession due to his past history (page 14). In fact, Dr Galambos' diagnosis at page 15 goes beyond vulnerabilities. There Dr Galambos diagnoses the Practitioner with the following psychiatric disorders: 1. Social anxiety disorder 2. Major depressive disorder – single episode, in remission 3. Personality disorder with avoidant, obsessive and narcissistic features 1. The first two diagnoses are consistent with that of Dr Holiner. The diagnosis of personality disorder is new. Dr Galambos opines that the avoidant feature of the Practitioner's personality disorder means "he likes to be correct, can be overconfident in his rationalising arguments and can be childishly self-defensive to avoid feeling like he is disempowered or perceived negatively". 2. At the commencement of the hearing, the Practitioner recast the orders sought in the application on the basis that he now asserts that had an impairment and proposed conditions should be imposed upon his registration to deal with his impairment. Whilst the Medical Board had no reasonable opportunity to have the Practitioner examined by their own doctor, they did not seek any adjournment of the hearing to be enabled to do so. Whilst the Practitioner asserted he had an impairment, his case was that it was not one that would warrant any cause for concern in terms of safety to the public. The definition in s5 of impairment in the National Law includes a disorder that detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practise the profession. It wasn't part of the case of the Medical Board that the Practitioner's mental status was an impairment that would of itself attract s55(1)(a) but rather that the untreated impairment from which the Practitioner suffered was relevant to whether the Practitioner was a fit and proper person to hold registration. 3. We are left in the position where there are two psychiatrists who had seen the Practitioner who give significantly different diagnosis as to the psychiatric disorder(s) from which the Practitioner suffers. One suggests no treatment is required; The other suggests extensive and intense treatment for a period of two years. Whilst we are left with that serious inconsistency in the evidence as adduced before us by the Practitioner, we shall proceed, as invited by the Practitioner, on the basis that in addition to a social anxiety disorder he suffers from a personality disorder with avoidant, obsessive and narcissistic features. 4. The Medical Board opposed the Practitioner's registration notwithstanding any conditions he now proposed relating to intensive treatment over two years for this psychiatric disorder. CONDITIONS FOR FUTURE THERAPY AND SUPERVISION WHICH THE PRACTITIONER PROPOSED BE PLACED UPON HIS REGISTRATION 1. As earlier mentioned, at the end of the hearing the Practitioner provided a document (Exhibit 9; the transcript of which is in Appendix 1) which set out a set of conditions he asserted should be placed upon his registration under s 57(2) of the National Law. Those conditions were based upon Dr Galambos' report (Exhibit 3) and the evidence of Dr Bako (Exhibit 2). Appendix 1 sets out potential further changes to the conditions which Counsel for the Practitioner embraced during final submissions. 2. In oral evidence, the Practitioner indicated that he would absolutely comply with the conditions set out by Dr Galambos at pages 16 and 17 of his report (exhibit 3) and with the conditions referred to by Dr Bako at paragraph 18, page 4 of his affidavit of 28 April 2023 (Exhibit 2). 3. Dr Galambos recommended that the Practitioner engage in treatment to address his social anxiety disorder and his personality disorder. Dr Galambos recommends that we consider imposing conditions which he opined were aimed at protecting the public and the reputation of the medical profession should the Practitioner be granted conditional specialist registration in Australia. 4. Dr Galambos opined the Practitioner would need to commit to engage in psychoanalytic psychotherapy sessions at least twice per week for at least two years (that is, at least 208 sessions). These sessions would be carried out by a senior psychotherapist with regular additional consultations by the treating psychiatrist (at least 24 occasions over the two years). In addition, a senior consultant forensic psychiatrist and a senior radiologist would play roles in the Practitioner's treatment and supervision. 5. Dr Galambos indicated that he would be prepared to take on the responsibility of treating psychiatrist. He recommended Dr Jeremy O'Dea as being a highly regarded and senior Australian forensic psychiatrist with a special interest in paedophilia and high-risk sex offenders in the role of senior consultant forensic psychiatrist. He recommended Dr Bako as the senior radiologist and Mr Justin Harris a clinical psychologist, as the psychotherapist. In relation to there being no unsupervised direct patient contact, the Practitioner proposed a condition that any direct patient contact by him be chaperoned by arrangement with Dr Bako. THE PRACTITIONER'S INSIGHTS The Practitioner's insights about the behaviour that led to the Texas charge 1. In his supplementary statement dated 20 April 2023, the Practitioner says that he has had further time to reflect upon his behaviour in relation to the Texas criminal charge. He says that he now accepts that there was a risk engaging with a minor even though he believed at all times that he was engaging with an adult in a fantasy. He says that his decision to proceed with the chat, given the risk, indicated poor decision making on his part and he fully acknowledges this. He says in retrospect he should have ceased communication based on the risk of potential harm to a minor. 