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New Zealand’s Briginshaw

September 22nd, 2010 · No Comments

Z v Dental Complaints Assessment Commission [2008] NZSC 55 is the subject of this post, as well as of this one and this one.  Set out in this post is the entirety of the three sets of reasons’ discussion of the appropriate standard of proof in disciplinary prosecutions, starting with those of the plurality (Blanchard, Tipping and McGrath JJ) reaffirming the status quo, which is expressed in Australia in the decision of Chief Justice Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361ff, followed by the concurring decision of Anderson J, and the passionate dissent of Chief Justice Elias, who considered that the criminal standard of proof should be applied.  Part only of the relevant part of the Chief Justice’s dissent — her summary — was reproduced in my earlier post.

Blanchard, Tipping and McGrath JJ

[94]    The practitioner argues that he should not be required to defend himself against a charge in disciplinary proceedings that is based on factual allegations that are substantially the same as those he faced at his trial.  His counsel, Mr Waalkens QC, contends this is the case in respect of the allegations involving the 1989 and 2001 incidents, that he exposed himself, caused touching or close contact between the patient’s hand and his penis or that he touched a complainant’s breast.  Mr Waalkens submits that it is an abuse of the statutory process to subject the appellant to the risk that is inherent in reconsideration of the same issues.  No complaint is made about the particulars in relation to the complainant whose allegations were not the subject of criminal charges or in relation to the manner in which the appellant administered sedatives to three of the four complainants.  No complaint is made about the 1987 incident on the basis that the jury might have had more than one basis for acquitting the appellant on the criminal charge.  The 1987 charge is discussed further below.

[95]    In the criminal proceedings the Crown had the onus of proving facts that amounted to indecent assaults as charged to the criminal standard of proof, that is, beyond reasonable doubt.  The first step in considering the appellant’s argument that he faces reconsideration of the same issues in relation to the disciplinary process is to ascertain whether the same standard of proof would apply, if the disciplinary process proceeds, as at the trial.  If a different, lower standard of proof is appropriate, the argument against allowing the second set of proceedings is weaker.  In the context of double jeopardy, Professor Friedland has said:
Can disciplinary action be taken for the same offence after an acquittal in the criminal courts?  The answer should depend on the degree of proof required before a disciplinary tribunal.  If the degree of proof required is significantly less than that in the criminal courts, then the acquittal should probably have no effect, although it would surely influence the decision whether to commence proceedings.  On the other hand, if much the same degree of proof is required in each case, then a further hearing for the same cause should be considered a violation of the rule against double jeopardy.

[96]    Before it is able to exercise its powers to impose penalties, the Tribunal must in the present case be “satisfied” that a practitioner is guilty of detrimental acts or omissions, or of professional misconduct.  Being “satisfied” in this context simply means that the Tribunal has made up its mind that is the case.  The term “satisfied” does not require that the Tribunal should reach its judgment having been satisfied that the underlying facts have been proved to any particular standard.  Nor does the Act or any applicable procedural rule stipulate a standard of proof which the Tribunal must apply.  That question must accordingly be decided on general principles having regard to the statutory context.

[97]    The common law recognises two standards of proof.  The lower standard, the balance of probabilities, is that generally applied in civil proceedings.  It is well established that professional disciplinary proceedings are civil and not criminal in nature.  That is because the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned.

[98]    The civil standard of proof generally applies in civil proceedings even if the facts in issue, including the consequences if they are proved, are serious.  As Dixon J put it in a classic passage in Briginshaw v Briginshaw:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.  No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.  Fortunately, however, at common law no third standard of persuasion was definitely developed.  Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

[99]    As proposed by the Australian Law Reform Commission, this approach has now been given effect in Australian evidence legislation.  The approach in Briginshaw has also regularly been applied in New Zealand by the High Court as the appropriate standard of proof in cases concerning professional discipline.

[100]    A parallel line of cases in England over the last 50 years treated the balance of probabilities test in civil cases as flexible in its application in that jurisdiction.  A leading statement of the principles appeared in the majority judgment of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof).  In the context of an application by a local authority for a care order based on the alleged rape by the respondent of other children in the family, Lord Nicholls said that the “established general principle” was that the balance of probabilities was the standard of proof and continued:

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her.  Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

Lord Nicholls later added that this approach to applying the civil standard of proof:

provides a means by which the balance of probability standard can accommodate one’s instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters.

