YOUSSEFI v NEW ZEALAND POLICE [2020] NZCA 38

YOUSSEFI v NEW ZEALAND POLICE [2020] NZCA 38 [4 March 2020]NOTE: SUPPRESSION ORDER MADE IN THE DISTRICT COURTREMAINS IN FORCE. SEE [2018] NZDC 3093 AT [26].IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA426/2018[2020] NZCA 38BETWEEN TEIMUR YOUSSEFIAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2020Court: Gilbert, Ellis and Brewer JJCounsel: J A Dean for AppellantR K Thomson for RespondentJudgment: 4 March 2020 at 9.30 amJUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal against the refusal to grant a discharge without conviction isdismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Dr Youssefi falsified a Certificate of Good Standing from the Malta MedicalCouncil and falsely answered a question about previous disciplinary proceedings whenapplying to the Medical Council of New Zealand for registration as a doctor inMay 2015. Dr Youssefi obtained provisional registration in New Zealand in June 2015and commenced employment as a doctor in August 2015.[2] Contrary to the position represented in his declaration and, as would have beenapparent from the Malta Medical Council certificate had it not been falsified,Dr Youssefi had faced two disciplinary charges before the Malta Medical Council.These charges arose out of a single incident involving a pelvic examinationDr Youssefi conducted on a woman without another doctor or nurse being present, aswas required. In a decision delivered on 27 August 2014, the Malta Medical Councilfound Dr Youssefi not guilty of committing an act of "immorality, indecency ordishonesty or any other act involving the abuse of a professional relationship".However, Dr Youssefi was found guilty of failing to meet the ethical standard requiringthat a "doctor shall by his conduct and in all matters set a high standard". Dr Youssefiwas reprimanded and ordered to undergo a year of training or practice undersupervision.[3] Dr Youssefi's offending came to light in October 2015 after the MedicalCouncil of New Zealand conducted a review of his application for registration andsupporting documentation. In October 2015 he was arrested and charged with forgeryand dishonestly using a document to obtain a pecuniary advantage.1 Nearly two yearslater, in September 2017, Dr Youssefi pleaded guilty to these charges in the DistrictCourt at Wellington.[4] Dr Youssefi applied to be discharged without conviction, but this was declinedby Judge Hobbs for reasons set out in a carefully considered judgment delivered on14 February 2018.2 The Judge entered convictions on the two charges but imposed noother penalty.[5] Dr Youssefi appealed to the High Court contending that Judge Hobbs waswrong not to have discharged him without conviction. In the light of the furtherevidence provided by Dr Youssefi, Thomas J carried out her own thorough assessmentof the aggravating and mitigating features of the offending and Dr Youssefi's personal1 Crimes Act 1961, s 257(1)(b) and s 228(1)(b) respectively.2 Police v Youssefi [2018] NZDC 3093.mitigating circumstances (which we need not detail here). The Judge agreed withJudge Hobbs' assessment that the gravity of the offending was moderately serious.3Thomas J observed:4The offending involved a serious ethical breach in deliberately deceivinga regulatory body tasked with ensuring, inter alia, the safety of patients.The appellant may well have been supervised adequately but that does notremove concern that the body tasked with ensuring safety was prevented fromobtaining a full picture as to the need for safeguards. The Judge was not wrongto say there were potential safety issues. In saying that, the appellant was notconcealing findings of serious misconduct or competency failings.[6] At the time of the hearing in the High Court, Dr Youssefi's appeal againstthe decision of the Medical Council of New Zealand to deregister him had not beendetermined. Thomas J did not consider the convictions would have any materialimpact on Dr Youssefi's prospects in that appeal. The Medical Council ofNew Zealand already had the complete picture. Nevertheless, the Judge accepted thata conviction would make it more difficult for Dr Youssefi to obtain employment(assuming he was reinstated to the register) because he was still in the early stages ofhis career. The Judge was not persuaded that any difficulty Dr Youssefi mightexperience in travelling to some overseas countries to undertake further training wouldbe out of all proportion to the gravity of his offending.5[7] Thomas J concluded:[36] Like the Judge, I have undertaken a detailed analysis of the gravity ofthe offending and the direct and indirect consequences of a conviction.I agree with the Judge that the direct and indirect consequences of a convictionwould not be out of all proportion to the gravity of the offending and thatthe appellant should not be discharged without conviction.