2. The "insight" so far as it goes seems to flow from interaction between the Practitioner and Dr Galambos in the sessions they had for the purposes of preparing the medico-legal report in relation to the Practitioner's mental health. The "insight" is predicated upon an assertion by the Practitioner that at all times, in his mind in 2004, he "was engaging with an adult in a fantasy". We have found that that is a false retrospective reconstruction by the Practitioner of his state of mind in April/June 2004. 3. At least up until his statement of the 20 April 2023 the Practitioner had continued to assert that the crime with which he had been charged in 2004 was "victimless." He told Dr Holiner he was the subject of catfishing and entrapment. Dr Galambos (at page 8) records: "[The Practitioner] argued he had been unfairly described as a 'child molester' as 'there has been no victim – no fifteen year old'". These continuing assertions are similar to those made by the Practitioner to the Medical Board about the "victimless" feature of his conduct in 2004, which lead the Medical Board to find "It appears you either do not understand, or have chosen not to acknowledge, the potential for harm to be caused to a child by such conduct". 4. In his statement of 20 April 2023, the Practitioner gave details of a 10-week online course he had done on general ethical theory in June and August 2022 and made reference to the work that he had done in writing his book on ethics. 5. The Practitioner asserted that he had gained insight regarding honesty, doing the right thing, and being an exemplar for others as a medical practitioner. 6. Little weight can be placed upon "insights" which are based on the Practitioner's false premise that he was engaging with an adult in a fantasy. Insight about non-disclosure 1. The Practitioner again in his statement of 20 April 2023 says he has had time to further reflect on his behaviour in relation to non-disclosure of criminal history. This reflection again appears to arise from conversations he has had with Dr Galambos. The Practitioner now says he accepts that the integrity of the application process is important and further that, "Inaccurate statements in application forms for Ahpra and the New Zealand Medical Council (NZMC) could adversely affect the reputation of the medical profession if it results in the registration of practitioners who are not fit and proper persons". At paragraph 10, the Practitioner indicates that he now accepts and understands that the public needs protection and confidence that medical practitioners are providing accurate and honest statements on registration forms and that the medical registration bodies have an important task of protecting the public, and questions posed by these registration bodies should not be taken lightly. 2. In paragraph 15 of his statement of 20 April 2023, the Practitioner says: As explained in paragraph 18 of my statement dated 31 July 2022, I should not have been naïve about the pending the [sic]Charge against me brought by the State of Texas and should have taken an interest in understanding how that Charge was dismissed instead of simply assuming that it was dropped or cancelled. I am now aware that I was properly informed at the time of these facts, but I was likely in denial and mentally withdrawn from the circumstances surrounding me regarding the Charge. 1. Whilst the insights the Practitioner now expresses about inaccurate statements on application forms are welcome, they are again based upon the incorrect premise that between 2004-2014 he was unaware of either the existence of the criminal charge against him or that it was still outstanding. The weight we can place upon these insights is further diminished when the overall history, including the most recent non-disclosure on 15 July 2021, is taken into account. Insights about the forgery 1. In relation to signing Dr Yousaf's name on the form, at paragraph 30 of his statement of 31 July 2022, the Practitioner asserts that as ordered he completed an ethics course and that allowed him to reflect upon his actions. He says he takes this conduct very seriously and regrets it. The Practitioner refers to the fact that he has attended other studies in ethics and again that he has written a book on the subject of ethics. 2. In his statement of 20 April 2023, the Practitioner elaborated that he has had time to further reflect upon him writing Dr Yousaf's signature on a document. He said he now accepts that signing a signature on another's behalf is wrong, commenting that a "signature is a unique identifier and a personal characteristic, like a fingerprint or retinal scan". 