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 24 counts alleged the obtaining by dishonest means of a payment under the Workers Rehabilitation and Compensation Act. Each offence was alleged to have been committed in 2008 on the following dates: 16 and 30 January, 13 and 27 February, 12 and 26 March, 9 and 23 April, 7 and 21 May, 4 and 18 June, 2, 16 and 30 July, 13 and 27 August, 10 and 24 September, 8 and 22 October, 5 and 19 November and 3 December.[1]
[1] For example, count 1 provided:
On the 16th day of January 2008 at Adelaide and other places in the State of South Australia, obtained by dishonest means a payment under the Workers Rehabilitation and Compensation Act 1986, namely a payment in the amount of $838.18, being part of an Electronic Funds Transfer in the amount of $1211.28, to the credit of Bank Account Number 010453040, held in the names of Kupsch D J & A S, held with Members Equity Pty Ltd, Collins Street, Melbourne.
Contrary to s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986
This is a summary offence.
No particulars were provided of the alleged dishonest means with the complaint. However, in a document dated 23 February 2011 and entitled ‘Particulars of the Offence Alleged under s121(1)(a) of the Act and Complainant’s Outline of Opening’, the prosecutor provided particularity of the alleged dishonesty. Having referred to the terms of the Workers Rehabilitation and Compensation Act and legal authority, the following appears:
The prosecution accept that [the defendant] was once entitled to obtain workers compensation payments under s35 of the Act by reason of a motor vehicle accident. It does not assert that at the time he originally obtained payments he was dishonest.
The prosecution asserts that by the time of the receipt of the payment on 16 January 2008 and thereafter, he had employed a course of dishonest means in order to continue to receive payments.
Given the need for repeated dishonesty in his dealings with SAPOL and medical practitioners alike, the prosecution case is that [the defendant] engaged in a “mesh” or “honeycomb” of deliberate materially dishonest statements, dishonest misrepresentations of capacity and activity tolerance and deliberate omissions to provide information about employment and capacity that could reasonably have been expected to be provided.
What is alleged is in essence a fraudulent course of conduct. It is the combination of one or a number of these alleged dishonest statements, misrepresentations and omissions that constitutes the conduct that is the “dishonest means”.
…
It is alleged [the defendant] engaged in that conduct for the purposes of concealing his true capacity so as to continue to receive worker’s compensation payments. The defendant was not entitled to act dishonestly in order to obtain payments. The “dishonest means” alleged to have been engaged in by [the defendant] are a combination of one, or more, of the following instances of conduct:
…
The “dishonest means” relied on to prove an individual count are only that conduct that occurred before the making of the payment. Thus, for example, the specific dishonest conduct identified above by numbers 10, 11 and 12 only apply to counts where payments were made after 9 July 2008.
The prosecution case is that it is in the end a question for the trial Court to accept as to whether or not each of these acts taken together are sufficient to prove the existence of the use of “dishonest means” beyond reasonable doubt.
In the same document, the prosecutor discussed the statutory scheme for the compensation of workers who sustain injury:
… the Scheme establishes an arrangement whereby where a workers [sic] are entitled to payment if injured at work and are incapacitated for work: s35. In effect, if a worker sustains a compensable disability that results in incapacity for work, the worker is entitled to payments. In this case, because the employer is an exempt employer (see s61 of the Workers Rehabilitation and Compensation Act 1986, the exempt employer has the powers and obligations otherwise owed by the Corporation.
In this case, because of the duration of time, the relevant entitlement at the time of injury is that under s35(1)(b)(ii) of the Act which provides where there is partial incapacity the worker is entitled to payments for the period of incapacity being 80% of the difference between the workers notional weekly earnings and the earnings the workers could earn in suitable employment.
In order to continue to qualify for payments under the Scheme it remains necessary to have the worker provide certification of a medical practitioner that the worker is incapacitated (either totally or partially for work.) The practitioner is in effect certifying the relevant facts for the purposes of s35 of the Act. The case is that directly or indirectly the dishonest means procured the issuing of medical certificates that certified the worker was only fit for part time work.
The defence case at trial was that the prosecution had not proven beyond reasonable doubt that the defendant obtained payments by dishonest means under the Workers Rehabilitation and Compensation Act. The defendant was the only witness for the defence case. It was his case that he had acted honestly at all times.
Eleven witnesses were presented by the prosecution. Both the complainant and the defendant were legally represented.
The trial commenced on 24 February 2011. On 3 June 2011, the Magistrate reserved judgment. Judgment was delivered on 27 October 2011. The defendant was convicted on all counts as charged. The defendant has appealed against all convictions.
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.
The South Australia Police, the defendant’s employer, was an exempt employer for the purposes of the Workers Rehabilitation and Compensation Act. The defendant’s claim for workers compensation was, in this circumstance, handled by his employer.
On 20 September 2005, the defendant lodged a claim for workers compensation. He described his injuries as ‘neck injury, lower back injury’. The claim was accepted and the defendant received compensation payments from that time until late 2008.
On 20 January 2006, the defendant made a further claim for compensation in respect of the same injury. On this occasion, the injury was described as ‘whiplash/lower & mid back’. On 27 January 2006, he made a further claim. On this occasion, the injury was described as ‘whiplash, cervical, thoracic, lumber, [post traumatic stress disorder]’. The parts of the body affected were described as ‘back (lower & upper), neck, head’. On 20 December 2006, the defendant lodged a further claim for compensation. On this occasion, the injury was described as ‘neck\back – narrowing C2 C3, C3 C4, anxiety depression, post traumatic stress, whiplash’.
The Appeal
It was submitted that the Magistrate conducted himself in a manner that gave rise to an appearance of bias. Attention was drawn to the Magistrate’s extensive questioning of the defendant while under cross-examination. It was claimed that a close examination of the relevant material allowed the conclusion that the Magistrate engaged in an extensive and grossly unfair cross-examination in circumstances such that the reasonable lay observer would have considered the Magistrate to be biased.
Counsel for the defendant subjected the Magistrate’s reasons to close scrutiny. It was said that errors of fact had been made. It was complained that the Magistrate’s findings from the video surveillance evidence could not be sustained and that, in particular, his rejection of the defendant’s credibility was flawed.
Critical to the Magistrate’s conclusions of guilt was his rejection of the defendant’s credit. Counsel for the defendant submitted that the Magistrate’s findings departed materially from the evidence and could not be sustained. In particular, it was said that there was a body of medical evidence that, at the very least, supported the defendant’s testimony and a reasonable hypothesis consistent with innocence. This included the evidence of Dr McCulloch, a neurosurgeon engaged by the South Australia Police. It was said that the Magistrate failed to give effect to this evidence and further, that the Magistrate made serious errors of fact with respect to the evidence. Complaints were advanced about the Magistrate’s treatment of several other aspects of the evidence and, in particular, evidence concerning covert surveillance of the defendant between December 2007 and June 2008.
Counsel submitted that errors of law also permeated the Magistrate’s reasons. In particular, it was said that the Magistrate’s criticisms of the defendant in failing to disclose what the Magistrate described as secondary employment were misconceived. It was claimed that the defendant was under no obligation to make reference to any secondary employment. The convictions in respect of the offending that occurred in the latter part of 2008 while the defendant was exercising his right to resist the termination of payments were challenged on the basis that the defendant was doing no more than exercising his legal entitlement as provided by statute.
Counsel for the police refuted all of the complaints. It was said that the Magistrate’s conduct at trial was entirely appropriate and attention was drawn to the failure of the defence counsel to protest or object. It was contended that no errors of law had occurred and that the evidence accepted by the Magistrate overwhelmingly supported each conviction.
Appearance of Bias
It is convenient to first address the allegation of bias on the part of the Magistrate. The defendant drew attention to extensive transcript references setting out questions asked of the defendant by the Magistrate during the course of cross-examination. It was contended that a fair-minded lay observer would consider that the Magistrate was not impartial and that he should have disqualified himself.
Many authorities have addressed the question of undue interference by a judicial officer in the process of a criminal trial. The observations of Lord Greene MR in Yuill v Yuill are pertinent:[2]
… A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue. …
[Emphasis added.]
