Kupsch v ZANKER - [2013] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KUPSCH v ZANKER
[2013] SASC 60
Judgment of The Honourable Justice Gray
26 April 2013
WORKERS' COMPENSATION - OFFENCES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS CLEARLY WRONG - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - PARTICULAR CASES
Appeal against conviction - following a trial in the Magistrates Court, the defendant was convicted of 24 counts of breaching section 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) - the defendant was a police officer and was injured while at work - the defendant received workers compensation payments - while receiving those payments, the defendant performed baking duties at his wife's bakery - each of the 24 counts concerned the obtaining by dishonest means of a payment under the Workers Rehabilitation and Compensation Act.
Whether the Magistrate conducted himself in a manner that gave rise to an appearance of bias - whether the Magistrate misapprehended the effect of covert surveillance evidence - whether the Magistrate misapprehended the evidence of one of the medical specialists.
Held: Appeal allowed - the Magistrate engaged in an extensive and unfair cross-examination of the defendant - the Magistrate's conduct gave rise, at the very least, to an appearance of bias - the Magistrate misapprehended the extent and effect of the covert surveillance evidence - these misapprehensions meant that the Magistrate's findings on the defendant's credit could not be sustained - the Magistrate misapprehended the evidence of one of the medical specialists in a material respect - convictions recorded by the Magistrate set aside - matter remitted for rehearing.
Workers Rehabilitation and Compensation Act 1986 (SA) s 120, referred to.
Yuill v Yuill [1945] P 15; Jones v National Coal Board (1957) 2 QB 55; Ratten v The Queen (1974) 131 CLR 510; R v Esposito (1998) 45 NSWLR 442; R v MacBeth [2008] SASC 71; R v Mohammadi [2011] SASCFC 154; Walsh v Tattersall (1996) 188 CLR 77; Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408, considered.

KUPSCH v ZANKER
[2013] SASC 60
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
Introduction
The defendant and appellant, David Kupsch, was charged with 24 counts of breaching section 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA). That subsection provides:
A person who—
(a) obtains by dishonest means a payment or other benefit under this Act; …
…
is guilty of an offence.
Maximum Penalty: $50 000 or imprisonment for one year.
The charges concerned alleged dishonest conduct on the part of the defendant between January and December 2008.
All…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kupsch v ZANKER

Details

AGLC: Kupsch v ZANKER [2013] SASC 60
Case: [2013] SASC 60
Decision Date: 26 April 2013

CaseChat Overview and Summary

In the case of Kupsch v Zanker, the defendant, a police officer injured in the line of duty, was convicted of multiple counts of breaching section 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) by dishonestly obtaining payments while he was receiving workers' compensation. The defendant performed baking duties at his wife's bakery without disclosing this employment to his supervisors or medical professionals, actions which were alleged to have misled them regarding his physical capabilities and work status. The defendant appealed against his conviction, arguing that the Magistrate mishandled the evidence, exhibited bias, and misapprehended critical aspects of the case, particularly the covert surveillance evidence and the testimony of one of the medical specialists.

The appeal raised several legal issues, including whether the Magistrate's conduct during the trial created an appearance of bias, whether the Magistrate correctly interpreted the covert surveillance evidence, and if the Magistrate accurately assessed the credibility of the medical evidence provided. The court needed to determine if the Magistrate's errors were so significant that they undermined the fairness of the trial or the reliability of the findings. Given the serious consequences of the conviction, the appellate court had to consider whether the errors were material enough to warrant a new trial.

The court found that the Magistrate's conduct during the trial created, at the very least, an appearance of bias due to the extensive and unfair cross-examination of the defendant. The court also determined that the Magistrate misapprehended the effect of the covert surveillance evidence, leading to incorrect conclusions about the defendant's activities at the bakery. Additionally, the court held that the Magistrate misapprehended the evidence of one of the medical specialists in a material respect. These errors meant that the Magistrate's findings regarding the defendant's credibility could not be sustained. As a result, the appeal was allowed, the convictions were set aside, and the matter was remitted for rehearing.

ORDERS:
The appeal is allowed. The convictions recorded by the Magistrate are set aside. The sentence imposed and the consequential orders made by the Magistrate are set aside. The matter is remitted for rehearing.

Orders

Orders of the court

Held: Appeal allowed - the Magistrate engaged in an extensive and unfair cross-examination of the defendant - the Magistrate's conduct gave rise, at the very least, to an appearance of bias - the Magistrate misapprehended the extent and effect of the covert surveillance evidence - these misapprehensions meant that the Magistrate's findings on the defendant's credit could not be sustained - the Magistrate misapprehended the evidence of one of the medical specialists in a material respect - convictions recorded by the Magistrate set aside - matter remitted for rehearing.