[101]    Without wishing to be pedantic, it is not the position that flexibility is “built into” the civil standard, thereby requiring greater satisfaction in some cases.  Rather the quality of the evidence required to meet that fixed standard may differ in cogency, depending on what is at stake.

[102]    The civil standard has been flexibly applied in civil proceedings no matter how serious the conduct that is alleged.  In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case.  Balance of probabilities still simply means more probable than not.  Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases.  Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.

[103]    The House of Lords has recently expressed concern at the flexible application of the civil standard of proof in the context of child protection legislation applications.  The Law Lords considered that the application of a test requiring more cogent evidence that a child is likely to suffer significant harm has led lower courts to require proof to a greater degree of probability, equating to the criminal standard, which is inappropriate in cases concerned with child welfare.

[104]    Child welfare cases may form an exception because of the complexity of the impacts of judicial decisions on children and those caring for them, who may be alleged to be perpetrators of harm.  In most instances, however, the reality is that a finder of fact in a civil case does generally look for stronger evidence of serious allegations before being satisfied that an event was more likely to have occurred than not.  Morris LJ once put it this way in a leading case:

[T]he very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities.

[105]    The natural tendency to require stronger evidence is not a legal proposition and should not be elevated into one.  It simply reflects the reality of what judges do when considering the nature and quality of the evidence and deciding whether an issue has been proved to “the reasonable satisfaction of the tribunal”.  A factual assessment has to be made in each case.  That assessment has regard to the consequences of the facts to be proved.  Proof to a tribunal’s reasonable satisfaction will, however, never call for that degree of certainty which is necessary to prove a matter in issue beyond reasonable doubt.

[106]    We would therefore respectfully differ from Lord Steyn who, in his judgment in R (McCann) v Crown Court at Manchester, went so far as to say that “the heightened civil standard and the criminal standard are virtually indistinguishable”.

[107]    The view that the reason for requiring stronger evidence to prove serious allegations is the relative improbability that they occurred has been criticised by academic writers in recent years.  The House of Lords has now joined in that criticism.  But the true reason for the flexible application of the civil standard is concerned more with judicial policy as to what the ends of justice require outside of the criminal justice system.  In the present context this reflects the different impact on the individual of the consequences of adverse findings in an occupational disciplinary process, compared with those of a conviction for a criminal offence.  The latter, of course, may include loss of liberty.  As well, it reflects the different nature of the societal interests served by the two processes.  Moreover, the principle requiring more cogent evidence generally in serious civil cases is sound and well established in New Zealand.

[108]    English decisions have departed from a flexibly applied civil standard approach in certain types of civil proceeding in which the Court has required, largely as a matter of policy, direct application of the criminal standard.  An example is McCann which concerned applications for antisocial behaviour orders which
prohibit those subject to them from entering certain areas in a city in which they have been causing trouble.  Breach of the orders can lead to criminal sanctions.  Lord Steyn said that in those cases, which are heard by magistrates, while, ordinarily, the matter being civil, the standard should be the balance of probabilities:
pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases [of applications for antisocial orders] apply the criminal standard.
It would be sufficient if the magistrates were “sure” that the criteria for an order were made out.  Lord Hope also decided that the criminal standard should be applied in antisocial behaviour order applications, his reasoning being based on judicial policy in light of the gravity of the consequences of making any order.  The context in McCann is unusual as the legislation involved a scheme for regulation which sought to prevent criminal activity through a regime of prior restraint.  Lord Steyn’s approach in that type of case has recently been endorsed by the House of Lords on the grounds that it would enhance clarity.

[109]    Of more relevance to the present case, English courts regard some types of disciplinary proceeding as an area of exception in which the criminal standard of proof applies.  In Re A Solicitor, Lord Lane CJ said, of proceedings concerning solicitors before the Solicitors’ Disciplinary Tribunal, that it was not altogether helpful if the standard of proof is left somewhere undefined between the criminal and the civil standards.  He went on to say:
We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, put in another way, proof beyond reasonable doubt.

[110]    This conclusion was influenced by the position under the rules governing discipline of members of the English bar, which specifically stated that the criminal standard was to apply.  Lord Lane’s approach was taken a step further in Campbell v Hamlet, where the Privy Council said that the criminal standard should be applied in all disciplinary proceedings affecting the legal profession. The case was an appeal from Trinidad and Tobago but there is no indication that legislation for rules governing discipline of lawyers in that jurisdiction was relevant.  The Privy Council approved Re A Solicitor and its reasoning may well signal the course the House of Lords will take in future disciplinary proceedings involving all lawyers in England and Wales.