It is convenient to also refer to the judgment of Denning LJ in Jones v National Coal Board:[3]
… In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How's that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful “statements on both sides of the question” ? : see Ex parte Lloyd. And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and “is liable to have his vision clouded by the dust of conflict”: see Yuill v Yuill.
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales—the “nicely calculated less or more”—but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v Cain, Rex v Bateman, and Harris v Harris, by Birkett L.J. especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg v Clewer. The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”
Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties—nay, each of them—has come away complaining that he was not able properly to put his case; and these complaints are, we think justified.
[Footnotes omitted. Emphasis added.]
[2] Yuill v Yuill [1945] P 15, 20.
[3] Jones v National Coal Board (1957) 2 QB 55, 63-65.

Barwick CJ, in Ratten, similarly observed:[4]
As Smith J. rightly said in expressing the reasons of the Full Court in this case, "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence". It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. …
[Emphasis added. Footnote omitted.]
[4] Ratten v The Queen (1974) 131 CLR 510, 517.
The above authorities, together with others, were drawn together in Esposito[5] by Wood CJ at CL. In MacBeth, Doyle CJ, speaking for the Court, endorsed the relevant guidelines to be found in the reasons of Wood CJ at CL and, in particular, summarised the position as follows:[6]
The issue is whether the conduct of the Judge has given rise to a miscarriage of justice.
A trial Judge is entitled to question witnesses to clear up matters that are unclear, or might be unclear to the jury, or to satisfy the Judge on a matter that concerns the Judge. There might be other reasons for asking questions. Nevertheless, it is the role of counsel to present the evidence to the jury, and a trial Judge’s role in questioning witnesses is limited by that context. The Judge should not take the case (for the prosecution or for the defence) out of the hands of counsel. A judge should not get involved in questioning to such an extent that counsel, and in particular defence counsel, cannot fairly expose their case to the jury. It is not suggested that the Judge offended against this principle. Nor should a judge ask questions in a manner or to such an extent that might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. But even then, judicial intervention needs to be assessed in the context of the case as a whole. A judge’s questions might indicate or expose disbelief of something that is patently incredible, or might relate to something that has already been exposed as incredible. Finally, a judge must take care that in asking questions the judge does not identify the judge with the case of either party. …
[Emphasis added.]
[5] R v Esposito (1998) 45 NSWLR 442.
[6] R v MacBeth [2008] SASC 71, [72]-[73]; see also, R v Mohammadi [2011] SASCFC 154.
It is convenient at this point to extract and discuss the Magistrate’s extensive questioning of the defendant and to address the submission that the Magistrate was biased or displayed an appearance of bias. The extracted comments involve two episodes of uninterrupted questioning by the Magistrate.
Although I describe the Magistrate as engaging in extensive questioning, it is apparent for reasons that appear later that it may be fairly concluded that the Magistrate engaged in an extensive and unfair cross-examination of the defendant.
In the course of cross-examination, the prosecutor raised with the defendant the carrying of several 20 kilogram sacks of flour separately on an occasion in January 2008. The cross-examiner wanted to know why the defendant did not tell his employer that he could lift such a weight. The following interchange occurred:
[Counsel for the prosecution]: Why didn’t you tell your employer that you were able to carry large sacks of flour into a bakery on the very day that you were effectively receiving workers compensation payments.
A. I think the fact that I was lifting heavier weight at the police force than what I was doing in the bakery signified that I could do that.
The First Extract
This answer prompted the Magistrate to question the defendant as follows:
HIS HONOUR
Q.    Sorry I don’t understand that.
A.I was – in the property room I was lifting lots of heavy things and Keith Perry-Jones Senior Sergeant knew that I could do those duties. So therefore the contrast in what I was doing in the bakery I didn’t think to be a lot different.
Q.    Were some of the objects 20 kg.
A.    Yes.
Q.    Like what.
A.Boxes of spray cans, there was a lot of graffiti. Transit are attached to graffiti section so there’s boxes of spray cans and things like that and they’d be quite large boxes. My job was to … the things because it became quite unorganised, was dispose and get it organised and I did so.
[Emphasis added.]
The answer to the prosecutor and the emboldened exchange with the Magistrate provided a clear explanation for the reason the defendant did not tell his employer he was capable of carrying 20 kilogram sacks of flour. This explanation was that the defendant lifted lots of heavier things in the presence of a superior police officer when carrying out his work in the transit section while receiving workers compensation payments.
It is relevant to observe that in the course of the Magistrate’s reasons, he addressed this evidence as follows:
… When asked why he did not tell his employer he was capable of carrying 20 kilogram sacks of flour, [the defendant] could give no explanation. …
This is wholly incorrect. The defendant gave an explanation to the prosecutor and then repeated and expanded the explanation when questioned by the Magistrate. He provided some particularity to support his explanation. The defendant was not challenged on his explanation. There does not appear to have been any evidence led to contest the defendant’s evidence on this topic. It is difficult to understand how the Magistrate could have reached his finding that the defendant “could give no explanation”.
The questioning by the Magistrate then continued:
Q.The point was you were supposed to be resting; instead you were working in a bakery.
A.    Yes.
Q.I have heard you say many times you weren’t getting paid. Obviously whoever owned the bakery, by your assistance, was getting some financial advantage.   They must of otherwise why bother to do the work at all.
A.    It was running at a loss and it still does.
Q.I know but the fact is it was generating work that – or product that would generate income for the bakery.
A.    Yes.
Q.    You were on workers compensation.
A.    Yes.
Q.Didn’t you think because you were getting paid that your employer might not want to subsidise a bakery that you had an interest in.
A.    It’s possible, yes.
Q.You knew quite well that if your employer knew that you were doing work that was generating income for your business that they wouldn’t want to be paying you for that particular day wouldn’t you.
A.    Yes.
Q.So that is what [counsel for the prosecution] is asking, why didn’t you tell your employer ‘Yesterday I was able to work in my wife’s bakery’.
A.    I don’t know why I didn’t tell them.
Q.You see the thing that I have great difficulty with, going back to the series of questions [counsel for the prosecution] asked, you put in a form asking for approval to be a director for the company as a second job, is that right.
A.    Yes.
Q.    The police department approved that.
A.    Yes.
Q.    They didn’t know that you were actually doing any work at the bakery did they.
A.    No.
Q.    You then didn’t renew the application to be the director.
A.    That’s correct, yes.
Q.    But you were actually doing work at the bakery.
A.Yes, I withdrew the application because of personal reasons that I had daughter to a previous relationship and they were coming after my superannuation, my current wife wanted – that’s why it happened.
Q.That might be so but you did not disclose to your employer at any stage that you were icing buns at the bakery, did you.
A.    No.
Q.    That you were turning out racks of bread did you.
A.    No.
Q.    That you were putting trays into the oven.
A.    No.
Q.All the things that you were doing there at the bakery why didn’t you disclose that first of all to your employer.
A.I didn’t disclose it to the employer because it was irregular – I suppose it was the thing that I had that was mine and at the time I – psychological – you know, I was suicidal and I was – it was the only thing I had that was mine I suppose in my mind. That I couldn’t express very well to them. I felt that they had taken away a lot from me.
Q.    You were on workers compensation and getting compensated for it.
A.    Yes.
Q.    For your injury.
A.    Yes.
Q.Even I, and I have never been on workers compensation, would know that if I was doing other work but getting paid because I was unfit for my duties that my employer would want to know about that, you’d agree with that.
A.    Yes.
[Emphasis added.]
The questioning thus far and, in particular, the emboldened extracts, demonstrate that the Magistrate had descended into the arena and was taking on the role of the prosecutor. The questioning was cross-examination. The last of the questions on any view was grossly unfair. The Magistrate demonstrated, through his questioning, that he was engaging in cross-examination with a determination to obtain particular admissions or concessions.
The questioning then continued:
Q.Why didn’t you tell your employer that you were capable of doing these things at the bakery.
