Misconduct Inquiries, Due Process and ‘Double Jeopardy’
By Blaise Alexander, Solicitor, Property, Construction and Planning Law, Lovegrove Smith & Cotton
Imagine a scenario where you have faced allegations of unprofessional conduct, you pled guilty to some, and made a plea in mitigation. You have paid the fine and served a suspension and put that painful past behind you, only to have it rear its ugly head again a couple of years down the track!
What arguments can a practitioner make against repeated or further allegations made in relation to particular conduct, property sites, or a period of time for which they feel they have already been duly penalised? How can they protect themselves from further allegations which, in some cases, if a practitioner already has a suspension under their belt, may well lead to cancellation of their registration.
There is case law to indicate that where allegations are so similar in nature or context to those already subjected to inquiry, there may be an argument for ‘double jeopardy’, as well as issues of procedural fairness and arguments about the right to a sense of finality or “closure”.
The double jeopardy principle reflects the legal principle that one should not be punished again for the same or similar acts where there is no merit or value in further punishment. Where a practitioner has been held to account and paid his dues, or “did the crime, did the time”, there should be no further avenue for redress on the same conduct in the same period.
In R v Carroll (2002) (213 CLR 635) McHugh J stated: “… the accused is as effectively harassed as if he was being tried again on the same charge.”
The case of Gill v Walton (1991) NSWLR 190, heard in the Supreme Court of New South Wales, in the Court of Appeal, involved allegations of professional misconduct of three medical practitioners in the treatment and supervision of patients at Chelmsford Private Hospital. The case concerned issues of delay in bringing proceedings, where a period of five years had elapsed since the proceedings were last stayed. The Court weighed issues of fairness to the practitioners against public interest, and addressed the principle of double jeopardy. The Court held that the proceedings would be unfairly and unjustifiably oppressive.
Gleeson CJ made the following comment:
“In summary the new complaints are not the very complaints that were previously stayed, but they arise out of the same pattern of professional conduct as gave rise to the earlier complaint, and there is a substantial degree of overlapping between the issues to which the new complaints give rise and the issues that would have arisen under the previous complaints.”
In relation to the principle of double jeopardy, Kirby P. stated:
“Although expressed in the covenant in terms of criminal charges, the principle applies equally, I believe, to an inquiry into the right of a person to continue the practice of his or her profession, the denial of which would have grave consequences for that person’s reputation and livelihood… if, in substance, the complaints are substantially the same and the evidence lost and disadvantages suffered by the claimants are substantially the same, the new case is a species of double jeopardy”. (206-207).
Further, Mahoney J stated that the principle of double jeopardy:
“…provides the backing of the law for the intuitive resentment felt against a second prosecution where there has been a prior prosecution based upon a relevantly similar situation.”
The case of Re AWB Ltd, in the Commercial Court of the Supreme Court of Victoria, involved a commercial law situation where the defendant was seeking a stay of a second proceeding where ASIC sought similar, if not identical relief against him arising out of the same matters alleged in the first proceeding. The Court held that the defendant would be
“…unjustifiably vexed and oppressed and manifestly denied a fair trial by the existence of the pending second proceeding… the second proceeding brings the administration of justice into disrepute in the minds of right-thinking people.”
Kabourakis v Medical Practioners [ 2006] VSCA 301 was another case involving allegations of unprofessional conduct of a medical practitioner following the death of a patient. The practitioner was subject to an informal inquiry and found to have not engaged in unprofessional conduct. The panel were later provided with a further medical report, and sought to re-open its investigation. Warren CJ observed:
“…there are sound legal policy reasons why the Board was prevented from acting as it did… the imperatives of certainty and finality underlie the system. In this matter, Dr Kabourakis was entitled to believe, quite properly, that once the finding of the panel was published, together with comprehensive reasons, the matter had reached certainty and finality.
Nettle JA said at  in the Decision:
“…the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is more often than not the paramount consideration. … it would introduce a lamentable measure of uncertainty and so much disturbance in the minds of those unfortunate persons who have cause to complain of, or are the subject of complaint of, unprofessional conduct…”
The above comments indicate that where the nature of the conduct alleged is the same or at least highly similar to the conduct that a party previously admitted to or was found guilty of as part of a previous Inquiry Hearing, and the practitioner has already been significantly penalised and paid penance, and shown remorse and regret, further inquiries may be an abuse of process and tainted by ‘double jeopardy’.
The practitioner is entitled to an expectation of procedural fairness and natural justice, and to have all matters dealt with as expeditiously as possible and as part of the same Inquiry Hearing. Case law on point establishes that he is entitled to finality and certainty of outcome.
Though having said all this, much will always depend on the facts of a given situation. Perhaps the clearest marker might be along the lines of: given these circumstances, would a reasonable member of the public think it was fair or just that the State be allowed to have a “second crack” at the same practitioner over the same pattern of behaviour that was previously tried and investigated?
If the answer is even a “maybe not”, then perhaps the wise counsel of restraint needs to play a part.
By Blaise Alexander, Solicitor, Lovegrove Smith & Cotton
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© Lovegrove Smith & Cotton 2014