Dolling v Waite No. Scciv-03-1235

DOLLING v WAITE
[2003] SASC 400
Magistrates Appeal
GRAY J
Introduction

This is an appeal against conviction.
The appellant, Neville Dolling was charged with 26 counts of dishonestly obtaining payments and 12 counts of making false or misleading statements in relation to a workers compensation claim contrary to section 120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA).
Mr Dolling pleaded not guilty and the matter proceeded to trial in the Magistrates Court. On 27 November 2002 the learned magistrate found Mr Dolling guilty of each of the 26 counts of dishonestly obtaining payments. The remaining 12 counts were withdrawn by consent.
The magistrate sentenced Mr Dolling to 12 months imprisonment with a non-parole period of 6 months, suspended on condition that he enter into a bond to be of good behaviour for a period of 18 months. The magistrate made an order pursuant to section 120(3) of the Act that there be repayment of the $12,829.91 in overpayments received. In addition there was an order for costs in the amount of $25,000.00.
Mr Dolling had been employed by Mitsubishi Motors Australia Ltd for many years. On 28 April 1995 he injured his left knee whilst carrying out his duties at work. In May 1995 a claim for compensation was made and accepted. Mr Dolling had treatment on his knee and undertook a rehabilitation program. He has been left with a permanent residual disability in his left knee. Mitsubishi accepted that Mr Dolling had a knee disability. In issue at trial was whether Mr Dolling was fit to undertake light duties.
Mr Dolling was represented when the trial commenced. Early in the trial objection was taken by Mr Dolling’s counsel to the use of any video evidence until its “provenance” could be established. Provenance was later conceded. There was a total of approximately 30 hours of video evidence. The prosecution produced an edited version to be shown to witnesses. This edited version was approximately an hour in length. Witnesses were aware that they were viewing an edited video. On 28 March 2001 counsel for Mr Dolling requested that the magistrate view the entire video. She did so.
The prosecution relied on two particular segments from the edited video which showed Mr Dolling moving very slowly. One segment showed Mr Dolling leaving a physiotherapy appointment. The other showed an attendance at Mitsubishi. Two medical practitioners confirmed that Mr Dolling presented to them in a similar slow moving manner. These observations were then contrasted with the remainder of the video evidence which showed Mr Dolling performing a range of activities without apparent restriction.
The magistrate found that the prosecution had established that Mr Dolling had dishonestly misrepresented his capacity for work. She concluded:
I have considered all evidence that has been placed before me. The prosecution evidence in this case is overwhelming. Each of the prosecution witnesses was impressive and in my view a witness of truth.
The videotape evidence is significant and can only be described as overwhelming. In it the defendant is shown undertaking tasks and demonstrating a capacity of movement that is incongruous with his presentation to Mr Munyard, Dr Woodward and Mr Rosetti as totally incapacitated for work.
…
As far as the defendant is concerned I did not find him to be an impressive witness. His protestations of wishing to return to work do not sit comfortably with either his presentation of certificates of total incapacity or the inconsistency of ability observed by the doctors and disclosed on the video.
…
I find that the defendant portrayed himself to the relevant persons as unfit for work. I find that he did that dishonestly – knowing that his capacity for movement, activity and work was beyond that which he described and demonstrated to them.
It is patently apparent that if he had disclosed this ability to work he would not have been entitled to receive the payments made to him.
I have no hesitation in finding that the prosecution has proved its case beyond reasonable doubt.
I find him guilty of the 26 counts of dishonestly obtaining payments of income maintenance.
The Appeal
Mr Dolling’s notice of appeal was supported by written submissions. He also filed an “Outline of Appeal”. This document identified the complaints advanced on the hearing of the appeal.   They were as follows:
-     I will show that the film refered to as edited highlights is fraudulent and at the least very misleading in the way it is put together.
-     That in some cases the video was used to entrap me.
-     That Magistrate Hayes was misled by the video.
-     That Dr Goldney was misled by the video and should not have made a judgement without seeing me first. Reference from the psychiatrist I am now seeing.
-     Mr Cherry from pain clinic was wrong in his assessment on use of pain medication I was taking. Information from chemist.
-     The difference of what I was doing on my daughters property to what I was made to do at work. Refer to my wife and daughter.
-     They did have a policy on drugs and alcihol. Ex forman at that time.
-     I was told I was not allowed to work there because of my medication and the use of walking stick.
-     I have poof my knee gave way many times at Adelaide Show and had to use a wheel chair.
-     That some people were contacted only once while others were contacted over 40 times.
-     Lawyer should not have been allowed in court.
-       Length of time in case.
