Hagger v The Queen
[2001] WASCA 186
•20 JUNE 2001
HAGGER -v- THE QUEEN [2001] WASCA 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 186 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:221/2000 | 16 MAY 2001 | |
| Coram: | WALLWORK J STEYTLER J WHEELER J | 20/06/01 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | WAYNE ERROL HAGGER THE QUEEN |
Catchwords: | Criminal law Fraud False claim made for workers' compensation payments Whether trial Judge's directions factually correct Whether Judge had invited jury to speculate Held Judge's comments were fair and balanced |
Legislation: | Criminal Code WA, s 409 |
Case References: | Nil Courtney-Smith (No 2) (1990) 48 A Crim R 49 Middleton (2000) 114 A Crim R 141 Palmer (1997) 96 A Crim R 213 Robinson (1991) 55 A Crim R 318 Rodd [2000] WASCA 329 Simic (1980) 144 CLR 319 Towner [1992] 56 A Crim R 221 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HAGGER -v- THE QUEEN [2001] WASCA 186 CORAM : WALLWORK J
- STEYTLER J
WHEELER J
- CCA 222 of 2000
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Fraud - False claim made for workers' compensation payments - Whether trial Judge's directions factually correct - Whether Judge had invited jury to speculate - Held Judge's comments were fair and balanced
Legislation:
Criminal Code WA, s 409
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Applicant : Mr D J A Hockton
Respondent : Ms J A Girdham
Solicitors:
Applicant : Wojtowicz Kelly
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Courtney-Smith (No 2) (1990) 48 A Crim R 49
Middleton (2000) 114 A Crim R 141
Palmer (1997) 96 A Crim R 213
Robinson (1991) 55 A Crim R 318
Rodd [2000] WASCA 329
Simic (1980) 144 CLR 319
Towner [1992] 56 A Crim R 221
(Page 3)
1 WALLWORK J: On 22 September 2000, the applicant was convicted of 113 charges of fraud arising from a claim he made for workers' compensation. The applicant had claimed that he had injured his hand at work and had received payments of workers' compensation with respect to that alleged injury over a considerable time. The Crown case was that he had made a false claim of having been injured at work and had fraudulently claimed, and received, workers' compensation payments.
2 At the hearing of the application, leave was granted to the applicant to proceed on four grounds of appeal, all of which arise from alleged misdirections by the learned trial Judge on questions of fact.
3 The first ground asserted that the trial Judge had erred in directing the jury that:
"You will have to think, well if you had been employed would you come in and perjure yourself, would you lie on your oath because of your employment? You are required to tell the truth and come to court on your oath. That is a personal thing, nothing to do with your employment."
4 The first thing to note about that ground is that it purports to be a continuous statement by the learned trial Judge when, in fact, the Judge did not make such a statement. In the transcript there is a full paragraph between the word "employment" at the end of the first sentence and the words "You are required …" in the second sentence.
5 What the learned trial Judge said was:
"You also, ladies and gentlemen, must look at what you make of the relationship between the witnesses. You will assess, particularly with those witnesses who were workmates of the accused, you will have to assess them as people. Did they seem to have a grudge against the accused? You think about how they gave their answers. Then it is suggested, 'Well, they worked for Leighton Contractors'. You will have to think, well, if you had been employed would you come in and perjure yourself, would you lie on your oath because of your employment? Is this a case where these quite separate people have come in to give their evidence and worked it out ahead of time because that's slightly suggested by the defence. So you will have to think whether realistically there is any basis to be concerned. That's a matter for your judgment about the fact that people continued to work for Leighton Contractors at the time
(Page 4)
- and they were working for them at the time they made their statements to the police because the Crown says that when a policeman comes and talks to you and takes your statement, well, you're very much on your own. You're required to tell the truth and you come to court on your oath. That's a personal thing, nothing to do with your employment. Ladies and gentlemen, those are the matters you're going to have to judge because I would have thought the evidence of those witnesses is quite important in your deliberations. When you get to the question of reliability it's not to say that if you don't accept the witness's evidence you have to reach the view that the witness is necessarily telling lies. Witnesses can be mistaken, particularly in their recollection of 10 years ago, or they might be inaccurate as to what they recall."
6 In my view, the direction by the learned Judge was fair to all parties. The Judge was summarising the competing contentions of the two counsel who appeared for the prosecution and defence respectively. The Judge had put the defence case with respect to the witnesses' evidence and then what the Crown had said about it.
7 Counsel for the applicant suggested that if that were the case and if that were clear, then the applicant would have no argument.
8 It was put to counsel for the applicant:
"What her Honour is saying, as I read her, from the top of 218 down:
'The defence seems to be suggesting, perhaps not strongly, but seems to be suggesting that these people have got together ahead of time,'
and then her Honour says:
'Of course, when you give your statement you do it on your own.'
What's wrong with that?"
9 Counsel for the applicant said:
"Nothing, absolutely nothing."
(Page 5)
- However, counsel contended that that was not the way the statement should be viewed.