3. Whilst those new insights again seem to stem from conversations he has had with Dr Galambos, they continue to be based on an assertion that he had Dr Yousaf's permission to fabricate his signature. We have found that he did not. During the trial, counsel for the Practitioner took issue with the use of the word forgery. We find however that that is an apt description of what the Practitioner did. 4. The Practitioner goes on to say he has the insight that it is wrong to sign another's signature particular when the sole reason was expediency and says it was a grave mistake to conspire with Dr Yousaf to do so. Again, this misdescribes what happened. The Practitioner also characterises his behaviour as "a silly thing to do" and that he "exercised poor judgment feeling rushed at the time". This significantly downplays and diminishes the seriousness of his behaviour. 5. Dr Galambos was impressed that the Practitioner was able to move from totally blaming Dr Yousaf to accepting that he had improperly acted in a conspiracy with Dr Yousaf. We're not so impressed. The fact that the Practitioner continues not to tell the truth about the falsification of the signature heavily mitigates against any weight that can be placed on any expressed insight. The Practitioner's previous attitude to regulatory authorities 1. The Practitioner's interactions with regulatory authorities has, at times in the past, been belligerent. Mentioned elsewhere is the Practitioner's assertion on 8 October 2015 that he was being overly punished and being made an example of for systems error and failure on the part of Ahpra in their application registration credentialing process. Another example is an email written on 25 August 2021 by the Practitioner: "With all due respect, it sounds like you are endeavouring to engage the usual Ahpra and Medical Board of Australia tactics of delay, subterfuge, bureaucracy and omerta in order to create frustration so that I am exasperated and not able to engage in medical practice in Australia" and further, "In case the application is denied it is my full intention to appeal a potential denial and seek financial penalties from Ahpra and the Medical Board of Australia.' 2. At page 16, Dr Galambos describes the Practitioner's response to regulators as him consistently appearing ambivalent by acknowledging some degree of wrongdoing but always having an excuse in the form of a rational explanation, downplaying or diminishing the seriousness of the concern. He observed that the Practitioner seemed unaware that this would be perceived as overly defensive and suggestive of a lack of insight and judgment. 3. Dr Galambos formed the overall opinion that the Practitioner now has sufficient insight into the circumstances that led to previous cancellation of his registration. Dr Galambos reports that the Practitioner now appears to understand that the primary concern of the Medical Board is his capacity to safely practise the profession and to maintain public confidence in the profession. Dr Galambos opines that the Practitioner understands that his previous "defensive stance" has impeded the capacity of the regulator to gain adequate confidence that his level of risk to the public is low and to determine what conditions might assist to minimise any further risk that he be seen by the public to pose a risk to the reputation of the profession. This opinion by Dr Galambos about the Practitioner's new insights as to how he should interact in the future with regulatory authorities must be significantly discounted because we have not accepted his opinion as to the Practitioner's insights gained in relation to other behaviours discussed above. Conclusion about the Practitioner's insights 1. We give little weight to 'insights' built upon a false rationalisation of wrongdoing. THE PRACTITIONER'S CURRENT SITUATION 1. The Practitioner currently resides in the United States. At paragraph 31 of the Practitioner's statement of 31 July 2022, the Practitioner said that following the decision of the Texas Medical Board to reissue his medical licence, he had been working as a consultant radiologist in the US for approximately three to four weeks. He was under supervision and it was a requirement that the first 200 cases be reviewed by a supervisor. By 31 July 2022, he had done about 66 reports in a hospital-based role. The work did not involve any direct patient contact. By the time of the hearing, the Practitioner was unemployed. He also is waiting to complete additional exams and testing as to proficiency standards. 2. The Practitioner has been offered employment in Australia at Bowral, NSW working for an organisation owned by Dr Bako who gave evidence on behalf of the Practitioner. Dr Bako employs 180 people. He gave a character reference that when he worked with the Practitioner for six months, he was impressed by his work ethic and his abilities as a doctor. He has made the Practitioner a job offer which would create the opportunity for the Practitioner to earn remuneration of $660,000 gross pa ($3,000 per day x 220 days). 3. Dr Bako said that he is managing 13 radiologists who make constant and audacious demands day in, day out including for what he considers to be obscene remuneration [$4.500 a day; $990,000 pa]. He compared the Practitioner favourably to them commenting that the Practitioner is prepared to work for long hours and provide work and reports that are of the highest quality for two thirds of that remuneration. 