[111]    The current position in respect of discipline of health professionals in England is not as clear.  There are indications that the criminal standard may be appropriate where allegations may lead to serious criminal charges.  In less serious cases the courts have been reluctant to require such a high standard and have indicated that the civil standard as defined in Re H is appropriate.  Of prime importance, however, is that the charge and the conduct of the proceedings are fair.

[112]    Despite these exceptions, the rule that a flexible approach is taken to applying the civil standard of proof where there are grave allegations in civil proceedings remains generally applicable in England.  There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them.  We are satisfied that the rule is long established, sound in principle, and that in general it should continue to apply to civil proceedings in New Zealand.

Anderson J

[142]    As the Chief Justice points out, there is authority for applying the criminal standard of proof in a case such as the present.  However, on this contentious issue where opinion is divided, the cogency of reasoning rather than its preponderance is the important thing.

[143]    I have difficulty with the Chief Justice’s proposition that consistency is promoted by applying the criminal standard.  It is not the choice of standard which promotes consistency but the consistent application of the same standard, whatever it might be.

[144]    To my mind, the seriousness of consequences is not a persuasive argument either.  Proof beyond reasonable doubt applies generally across the spectrum of criminal charges, from traffic infringements to murder; and the consequences of losing a civil case can be utter financial ruin or blasted reputations yet the standard of proof remains the balance of probabilities.  The “fundamental value determination” identified by Justice Harlan in Re Winship needs to be understood in light of the historical context of the criminal standard, when the risk of error was exacerbated by the illiterate, uneducated and hapless condition of unrepresented defendants.

[145]    The choice of standard affects relevant risk.  If the only relevant risk in a case such as the present were the risk of an erroneous finding against a practitioner then the Chief Justice’s conclusion that the standard of proof beyond reasonable doubt protects against error in decision making would be a compelling consideration.  But I do not think that is the only relevant risk.  Disciplinary tribunals, particularly statutory ones relating to the professions, are concerned with the maintenance of standards of competence and conduct for the protection of members of the public who are relevant consumers, and for the maintenance of the integrity of the relevant profession.  Accordingly, one of the relevant risks is that an error in favour of a practitioner will or may adversely affect the health of members of the public or the integrity of the profession.  That, in my opinion, justifies the application of the same standard as in civil cases.

Elias CJ

[4]    On the related question of the standard of proof, I am of the view that the facts justifying serious professional disciplinary charges should be established to the satisfaction of the tribunal to the standard of proof beyond reasonable doubt.  These are not civil proceedings in which society can be largely indifferent between the claims of litigants, so that it is acceptable that the risk of error in result be left to a mere balance of probabilities.  Moreover, the case law relating to application of the standard of proof on the balance of probabilities where serious allegations are made is unsatisfactory, even in civil proceedings properly so-called.  The notion of flexibility in application of the civil standard is confusing and disputed even among judges of high standing.  In the case of disciplinary bodies with power to impose heavy penalties (including removal from the profession) and comprised of professional peers and lay members it is in my view unacceptably loose to leave the matter on the basis that sufficient protection is provided by “flexible” application of a balance of probabilities standard of proof.  The higher criminal standard of proof should be frankly adopted in such disciplinary proceedings.  The effect should not be exaggerated.  It simply requires the Tribunal to be sure of the facts which justify imposition of substantial penalties and the reputational and professional damage which results from a finding of serious professional misconduct.

[25]    In the Court of Appeal, application of the lower civil standard of proof was treated as a reason why investigation of the indecent assaults was not an abuse of process.  It was suggested that there is no risk of unacceptable inconsistency in outcome in such circumstances, because the processes are different.  This reasoning is not determinative of the question of abuse of power.  If the standard of proof in disciplinary proceedings is the lower civil standard, then inconsistency in outcome may be able to be explained, but at the expense of depriving the respondent in the disciplinary proceedings of protections generally required for determination of responsibility for a crime.  But the standard of proof is linked to the questions of abuse of power and is more sensibly dealt with before turning to that topic.  Some overlap is unavoidable.