10 In my view, this ground of appeal mistakes what the learned Judge was saying and should not be sustained.
11 The next ground of appeal is:
"The learned trial Judge erred in the summing up by providing an explanation for inconsistency in the evidence of the Crown witnesses which was not available to the jury on the evidence:
'the bus driver - did she have a mind on her driving and turned away from what he (the applicant) was doing?' "
13 The bus driver had said that the applicant had hit his hand twice on the dashboard. She said she was looking that way. In answer to a question, the witness said:
"No, I turned my head. When he was talking I turned around and I was looking at him. I wasn't actually looking at the dirt track."
- The witness was asked, "I see, but you could see him definitely doing that?" The answer was, "Yes".
14 Mr Bowyer said in his evidence that he was positive that the applicant had hit his hand more than 20 times on the dash of the bus. He had been sitting directly behind the driver and the applicant had been sitting in the front passenger seat opposite the driver.
15 Because of the difference between the bus driver's evidence and that of Mr Bowyer, it was submitted for the applicant on the appeal that when the learned Judge had said, "Was the bus driver - did she have her mind on her driving and turned away from what he was doing?", the Judge had been speculating. It was submitted that the defence counsel at the trial had been seeking to establish that the bus driver's evidence was that the hitting of the hand was only done twice and that the bus driver had seen the whole of the incident. It was suggested by trial counsel that if the banging of the hand had occurred more than twice then the bus driver
(Page 6)
- would have seen it, because it was in her field of vision. It was submitted that the evidence had been that the bus driver could see the full width of the windscreen in the vehicle and therefore the dashboard; that in the absence of any suggestion that the bus driver had turned away whilst the applicant was still striking his hand, the accounts of the two witnesses, her account and that of Mr Bowyer, were inconsistent. The bus driver would either have seen the lot or nothing.
16 It was not put to the bus driver at the trial that that could have been the case. However, counsel for the applicant submitted that that was all that she had seen. It was submitted that if the applicant had been hitting his hand 12, 20, or 30 times, then the bus driver would have seen that. However, she had only seen him doing it twice. The inference was that if he had done it more times she would have seen it.
17 It was submitted on the appeal that it had not been open to the trial Judge to make the following statement:
"You see this in the two witnesses that both told you they were in the bus; that they, and both gave evidence of the accused hitting his hand on the dashboard. Now, one witness said he saw the accused do it 20 or 30 times. The other witness said he saw him do it twice. Now you will have to judge that. Does it mean it didn't happen at all or was - if two people are present when something happens, is it your experience that some people observe some part of it, other people observe other parts? Was the bus driver - did she have her mind on her driving and turned away from what he was doing? You'll have to just think of all those things and whether you find their evidence reliable so that you will base your verdicts on it."
18 It was contended for the applicant that it had not been open to the learned Judge to surmise on the evidence in that manner. It was submitted that the learned Judge had provided a very plausible explanation as to why there could be such a conflict in the evidence; that however plausible the explanation was, it had not been supported by the evidence; that it clashed with the learned Judge's later direction to the jury that there was no room in criminal trials for guessing or speculating, or for looking for theories which were not supported by the evidence. It was submitted that that is exactly what the learned Judge had invited the jury to do in relation to the conflicts of evidence between Mr Bowyer and the bus driver.
(Page 7)
19 It is apparent from the evidence that the bus driver had not said that she had seen the whole incident, but that she had seen the applicant hit his hand twice when she turned around. It was submitted for the applicant that if the matter was going to be inferred in a manner which went against the applicant, it was not "really something that a specific explanation should be provided to the jury for".
20 In my opinion, it could not be said, as asserted in the ground of appeal, that the Judge erred by providing "an explanation for inconsistency in the evidence of the Crown witness which was not available to the jury on the evidence". The explanation was available on the evidence. By their verdicts the jury obviously thought that that was so.
21 I would not uphold ground 2.
22 Ground 3 of the appeal is that the learned trial Judge erred in summarising the facts to the jury in relation to the evidence of the witness Bowyer in stating that he could not remember "everyone" on the bus, when his evidence was that he could not remember "anyone" on the bus.
23 The learned Judge said:
"The defence submits it's surprising that Steve Bowyer can't recall the names of everyone on the bus and the defence relies on the accused's denial of any conversation about compensation."
24 It was said that Mr Bowyer was a crucial Crown witness and the remark by the learned Judge could only diminish the credibility of the applicant.
25 At the trial, Mr Bowyer had been asked in cross-examination, "Are you aware of the names of anyone else who was on the bus that night?". His answer was, "I could say names, but whether they were actually there or not, I can't recall". He was then asked, "You don't recall the names of anyone else that was on the bus that night?". His answer was, "No".
26 In his address to the jury, defence counsel said, concerning Mr Bowyer's evidence:
"He said 20 to 30 times he hit his hand and that Mr Hagger said it was sore. He further goes on to say that everyone was laughing about Mr Hagger and calling him an idiot. It is of note
(Page 8)
- that despite the fact that he works with these people, the same shift, he couldn't name anyone of the people who was laughing; or any of these people who was calling Mr Hagger an idiot; any of these people who were joking about Mr Hagger."