A.    Because they never asked. They never asked me –
Q.It was your obligation to tell them that you were capable of doing these things and were doing these things and were doing these things [sic] outside your duties as a police officer, is that correct.
A.    Yeah well I should have told them.
Q.    Is that correct.
A.    Yes, yes.
Q.And you knowing that you had an obligation if you were doing any type of work outside your duties as a police officer, first of all if you actually – let’s leave aside workers compensation, you knew that you would have to tell your employer and get permission for that.
A.    Yes.
Q.Certainly when you were on workers compensation, being paid because you were unfit for duties, you would be aware if you were doing work outside your police duties you had the obligation to tell your employer that.
A.    Yes.
Q.My question to you, because I am trying to understand what you are saying, why didn’t you then, in accordance with what you knew the position to be, tell your employer that you were doing this work in a bakery.
A.    I don’t know why I didn’t tell them to be honest. I just don’t know.
[Emphasis added.]
An issue at trial was the nature, if any, of an obligation on the defendant to inform his employer of his attendances at the bakery. In the emboldened text, the Magistrate took on the role of a prosecutor by asserting that the defendant had an obligation. Whether the Magistrate was correct in his assertion or not, the witness should not have been questioned in this way.
The Second Extract
To understand the second extract, it is to be noted that the prosecutor raised with the defendant the topic of secondary employment and, in particular, a conversation that the defendant was said to have had with Chief Inspector McDonald. The prosecutor had suggested that the defendant had informed the Chief Inspector that he had no involvement in the decision-making of the bakery and that he had not physically worked in the bakery. The Magistrate questioned the defendant on this topic as follows:
HIS HONOUR
Q.    What’s being put to you – have you got McDonald’s statement in front of you.
A.    No.
Q.    Looking at Exhibit P2, tab 16, now go to p. 3.
A.    I have it in front of me.
Q.Go to the paragraph that starts ‘In relation to his application for secondary employment –’, do you see that.
A.    Yes.
Q.It says ‘In relation to his application for secondary employment I became aware that he delivered to the meal room a tray of items from a bakery. I had a conversation with him about his involvement in the bakery and he assured me he was a non-paid director of a family company’. Did you tell McDonald that.
A.    Yeah, I was a non-paid director, yes.
Q.    Did you tell McDonald that.
A.    Yes.
Q.McDonald goes on to say ‘He had no involvement in the decision-making of the company or physically working in the bakery’.
A.    I didn’t tell him that.
Q.So are you disputing that you told McDonald ‘I had no involvement in decision-making’.
A.I can’t remember saying that to him – it’s something I wouldn’t say because I did have decision-making because my wife would ask me.
Q.    Did you say to him that you didn’t physically work in the bakery.
A.    I can’t remember, I’m sorry.
Q.You see because that wasn’t right, that you weren’t physically working in the bakery when you made the application, was it. That could not be right, that you had not worked physically in the bakery, because you’ve told [counsel for the prosecution] that on occasions you’d ice buns and things like that.
A.    Yes.
Q.    So that would be doing physical work in the bakery, wouldn’t it.
A.    Yes.
Q.So at the time you made the application, whilst it might not have been paid work, you were doing physical work in the bakery.
A.    Yes.
Q.Now what [counsel for the prosecution] is asking you, given – and let’s leave aside for the moment whether that’s accurate or not about the decision-making or whether you told McDonald that you did not work physically in the bakery – when you put in that letter dated 20 March 2007 requesting approval to undertake secondary employment, that was because you were a director of the company, is that correct.
A.    That’s correct.
Q.You say in that letter you did not intend to undertake paid duties. You said that in the letter.
A.    Yeah, I had no intention, yeah.
Q.    /that’s [sic] what you said in the letter.
A.    Yes.
Q.However, even though you were not going to be paid, you say, you still put in the letter requesting approval for secondary employment. Is that correct.
A.    Yes.
Q.So what [counsel for the prosecution] was putting to you, given that you’d said in this letter dated 20 March 2007 that you weren’t going to be paid but were still seeking permission for secondary employment, you knew that the issue of whether you were being paid or not did not affect the fact that you needed to get approval for secondary employment. In other words, putting in an application for secondary employment is not conditional upon whether the work you’re doing outside the police force is paid or not. Do you understand that.
A.    Yes.
Q.Because of what [counsel for the prosecution] is saying is you must have known that that was so, otherwise why did you both to put in the application if you were a non-paid director and think you needed to. Do you understand that.
A.Yeah, I think I do. I’m a little bit confused, sorry.
Q.Let me put it again really simply. I’m not sure what’s confusing about this. You put that application in dated 20 March 2007.
A.    Right.
Q.    That you were a non-paid director of Ilavo Pty Ltd.
A.    Yes.
Q.    Is that correct.
A.    Yes.
Q.    Clear in your mind.
A.    Absolutely clear.
Q.    In it you said that you weren’t going to be paid.
A.    That’s correct.
Q.    Clear in your mind.
A.    Yes.
Q.Why then do you think, if you weren’t being paid, that you had to put in and ask for approval for secondary employment.
A.    If I wasn’t being paid? Because that’s what the general orders say.
Q.And that’s what [counsel for the prosecution’s] been putting to you – you know that it didn’t matter whether you were paid or not if –
A.    Yes.
Q.- you were doing work in a business it still amounted to secondary employment about which you needed to get approval for.
A.    Yes.
Q.    It was as simple as that.
A.    Right.
Q.    The question that you were being asked.
A.    Okay.
[Emphasis added.]
A review of this questioning, and in particular the emboldened text, demonstrates that the Magistrate had again taken on the role of the prosecutor. Expressions of the type “[l]et me put it again really simply” and “I’m not sure what’s confusing about this” are likely to leave the impression that the Magistrate was incredulous of the defendant’s claimed confusion. However, to my mind, a review of the questions preceding the emboldened text, together with the emboldened text, allows the conclusion that it is readily understandable that the defendant would be confused.
The questioning continued:
Q.And so your answer to that must be, from what you’ve just told me, is yes, you knew when you sought approval to be the director of Ilavo Pty Ltd that you needed police approval whether you were paid or not.
A. That’s correct.
[Emphasis added.]
For the Magistrate to question the defendant in this manner was inappropriate. The tenor of the question would suggest that the Magistrate had, once again, taken on the role of the prosecutor. This is particularly so considering the lead-in to this question.
The Magistrate’s questioning continued:
Q.The other questions that have come up are a secondary issue. In relation to McDonald, if you told him that you were not physically working in the bakery in that conversation, as he says in his statement, that wouldn’t have been correct would it.
A.    No.
Q.Because this isn’t about whether you’re getting paid or not. Icing buns even for free would be working in the bakery wouldn’t it.
A.    Yes.
Q.Serving customers, even if you weren’t getting paid for it at the bakery, would be working in the bakery.
A.    Yes.
Q.So if you had told McDonald that you weren’t physically working in the bakery when you spoke to him, that was not accurate.
A.    Yeah. I had no intention of doing it, of working in the bakery, at that early stage.
Q.That’s not the question though. The question I’m asking you is you said to [counsel for the prosecution] that you iced some buns up, after the business opened and when you dad was there.
A.    That’s correct.
Q.    And I think you also said that you put some bread on the trays.
A.    Yes, I –
Q.    Did you tell that to [counsel for the prosecution].
A.    No, I didn’t say that.
Q.I can’t remember that one myself, but the point is – let’s stick with the icing of the buns. You did that before you got the approval for the secondary employment.
A.    Yes.
Q.So what was being put to you is if you had – because you had iced buns, that amounts to doing physical work at the bakery doesn’t it.
A.    Yes.
Q.So if you had said to McDonald when he was speaking to you about the secondary employment issue –
A.    Yes.
Q.– that you had no involvement or didn’t physically work in the bakery, that would not be accurate would it.
A.    That’s correct.
Q.    Because at the very least you were icing the buns.
A.    That’s correct.
Q.That was what [counsel for the prosecution] was putting to you. First of all, it’s as simple as that, was your understanding that you needed approval for secondary employment, unpaid, even if it was unpaid.
