Bhagwanani v Registrar Occupational Therapist Registration Board of SA No. Scciv-03-11

[2003] SASC 34

BHAGWANANI v REGISTRAR OF THE OCCUPATIONAL
THERAPIST REGISTRATION BOARD OF SOUTH AUSTRALIA
[2003] SASC 34

Magistrates Appeal:  Criminal

1. PERRY J. Mr Bhagwanani appeals against both the conviction and fine imposed in the Magistrates Court where he pleaded not guilty to a complaint that, not being a registered occupational therapist, he assumed the name or title of occupational therapist contrary to the provisions of s 21(a) of the Occupational Therapists Act 1974. He appears in person to prosecute his appeal, as he did in the court below.

2. The gist of the charge was that on 16 May 2001 he went to WorkCover Corporation in Waymouth Street where it was alleged that he said that he was an occupational therapist seeking employment as a rehabilitation provider, when in fact on 28 May 1990 his registration to practise as an occupational therapist, which he had held since 3 March 1983, was cancelled by order of the Occupational Therapist Registration Board.

3. The trial magistrate heard evidence from a number of witnesses called on behalf of the complainant and from the appellant himself. He published reasons for his judgment, pursuant to which he recorded a conviction against the appellant. The circumstances are fully explained in the reasons for judgment.

4. Separately, the magistrate heard submissions on penalty. On the same day, that is, on 9 December 2002, he published reasons for imposing the penalty, which was a fine of $500. In addition, he ordered that the appellant pay $1,000 towards the costs of the prosecution, together with court fees and a victims of crime levy.

5. He renewed an application to adjourn the matter this morning, but I refused it on the basis that he did not indicate any persuasive ground as to why the hearing should not proceed. Furthermore, I took into account that the record in the court below indicates that the appellant has a predisposition towards seeking adjournments on the ground of that he wishes to obtain legal representation.

6. It appears that on two previous occasions the appellant had been found guilty of unlawfully holding himself out as a registered occupational therapist. Were it not for those two earlier convictions, the magistrate said that he doubted that he would trouble to record a conviction on this count. This was because he thought that the offence was at the bottom end of the scale of offences: that nobody had acted to their detriment; that the appellant did not proceed with any application to WorkCover; and there was some confusion between the appellant and the persons with whom he dealt at WorkCover.

7. The appellant prepared the notice of appeal himself, and indeed, it has been filed with various additions which were placed on file by him in which he attempted to enlarge upon his complaints.

8. There was a problem which I have drawn to the attention of the appellant in that the document - which was accepted as a notice of appeal, having been filed on 19 December 2002, being FDC 1 - contains grounds which are legible but which in the main do not relate to the circumstances in which he was convicted.

9. He filed another document with five pages of annexures which was in the main illegible, but which on the hearing of the appeal, at my request, the appellant transcribed by reading it out aloud in court.

10. When the matter was first listed before me, the appellant asked for an adjournment. I gave him a few days until today, on the footing that he would persist in endeavours, which he had embarked upon from some earlier time, to engage the services of a legal practitioner to assist him in presenting the appeal.

11. In the presentation of his argument in court today and in the documents which he has filed, the appellant complains in effect that he has been penalised unfairly; that it is unjust that he should remain deregistered; that his registration should be renewed; that the effect of his deregistration has been that he has been out of work for more than ten years; that this has resulted in him being, as he put it, a “prisoner in his own home”; that there was no proper basis upon which the Magistrate could convict him; that he was innocent of the charge as he had not misled WorkCover as to his status as an occupational therapist; that he was the victim, in effect, of what he described as a “razor gang”; and that in effect he has been harassed by the authorities who keep bringing him into court over what he suggested were false charges to do with his status as a deregistered occupational therapist.

12. He has also drawn attention to his medical condition, which he suggested has worsened because of the harassment that he has received.

13. He submitted that he had been reduced to a state of penury and that the appeal should be allowed so as to relieve him of the pressures which he was under.

14. I have done my best to listen carefully to the arguments which he has presented. I have also examined very closely the reasons for conviction and the separately published remarks on penalty.

15. It appears to me that the magistrate correctly addressed himself to the issues which were raised. In substance, his conclusion that the charge had been made out resulted from his preference for the witnesses who had been called on behalf of the complainant to the evidence of the appellant.

16. This Court is not in a position to reassess that question which is essentially one of credit. No ground has been demonstrated which would justify setting aside the conviction. It appears to me that the penalty which was imposed is moderate. The maximum penalty which is provided for in the legislation is a fine of $5,000. The fine of $500 which was imposed was clearly within the proper exercise of the magistrate’s discretion and could not be described as manifestly excessive.

    [AFTER HEARING COUNSEL ON THE QUESTION OF COSTS]

17. HIS HONOUR:      I order that the appellant pay the respondent’s costs of and incidental to the appeal, which I fix at $150.

18. MR BHAGWANANI:         I’ll appeal the decision. I’ll appeal the decision. I am not happy, no. Thank you.

19. HIS HONOUR:      Well, I’ll treat that as an application for leave to appeal. You cannot appeal as of right, Mr Bhagwanani, but there is nothing that suggests to me that this would be a proper case for the attention of the Full Court. Insofar as I may take it that you have applied for leave to appeal, the application is refused.