Fitz-Gerald v The State of Western Australia
[2006] WASCA 137
•14 JULY 2006
FITZ-GERALD -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 137 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:154/2005 | 16 JUNE 2006 | |
| Coram: | WHEELER JA | 14/07/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| B | |||
| PDF Version |
| Parties: | DEAN ADAM FITZ-GERALD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Application for leave to appeal against conviction Attempted fraud Turns on own facts |
Legislation: | Nil |
Case References: | Nil Brotherton v The Queen (1992) 29 NSWLR 95 Chidiac v The Queen (1991) 171 CLR 432 McKnoulty (1995) 77 A Crim R 333 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FITZ-GERALD -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 137 CORAM : WHEELER JA HEARD : 16 JUNE 2006 DELIVERED : 14 JULY 2006 FILE NO/S : CACR 154 of 2005 BETWEEN : DEAN ADAM FITZ-GERALD
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MAZZA DCJ
File No : IND 1825 of 2004
Catchwords:
Appeal - Application for leave to appeal against conviction - Attempted fraud - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application for leave dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D P A Moen
Respondent : No appearance
Solicitors:
Applicant : Mark Andrews Legal Pty Ltd
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Brotherton v The Queen (1992) 29 NSWLR 95
Chidiac v The Queen (1991) 171 CLR 432
McKnoulty (1995) 77 A Crim R 333
(Page 3)
1 WHEELER JA: This is the applicant's application for leave to appeal his conviction on one count of attempted fraud. There is but one ground of proposed appeal, it being that the verdict of the jury was against the weight of the evidence.
2 The evidence at trial was that in January of 2004 the applicant was a serving police officer at the Clarkson police station. On 19 and 21 January, he contacted the police station and spoke to a constable there on both occasions to inform the constable that although he was rostered to be on duty, he was unfit, because of illness. He had at a previous time requested that the weekly roster be drawn up in such a way that he did not have to work on those two days. That request had been declined.
3 In order to receive paid sick leave, it is a requirement of the Police Service that an officer produce a medical certificate that confirms his or her inability to attend duty. If such a medical certificate is not produced, then, unless arrangements are made to attribute the time taken to some other available leave (such as annual leave), the officer's pay will be adjusted to deduct pay for those days.
4 The evidence was that when there was a notification that an officer was sick, a "notification" would be put on the appropriate recording system and that if an officer then presented a medical certificate, the officer-in-charge could "convert" the notification to an application for sick leave on behalf of the officer producing it.
5 The procedure for forwarding and dealing with medical certificates changed on 26 January, that is, very shortly after these two days, but nothing in particular seems to turn on that. On 31 January, the applicant was involved in a road traffic accident. As a consequence, he was away from work for about three weeks between 2 and 22 February. He came back to work on a limited basis thereafter for a time. At some stage in about the last week or so of February, Sergeant Garratt, who was the officer-in-charge at Clarkson, reminded the applicant during discussions that he needed to have a medical certificate to cover the days he had taken in January. Sergeant Garratt's recollection was that he did so a number of times.
6 In March the applicant went on annual leave, and, following his return from annual leave, the applicant advised Sergeant Garratt that he thought that there was a medical certificate attached to the occurrence book in relation to 19 and 21 January. The occurrence book was checked in the applicant's presence, and when no such certificate was found, he
(Page 4)
- was again told that he would need some material from the doctor to confirm that he had been ill.
7 On 2 April, the applicant went to Sergeant Garratt and said that he had a medical certificate for "those days off". Sergeant Garratt asked him to attach it to the timesheet for that week (that is, the week of the discussion). When processing the timesheets a few days later, Sergeant Garratt noticed that the dates specified were 29 and 31 January, not 19 and 21. He made certain inquiries. A few days after that, the applicant came to Sergeant Garratt and told him that there was "an anomaly" with the medical certificate, that the dates were incorrect, and that he needed to go back to get another one.
8 The medical certificate purports to be signed by a Dr Croft. Dr Croft gave evidence that she had not seen the applicant until 6 February 2004. A forensic document examiner gave evidence that the medical certificate appeared to be an altered version of another medical certificate for a different date which he had examined.
9 The applicant had originally been charged with fraud. However, since it appeared that, the false nature of the document having been detected, the applicant would ultimately not be eligible for paid sick leave for those two days, his Honour ruled that there was no case to answer in relation to fraud. He ruled that it would be open to the jury to convict of an attempt. The applicant gave no evidence.
10 The submissions in the applicant's case unfortunately do not set out the reasoning process which would lead to a conclusion that no reasonable jury, properly instructed, could convict the applicant of the attempt. Rather, it is asserted simply that the certificate had "nothing to do with any claim for paid sick leave for either 19 or 21 January 2004". There seemed, from the succeeding paragraphs of assertions, to be two strands to this characterisation of the certificate.
11 First, it seems to be suggested that there was no "claim" for paid sick leave. However, the evidence was that the applicant had, in fact, been paid for 19 and 21 January, and that Sergeant Garratt was able to convert the notification of illness into a "claim" for sick leave. It was open as a matter of inference from Garratt's evidence, for the jury to form the view that the applicant intended that Garratt would understand that the medical certificate related to 19 and 21 January.
12 The second strand of reasoning is in relation to the dates, 19 and 21 January. The submission seems to be that no jury could reasonably
(Page 5)
- have concluded that a certificate, which on its face bore the dates 29 and 31, could form part of an attempt to obtain a benefit in relation to 19 and 21. However, there are two inferences which would be open to the jury as to the applicant's intention at the time at which he produced that certificate. It would, indeed, be open to the jury to form the view that the applicant intended either of two results, and did not at that time care which he achieved. The first result is the one I have already mentioned, of Sergeant Garratt, on a superficial viewing of the certificate and in the context of the conversation which had taken place in relation to it, simply overlooking the fact that the dates were incorrect. The second would be that the applicant intended at least to defer the action which would otherwise be taken in relation to 19 and 21 January. If no certificate was produced, then, in due course either those two days would be converted to other leave (thereby potentially depriving the applicant of two days of annual leave, for example), or the applicant's pay would ultimately be docked in relation to those two days. An inference of the latter kind could be supported by the conversation which Sergeant Garratt had with the applicant in which the applicant advised him of an "anomaly" in the certificate and suggested that he would be able to obtain a correct certificate (that is, obviously one for 19 and 21). The retention of either the annual leave entitlement, or the pay, would constitute a benefit to the applicant.
13 In my view, it was plainly open to the jury to convict the applicant on the evidence which I have briefly summarised.
14 The ground has no prospect of success, and I refuse leave.
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