A.    Yes.
Q.    And isn’t that implicit in the fact that you sought it, and the answer to that is yes.
A.    Yes.
Q.What he is putting to you is – the second thing that he put to you is if you told McDonald that you hadn’t – weren’t physically working in the bakery, as he said, given that you’d already told us that you iced buns before you got this approval, that wouldn’t be true.
A.    That’s correct.
The Magistrate engaged in extensive questioning of the defendant that, in my view, can be fairly described as cross-examination that was pressing, excessive and unfair. The Magistrate had taken on the role of the prosecutor and had entered “into the perils of self persuasion”.[7] As Lord Greene put it in Yuill v Yuill, the Magistrate “[u]nconsciously … deprive[d] himself of the advantage of calm and dispassionate observation”.[8] Further, as Lord Greene pointed out in his earlier extracted remarks, the demeanour of a witness is apt to be very different when he is being questioned by a judicial officer to what it is when he is being questioned by counsel.[9] It is to be observed that this is particularly so when the Magistrate’s examination, which may properly be described as cross-examination, is prolonged and covers a number of crucial matters in issue.
[7]    See, Sir Robert Megarry, ‘Temptations of the Bench’ (1978) 16 Alta L Rev 406, 409 as cited in R v Esposito (1998) 45 NSWLR 442, 471.
[8]    Yuill v Yuill [1945] 1 P 15, 20.
[9]    Yuill v Yuill [1945] 1 P 15, 20.

As earlier observed, in my view, the questioning by the Magistrate was unfair. I refer in particular to the emboldened texts of the extracted transcript. I consider the point of unfairness was reached and surpassed. The manner of the questioning would also appear, at times, to involve sarcasm, condescension and an overbearing manner. The questioning was also unfair when the Magistrate made his earlier discussed comments as part of his questioning concerning suggested confusion on the part of the defendant in circumstances where it was being inferred by the Magistrate that he did not consider that there was any basis for the asserted confusion. I recognise that it is difficult to come to a final conclusion on these topics without being able to observe and hear the events.
The danger of a judicial officer taking over the cross-examination of a defendant, losing objectivity and entering into the perils of self persuasion, may be illustrated by the following extract from the Magistrate’s reasons:
… In answer to a series of questions by myself, [the defendant] agreed by working in the bakery that would generate income for the bakery. He then added as a rider that the baker was running at a loss, but then conceded that it generated income for the bakery. When I asked him whether he knew that his employer would not want to subsidise the bakery, he initially said ‘possibly yes’. This answer is absurd and also patently false, as no-one would possibly think their employer would be prepared to pay compensation whilst they were generating income for someone else. I then pressed [the defendant] on this topic and he agreed his employer would not want to subsidise the bakery. When asked again why he did not tell his employer, he said he had difficulty because of his psychological state, that the force had taken a lot from him and he was suicidal. I reject that there was any issue of psychological problems based on the evidence of Dr Clarke which I will deal with later, and there is no credible medical evidence he was suicidal, apart from the defendant’s own assertion.
[Emphasis added.]
The Magistrate’s involvement in the cross-examination has led me to conclude that a fair-minded lay observer would consider that the Magistrate engaged in what was properly the role of the prosecutor. The Magistrate’s conduct gave rise, at the very least, to an appearance of bias.
These conclusions necessitate a setting aside of the convictions on each count.
Errors of Fact
It was accepted by the prosecution that the defendant had sustained injury in the road collision in September 2005. An issue in the trial was to the extent, if any, of the ongoing disability suffered by the defendant and, in particular, whether he was unfit to return to full time employment. The defendant had undergone many medical examinations and evidence was led by the prosecution from four medical practitioners: the general practitioner, Dr O’Toole, and the medical specialists, Dr McCulloch, Dr Green and Dr Clarke. Evidence was also led from Robyn Rankin, a director of Rankin Occupational Safety and Health and a physiotherapist extensively involved in the defendant’s rehabilitation. It was the defendant’s case that he did suffer ongoing disabilities as a consequence of the injuries sustained in the collision. It was contended that the effect of the evidence of the medical practitioners was that the defendant had sustained a disability of the cervical spine, assessed at a five per cent loss of function, muscle tension, anxiety, post traumatic stress disorder and headache. It was argued on appeal that the Magistrate had failed to have proper regard to the body of medical evidence supporting these contentions.
Medical certificates in the prescribed form for the period 13 September 2005 to 16 June 2008 were provided by the defendant to the South Australia Police and were tendered in evidence. Throughout the year 2007, the certificates, although with some minor variation, refer to neck and upper back pain, headaches and post traumatic stress disorder. On a number of certificates throughout this period, the description is of headache. From 30 October 2007 until 16 June 2008, the prescribed medical certificates frequently contained the medical opinion of Dr O’Toole that the defendant was suffering from headaches with a consequent unfitness for work.
From September 2005 until 3 December 2008, the defendant received workers compensation payments for his work-related injuries. On the recommendation of medical practitioners, the defendant worked part-time and in a restricted capacity because of his physical incapacity. The medical practitioners recommended part-time work to allow the defendant to recuperate on the days that he did not work. On 30 October 2007, the defendant’s general practitioner, Dr O’Toole, recommended that the defendant return to work initially for three days per week. On 22 January 2008, Dr O’Toole recommended that the defendant return to work for four days per week. As of 1 February 2008, the defendant was working four days per week, seven hours a day. The defendant had Wednesdays off work to recuperate.
In October and November 2007, the defendant informed the South Australia Police that he wished to return to full time police work. He did so in conversation with Senior Sergeant Parry-Jones, his general practitioner, Dr O’Toole, and a person supervising his rehabilitation, Ms Vernon. The Magistrate, in his reasons, accepted that this had occurred.[10] Dr O’Toole in evidence summarised the position as follows:
[10] In particular, the Magistrate observed:
… Whilst I accept [counsel for the defendant’s] submission that the defendant expressed his desire to return to full-time operational work and said so to S/Sgt Parry-Jones, Dr O’Toole and Ms Vernon in October, November, 2007, I am satisfied beyond reasonable doubt that he had no real intention of doing so and was dishonest in his dealings with [the South Australia Police], Ms Vernon, Dr O’Toole and Ms Ranking [sic] to maintain his Workers Compensation payments.
Q.During that period of time he indicated to you that he wanted to go back working full time and be operational, do you understand that.
A.    Yes.
Q.Operational means that he would effectively be in uniform in contact with offenders, arresting offenders and everything necessary with that.
A.    That’s correct.
Q.    That was his desire as of late 2007.
A.    Yes.
Q.Would it be fair to say that yourself and the other specialists were saying ‘no, you’ve got to go back, work three days a week, seven days without the belt and no contact with the offenders’.
A.At that time we would have advised that since he hadn’t been able to complete that regularly it would be best to have a graduated return to work as with –
Q.He was saying that he wanted to go back operational full time, clearly there would have been reserves by SAPOL about having a person who was under WorkCover going back and in contact with offenders because of the violent situation that may erupt, was the reluctance on the part of SAPOL or reluctance on the part of David, do you remember.
A.    I believe the reluctance would have probably been on my behalf.
The defendant’s request to return to full time work was rejected. It appears that those involved with his rehabilitation were concerned of the risk that he would exacerbate his injuries. Dr O’Toole, as recorded by the Magistrate, provided a medical certificate on 28 November 2007 which was described by the Magistrate in the following terms:
… The certificate sets out the restrictions as to working seven hours a day and only alternate days. It specifically states the defendant was not to have any offender contact to prevent a risk of injury or exacerbation of his existing injury, to do only limited lifting and not to sit for long periods. …
A further instance is to be found in the evidence concerning Senior Sergeant Parry-Jones. It was summarised by the Magistrate as follows:
… S/Sgt Parry-Jones was concerned that if the [rehabilitation] program was not managed on a proper medical basis, it may exacerbate the injury to [the defendant].
From 26 June 2008, the South Australia Police suspended the defendant. On 24 October 2008, the defendant disputed the rights of the South Australia Police to terminate his payments.