[26]    Under s 54 of the Dental Act, the Dentists Disciplinary Tribunal is required to be “satisfied” of professional misconduct.  The formula that the court or tribunal must be “satisfied” is common in statutory conferral of judicial and disciplinary jurisdiction.  It says nothing about the standard of proof.  It simply means that the Tribunal must come to “the required affirmative conclusion”.  References to the “standard of proof” concern the quality or degree of persuasion of those required to determine facts in order to make conclusions of legal responsibility.  Except where a different standard is required by statute, New Zealand law recognises only two standards of proof.  The standard that the trier of fact be sure of the facts in issue is applied in criminal cases, but is also used in some non-criminal cases.  If the trier of fact is left with a reasonable doubt that cannot be excluded, the standard is not reached.  In civil cases, and in most other non-criminal proceedings unless a different standard is prescribed or applied, the trier of fact must be satisfied on the balance of probabilities.  In that case, he must be convinced by the evidence that the fact in issue is more likely than not.

[27]    The difference between the two standards of proof is, as the High Court of Australia has held, “no mere matter of words”:

No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.

[28]    Whatever the standard used (whether beyond reasonable doubt or on the balance of probabilities) the trier of fact must take account of inherent improbabilities in deciding what evidence is sufficient to satisfy him to the appropriate standard.  The point is explained by the judgments of Lord Nicholls in Re H and Lord Hoffmann in Secretary of State for the Home Department v Rehman.  It is often said that more grave allegations are less likely to be true and require more in the way of evidence before the trier of fact will be satisfied.  I have some doubts as to the extent to which experience bears out the proposition, but in any event it is clear that its application turns on human experience and the particular context, as Lord Nicholls made clear in Re H.  Statements such as these have however caused confusion when applied, not to the inherent probabilities which any decision-maker necessarily weighs, but to the standard of proof.  The confusion has led to judicial statements which suggest that the standard of proof is itself “flexible”, an unfortunate and inaccurate notion.  Nor do I think matters are improved by the suggestion that it is not the standard but its application that is “flexible”.  “Flexibility” is a term I think best avoided in the context of proof, despite its impressive pedigree.  Proof is made out whenever a decision-maker is carried beyond indecision to the point of acceptance either that a fact is more probable than not (if the standard is on the balance of probabilities) or that he has no reasonable doubt about it (if the standard is proof beyond reasonable doubt).

[29]    It is well established that in civil proceedings the standard of proof on the balance of probabilities does not change if a fact in dispute would also constitute a criminal offence.  The decision-maker must be satisfied of its existence only on the balance of probabilities.  Ready examples may be seen in defamation claims, where the defamation consists in an allegation of criminal conduct, or in cases where fraud or assault is an element of a cause of action.

[30]    The choice between the standards of proof is explained by the need to reduce error in fact-finding where the costs of such error are considered by the legal system to be too high.  Thus in the US Supreme Court Justice Harlan in Re Winship described the standard of proof as representing “an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication”:

Although the phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.

[31]    Assessment of the social cost of error is behind the value judgment as to the standard of proof to be applied in particular contexts.  The difference between the standards in civil and criminal litigation was explained by Justice Harlan in this way:

When one makes such an assessment, the reason for different standards of proof in civil as opposed to criminal litigation becomes apparent.  In a civil suit between two private parties for money damages, for example, we view it as no more serious and general for there to be an erroneous verdict in the defendant’s favour than for there to be an erroneous verdict in the plaintiff’s favour.  A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact “to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence”.

In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. …

In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.  It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation.

[32]    In the earlier case of Speiser v Randall, Justice Brennan for the Supreme Court had expressed a principle of general application in the view that, where a party has at stake “an interest of transcending value”, proof beyond reasonable doubt was the appropriate standard.  In Re Winship, writing for the majority (in an opinion with which Justice Harlan concurred) he rejected the Court of Appeal’s application of a balance of probabilities standard to delinquency proceedings (on the basis that delinquency was not a crime) as “‘civil’ label-of-convenience”.  “Civil labels and good intentions” and the informal and flexible procedures in juvenile proceedings did not obviate the need for the safeguard of proof beyond reasonable doubt in circumstances where significant penalties could be imposed and the stigma of the underlying finding “that the accused committed a crime” attached.  This reasoning, and the view that “fundamental fairness” requires a higher standard of proof “in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma’”, has been subsequently confirmed.