4. Dr Bako had not been aware of the Practitioner's current visa problems. IS THE PRACTITIONER A SUITABLE PERSON TO HOLD REGISTRATION IN THE HEALTH PROFESSION 1. As indicated, when discussing the legislative framework, the central question for determination is whether the Practitioner is a suitable person to hold registration in the health profession (s 57(1)(c)). In order to answer that question, we may decide the Practitioner is not a suitable person to hold registration in a health profession if having regard to the Practitioner's criminal history, to the extent that it is relevant to his practice of the profession, he is not an appropriate person to practise his profession or whether it is not in the public interest for him to practise his profession (s 55(1)(b)) and whether he is for any other reason not a fit and proper person for registration in the profession (s 55(1)(h)(i)). 2. We may also decide the Practitioner is not a suitable person if in our opinion he has an impairment that would detrimentally affect his capacity to practise his profession to such an extent that it would or might place the safety of the public at risk (s 55(1)(a)). 3. It was not part of the Medical Board's case that we may decide the Practitioner is not a suitable person because his registration is currently cancelled in New Zealand on a ground for which an adjudicating body could cancel his registration in Australia (s 55(1)(e)). 4. The Medical Board has not raised any issue about the other conditions set out in s 57(1) although, given the Practitioner is still refreshing his registration standards in the United States, we are unsure whether the recency of the Practitioner's practice is sufficient to meet the requirements specified in any approved registration standard pursuant to s 57(1)(e). In the event an order is made allowing the appeal and registration, that uncertainty could be remedied by making the order allowing registration dependent upon the requirements of s 57(1)(e) (and s 55(1)(f)) being met. The Practitioner's criminal history: s 55(1)(b) 1. The Practitioner's criminal history is relatively simple and does not involve a conviction being recorded against him. On 3 May 2004, the Practitioner was charged with criminal solicitation of a minor to commit sexual assault. He pleaded not guilty to that charge and it was ultimately withdrawn. 2. The Practitioner pleaded guilty to multiple breaches of a violence restraining order and there were findings made the Practitioner had perpetrated those breaches. The court imposed a fine and granted "spent convictions". 3. Based upon the Practitioner's criminal history, as defined in s5, we would not decide that the Practitioner is an unsuitable person to hold registration in the health profession. Whether the Practitioner is not a fit and proper person to practise his profession for any other reason: s 55(1)(h)(i) Fit and proper person 1. In Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, a case involving a lawyer convicted of manslaughter, Kitto J explained at [298]: It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task. 1. The Court of Appeal observed in Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 at [158]: … As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The "fit and proper person" test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances. 1. The expression "fit and proper person" in s55(1)(h)(i) has to be read in the context of the legislation in which it sits. As discussed in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [59], it is the relevant statutory provision which must govern and not case law developed at an earlier time. The object and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public is the paramount consideration (s 3A), and in providing that protection the Tribunal is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3). 2. As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [footnotes omitted] 1. So far as Meagher JA refers to upholding public confidence, it is primarily connected to the practitioner's malpractice or incompetence and setting standards deterring others from such conduct. But the statement also uses the expression "or otherwise not fit to practise, including those who are guilty of serious misconduct". A practitioner can be "unfit" when, he behaves or exhibits traits inconsistent with the honourable practice of an honourable profession, which regards integrity, trustworthiness and high moral and ethical values as an integral part of the practice of medicine. 2. Each case will depend upon an evaluative judgment being made by the Tribunal as to the nature and seriousness of the conduct (Chen at [20]). The emphasis is upon the Practitioner's current fitness to practise (Chen at [71]). 3. Given that fitness of a medical practitioner is to be decided at the time of the hearing, all circumstances of the behaviour and all the circumstances impacting upon current fitness including the interest of the public, are relevant considerations. The underlying circumstances of the Texas charge 1. Notwithstanding the Texas charge was withdrawn, the Medical Board relies upon the circumstances which led to the Practitioner being charged. 