During 2007 and 2008, the South Australia Police arranged for the defendant to be examined by three medical specialists – Dr McCulloch, Dr Green and Dr Clarke.
On 28 March 2007, the defendant was examined by Dr McCulloch, a specialist neurosurgeon. Dr McCulloch formed the opinion that the defendant had sustained a cervical ligamentous injury together with underlying anxiety and muscle tension. He noted restricted neck rotation. He considered there to be a significant psychological component to the defendant’s condition. He found the defendant to present in a genuine and straightforward manner. He formed the opinion that the defendant was fit to return to full hours of duty, but with no offender contact.
Dr McCulloch further examined the defendant on 26 September 2007. He confirmed his earlier opinion and findings and, in particular, noted that the defendant’s neck movements were much improved.
Dr McCulloch arranged for a Magnetic Resonance Imaging scan which revealed degenerative changes to the defendant’s cervical spine. Dr McCulloch considered that the defendant had a disability which he assessed at a five per cent loss of function of the cervical spine as a whole. In particular, in his first report, Dr McCulloch observed:
The current diagnosis is that of a cervical ligamentous injury with underlying anxiety and muscle tension.
...
There probably is a significant psychological component to his illness in the form of muscle tension, anxiety and post traumatic stress disorder.
Dr McCulloch’s second report relevantly provided:
His diagnosis has not changed. I believe he still suffers from a cervical ligamentous injury with superadded anxiety and depression and psychological factors. There is no evidence clinically or radiologically of a disc injury.
Dr McCulloch considered that there was “no evidence of a conscious exaggeration of the symptoms or the claimed incapacity”. Dr McCulloch observed that the defendant’s clinical presentation was consistent with the clinical findings and stated cause. Dr McCulloch noted that neck movement improved between March and September 2007. Dr McCulloch advised the South Australia Police that, in his opinion, the defendant was fit to return to full time non-patrol work, non-offender contact duties. The Magistrate summarised the position as follows:
Most importantly, Dr McCulloch reported that his diagnosis on 26 September, 2007 had not changed from his examination on 28 March, 2007. Dr McCulloch again concluded that the defendant’s clinical presentation was consistent with the physical findings and history, and that he does present in a genuine and straight-forward manner. He still concluded [the defendant] was suffering from a cervical ligamentous injury, with super added anxiety, depression and psychological factors. He also concluded in the absence of any serious organic pathology, that the defendant needed some psychological counselling and assessment, as these were major factors in his prolonged symptoms. In physical terms, the worker was capable of performing full hours of non patrol, non offender contact duties, but there could be psychological reasons why he could not do that, as Dr McCulloch thought anxiety was the basis for this inability to work.
It is to be observed that this would appear to be consistent with statements made by the defendant in the latter months of 2007.
Dr Green, a musculoskeletal, rehabilitation and pain physician, examined the defendant in July 2008. In the course of that consultation, the defendant informed Dr Green of his activities around the home. These included cooking, cleaning and washing. He explained to Dr Green that he did not do overhead activity and that his father-in-law undertook the heavy gardening tasks. Dr Green provided a lengthy report in respect of which the Magistrate provided the following summary:
… Dr Green considered the defendant … was capable of performing semi-sedentary duties, four to five days per week. … Dr Green considered offender contact would aggravate his condition, given his inability to return to running or higher physical activity. He considered [the defendant] was at least six to 12 months from considering trial or training for this. The psychological state and aptitude will play a significant role with regards to motivation to re-engage in this form of work long-term. … Dr Green considered [the defendant] had suffered a 10% permanent and residual disability, 2.5% to the thoracic spine and 5% to the lumbar spine as a result of the accident. … Dr Green expressed the view that the defendant’s progress through the persistent pain experience has been significantly modified by psychological and psychiatric factors and a previous report has indicated an adjustment disorder with depressed mood. Dr Green expressed the view that as at July, 2008 he probably was about 12-18 months away from knowing what the defendant’s long-term capacity would be in regards to his workplace activity.
As earlier noted, Ms Rankin was extensively involved in the defendant’s rehabilitation. On 12 December 2007, the defendant, at Ms Rankin’s request, completed an ‘Activities of Daily Function’ form. The form listed many activities and under the heading ‘I can do’, it allowed the participant to tick one of three boxes: ‘without difficulty’, ‘with some difficulty’ or ‘I cannot do at all’.
The defendant completed the ‘without difficulty’ column with a tick against many activities, including the following: putting on shoes or boots, dusting furniture, vacuuming, sweeping, putting away dishes, putting away tools, washing dishes, combing hair, making the bed, holding a baby, dressing, opening jars, turning on an oven, using a lawn rake and taking out garbage.
The defendant completed the ‘with some difficulty’ column with a tick against a number of activities, including the following: climbing ladders, driving the car, using a lawn mower, gardening and going grocery shopping. He added a particular to indicate that carrying three bags of shopping in each hand created some difficulty.
In response to the statement ‘describe how your injury has affected you’, the defendant made reference, inter alia, to frequent headaches and a painful neck. Under the heading of ‘Sitting, Standing, Walking’, he ticked the box ‘I walk regularly…’ and added the note indicating that he walks 2.5 kilometres every couple of days. Under the heading ‘Lifting Abilities’, he ticked the box ‘[u]p to 10 Kg’ and indicated a need to bend at the knees when picking something from the floor. On the form, he ticked boxes indicating pain or difficulty in moving the head, neck and back, but later on the form, indicated that he was not taking pain medication at the time. When asked to address his capability he ticked the boxes indicating that the doctor had told him to do light work and that he thought he could do moderate work. Under the heading of ‘…Vocational Goals’, he indicated that he wished to find a position in the South Australia Police and that he had issues of anger, anxiety and frustration.
Although this information was provided in answer to rudimentary questions by the ticking of boxes, the general picture that emerges is one that is not inconsistent with the history given to Dr McCulloch in 2007 and repeated to Dr Green in 2008.
Dr Clarke, a consultant psychiatrist, examined the defendant in September 2007. Dr Clarke was of the opinion that the defendant was suffering from a diagnosable psychiatric condition of an adjustment disorder and depressed mood. The defendant was reasonably positive regarding a return to work. Dr Clarke found no evidence of the exaggeration of physical or psychological symptoms or claimed incapacity. Dr Clarke’s evidence does not suggest that he took a detailed history of the defendant’s physical capabilities. He simply described the defendant as generally moping around and doing little in the way of activity other than basic caring for himself and his home. When regard is had to the full descriptions of activity referred to above, it is evident that caring for himself and his home includes activities that might be considered to fall under the description of moderate.
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.
Surveillance resumed on 11 January 2008 and continued on 12, 15, 16, 17, 19 and 22 January 2008. On two of these days, 11 and 22 January, the defendant was observed to undertake some intermittent work of a light nature in the bakery. On one other day, 17 January, the defendant was observed to be at the bakery undertaking light duties for discrete periods and was later seen to carry separately several bags of flour from a side door of a van to the bakery. The sacks of flour were said to weigh 20 kilograms. The video surveillance evidence does not show the defendant picking up the sack, but it would appear that may have been removed at a height above ground from a motor vehicle. It is also relevant that the defendant carried the sack at waist level. The video footage does not reveal how the defendant put the sack down and, in particular, whether it was placed at waist level or at some other height. At no other later time during covert surveillance was the defendant observed to lift any similar weight. On the other days of surveillance in January, no observations were made of the defendant performing any baking duties.

Surveillance then resumed on 4 March 2008 and continued on 5, 6, 7, 8, 11, 12, 13, 15 and 18 March 2008. During this period, the defendant was observed undertaking some intermittent work in the bakery on three of the 10 days of surveillance, namely 4, 8 and 15 March 2008. None of the observations of work involved anything other than light or, at most, moderate duties.
Surveillance resumed on 28 May 2008 and continued on 29, 30 and 31 May 2008. This surveillance did not reveal the defendant performing any baking duties in the bakery.
Surveillance resumed on 3 June 2008 and continued on 4, 7, 8, 11, 23 and 25 June 2008. This surveillance did not reveal the defendant performing any baking duties in the bakery.