(The misspellings in the above text were contained in Mr Dolling’s original document.)
Consideration of the Issues
Mr Dolling’s complaints centred on the editing of the video evidence. He said that the edited video had been deliberately manipulated. He claimed that it provided a distorted picture of his activities.
Although presented in an apparently chronological sequence, in two respects the sequence of the video was incorrect. A 1997 segment showing Mr Dolling climbing a ladder was twice misplaced. The segment was first shown with 1995 footage and as a result was almost two years out of sequence. In the other instance the segment had been misplaced within the footage for the 1997 year. Mr Dolling claimed that the incorrect sequencing was deliberate.
Mr Dolling also complained that two sequences of the film had been obtained in circumstances of entrapment. These related to occasions when Mr Dolling attended a locations at Mitsubishi’s request and had been filmed. Both occurred at a time prior to the commencement of the prosecution.
Another complaint related to film of Mr Dolling riding on a lawnmower where it was said that the video had been “speeded up”. It was also said that the edited video film shown to medical witnesses was incomplete. A further complaint related to one part of the video said to have been edited without disclosure.
During Mr Dolling’s submissions it became apparent that he did not have a clear recollection of the events of the trial. One example will illustrate this point. He informed this court that he had not personally had access to the entire video footage from which the edited version had been prepared. However, in the course of his trial evidence, Mr Dolling acknowledged that he had access to the entire video as well as the edited version.
The appellant was legally represented throughout the entire prosecution case. The video evidence was the subject of challenge on a voir dire. The evidence was not excluded. The fact that the video footage had been edited was well known to Mr Dolling and his representatives. The edited video disclosed the date and time of the recording. There were acknowledged editing errors where discrete segments were out of sequence. However, this was disclosed and was well understood by Mr Dolling’s counsel and the magistrate. At the request of Mr Dolling’s counsel, the magistrate viewed the entire video footage, not just the edited version.
In the course of her reasons, the magistrate observed:
A large number of videocassettes were tendered in evidence. One video in particular was produced which contained what was referred to as ‘edited highlights’ of more than 28 hours of film that had been taken. The videotapes had also been shown to each of the medical practitioners who gave evidence. The witnesses Rosetti and Boettcher were also familiar with the content as a result of their involvement with the defendant. The reactions of the defendant’s treating medical practitioners to the films varied in degree, but without exception each was firmly of the opinion that they had been aware of the activities undertaken by the defendant as depicted in the film their opinion as to his capacity for work would have been different. Mr Munyard indicated that he would not have certified him totally unfit for work, but would have considered he should be able to undertake light duties.
Dr Woodard expressed the most extreme view, indicating that if he had been aware that Mr Dolling was doing the sort of things depicted in the video film he would have certified him fit for full labouring duties. (I note in passing that even the prosecutor resiled from the extremity of this view of the defendant’s capacity for work). However, the important fact for the prosecution case was Dr Woodward’s evidence that the defendant’s presentation to him in his surgery was completely inconsistent with Mr Dolling’s activities as depicted in the films (see transcript pp 364-365, 366 and 368-371). He also considered that the use of analgesics such as the panadeine forte that he had prescribed could not account for the inconsistent behaviour.
Mr Munyard was less extreme in his assessment of the defendant’s capacity, but his evidence was unhesitating. He described in detail his observations of the defendant on examination and referred to the inconsistency of Mr Dolling’s presentation with those activities he saw him undertaking on the film. On the occasions Mr Dolling had been seen by Mr Munyard he described him as walking with a stick, moving very cautiously and slowly, wearing a knee brace and complaining of ongoing difficulties with his knee and pain in his back. As a result of his examination and observations of him he had assessed him as totally incapacitated for work and expected that he would have been able to do very little taking into account his restricted ability to move and bend, his complaints of pain and the associated need for analgesics and the ongoing weakness in his knee. Having viewed the video film it was his opinion that the defendant was fit for light, sedentary work during the relevant time. He described the actions undertaken by the defendant as seen in the various pieces of film as inconsistent with his presentation to him. He also indicated that the ingestion of analgesics such as panadeine forte could not account for the inconsistency in movement and capacity.
Professor Robert Goldney, a psychiatrist was also called to give evidence. He had not examined the defendant, but was called to give evidence whether there could be a psychiatric explanation for the inconsistency observed by the other doctors. His evidence was based on certain given assumptions (see pp426-427) and the video film which he has shown. It was his firm opinion that there was no psychiatric explanation that could account for the inconsistency observed by the witnesses (see pp 436, 441 and 450). He too discounted the use of analgesics was an explanation for the significant change in the defendant’s capacity.