2. We have found that between April/May 2004 the Practitioner groomed a person he believed to be a 15-year-old deaf virgin and on 3 May 2004 went to a place where he thought she lived with the intention of having vaginal intercourse with her. Dr Galambos has described this behaviour (if true) as "heinous" and we agree that is an accurate description. In the written submissions Counsel for the Practitioner criticised the Board for referring to the "repugnant nature" of the conduct underlying the Texas charge and asserted "the use of this highly-emotive language indicates a failure by the Board to independently and objectively assess his suitability" (at [57]). We disagree. The behaviour in 2004 could also be aptly described as "repugnant". 3. We have further found that the Practitioner has at no time faced the fact that in 2004 he behaved in such a way. 4. The Practitioner submits his behaviour which led him to be charged was 19 years ago and that he has not been the subject of any similar charges or convictions in about two decades from 2004. He acknowledges that the passage of time is not in itself sufficient to demonstrate a change in character Lee v Health Care Complaints Commission [2012] NSWCA 80 at [73]. What is important is whether in the time that has passed the Practitioner has shown remorse, change and reformation. 5. The Practitioner points to his expressions of regret and assertions of insights. but for reasons we have discussed we place a little weight on them. 6. The Medical Board relied in paragraph 27 of their submissions on the statement in Ex parte Tziniolas (1966) 67 SR (NSW) 448 at 461,: Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. 1. This passage was cited with approval by the Court of Appeal in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 and subsequently for example in Bahramy v Medical Council of NSW [2014] NSWCATOD 116 at [84]. 2. As we have already observed, the weight we place upon expressions of regret and insights by the Practitioner are significantly diminished because of the false narrative upon which they are based. 3. The Practitioner also points to the fact that based upon the evidence before us this was a "one off" or "isolated" incident and cites Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 at [76]. The Practitioner submits the absence of any charges or convictions of this kind, whether in his personal or professional life, in almost two decades, is strongly supportive of the proposition that it should be viewed as an isolated incident and a serious error of judgment rather than a defect of character that continues to persist, (citing HCCC v Karalasingham [2007] NSWCA 267 at [51] which in turn cites McBride v Walton [1994] NSWCA 199). The serious error in judgment asserted by the Practitioner is that even though he thought he was dealing with an adult, he put himself in a situation where others might think that was not true. 4. We do not accept that the Practitioner's behaviour in 2004 is simply a serious error of judgment. The Practitioner's continuing failure to admit what he has done and his multiple acts over a decade to cover up that he had been criminally charged points to a defect in character that continues to persist. 5. The fact the Practitioner has not come under notice for similar behaviour in the last two decades does not significantly diminish the seriousness of the Practitioner's behaviour in 2004 and since. 6. Dr Galambos is of the view that the Practitioner is not a risk to the public due to sexual deviancy because it should be accepted that the Practitioner believed he was dealing with an adult. He buttresses his opinion by observing that there is no evidence to support the proposition that the Practitioner has been involved in any consistent pattern of boundary violations, paraphilia, evidence of past interest in underaged persons or indication of the types of rationalisations and excuses that are common of paedophiles when they are confronted with evidence of child abuse. The difficulty with Dr Galambos' opinion is it is fundamentally based on the premise, which we reject, that the Practitioner thought Molly was an adult. 7. The Practitioner's behaviour in 2004 which was heinous and repugnant and his behaviour over the following decade to cover it up weighs heavily towards a finding that the Practitioner is not a fit and proper person for registration in the profession. The WA plea of guilty findings of guilt and spent convictions 1. We next consider the underlying circumstances of the 2016 convictions for breaches of the VRO. The behaviour which led to the VRO being made did not involve physical violence nor did the breach of the order. But any breach of family violence orders is to be taken seriously. (Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87]. 2. The Practitioner submits that even in cases of serious instances of domestic violence by health practitioners there is often no finding of unsuitability to practise and any penalty in relation to registration is limited to short term suspension, citing as examples Haasbroek; Nursing and Midwifery Board of Australia v GMR (Review and Regulation) [2020] VCAT 157 and Medical Board of Australia v Koulouris [2020] VCAT 348. 