An application for approval of the Adelaide Day Surgery Nursing Employees Enterprise Agreement 2019 (s.185 – Application for approval of a single-enterprise agreement) will be ruled upon by Commissioner Platt in chambers in Adelaide.
January 24, 2020
Canberra Health Services has a s.739 (Application to deal with a dispute) to defend before Deputy President Kovacic in Meeting Room 3 in Canberra (Lahoria).
January 24, 2020
Australian Aged Care Group Pty Ltd has a s.394 (Application for unfair dismissal remedy) to answer to Deputy President Colman in Court 6 – Level 6 in Melbourne (Simari).
January 24, 2020
Life Without Barriers is up against a s.372 (Application to deal with other contravention disputes) before Commissioner Lee in Court 7 – Level 6 in Melbourne (George).
January 24, 2020
An application by Asthma Australia Ltd (s.318 – Application for an order relating to instruments covering new employer and transferring employees) will be determined by Fair Work Deputy President Kovacic in chambers in Canberra.
January 24, 2020
An application by Australian Nursing and Midwifery Federation (s.240 – Application to deal with a bargaining dispute) will be determined by Commissioner Bissett Court 4 – Level 6 and Conference Room C – Level 6 in Melbourne at 9.30am.
January 24, 2020
A 35-year-old nursing home employee who was convicted, then acquitted, of molesting a patient was yesterday sentenced to 16 months’ jail and three strokes of the cane after the Court of Appeal overturned the acquittal. The case rested on the testimony of a nurse who said that she saw the man straddling the 55-year-old patient with his trousers pulled down. The patient was found to be mentally unfit to testify. In 2018, a High Court judge cleared the man of a molestation charge, saying that an eyewitness account was subject to a greater degree of misapprehension and error compared with a victim’s own testimony. But, yesterday, the Court of Appeal said there was no reason to disbelieve the nurse’s testimony. The three-judge court also ruled that the evidence of an eyewitness was neither less nor more reliable than that of an alleged victim. “We are of the view that the judge erred when he appeared to suggest that there were differing standards in relation to eyewitnesses as opposed to alleged victims,” said the court in an 85-page judgment written by Chief Justice Sundaresh Menon. Case law stipulates that the uncorroborated testimony of a victim has to be “unusually convincing” for it to be accepted as the sole basis to convict an accused person. The apex court made it clear that the same standard of proof applies to eyewitnesses as well. “If an eyewitness were subject to a less stringent standard than the ‘unusually convincing’ standard, it would implicitly suggest that sexual offence victims are inherently less honest than eyewitnesses, and that their evidence needs to be treated with more suspicion,” said the court. In the current case, the victim has difficulty moving and is confused most of the time as a result of multiple strokes. The nurse was on her rounds on Nov 26, 2016, when she saw the man kneeling on the bed on top of the patient, whose diaper was partly opened. The man’s trousers were pulled to thigh level and his groin was touching the patient’s, she said. After five seconds, she left and told a male nurse to check the room. He saw only the accused looking at his mobile phone. The accused argued that the nurse was mistaken about what she saw as she had only a quick look. He said he was in the room to repair the TV set of another resident, when he saw the patient’s head pressed against the side rail of her bed. He said he put his knee between the railing’s bars to reach for a pillow on the far side of the bed and placed it under her head. He said no part of his body touched hers. In May 2018, the man was sentenced to 22 months’ jail and three strokes of the cane after he was found guilty by a district court following a 14-day trial. His appeal against the conviction was allowed by a High Court judge, who said the nurse’s testimony alone was not strong enough to prove the case against him beyond a reasonable doubt. The prosecution then filed a criminal reference, asking the Court of Appeal to rule on legal questions relating to the standard of proof in such cases. The apex court held that there was no reasonable doubt – the nurse was standing about 11/2 arm’s length away from the victim’s bed and her view was unobstructed. Her account was so drastically different from the man’s version that it could not be explained as a mistake, said the court. The court added that a 16-month jail term was appropriate, as the prosecution could not establish that there was premeditation or that the victim suffered severe psychiatric harm.
January 24, 2020
A Canterbury doctor who indecently assaulted patients has been struck off the register, nearly two years after being convicted. Rakesh Kumar Chawdhry, 64, was jailed for four years, four months in 2018, after he was found guilty of 13 charges of indecent assault and one of sexual violation against patients. He assaulted 10 male patients, aged between 17 and 35, in clinics in Amberley and Riccarton from 2012 to 2015. Chawdhry only served a third of his sentence and has been on parole since July 2019. Chawdhry lost his doctor’s registration in November, after a hearing before the New Zealand Health Practitioners Disciplinary Tribunal. The tribunal released its decision on Thursday. “These offences were gross breaches of trust and were repeated with Dr Chawdhry’s patients over a sustained period of offending,” the decision said. “These convictions and the nature of the offending undoubtedly reflect adversely on Dr Chawdhry’s fitness to practise as a medical practitioner.” The report said there was a “significant power imbalance”, where Chawdhry took advantage of his position and his victims lack of knowledge of the examination. Only one victim understood Chawdhry was doing something wrong at the time. Although Chawdhry continued to deny there was any sexual motivation in the offending, he accepted he caused “immense harm” to his victims, the report said. “He attributes this to his own self-image and the power imbalance in the doctor-patient relationship, and he accepts that his behaviour was wrong. “He admits he failed to adequately upskill himself as to New Zealand clinical practice.” The tribunal found cancellation and censure were necessary sanctions to mark its condemnation of Dr Chawdhry’s conduct and the gravity of the offending, the report said. Chawdhry indicated he had no intention of reapplying for registration, but if he changed his mind would have to take a sexual misconduct assessment test at his own cost. He had to pay 30 per cent of the tribunal costs, which amounted to just over $10,500.