In summary, between 4 December 2007 and 15 March 2008, the defendant was observed in his wife’s bakery performing baking duties intermittently on 10 days. None of those observations were of the defendant performing other than light or, at most, moderate duties. No observations of the defendant undertaking baking duties were made on the other 29 days of the covert surveillance operation.
On a number of occasions, surveillance commenced during the evening and followed through to the following morning. As a consequence, the surveillance continued from one day into the next. This led to some minor confusion as to the dates of surveillance. Ultimately, nothing turns on this as the occasions on which the defendant was seen to be performing some baking duties are identifiable.
As noted above, the Magistrate was highly critical of the defendant’s evidence and reached the conclusion that his evidence was without credit. The Magistrate made a number of explicit findings of dishonesty. In reaching these conclusions, the Magistrate relied heavily on a misapprehension of the effect of the surveillance evidence and, in particular, the video footage taken during the days of surveillance.
As earlier noted, the Magistrate, in the course of his reasons, on several occasions, observed that the video evidence disclosed that the defendant was performing duties at his wife’s bakery from December 2007 until June 2008. This is more than a six month period. At the commencement of the Magistrate’s reasons, he addressed video surveillance as follows:
Video surveillance in December, 2007 showed the defendant working at a bakery performing baker’s functions. There were three further occasions in January, 2008, three further occasions in May, 2008 and one further occasion in June 2008. This surveillance showed the defendant performing work without apparent restriction and limitations as reported by the defendant to medical practitioners and rehabilitation officers.
An analysis of these observations and a comparison of the evidence demonstrate that the Magistrate had a fundamental misunderstanding of the video surveillance evidence. There are serious inaccuracies in the above paragraph.
The serious inaccuracies relate to the finding that the defendant was working at a bakery performing baker’s functions on three further occasions in May 2008 and one further occasion in June 2008. The evidence revealed that surveillance occurred at the bakery on 28, 29, 30 and 31 May 2008 and that on none of those occasions was the defendant observed to be “working at a bakery performing baker’s functions”. The evidence also revealed that surveillance occurred on 3, 4, 7, 8, 11, 23 and 25 June 2008 and that on none of those occasions was the defendant observed to be “working at a bakery performing baker’s functions”. The last occasion on which the defendant was seen to be undertaking baking duties in his wife’s bakery was on 15 March 2008.
The Magistrate appears to have had little regard to the fact that on the majority of the days in which covert surveillance was performed, the defendant did not engage in any baking duties. On the minority of occasions when he did engage in baking duties, he engaged in light duties on an intermittent basis.
It follows that the Magistrate, when assessing credit, was under a fundamental misunderstanding. The Magistrate proceeded on the basis that the defendant was working at a bakery, performing baker’s functions from December 2007 through to June 2008 and, in particular, that he performed those functions in both the months of May and June 2008. This misapprehension affected the Magistrate’s assessment of the defendant’s evidence.
The misapprehension also impacted on the Magistrate’s consideration of Dr Green’s evidence. For example, the Magistrate incorrectly considered that at the time of the Dr Green examination, the defendant had been observed several weeks earlier working at the bakery. The evidence was to the contrary.
Later in his reasons, the Magistrate discussed the surveillance evidence in considerable detail. The misapprehension identified above finds repeated reference through the reasons. The following are further examples:
I am satisfied beyond reasonable doubt that during the entire period charged that the defendant deliberately omitted to disclose to anyone at SAPOL including his supervisors and Ms Vernon that he was performing physical work in a bakery from 15 December, 2007 and was capable of performing the physical tasks of a baker from 15 December, 2007.
The video evidence quite clearly shows what duties the defendant was performing from 15 December, 2007 to June, 2008 and in evidence [the defendant] identified himself and the functions he was performing.
[Emphasis added.]
These paragraphs appear well towards the end of the Magistrate’s lengthy reasons and demonstrate the ongoing impact of the misunderstanding.
An overall analysis of the video surveillance evidence discloses that the defendant was observed to be performing baking duties intermittently at the bakery on 10 of the 39 days of surveillance. Those 10 days included four days in December 2007, three days in January 2008 and three days in March 2008.
The baking duties performed by the defendant at the bakery on the 10 days included icing buns, serving at the counter, lifting bread trays and loading trays. My review of the evidence and of the video footage does not suggest that this was other than light duties or, at most, moderate duties. On no occasion does the defendant appear to have been observed to be engaged in a full working day.
An investigator gave evidence of the hours of surveillance on each occasion and catalogued the times during which video footage was recorded. The investigator then selected a package of highlights. Such an approach is fraught with danger unless a person to whom the highlighted package is shown understands that package in the context of the entire covert surveillance operation.
The manner of the preparation of witnesses in the present case also gives rise to concern. An investigator interviewed many of the prosecution witnesses and showed them the highlights package. The modus operandi was the same in respect of each witness. Part way through the interview she would announce that she proposed to show video evidence to the witness. She then showed video footage. Near the end of the interview, she disclosed for the first time that what the witnesses had been shown was a highlights package only and that there was “a lot more” available should the witness wish to view it. No witness sought to view anything more than that which they had been shown in the course of the interview.
It is significant, to my mind, that the investigator chose to present selected material to the witnesses. She did not disclose the full extent of the surveillance that had taken place.
A number of the interviews were conducted in mid to late February 2008. The witnesses questioned at that time were apparently unaware that surveillance had taken place on many days, that footage was taken on a number of those days and that the highlights package contained only a small portion of the video footage taken on only some of the days of surveillance.
In respect of the video footage said to have been taken on 15[11] December 2007, it appears that the highlights package contained about 14 minutes of a total filming time of about 52 minutes. The total surveillance time was apparently more than 330 minutes. In respect of the footage said to have been taken on 18 December, it appears that the highlights package contained about three minutes of total video footage of about 10 minutes. The total surveillance time that day was apparently more than 390 minutes. In respect of the footage said to have been taken on 22 December, it appears that the highlights package contained almost five minutes of total video footage of almost 52 minutes. The total surveillance time that day was apparently more than 630 minutes.
[11] The date 15 December 2007 is not a day of surveillance listed in the surveillance logs. However, this is the date recorded on the highlights package as the surveillance which occurred on 14 December 2007 continued into the early hours of the morning on 15 December 2007.
An analysis demonstrates that the highlights package represented a small percentage of the video footage taken and, further, the highlights package represented even less of the total surveillance time.
In respect of the surveillance in January 2008, a similar analysis can be undertaken. The relevant observations were made on only three days from the total of seven days of surveillance. In all, a little more than 10 minutes of video footage had been selected for the highlights package from a total video time of almost 74 minutes. The total surveillance time in January 2008 apparently extended over a period of about 2,400 minutes.
It is understandable that a shortened package would be prepared to be shown to witnesses and, if necessary, the entire video footage and, if need be, the entire surveillance evidence would be made available. However, the package should not be skewed or unduly selective without there being full disclosure to the witness. In the present proceeding, a witness simply viewing the highlights package would not know or understand the context. The highlights package gives the appearance of relatively continuous activity. The highlights package containing footage from December 2007 and January 2008 occupies little more than 30 minutes. Had the entirety of the footage been shown, the witnesses would have understood the relatively short periods over which the defendant was observed. The entire surveillance evidence does not reveal ongoing employment in a bakery. It appears that the defendant engaged in light activities intermittently at the bakery.
There are other unsatisfactory features about the investigator’s interviews. Dr O’Toole’s interview contains the express statement that he was shown video evidence – the highlights package taken in December 2007 and January 2008, and footage from March 2008. The two DVDs together have a total run time of about one hour and 50 minutes. The interview of Dr O’Toole during which the DVDs were shown commenced at 3:31 pm and concluded at 5:00 pm. Quite apart from the time taken to view the videos, extensive questioning occurred. It is evident that the entire DVDs were not shown to Dr O’Toole. It is unclear what portion of the highlights package was viewed. This matter does not appear to have been explored at trial, but is readily observable from a review of the tendered exhibits.