Mr Cherry is a specialist anaesthetist and specialist pain physician. He is clearly expert in his field (see exhibit P8). His evidence was directed to the effect of analgesics and their ability to account for the inconsistency in the defendant’s presentation. It was his firm opinion that there was no pharmacological explanation for the inconsistency. He described the medications the defendant said he was taking on a regular basis as reasonably mild and their ingestion incapable of causing such a change in the defendant’s capacity for work and movement as depicted in the video…
The final piece of evidence in the trial (with the exception of various documents and medical reports) was the video film. I do not intend to detail that; it speaks for itself. It is sufficient to say that it disclosed major inconsistencies in the defendant’s claimed inability to move and undertake work. Parts of the film showed the defendant attending medical and other appointments (eg attendances at Mitsubishi); in those he moved slowly and walked with the aid of a stick. Other portions of film showed him undertaking activities in a totally inconsistent manner, displaying a range of movement, agility and ability to undertake various tasks, which were completely incongruous with his presentation to the doctors and Mr Rosetti.
It was on this obvious inconsistency of movement and capacity that the charges were based.
There was no evidentiary basis for the suggestion that the film had been deliberately and unfairly manipulated. The edited version of the video and the full video were produced. The fact that the edited video was out of chronological order was disclosed. No misunderstanding could have arisen. The other complaints about the video were without substance.
Mr Dolling’s submissions concerning Professor Goldney were misconceived. It is apparent from the magistrate’s reasons that the evidence was led to negate possible explanations for the difference between the appellant’s presentations from time to time. The judge was entitled to act on Professor Goldney’s opinion. In any event, no psychiatric or psychological explanations were advanced.
The complaint that Dr Cherry had provided advice to Mitsubishi before he was consulted by Mr Dolling is also of no substance. After Dr Cherry had commenced treating Mr Dolling he recalled that he had previously been consulted about Mr Dolling by his employer. These matters were the subject of cross examination at trial. The magistrate was entitled to act on Dr Cherry’s evidence in the way that she did.
Complaints were advanced about the magistrate’s findings concerning Jennifer Hardy, an occupational health nurse employed by Mitsubishi. The magistrate observed:
The prosecution also called Jennifer Hardy who had been an occupational health nurse at Mitsubishi. She had seen Mr Dolling only once, but her evidence was mainly directed to the question of whether or not there existed a policy of not allowing people to work if they had ingested panadeine forte. She told the court that each situation would be assessed individually and that she had never told Mr Dolling that he could not work if he had ingested this medication.
Mr Dolling complained that Ms Hardy had ceased to work for Mitsubishi about eight years before the relevant events and that her evidence had been misused by the magistrate. However, the evidence revealed that Ms Hardy ceased to work in 1996 approximately two years before Mr Dolling suffered his knee injury. Mr Dolling’s assertions were incorrect. There is no substance to the complaint that Ms Hardy’s evidence was in some way misused by the magistrate.
Mr Dolling further complained that witnesses should have been called from Mitsubishi concerning an alleged policy that Mitsubishi would not allow persons using particular pain relief to attend work. Mr Dolling misunderstood the evidence at trial. The issue about company policy had been addressed by Ms Hardy. Her evidence provided an appropriate and adequate basis for the magistrate’s findings. There is no substance to this complaint.
The other matters of complaint were barely pressed. The complaint concerning the length of the trial appeared to relate to the fact that the magistrate’s viewing of the video had taken place some considerable time before judgment. This circumstance does not provide a basis for concluding that the magistrate’s recollection of the evidence was in any way affected by the length of the trial.
During the appeal hearing Mr Dolling made repeated factual assertions, not the subject of evidence at the trial. These assertions were not supported by any documentation. There was no application to lead further evidence. No suggestion was advanced that the asserted factual material was not available at trial. It is not appropriate to place any weight on these assertions.
Conclusion
Mr Dolling did not demonstrate any error of law made by the magistrate. He was unable to identify any relevant fact, matter or circumstance overlooked. It was not suggested that the magistrate considered any irrelevant or extraneous material. No proper basis has been established to challenge any of the magistrate’s discretionary findings[1].
[1] House v King (1936) 55 CLR 499, Dinsdale v R (2000) 202 CLR 321
There was ample evidence to support and justify the magistrate’s findings. There is no reason to doubt the conclusions reached. No risk of a miscarriage of justice arises in this case. This appeal is dismissed.
JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT
1 House v King (1936) 55 CLR 499, Dinsdale v R (2000) 202 CLR 321

[2003] SASC 400

4 December 2003