3. We would not make an unsuitability finding based upon the underlying facts of the Western Australian charges and findings of guilt. The Practitioner's honesty and future reliability when dealing with regulatory authorities 1. The Practitioner has demonstrated over a long time that he is prepared to make false statements to regulatory authorities. For 10 years the Practitioner practised in New Zealand and Australia having obtained registration by making false statements on annual applications in failing to correctly answer questions that required him to disclose the criminal charge pending against him. We reject the submission that this was just an oversight and was only brought to the Practitioner's attention in 2014. We find it was a deliberate course of conduct. 2. The Practitioner's decision to forge Dr Yousaf's signature was also deliberate. The failure to disclose the Western Australian charges and findings of guilt are a more recent occurrence of that behaviour. We have earlier referred to the Practitioner's belligerent behaviour towards regulatory authorities. 3. We have currently little confidence in the future reliability of the Practitioner to deal honestly with regulatory authorities. All this behaviour again weighs heavily towards a finding the Practitioner is not a fit and proper person for registration in the profession. The public interest 1. The Practitioner points to the "public interest" in support of his appeal. We accept that it is appropriate to weigh the public interest when considering whether the Practitioner is a fit and proper person for registration in the profession. 2. We take into account there is one significant public interest consideration which favours the Practitioner's registration. There is a public interest in a technically competent and qualified specialist being available to service the community. The Practitioner is a proficient and conscientious radiologist, although the recency of his practice is still to be established in Texas. Dr Galambos emphasised the parts of the Practitioner's personality that appear to be serving him in his role as a conscientious radiologist (studious, hardworking, fastidious and having impeccable standards of care). The Practitioner currently proposes that he work for Dr Bako in Bowral. Dr Bako said there is a demand for the Practitioner's services in that location. 3. The Practitioner submitted that dismissing his appeal would be a "life sentence"; there was no public interest in denying him forever having a chance of redemption and rehabilitation and that the public interest is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are offered a second chance (relying upon the authorities referred to in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85][7][12](5)). Given that we do not accept the Practitioner has acknowledged what he's done, he has not proved to us he has reformed. In any event we do not consider we are denying him the chance of redemption forever. If the Practitioner comes to genuinely accept what he has done, particularly in April/May 2004 and his deliberate subsequent non-disclosure and if he has the extensive treatment which is now indicated in relation to his personality disorder there may well be a chance of redemption. 4. The Practitioner also argues there is a public interest in giving effect to "the presumption of innocence" afforded to those accused of criminal conduct particularly in circumstances where the underlying charges are dismissed. 5. The first thing to make plain is that we are not determining the Practitioner's guilt (or innocence) of the criminal offence with which he had been charged in Texas. As the Court of Appeal said in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [64] "it is the courts that are charged with the duty of determining guilt or innocence, not the Medical Council or the Tribunal". We are making findings about the Practitioner's behaviour in 2004, on a civil standard of proof, as a step in taking action under the National Law and as Dixon J said in Briginshaw, if the proofs adduced, when subjected to the tests set out in that case, satisfy the Tribunal that serious behaviour was committed, "it should so find". 6. Whilst it may have a more nebulous meaning when used in common parlance, legally "the presumption of innocence" is no more than an evidentiary rule applicable to criminal prosecutions, which places an onus on the prosecution to prove all elements of the offence with which the defendant has been charged, beyond reasonable doubt. 7. In these civil proceedings any notion of the presumption of innocence is considered in the context of Dixon J's warning to more carefully assess evidence in cases where it is inherently unlikely that an occurrence, or in this case more accurately behaviour, of a certain description would take place. Nexus between the Practitioner's behaviour and his practice of the profession 1. The Practitioner submits, at [58] of his written submissions, that the underlying conduct leading to the Texas charge "occurred in the [Practitioner's] personal life, with no link whatsoever to his practise as a diagnostic radiologist". We accept there is no evidence that the Practitioner's ever behaved inappropriately in the course of his profession. 