27 After the jury had retired, defence counsel raised with the trial Judge that Mr Bowyer had said he couldn't recall the names of anyone on the bus and that the learned trial Judge had said that Mr Bowyer had said he could not recall the names of everyone on the bus. It was submitted it was a significant point relevant to the applicant's credibility and a significant point for the prosecution case.
28 The learned trial Judge said, "See, you have made that point so well. I was just reiterating hopefully what you said." The learned Judge then repeated that defence counsel had made the point well and that she was trying to remind the jury of the point he had made in his submissions.
29 The learned Judge said that she believed that the matter was a minor point and that the applicant's defence was clearly very well before the jury. Her Honour declined to redirect the jury.
30 It was submitted on this application that both counsels' addresses to the jury had been given on the day prior to the summing up. It was said that the statement concerned carried the weight of judicial office behind it; that although it might be said that it was a minor slip, the applicant had said that the minor slips had all gone against him. It was submitted that, coupled with the other slip which the trial Judge was said to have made which was the subject of ground 4 of the appeal in which it was asserted that the trial Judge had stated that the applicant had "denied any of the conversations that were alleged by these witnesses", when the evidence was that he denied any conversations in relation to compensation, the slips were crucial in the context of the whole trial. It was contended that if the two witnesses' evidence was accepted, the applicant's case was inevitably lost.
31 With respect to the allegation in ground 4 of the appeal that the trial Judge had said that the applicant "denied any of the conversations that were alleged by these witnesses", what happened was that during the summing up the learned Judge said, "He denied any of the conversations that were alleged by these witnesses". Later in the summing up the learned Judge said:
"The defence submits it's surprising that Steve Bowyer can't recall the names of everyone on the bus and the defence relies
(Page 9)
- on the accused's denial of any conversation about compensation."
32 That second comment about the denial of any conversation about compensation righted the alleged earlier misdirection.
33 It was said for the applicant that the fact that the alleged misdirections in grounds 3 and 4 related to conversations between witnesses of fact and the only witnesses of the alleged self-harm magnified the consequences of that evidence because the trial had really come down to "who do you believe; Bowyer and Cairns that the harm was inflicted on the bus, or the applicant?".
34 It was common cause at the trial that there had been other conversations between the applicant and the witnesses and that the only issue between the parties was whether those conversations had touched on the issue of compensation. The Crown witnesses have said they had and the applicant had said they had not.
35 In my opinion, it would have been obvious to the jury what was meant by the comment that the applicant "denied any of the conversations that were alleged by these witnesses".
36 It is significant that just prior to that alleged misdirection the learned trial Judge had detailed the evidence on which the prosecution relied and in which it was said the applicant had said, amongst other things, that he might as well "go on compo". Her Honour had referred to Mr Bowyer's evidence that around November 1990 the applicant had allegedly said to Mr Bowyer that the applicant had previously hurt his hand and "how easy it would be to hurt it again". Her Honour then referred to the evidence that "on an earlier occasion at a barbecue at Mr Bowyer's house, Mr Bowyer said the accused was worried about losing his job because the mine was closing. According to Mr Bowyer, the accused was quite distraught and might have cried." Her Honour then dealt with the evidence of the bus driver and Mr Bowyer, who had given evidence about the applicant banging his hand on the dashboard and talking about going on compo. Her Honour also referred to Mr Rex's evidence that he remembered the applicant saying he "wouldn't be going anywhere because he'd be on compo". Her Honour related that, according to Mr Rex, the applicant had said he would break his leg, he would do anything but he won't be going anywhere. Her Honour then said:
"Now ladies and gentlemen, the accused man denied hitting his hand on the dashboard of that bus and he denied ever speaking
(Page 10)
- about going on compo. He denied any of the conversations that were alleged by these witnesses. He said he never had any trouble getting a job. He said that whenever a mine closed he would just move to another job within days. The accused's evidence about that was supported by the evidence of his ex-wife Ms Smith. The accused said that these witnesses for the Crown had come to court and told lies. Ms Smith also supported the accused's evidence about what went on at Mr Bowyer's barbecue and Ms Smith said that they were in good humour that night and that the accused was not distraught in any way. So, ladies and gentlemen, those are conflicts on the evidence, direct conflicts that you have to resolve, if you can."
37 In my opinion, grounds 3 and 4 of the applicant's appeal should not be upheld as it is apparent that the learned Judge's comments were fair and balanced and, in my view, the jury would in no way have been misled. The jury knew what the matters in issue at the trial were and what issues had to be decided.
38 In my view, the appeal should be dismissed.
39 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by Wallwork J. I agree with them and have nothing to add.
40 WHEELER J: I would dismiss this appeal for the reasons given by Wallwork J, which I have had the advantage of reading in draft.
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