[8] However, Thomas J considered that a conviction on one charge only wasrequired.6 She accordingly discharged Dr Youssefi without conviction on the chargeof using a document with intent to obtain a pecuniary advantage but confirmedthe conviction on the forgery charge.73 Youssefi v Police [2018] NZHC 1556 at [26].4 At [24].5 At [30].6 At [37].7 At [62].[9] After the High Court judgment was delivered, Dr Youssefi's application tothe Medical Council of New Zealand for re-registration was granted. He then appliedfor, and was granted, leave to bring a second appeal to this Court.8 The approvedquestion was "whether Dr Youssefi's reregistration means that the consequences ofconviction are now out of all proportion to the gravity of the offending".9[10] Dr Youssefi has filed further evidence in support of the appeal. This was nodoubt anticipated by this Court when granting leave for a second appeal. The Crowndoes not object. Accordingly, we grant leave to adduce the further evidence.Gravity of the offending[11] In his written submissions, Mr Dean, for Dr Youssefi, submitted that the courtsbelow erred in assessing the offending as being moderately serious.However, Mr Dean did not press this point in oral argument and we are satisfied thereis nothing in it. Both Courts carried out a careful and comprehensive analysis ofthe overall gravity of the offending. This Court made clear in its leave judgment thatthe concurrent findings on this issue could not be impeached on appeal. Williams J,who gave the reasons of the Court in the leave judgment, concluded his review of thisaspect of the proposed appeal by stating:[17] It therefore cannot be said that Thomas J erred in assessing the gravityof the offending as moderately serious. She considered all the factorscarefully and that assessment was open to her.[12] To the extent Dr Youssefi seeks to re-open this issue so that it can be assessedfor a fourth time, he is effectively asking this Court to depart from its earlier,fully-reasoned assessment in the leave judgment. Unsurprisingly, there is no newmaterial before us on this issue. Even taking account of the mitigating circumstancesacknowledged in all three judgments to date, we consider the offending wasappropriately characterised as being moderately serious.8 Youssefi v Police [2019] NZCA 458.9 At [31].Consequences of conviction[13] This is the sole ground considered by this Court to justify a second appeal andit was the central focus of Mr Dean's submissions.[14] The likely consequences of a conviction which were of concern to Dr Youssefiat the time of the hearing in the District Court fell into three interrelated categories:impact on medical career and employment, restriction on overseas travel for ongoingtraining and professional development, and detrimental effect on mental health.Following the High Court judgment, the Medical Council of New Zealand approvedDr Youssefi's application for registration in a provisional general scope of practicein December 2018. The fact of the conviction proved not to be a barrier. As might beexpected, the Medical Council of New Zealand was able to look behind the convictionand assess its relevance having regard to the circumstances that led to it, and assessthe seriousness of Dr Youssefi's departure from professional standards in Malta thatgave rise to the disciplinary proceedings there.[15] Following this positive development, Dr Youssefi's concerns about the impactof a conviction have narrowed to two. He remains concerned that the conviction willrestrict his ability to travel overseas to enable him to undertake ongoing training andprofessional development. He is also concerned that a conviction will impede hisability to secure long-term employment as a doctor.Overseas travel[16] Dr Youssefi, now aged 39, wishes to become a cardiologist. He says thatthe conviction will prevent him from fulfilling his professional responsibilities tocomply with his medical education and development throughout the course of hiscareer. In particular, he says this is because the conviction will prevent him fromtravelling to the United States. While Dr Youssefi acknowledges that many relevantcourses and conferences are available in other countries, he says the most prestigiousand advanced courses are offered in the United States. He believes the scope of hismedical knowledge would be substantially lessened, to the detriment of his patients,if he is not able to undertake training and courses in the United States.[17] The difficulty with this submission is that removal of the conviction would notobviate the need for disclosure of the underlying offending. Dr Youssefi attaches toan affidavit sworn on 8 February 2019 an application he completed to obtain a visitor'svisa for the United States. The standard form relevantly asks applicants:Have you ever been arrested or convicted for any offense or crime, eventhough subject of a pardon, amnesty or other similar action?