[33]    Similar considerations lie behind cases in the United Kingdom where the criminal standard of proof (or what Lord Hoffmann described in Re B (Children) (Care Proceedings: Standard of Proof) as “something like it”) has been required even though the proceedings for other purposes may be treated as though civil.  Lord Hoffmann puts into this category cases such as R v Secretary of State for the Home Department, ex p Khawaja and B v Chief Constable of Avon and Somerset Constabulary, despite language in the latter case suggesting a “flexible standard” of proof.  And he considered that similar considerations were behind the anti-social behaviour order case, R (McCann) v Crown Court at Manchester.  Lord Hoffmann expressed the view that clarity would be served by adopting Lord Steyn’s suggestion in McCann that it would be more straightforward in such cases to rule that the criminal standard must be applied.  I agree.

[34]    On that basis, in proceedings which are not civil claims between private litigants, it is necessary to consider what standard of proof is appropriate, even if for some purposes the proceedings may be treated as civil.  The standard of proof to be applied in professional disciplinary proceedings in New Zealand has not been the subject of extensive appellate consideration.  In Re a Medical Practitioner the issues on the appeal were autrefois acquit and res judicata, rather than the standard of proof to be applied by the Medical Council.  In the High Court, McGregor J had held that the standard of proof was beyond reasonable doubt because the allegation was one of indecent assault.  In the Court of Appeal Gresson P simply said that, though the proof “may be different”:

having regard to Bhandari v Advocates Committee, this difference is of little importance.

The judgment of North and Cleary JJ similarly indicates that the difference in proof is unlikely to be material, citing Bhandari.  In Bhandari, the Privy Council approved as “an adequate description” of the duty of a professional disciplinary tribunal the view of the Court of Appeal for Eastern Africa that professional misconduct “involving an element of deceit or moral turpitude” called for a “high standard of proof” and was not appropriately resolved by the Tribunal on “a mere balance of probabilities”.

[35]    In Ongley v Medical Council of New Zealand Jeffries J, referring to Australian authorities and to Bhandari, considered that the proof was the civil standard, but that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.  In Gurusinghe v Medical Council of New Zealand the Full Court thought that medical disciplinary proceedings were sufficiently analogous to criminal proceedings for assistance to be derived from criminal procedure when considering what fairness required.  In Cullen v Medical Council of New Zealand, Blanchard J approved the directions given by the assessor to the Medical Council Disciplinary Committee that:

where there is a serious charge of professional misconduct, you have got to be sure.  The degree of certainty or sureness in your mind is higher according to the seriousness of the charge, and I would venture to suggest it is not simply a case of finding a fact to be more probable than not, you have got to be sure in your own mind, satisfied that the evidence establishes the facts.

[36]    When the question of the appropriate standard of proof arose in Guy, Tipping J considered that there was no authority on the point binding on him.  He determined that the appropriate standard of proof was “the civil standard, but with the degree of probability consistent with the gravity of the allegation”, while acknowledging that the criminal standard had been approved by the Privy Council in Lanford v General Medical Council and McAllister v General Medical Council.  This, he thought, represented “an appropriate balancing of the interests involved”:
A sliding scale of probability is as good a balancing of these competing interests as can be devised.  It also has the advantage of at least conceptual clarity combined with flexibility.  A conclusion suggesting that if the conduct alleged is sufficiently bad the criminal standard should apply would lead to endless arguments about what the standards should be.  It can hardly differ depending upon the perceived gravity of what is alleged.

[37]    I have some problems with this approach.  If it is difficult to decide when an allegation amounts to a serious crime requiring application of the criminal standard, it is equally or perhaps even more difficult to assess when an allegation is grave enough to require a higher “degree of probability” and then to what extent the degree of probability should be raised.  Nor does it seem that a “sliding scale of probability” has the advantage of “conceptual clarity combined with flexibility”.  Tipping J’s approach in Guy seems to me to differ from that proposed by the majority in this Court.  It also seems to fall into the category of cases described by Lord Hoffmann in Re B where there appears to be confusion between inherent probabilities and the standard of proof.  For present purposes, however, what is significant is that it is not the case that the application of a balance of probabilities standard has been long established for professional disciplinary proceedings in New Zealand case law.

[38]    Nor in the years since Guy was decided has there been much in the way of further New Zealand consideration of the standard of proof in such proceedings, until brief reference to it was made by William Young J in F.  There, concurring in the result reached by the other members of the Court of Appeal (who did not find it necessary to refer to the standard of proof) William Young J expressed unease about the lack of evidence on a critical point and referred to the standard of proof:

This is an important issue.  The standard of proof required in disciplinary proceedings is high.  Indeed, in my view (and I recognise that this is not the practice of the tribunal) proof beyond reasonable doubt is required.  In this respect I adopt the approach taken by the Privy Council in Campbell v Hamlet.