2. In Chen Basten JA (Leeming and Payne JJA agreeing) said at [5] that in the last 30 years the trend of regulation has involved an expansion of the primary focus from the control of conduct involving moral turpitude to conduct demonstrating a degree of incompetence. We are also mindful that an emphasis is to be placed upon the Practitioner's current fitness to practise. But when applying the statutory test of fit and proper person it remains true that some forms of conduct instant demonstration of unfitness and show a defect of character incompatible with membership of a self-respecting profession. (Ziems). 3. What the Practitioner did in 2004, behaviour which he still fails to acknowledge was heinous and repugnant, comfortably crosses the line referred to in Ziems and shows a defect in his character incompatible with membership of the profession and of its own force carries such a stigma as to bring the profession into disrepute. Contact with the public 1. The Practitioner argues that we should give weight to his assertion that in reality his practice as a diagnostic radiologist poses no risk to patients as he does not usually require direct patient contact and if it does, he could be chaperoned. That however is not the central risk. The main risk that the Practitioner poses is to the reputation of the profession due to his behaviour in 2004. Whilst Dr Galambos says that there are features of the Practitioner's personality disorder which could pose a potential ongoing risk to the reputation of the profession due to his past history, he opines that they can be controlled by two years of intensive and extensive therapy. We do not accept that the current risk the Practitioner's past behaviour and his untreated personality disorder poses to the reputation of the profession can be discounted because the Practitioner has agreed to participate in a two-year intensive therapy programme the outcome of which is currently uncertain. Texas Medical Board granted the Practitioner a medical licence 1. The Practitioner submits that it is a matter of significance that the Texas Medical Board reissued his medical licence on 17 September 2001. His registration was subject to conditions relating to the updating of his skills, restriction on his ability to supervise or delegate to mid-level practitioners and requiring him to be evaluated by a Board approved psychiatrist and to comply with any treatment recommendations. These conditions were expressed to be "based on [the Practitioner's] time out of the active practice of medicine." 2. The Practitioner's profile from the Texas Medical Board indicates that he had ceased payments of his Texas registration at the end of 2004 and his registration had been cancelled on 8 December 2006 at the Practitioner's request. We note from the Practitioner's CV that he had not practised in Texas from May 2004, the month when he was charged. 3. In written submissions the Practitioner asserts at [83(a)] that licencing of the of medical practitioners is governed by Chapter 160 of the Texas Administrative Code and relevantly requires a finding that "the individual applying for licence must be of good moral character" cl 160.7(a)(4) and this finding should be attributed significant weight, noting this is the jurisdiction in which the conduct the subject of the Texas charge was alleged to have occurred. We were not provided with a copy of the Code, but it is available online and we accept that's what it says. The Practitioner also provides a copy of the AGREED ORDER and FINDINGS of the Medical Board [Tab 3.3]. However, in the part of that document entitled "FINDINGS", there are no findings made about the Practitioner's character. 4. In a Notice to the Practitioner under s 80(1)(b) dated the 26 October 2021 the Practitioner was asked whether the (Texas) criminal charge was disclosed to the Texas Medical Board prior to or as part of his application for relicensure (Exhibit 5 tab 8). The Practitioner responded: "The criminal charge was fully disclosed to the Texas Medical Board during the medical license application process" but the assertion "fully" was subject to the following note: N.B., the Texas Medical Board requested two biometric fingerprint criminal assessments from the FBI be provided to the Texas Medical Board during the application process. These fingerprint assessments for criminal history provided, I believe, details of the arrest and criminal charge. As you and the Texas Medical Board are aware, the charge was dismissed on 11 March 2020, indicating no relevant criminal history pertaining to the safe practice of medicine. 1. On its face that would indicate that the Practitioner believed that Texas Medical Board was aware of the arrest, the charge and its dismissal. The Practitioner does not say he provided the Texas Board with all of the material that we are considering. We simply don't know what material the American Medical Board had to make its assessment. There is nothing in the FINDINGS by the American Board that would indicate its attention was drawn to the underlying circumstances of the 2004 charge. The American Board would not have had the psychiatric assessment in relation to the Practitioner's mental health upon which he now seeks to rely. 2. Without having all of the material upon which the American Board relied including any transcript of what was said at the hearing, we are not prepared to draw any conclusion as to whether that Board was given all of the material which is now before us and in particular the transcripts of the electronic exchanges with Molly and the record of interview. 