Dr Green’s interview raises the same difficulty. The interview commenced at 12:26 pm on 22 September 2008 and concluded at 1:17 pm on the same day. The record of interview records the investigator stating that she had just shown the DVD evidence of December 2007, January 2008 and March 2008. At the end of the interview, the investigator had Dr Green initial the two DVDs as being the DVDs shown to him that day. He verified that they are the DVDs that he had been shown. As earlier observed, the DVDs have a total run time of about one hour and 50 minutes, yet the entire interview of Dr Green was for approximately 50 minutes. Further, during that time, extensive questioning occurred.
Dr Clarke’s interview raises the same difficulty in a less acute form. His interview commenced at 4:04 pm on 4 March 2008 and concluded at 4:46 pm on the same day. During this time, he was shown the highlights package of December 2007 and January 2008 which has a total run time of a little more than 30 minutes. Apart from viewing the video, extensive questioning occurred. It is possible, but unlikely, that the entire DVD was shown.
There is a further difficulty with Dr Clarke’s interview. At the end of the interview, the following interchange took place:
Q.38.All right thank you. For your information this is a highlights video package only and there’s a lot more video available should you wish to view it at some stage, so just let me know.
A. Thank you very much.
Q.39. I guess you won’t be taking me up on that offer.
A. No.
The difficulty with these questions and answers is that it is being implied that there is “a lot more” video available that supports the highlights package or, alternatively, that the highlights package is representative of the entire video footage.
In all, the filming of bakery activity by the defendant occurred on only ten days. Surveillance extended over 39 days. The defendant was only observed to be performing some bakery duties for limited periods on 14, 18, 20 and 22 December 2007, on 11, 17 and 22 January 2008 and on 4, 8 and 15 March 2008. The last occasion in which the defendant was observed performing baking duties was 15 March 2008. Thereafter in March, May and June 2008, the defendant was observed covertly on many occasions and was not observed to perform any bakery duties.
An illustration of the danger of failing to consider the full context may be found in the reasons of the Magistrate when he concluded that the video evidence quite clearly shows what duties the defendant was performing from 15 December 2007 to June 2008.
The above analysis allows the conclusion that the Magistrate materially misapprehended the extent and the effect of the surveillance evidence. These misapprehensions lead to the conclusion that the Magistrate’s findings on the defendant’s credit cannot be sustained.
Dr McCulloch
Earlier in these reasons I made reference to the evidence of Dr McCulloch. A more detailed analysis of an aspect of Dr McCulloch’s evidence demonstrates that the Magistrate misapprehended his evidence in a most material respect.
Dr McCulloch held qualifications in medicine, including his fellowship of the Royal College of Surgeons of Edinburgh by examination in general surgery in 1972 and also his fellowship of the Royal Australasian College of Surgeons by examination in neurosurgery in 1974. Dr McCulloch has practised continually as a neurosurgeon since 1974. The defendant was referred to Dr McCulloch for examination by the South Australia Police. The purpose of the referral, as understood by Dr McCulloch, was to assess the defendant’s physical and medical capacity in relation to his workers compensation claim. Dr McCulloch explained in evidence how his medical expertise enabled him to form opinions concerning the defendant’s injuries.
Dr McCulloch examined the defendant on 28 March and 26 September 2007. Dr McCulloch was of the opinion that the defendant had sustained a cervical ligamentous injury accompanied by underlying anxiety and muscle tension. Dr McCulloch considered there is probably a significant psychological component to the defendant’s illness. He could, however, find no evidence of conscious exaggeration of symptoms. He considered on both occasions that the defendant was fit to return to “full hours of non patrol, non offender contact duties”. Dr McCulloch considered that the defendant presented in a genuine straightforward manner.
On 20 February 2008, Dr McCulloch was interviewed by an investigator. During the course of the interview, Dr McCulloch confirmed the contents of the reports. He was then shown the highlighted package of video surveillance. Importantly, the investigator did not acquaint Dr McCulloch with the full surveillance evidence and as a consequence, did not allow the highlights package to be understood in the entire context.
The investigator asked Dr McCulloch whether the defendant’s presentation on the video was consistent with his presentation to Dr McCulloch. Dr McCulloch answered that there was only one inconsistency and that related to the extent of neck movement. Dr McCulloch pointed out that in March 2007, the defendant exhibited a restriction in neck movement to 30 degrees, whereas in the video, neck movement appeared unimpeded to about 60 degrees of rotation. It is critical to understand, however, that when cross-examined Dr McCulloch agreed that when he examined the defendant in September 2007, the defendant’s neck movements showed rotation to 60 degrees. In the course of his evidence, Dr McCulloch accepted that this was entirely consistent with the presentation in the video. He agreed that there was in fact no inconsistency. In particular, Dr McCulloch gave the following evidence:
Q.In fact what he was exhibiting in the video was in fact the same degree of rotation that you had indicated in your report of 27 September.
A.    That’s correct.
Q.In other words he had an improvement from March through to September and from when you saw the video and had seen him in September the rotation was approximately the same.
A.    Yes.
Q.    Namely 60 degrees.
A.Yes, and indeed if the question asked of me then was ‘Was his presentation on the video consistent with his presentation to you in September 2007’ the answer would be ‘Yes, it was consistent’.
Dr McCulloch also observed that he had expressed the opinion that the defendant was fit in physical terms so as to be capable of performing full hours of non-patrol, non-offender contact duties. Dr McCulloch also observed that there may be psychological reasons that the defendant would not be able to perform to his physical capability. In particular, Dr McCulloch believed that the defendant’s psychological state was having a significant impact on his pain and his perception of pain. Dr McCulloch agreed that there was nothing shown in the videos that was inconsistent with his presentation on examination. It is to be recalled that in the latter part of 2007, in evidence accepted by the Magistrate, the defendant was expressing a wish to return to full time work and that it was the South Australia Police, when dealing with the defendant’s workers compensation claim, who would not permit this to occur.
The Magistrate in his reasons summarised the evidence of Dr McCulloch in considerable detail. The Magistrate observed: “I accept the evidence of Dr McCulloch”. The Magistrate then added that “there are two important aspects of his evidence which once again go to the issue of whether the defendant obtained payments by dishonest means under the Act”. At this point of his reasons, the Magistrate identified the first aspect as an inconsistency of neck movement between the defendant’s neck movements shown on video footage taken in late 2007 and early 2008. The obvious difficulty confronting this observation is the cross-examination of Dr McCulloch discussed above. Dr McCulloch accepted that at the September 2007 examination, the defendant had demonstrated improved neck movement to 60 degrees rotation to both sides. This was the same neck movement as displayed in the surveillance footage some months later. Dr McCulloch accepted that rather than inconsistency, consistency was demonstrated. Earlier in his reasons, the Magistrate had noted Dr McCulloch’s evidence on the topic, but in making later findings, the Magistrate plainly overlooked this consideration.
The second aspect identified by the Magistrate related to Dr McCulloch’s opinion that there were psychological factors affecting the defendant’s ability to return to work. It is to be accepted that Dr McCulloch was primarily dependent on the history given by the defendant. However, as discussed elsewhere, Dr McCulloch is a well qualified medical specialist and an experienced assessor of the genuineness of a patient’s complaints. Considerable weight should be attached to that experience.

This review of Dr McCulloch’s evidence supports the existence of a reasonable hypothesis that the impugned conduct of the defendant was not dishonest. As a consequence of the work incident, the defendant had sustained an injury to his cervical spine, ligamentous in nature, leaving a five per cent loss of function. In addition, he suffered from muscle tension and anxiety. There was also a psychological factor present. In respect of the defendant’s injuries Dr McCulloch gave evidence as follows:
Q.And that the diagnosis was cervical ligamentous injury with – and I think you’ve explained earlier – underlying anxiety and muscle tension. In other words it’s a quite common whiplash-type injury which has cervical ligamentous injury but there also appears to have been a component of either psychiatric or psychological anxiety or concern.
A. That’s correct.
A review of Dr McCulloch’s evidence revealed support for the defendant in at least the following respects:
-The defendant sustained a ligamentous injury to his cervical spine, leaving a disability of five per cent loss of function of his cervical spine as a whole.