Background

Background to the litigation

The Magistrate convicted the defendant of the counts for the period 16 January 2008 to 26 June 2008 because of non-disclosure of his work at his wife’s bakery and because of false statements made to others. The Magistrate concluded:I agree and accept beyond reasonable doubt the prosecution submission that the defendant deliberately omitted to disclose to SAPOL, both to his supervisors and Ms Vernon, to Dr O’Toole, to Ms Robyn Rankine and to Dr Green that he had been performing physical work in a bakery from 15 December, 2007 and that he was capable of performing those tasks, because he knew that would impact upon his Workers Compensation payments and whether he was capable of returning to full-time duties, or if not operational duties, full-time alternative duties.…Accordingly for the reasons set out above, I am satisfied that during the charged period, the defendant acted in a dishonest way by not disclosing his secondary employment to his employer and also falsely concealed his true physical capacity from his employer.…By filing the notice of dispute, the defendant was maintaining his claim that he was genuinely partially incapacitated for work. I have found beyond reasonable doubt for the period 16 January, 2008 to 26 June, 2008 that the defendant obtained payments by dishonest means under the Act based upon his non-disclosure of secondary employment and false assertions of incapacity. Of course by 26 June, 2008 the employer was aware of his secondary employment, and from 26 June, 2008 for the balance of the period charged I am satisfied beyond reasonable doubt that the defendant dishonestly obtained payments by dishonestly pretending that he was partially incapacitated for full-time employment.Background The defendant was born in March 1971. Before joining the South Australia Police in the year 2000, he worked as a recruitment consultant and as a pastry chef. The defendant, as a young man, was physically fit. He had an early involvement with Australian Football League clubs. There is no suggestion that he was a man with other than excellent personal antecedents. On 12 September 2005, while a serving member of the South Australia Police, the defendant was injured in a motor vehicle accident. At the time, he was on patrol duties and a front seat passenger in a police vehicle. The defendant suffered injury to the left side of his body. The left side of his head collided with a window of the vehicle. He experienced numbness in the left side of his body. He was taken to hospital for emergency treatment. X-rays did not reveal any fractures and he was discharged. Shortly after discharge, the defendant attended his general practitioner, Terry Rose. Some days later, Dr Rose suffered a stroke. The defendant then consulted another general practitioner, Sean O’Toole. The defendant received treatment from Dr O’Toole and from a headache clinic. He also underwent physiotherapy, hydrotherapy and chiropractic treatment. The defendant has suffered from stiffness and soreness of the neck, tightness in the area of the low dorsal spine and headache.

Evidence

Evidence Before The Court

I return later in these reasons to discuss the defendant’s complaints concerning the Magistrate’s findings in respect of the medical evidence. Before doing so, it is convenient to address the topic of covert surveillance. Covert Surveillance Evidence The South Australia Police instructed covert surveillance of the defendant to be undertaken. I have reached the conclusion that the Magistrate misapprehended the effect of the covert surveillance evidence. He made a finding that the defendant continued to perform bakery duties from December 2007 through to June 2008. It is to be understood that surveillance during this period occurred in December 2007, January, March, May and June 2008. The surveillance evidence conducted in May and June 2008 over a number of days did not disclose the defendant performing any bakery duties at all during those months. A review of the entirety of the surveillance evidence discloses that the defendant engaged in light, or at most moderate, duties in his wife’s bakery on an intermittent basis and on only ten occasions over the 39 days of surveillance. The duties being performed on those intermittent occasions were not inconsistent with the description that the defendant had provided to those engaged in his rehabilitation as being activities that he was capable of performing. The Magistrate appears to treat the surveillance evidence as though it revealed the defendant engaging in baking duties as a regular activity over a six to seven month period. The surveillance commenced at the defendant’s home on 4 December 2007 and continued at that location on 6, 8 and 10 December 2007. No observations were made of the defendant undertaking any baking duties on these occasions. On 11 December 2007, surveillance took place at bakery premises at Henley Beach as well as at the defendant’s home. The bakery was the defendant’s wife’s business. Surveillance continued on that day and on 12 December 2007. No observations were made of the defendant undertaking any baking duties on these occasions. Surveillance continued on 14, 18, 19, 20 and 22 December 2007. During surveillance on these days, observations were made of the defendant at the bakery. On these occasions, with the exception of 19 December 2007, observations were made of the defendant from time to time engaging in generally light or, at most moderate, duties. On 19 December 2007, the defendant, although present, was not observed to perform any baking duties at the bakery with the possible exception of carrying a cardboard box. The observations on each of these occasions were in respect of limited periods. Video footage was taken of the defendant engaging in baking duties in the bakery. In summary, surveillance of the defendant continued over eleven days during December 2007, during which time the defendant was seen to perform baking duties in the bakery on four of those days. On those days, the defendant was observed to perform light duties, or, at most, no more than moderate duties, over limited hours.

Decision

Reasons for decision

GRAY J

On 7 February 2012, the Magistrate sentenced the defendant to a term of imprisonment of 13 months. A non-parole period of six months was fixed. This sentence was suspended on the defendant’s entry into a good behaviour bond for a period of 18 months. The term of the good behaviour bond will conclude on 7 August 2013. There is no suggestion that the defendant has been other than of good behaviour since 7 February 2012. As a consequence, the defendant has already served a significant component of the sentence imposed by the Magistrate. Conclusion The appeal is allowed. The convictions recorded by the Magistrate are set aside. The sentence imposed and the consequential orders made by the Magistrate are set aside. The matter is remitted for rehearing.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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