3. It was also not argued before us that the objects, principles and structure of our National Law are on all fours with the Texas code. 4. Accordingly we place little weight on the relicensing of the Practitioner by the Texas Medical Board. New Zealand's continuing cancellation 1. On the other hand, the Practitioner's registration in New Zealand remains cancelled. On its face this might had given rise to a consideration under s 55(1)(e). As earlier indicated the Medical Board did not rely upon that subsection and we do not need to further consider it. Conditions proposed by the Practitioner are given little weight 1. Given our findings about Dr Galambos' opinion regarding the factual history, it would in our view be problematic if he was named as the treating psychiatrist. We acknowledge that the conditions cater for alternative appointments and the Practitioner has indicated willingness to change the conditions to cater with the concerns that have been identified with them. 2. The nature and extent of the conditions requiring two years intensive treatment proposed by the Practitioner underscores the seriousness of the Practitioner's psychiatric disorders which Dr Galambos has diagnosed. So far as we are aware that treatment has not yet commenced. Whilst we accept the Practitioner may be motivated to start to participate in the treatment proposed, there is no guarantee that treatment will be completed or if completed will be successful. We are not satisfied that the potential risk to the reputation of the profession due to the Practitioner's past history, can be adequately met by treating the Practitioner over a period of two years for the disorder currently suffered by the Practitioner. Conclusion 1. Our function is to be protective of the public, not to punish the Practitioner. 2. We take into account the matters in the public interest which weigh in the Practitioner's favour, however the underlying behaviour of the Practitioner in April/May 2004, his subsequent non-disclosure to the New Zealand and Australia medical regulatory authorities and the New Zealand immigration authorities of the criminal charge, his forging of Dr Yousaf's signature, his continuing denial of those behaviours and the failure to disclose the findings of guilt for breaches of the VRO together with the currently untreated mental disorders lead us to conclude that the Practitioner is not a fit and proper person and consequently not a suitable person to hold registration in the health profession. 3. Accordingly the appeal shall be dismissed and the decision of the Medical Board of16 May 2022 shall be confirmed. Would the application of s 55(1)(b) to the underlying circumstances of the 2004 charge have led to a different result? 1. As earlier indicated if we're wrong about the s55(1)(b) not being applicable to the underlying circumstances of the 2004 criminal charge then the test is whether the Practitioner is an appropriate person to practise the profession or it is not in the public interest for the Practitioner to practise the profession. Firstly the test for "appropriate person" must include as its central focus whether the Practitioner is fit and proper person to practise in the profession. Secondly our consideration of whether he is not a fit and proper person has taken into account whether it is in the public interest for the Practitioner to practise. Consequently in this case, the application of the test under s 55(1)(b) leads to the same result. POTENTIAL DIFFICULTY WITH THE RECORDING OF THE PROCEEDINGS ON THE LAST DAY 1. During the last day of the hearing the Tribunal was alerted to potential problems with the microphone recording Counsel for the Practitioner. To cater for that contingency on that day orders were made that counsel confer about any gaps in the transcript once it became available. However, when a transcript was ultimately delivered it was apparent the other microphones in the hearing room were sufficient to enable transcription. On 12 July 2023 a notation was made to that effect and an order was made discharging the contingency orders. ORDERS 1. The appellant be given leave to lodge the appeal out of time. 2. The appeal is dismissed and the decision of the Medical Board of 16 May 2022 is confirmed. COSTS 1. Neither party made any submission in respective costs and we shall make the following Orders to facilitate the resolution of any dispute in relation to costs. 2. If the parties are unable to reach agreement within 14 days as to the order for costs: 1. The Medical Board is within seven days to file in writing the order for costs sought and submissions in support of those orders. 2. The Practitioner is within a further seven days to file in writing any order for cost sought and submissions in support of those orders. 3. The Medical Board is within a further seven days to file any further submissions in reply or indicate in writing that they do not intend to do so. 1. The order for costs is otherwise reserved. Appendix 1 (pdf) Appendix 2 (pdf) Appendix 3 (pdf) Appendix 4 (pdf) Appendix 5 (pdf) ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 25 August 2023