F was a professional competence case of “conduct unbecoming”, rather than a case where serious misconduct or criminal offending was in issue.  It seems therefore that William Young J was of the opinion that disputed facts in all medical disciplinary proceedings, whether or not they entail criminal offending or serious misconduct, must be proved beyond reasonable doubt.

[39]    The standard of proof in professional disciplinary proceedings has been the subject of more extensive consideration by the Privy Council and in the courts of England and Hong Kong. Campbell v Hamlet, relied on by William Young J in F, was a decision of the Privy Council on appeal from Trinidad and Tobago.  It involved a complaint of professional misconduct against a lawyer.  The Privy Council, referring to a number of earlier English authorities, held that the standard of proof was the criminal standard:

That the criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession, their Lordships entertain no doubt.  If and in so far as the Privy Council in Bhandari v Advocates Committee may be thought to have approved some lesser standard, then that decision ought no longer, nearly 50 years on, to be followed.

[40]    A similar approach had earlier been adopted in respect of medical practitioners by the Privy Council in Lanford.  The passage in the judgment simply records that their Lordships considered that the submission for counsel for the appellant was correct to maintain that the onus and standard of proof in the medical disciplinary proceedings in issue were those applicable to a criminal trial.  In the later case of McAllister (a case concerning financial misconduct where the issue was one of corroboration rather than standard of proof) Lord Jauncey, for the Board, doubted whether the dictum in Lanford could be treated as having “universal application”.  The Board in McAllister considered however that:

In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial.

[41]    In Sadler v General Medical Council the Privy Council considered that at a performance hearing before the Committee on Professional Performance, the standard of proof of primary facts was “in the generality of cases”, the ordinary civil standard of proof, although “[t]here might be exceptional cases … in which a heightened civil standard might be appropriate”.  Sadler was concerned with provisions to achieve proper standards of professional performance rather than serious professional misconduct.  In relation to serious misconduct, however, Lord Walker for the Privy Council repeated what had been said in McAllister: that where “the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial”.

[42]    In Gopakumar v General Medical Council Mr Justice Underhill in the Queen’s Bench Division was concerned with an appeal by way of rehearing from a determination of the General Medical Council removing the practitioner from the roll for indecent assault.  It was common ground in the case that “findings of gross misconduct should only be made if the case is proved to the criminal standard of proof”.  On that basis the question for the Court was whether the panel had been right to be sure that the medical practitioner had touched the patient indecently.

[43]    Similar conclusions have been expressed in Hong Kong.  In Tse Lo Hong v Attorney-General the Hong Kong Court of Appeal was concerned with the standard of proof to be applied by a police disciplinary tribunal where the gravamen of the complaint against the police officer amounted to criminal conduct.  The three Judges of appeal were unanimous in holding that the criminal standard must be applied.  In reaching this conclusion they took into account the English medical disciplinary cases of Lanford and McAllister.  Litton VP considered that since the charge was in essence one of indecent assault, to characterise the proceedings as “civil” did not end the matter:

The standard of proof must be commensurate with the gravity of the charge.  Here, the tribunal seems to have required the prosecution to prove the case on a mere “balance of probabilities” which in my judgment is plainly unacceptable.

Bokhary J took from McAllister that simply because a serious disciplinary charge is involved the criminal standard of proof is not necessarily applicable:

But where the events giving rise to such a disciplinary charge would also found serious criminal charges, then it may be appropriate to apply that standard.

The third member of the court, Godfrey JA, expressed similar conclusions.

[44]    The criminal standard of proof was similarly held applicable in a decision of the Hong Kong Court of Appeal in Wu Hin Ting v Medical Council of Hong Kong.  There, too, the allegations charged amounted to crimes.  Ma CJHC held that where disciplinary charges amount to “serious charges of a criminal nature”, the criminal standard of proof applies.

[45]    Without doubting these earlier cases, the recent decision of the Hong Kong Court of Final Appeal in A Solicitor v Law Society of Hong Kong suggests that, following Re H, it is unnecessary to import the formula “beyond reasonable doubt” in disciplinary cases.  Bokhary J, with whose judgment the other members of the Court concurred, concluded that “the standard of proof for disciplinary proceedings in Hong Kong is a preponderance of probability under the Re H approach”:

The more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.  If that is properly appreciated and applied in a fair-minded manner, it will provide an appropriate approach to proof in disciplinary proceedings.  Such an approach will be duly conducive to serving the public interest by maintaining standards within the professions and the services while, at the same time, protecting their members from unjust condemnation.

