Cheema v Medical Board of Australia [2026] SASCA 109 (Link to JADE).
This appeal from a finding of the South Australian Civil and Administrative Tribunal against findings of professional misconduct was ultimately dismissed, however the courts comments on memory and inconsistency are of interest. The court was required to consider whether the Tribunal erred in adopting and applying evidence agreed in the case of Lehrmann v Network Ten Pty Ltd (2024) 422 ALR 507 at [117] (‘the Lehrmann observations’) concerning the impact of trauma on memory.
The headnote reads:
Held (by the Court), dismissing the appeal:
1. The case law demonstrates the acceptance by the common law of the destruction of any ‘common sense’ perception that inconsistency of detail in account is necessarily antithetical to the credibility or reliability of allegations of sexual assault. That acceptance has arisen as a matter of experience in the courts. It is informed by contemporary understandings of the impact of trauma on memory.
2. The Tribunal’s references to the impact of trauma on memory occurred in the context of accepting, broadly, that trauma may (not must) account for inconsistencies in recounted detail and that, where traumatic events are concerned, unreliability of aspects of an account need not lead to a conclusion of unreliability of the core allegations. The Tribunal did not go further than to rely on what are now generally accepted matters of experience or generally accepted insights about the frailty of assumptions about memory and evidence of traumatic events.
3. There is no reason to draw the inference that the Tribunal used the internal consistencies in AA’s evidence impermissibly to bolster AA’s credit. In circumstances where the statements of AA were properly admitted and forensically relevant to AA’s credit, the Tribunal was entitled to have regard to the consistencies in AA’s statements as much as it was the inconsistencies.
4. When the Tribunal’s reasons are read as a whole, the conclusion rejecting the appellant’s submission that AA’s allegation may have been honest, but untrue, as a result of a psychotic episode did not have the effect of imposing a burden on the appellant. The conclusion was a rejection of a hypothesised evidentiary explanation for AA’s allegations.
5. The Tribunal was aware of its obligations to be satisfied to the civil standard in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 principles.
6. Once the appellant had put in issue his good professional standing the Tribunal was required to consider all evidence relevant to that issue.
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