Following its finding that a doctor's convictions for possession of objectionable material (child pornography) reflected adversely on his fitness to practise, the Health Practitioners Disciplinary Tribunal suspended the doctor for 12 months and imposed a number of conditions. The doctor appealed the penalties arguing the Tribunal made an error about the extent of his culpability and that, in any event, the penalties were unreasonable.
In the affidavit the doctor provided to the Tribunal, the doctor stated that he "inadvertently downloaded images of the type in question" and "categorically" rejected any inference that he had deliberately accessed child pornography. A more detailed explanation as to the circumstances in which the doctor said he had downloaded the material was set out in a psychologist's report. The Court found that the Tribunal was justified in giving the doctor's "second hand explanation" through the psychologist little weight, noting that "if [the doctor] wanted the Tribunal to take into account significant mitigating features of the facts, then he should have presented this material... in a sworn statement from himself on which... [he] could be challenged". The evidence of a digital forensic analyst was that the doctor had used search terms associated with child pornography, and the Court agreed with the Tribunal's finding that the doctor had accessed it intentionally. The Court also agreed that a 12 month suspension and the conditions imposed were appropriate. However, it found that the overall financial burden from the combined cost of the rehabilitative programme, the costs award, and the 12 month suspension seemed unfair and disproportionate. Noting that the rehabilitative programme is an important public assurance of safety and should be maintained, the Court reduced the costs award made by the Tribunal from 35% to 5%. Joseph v Professional Conduct Committee  NZHC 1131