[46]    I do not think matters can be left on this basis.  The “nuanced” approach used by Lord Nicholls in Re H has proved troublesome in application, as the discussion in the recent decision of the House of Lords in Re B demonstrates.  The inherent probability that serious offending is less rather than more likely (if
 applicable in context) does not address the risk of error in decision-making which is the reason for a higher standard of proof.  If it were an answer, a separate criminal standard would not be necessary.  The assessment of inherent probabilities is simply common sense in application.  There may be little or much scope for such assessment in context, but it says nothing about the degree of conviction required by law of the decision-maker.  That is not always easily grasped.  And in Re B the House of Lords was concerned with the undesirable consequence that muddling inherent probabilities with the standard of proof had resulted in proof being ratcheted up to a higher standard than the law required, with wholly undesirable consequences.  Here, it is suggested that flexible application of the civil standard (according to the inherent improbabilities of serious professional or criminal behaviour) will “give all due protection to persons who face [professional disciplinary] proceedings”.  But it does not provide protection against error in result.  There is no difference between flexible and inflexible application of the balance of probabilities.  Any difference arises only if the flexibility is in the standard of proof, the degree of conviction required.

[47]    In Re B, Lord Hoffmann made it clear that he did not intend to disapprove of the cases where the courts have decided that, “because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied”, even though for other purposes the proceedings may be classified as civil.  Similarly, Baroness Hale, with whom all other members of the House of Lords in Re B expressed their complete agreement, accepted that “there are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof”.  Lord Hoffmann said, echoing in this respect Lord Steyn in McCann, that:
clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.
I think the time has come to say simply that the criminal standard of proof applies.  I summarise the reasons why I am of that view, which have already been foreshadowed.

[48]    First, making allowances for the dress of inherent probabilities under which guise much of the discussion has been conducted, the preponderance of authority favours the criminal standard, at least where the charges are serious or entail conduct which is criminal.  That is the effect of the decisions of the Privy Council in Campbell v Hamlet, Lanford, McAllister, and Sadler.  It is also consistent with the decisions in Bhandari and Re a Medical Practitioner.  In both cases, the difference between the criminal standard and the standard required by the context was thought to be a difference “of little importance”.  In the present case the charges of indecent touching clearly meet the level of seriousness envisaged by cases such as McAllister and Sadler.  I would myself however draw no distinction between charges laid under s 54 of the Dental Act according to whether they are or are not in substance criminal or properly classified as “serious misconduct”, on the basis that there should be a single standard of proof under the section.  In this, I would apply the approach adopted by the Privy Council in Campbell v Hamlet and Lanford.

[49]    Nor do I think such result is different in substance from the standard attempted in the New Zealand cases through variation of “the degree of satisfaction … according to the gravity of the fact to be proved” or through “a sliding scale of probability”.  “Flexibility” of application however risks inconsistency and inequality in the treatment of like cases.  Frank application of the criminal standard avoids much conceptual confusion and minimises inconsistency in treatment.  William Young J in F cut through the tangle to recognise the criminal standard as appropriate.  In McCann, Lord Steyn thought that “pragmatism” dictated that the task of the magistrates in making anti-social orders be made “more straightforward”
 by applying the criminal standard.  Although a comparison between professional disciplinary tribunals and lay magistrates is not exact, being straightforward is not a bad rule of thumb in promoting consistency.  As I have already mentioned, the effect of recognising the criminal standard should not be exaggerated.  It simply requires the decision-maker to be sure of the facts that justify imposition of penalties under the Act and the opprobrium that inevitably accompanies a finding of serious professional or criminal misconduct.

[50]    Secondly, it seems to me that the application of a balance of probabilities standard is based on a misunderstanding of the nature of disciplinary processes.  They are not civil proceedings, in the sense of claims between litigants similarly situated and in respect of whom the risk of error in outcome can be regarded with relative equanimity, in the manner described by Justice Harlan in the passage I have cited at para [31].  Nor are they criminal proceedings.  The outcome is not criminal conviction and the procedures prescribed by the statute are not criminal processes.  On the other hand the Dental Act sets up a statutory regime for professional regulation.  The Complaints Assessment Committee and the Dentists Disciplinary Tribunal are administrative bodies which conduct inquiries and are empowered by statute to impose heavy sanctions.  This may not be exactly “government-initiated process”, but it is statutory regulation in which analogy with civil proceedings (which attempt relative justice between litigants) is less convincing than analogy with criminal process, as indeed the Full Court suggested in Gurusinghe.