[18] Dr Youssefi answered this question "yes" and provided the followingexplanation:This relates to not disclosing the finding of the Medical Ethics Committee inMalta to the NZ Medical Council. However this breach did not relate to anyact of immorality, indecency or dishonesty or any other act involving the abuseof a professional relationship. I unfortunately rushed my registrationapplication and, left out the second page of the Malta Medical CouncilCertificate of Good Standing, which detailed a minor breach in medical ethics.The Judge felt that I had suffered a number of consequences and, thata conviction alone is sufficient and was convicted for not disclosing this, anddischarged without conviction on the charge of using a document to obtaina pecuniary advantage.(Emphasis added.)[19] We make three points on this topic.[20] First, the statement emphasised in italics above is not correct. Dr Youssefipleaded guilty to forgery and dishonestly using a document to obtain a pecuniaryadvantage. These offences involved deliberate dishonesty. Dr Youssefi's claim thatthe offending was the result of an inadvertent oversight through haste cannot bereconciled with his guilty pleas. Further, the claim that only the second page ofthe Malta certificate was missed is not correct. The disciplinary proceedings in Maltaare referred to on both pages of the original certificate.[21] Secondly, regardless of whether Dr Youssefi is discharged without conviction,he would still need to disclose that he had been arrested for the crimes of forgery anddishonestly using a document to obtain a pecuniary advantage. The question askswhether he has ever been arrested or convicted for any offence or crime.[22] Thirdly, having applied for a visitor's visa to the United States and disclosedthe conviction, this information is now a matter of record with the relevantimmigration authorities in the United States.[23] For these reasons, we are not persuaded it will make any material difference toDr Youssefi's prospects of gaining entry to the United States if the mere fact ofthe conviction is removed from his record.Employment[24] Dr Youssefi contends that the entry of a conviction will make it more difficultfor him to obtain employment as a doctor. To date, he has only been able to obtainshort-term positions. He believes that hospitals do not want to hire doctors convictedof forgery to write prescriptions and maintain medical records. We accept that may beso. But as Dr Youssefi himself acknowledges, it will not be possible to conceal fromany relevant organisation, whether in New Zealand or overseas, the fact that he hascommitted forgery, used a document to obtain a pecuniary advantage and been subjectto disciplinary procedures. This is because these matters are now recorded onthe Medical Council of New Zealand register. Again, it is difficult to see whatdifference the fact of a conviction would make in these circumstances.Conclusion[25] This is an appeal against conviction. As the second appeal court, this Courtmust allow the appeal if satisfied that the appeal should be allowed on any ofthe grounds described in s 232(2) of the Criminal Procedure Act 2011.10 This Courtmust dismiss the appeal in any other case.11 In the context of an appeal againstthe refusal to grant a discharge without conviction, it must be established thatthe Judge erred in her assessment of the evidence to such an extent that a miscarriageof justice has occurred, or that a miscarriage of justice has occurred for any otherreason, such as if the Judge erred in applying the principles for discharging an offenderwithout conviction.1210 Criminal Procedure Act 2011, s 240(2).11 Section 240(3).12 Jackson v R [2016] NZCA 627 at [12].[26] Both courts below carefully considered the likely consequences ofa conviction. No error in the judges' concurring assessments has been demonstrated.We consider the consequences of a conviction (distinct from the underlying offending)are not out of all proportion to the gravity of the offending. Disclosure of the offendingis required, and is a matter of record, in the two relevant contexts — United StatesCitizenship and Immigration Services for the purposes of future travel there andthe Medical Council of New Zealand for the purposes of future employment asa doctor in New Zealand. We are not persuaded there has been a miscarriage of justice.The appeal must accordingly be dismissed.Result[27] The application to adduce further evidence is granted.[28] The appeal against the refusal to grant a discharge without conviction isdismissed.Solicitors:John Dean Law Office, Wellington for AppellantCrown Law Office, Wellington for Respondent