-The ligamentous injury was accompanied by underlying anxiety and muscle tension. There was a significant psychological component to the defendant’s illness.
-The defendant’s presentation was generally the same in March and September 2007 on the two examinations. The only difference was an improvement in neck movement so that at the latter date, his neck rotation had improved from 30 degrees to 60 degrees.
-As an experienced medical observer and assessor, Dr McCulloch assessed the defendant to be genuine and saw no evidence of conscious exaggeration of symptoms.
-Dr McCulloch considered the defendant to be fit to return to full time duties, but to avoid offender contact.
-Dr McCulloch did not consider the defendant’s presentation in the video footage to be inconsistent with his presentation at the examinations. At one point, Dr McCulloch suggested that the degree of neck rotation represented an inconsistency, but he acknowledged in cross-examination that this was not so and that he had overlooked the improvement of neck movement in September 2007. When this was pointed out, Dr McCulloch agreed that the depiction in the video was consistent with the defendant’s presentation to him on the examinations.
The Magistrate accepted the evidence of Dr McCulloch. He was right to do so. Dr McCulloch was a senior medical specialist, expressing opinions well within his expertise. He was presented as a prosecution witness. It is true that his views about the credibility of the defendant were those of an experienced medical practitioner and not those of an independent judicial officer who may have been privy to other evidence. However, Dr McCulloch’s views were of considerable weight and were mistakenly qualified by the Magistrate who had overlooked the evidence of the improved neck rotation. This was a material error as it excluded from consideration significant evidence in support of the defence case. I consider the Magistrate’s misapprehension of Dr McCulloch’s evidence to be a serious misapprehension. The Magistrate used the error as support for the prosecution case when he should not have done so. Further, Dr McCulloch’s evidence provided support for the defence case.
Earlier in these reasons, I reached the conclusion that the complaint concerning an appearance of bias had been made out and, for that reason alone, an order should be made setting aside the convictions. This conclusion is confirmed by the Magistrate’s misapprehension of the covert surveillance evidence and his misapprehension of the evidence of Dr McCulloch.
Dishonesty
On appeal, the defendant contended that he was under no legal duty to disclose his work at the bakery and that the Magistrate erred in relying upon non-disclosure to satisfy the requirement of “dishonest means” referred to in section 120(1)(a) of the Workers Rehabilitation and Compensation Act. The defendant further contended that he was not dishonest in not disclosing his work at the bakery as that work did not interfere with his duties as a policeman.
The police contended that the defendant used dishonest means by making deliberate and materially dishonest statements about his incapacity and that he dishonestly misrepresented his incapacity to a number of medical practitioners. That allegedly involved a deliberate failure to provide information about his secondary employment and his capacity to work. It was the combination of the statements, misrepresentations and omissions that was said to constitute the conduct that was dishonest.
Counsel for the police drew attention to the following observations of Gaudron and Gummow JJ in Walsh v Tattersall:[12]
Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained "by dishonest means". In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. …
[Emphasis added.]
[12] Walsh v Tattersall (1996) 188 CLR 77, 89.
As earlier noted, it was the prosecution case that the defendant engaged in an ongoing dishonest course of conduct and that as a result of that dishonest conduct, he received workers compensation payments. The dishonest conduct involved disclosures and non-disclosures made to those concerned with his rehabilitation, including a number of medical advisers. The disclosures concern statements made indicating the level of activity which the defendant said he could undertake. It was said that those statements were inaccurate and involved deliberate dishonesty. Those statements were accompanied by attempts at physical activity being observed by those involved in the defendant’s rehabilitation. It was the prosecution case that this physical activity involved dishonest presentation of the defendant’s capabilities. It was alleged that these dishonest statements were coupled with deliberate non-disclosures of the level of activity of which the defendant was capable.
It is to be understood that the prosecution case was not a case of a mere omission to make a disclosure as discussed by the High Court in Poniatowska.[13] I consider that the observations of Gaudron and Gummow JJ in Walsh v Tattersall[14] are apposite. They demonstrate how the conduct of the defendant, if established, could make out each of the counts.
[13] Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408.
[14] Walsh v Tattersall (1996) 188 CLR 77.
Another problem arises concerning the counts that relate to payments after 26 June 2008. By that time, the South Australia Police were fully appraised of the covert surveillance evidence and had suspended the defendant. There can be no basis for concluding in respect of these payments that dishonest conduct of the defendant misled the South Australia Police to continue payments. Payments were continued because of the provisions of the Workers Rehabilitation and Compensation Act. It was the prosecution case that the defendant falsely maintained, in a claim for compensation, that he was disabled when that was not the case. The substance of the police allegation was that the defendant engaged in a continuing fraud by pursuing his workers compensation claim. As I understand the prosecution case, it was said that the defendant engaged in an abuse of process in those proceedings and, as a consequence, the South Australia Police were obliged to pay compensation until December 2008. In short, it was the prosecution case that the defendant was advancing an utterly false claim. If the police are able to establish beyond reasonable doubt such a claim, then the defendant’s conduct may be viewed as a continuation of the dishonesty practised between December 2007 and June 2008.
I accept that the prosecution case in respect of dishonesty after 26 June 2008 must address the contention that all the defendant was doing was exercising his legal rights and he could not be convicted of the offence by so acting. However, as noted above, it was the prosecution case that by the defendant’s conduct, he dishonestly maintained an ongoing incapacity for work through until December 2008. In these circumstances, I have reached the conclusion that the arguments on this issue should be left to the trial Magistrate to consider in the light of the facts as found following a retrial.
A Rehearing
I raised with counsel whether, if I were to overturn the Magistrate’s findings on credibility, it would be possible for me to consider the merits of the proceeding without hearing oral evidence. Counsel for the defendant accepted that, in the circumstances, this would be an appropriate course. However, counsel for the police opposed such an approach. It was, to my mind, correctly submitted that a fundamental issue was the assessment of the defendant’s credibility.
I have reviewed the evidence to ascertain whether, in all the circumstances, I could determine the question as to whether on the evidence in the trial it could be said that a reasonable hypothesis consistent with innocence arose. As this is an appeal from a summary jurisdiction, I would adopt a robust approach if I considered that I could fairly resolve the matter. However, I have reached the conclusion that the charges against the defendant cannot be fairly determined on the papers. Without hearing oral evidence, in particular examination and cross-examination of the defendant, a trier of fact could not fairly reach a conclusion as to credibility. Accordingly, the charges against the defendant should be remitted for rehearing.
Further Matters
I have a particular concern that the approach taken by one of the investigators may have given rise to an unfairness. A consequence is that the medical examiners have expressed opinions having regard to part only of the relevant history without any real awareness of the entire history. I recognise that particular difficulties may arise on a rehearing.
The principal reasons for the allowing of the appeal relate to matters not raised at trial. Earlier in my reasons, I have been critical of the Magistrate’s interventions during the cross-examination of the defendant. Nothing was said at trial on this topic. No protest was made. No application in regard to an appearance of bias was advanced. New counsel appearing on the appeal raised the issue for the first time. Unsurprisingly, counsel for the police emphasised that nothing had been said at trial on this topic. Notwithstanding this circumstance, as earlier noted, I conclude that the Magistrate’s questioning did give rise to an appearance of bias.
I refer to my comments in respect of the Magistrate’s misapprehension of the covert surveillance evidence and, in particular, his error as to the period over which the defendant was seen to be performing bakery duties. My observations in this respect came after a close analysis of the covert surveillance evidence, including the video footage. As counsel appearing for the defendant acknowledged on the appeal, the defence had not undertaken such an analysis, either at trial or in respect of the appeal. I find this circumstance difficult to understand. A judge hearing an appeal from a summary proceeding is under an obligation to review the evidence in the trial. It was an attendance to this obligation that led to the discovery of the Magistrate’s misapprehension and to the relisting of the appeal for further submissions. To my mind, the misapprehension was serious and cannot be overlooked notwithstanding that the defendant’s counsel did not raise the issue at trial.
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.