[51]    Thirdly, I do not think that application of some of the attributes of civil proceedings or denial of some of the protections of criminal proceedings can be determinative of the standard of proof to be applied.  I do not think it matters that the method of admitting evidence is more relaxed before the Dentists Disciplinary Tribunal than in criminal proceedings.  I agree with the views expressed by Justice Brennan in Re Winship that it is important not to misapply “labels of convenience”.  For some purposes it may be necessary to classify disciplinary proceedings as civil or criminal.  It was necessary to do so, for example, in Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal, for the purpose of deciding whether privilege was according to the provisions applicable to civil or criminal proceedings.  (It was unnecessary in that case to consider the question of the standard of proof.)  But it should not be assumed that a classification for one purpose is a classification for all purposes.  And even where proceedings are properly classified as civil, it does not mean that the standard of proof to be applied is the balance of probabilities.  That is illustrated by McCann.  There, the House of Lords classified the procedure for making anti-social behaviour orders as civil for the purpose of application of the civil rules of evidence, allowing hearsay evidence to be admitted.  That classification did not however determine the standard of proof.  Lord Steyn held that the magistrates should apply the criminal standard in deciding whether a defendant had acted in an anti-social manner.  This approach, he thought, would “facilitate correct decision-making and should ensure consistency and predictability in this corner of law”.  Lord Hope, in the same case, emphasised that the classification of the proceedings as civil did not determine the standard of proof:

But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings.  I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.

Lord Hutton, who delivered the other concurring judgment, also endorsed application of the criminal standard of proof.

[52]    Lord Hope’s view that the standard of proof to be applied is determined by the interests of fairness is the approach adopted in respect of professional disciplinary proceedings by the Privy Council in McAllister.  What was of “prime importance” was that the charge and conduct of the proceedings should be fair in all respects.  Lord Hope’s conclusion that fairness requires the criminal standard to be applied when allegations of a criminal or quasi-criminal nature are made accords with the cases cited in para [33] that the criminal standard, or something indistinguishable from it, applies in professional disciplinary proceedings where serious allegations are made.  It should be noted that the consequences of significant penalty and stigma are much more serious in the case of charge found proved by the Dental Disciplinary Tribunal than is the case with the anti-social behaviour orders considered in McCann.

[53]    Fourthly, I do not think that the standard of proof is affected by the purpose of professional disciplinary proceedings in maintaining professional standards, for the protection of the public.  As Justice Brennan put it in Re Winship, “civil labels and good intentions” do not overcome considerations of fairness.  In a later case, Justice Blackmun expressed the view that, despite the protective intent of delinquency orders, where significant stigma or penalty could result, it offends “fundamental fairness” for less rigorous standards of proof to be applied than in criminal proceedings.

[54]    Finally, it seems to me that the scheme of the statutory grounds contained in s 54 provides support for application of the criminal standard of proof.  Section 54(1) permits the Dentists Disciplinary Tribunal to impose penalties under s 55 where “the practitioner … [h]as been convicted … of any offence punishable by imprisonment of not less than 3 months” and the Tribunal considers that the circumstances of the offence “reflect adversely on the practitioner’s fitness to practise as a dentist …”.  In most cases of serious criminal conduct in the course of practise it is to be expected that prosecution will follow.  In such cases, the Tribunal will act on proof of a conviction that will have been obtained according to criminal procedure and upon proof beyond reasonable doubt.  In cases where it will not be an abuse of power for the Complaints Assessment Committee to bring a charge ahead of or instead of allowing the criminal process to be completed (the topic I next address), dissonance between the standard of proof according to the sequence followed in the particular case sets up potential inconsistencies in treatment and could conceivably lead to perverse incentives in choice of forum.  It is difficult to think of any adequate reason for difference.

[55]    In conclusion, the standard of proof depends upon what is required for reasons of fairness.  The standard of proof beyond reasonable doubt protects against error in decision-making.  It promotes consistency.  All charges under s 54 are serious.  Where serious disciplinary charges are brought under statutory process in circumstances where substantial penalties may be imposed and damage to reputation and livelihood is inevitable if adverse findings are made, fairness requires application of a higher standard of proof than one on the balance of probabilities.  The application of such standard is supported by authority and is consistent with the functions and scheme of the Dental Act.

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Tags: Briginshaw · Discipline · Evidence