Lovering v DUFFIN - [2004] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LOVERING v DUFFIN
Judgment of The Honourable Justice Duggan
30 June 2004
WORKERS' COMPENSATION - MISCELLANEOUS MATTERS - OFFENCES
OBTAINING BENEFIT BY DISHONEST MEANS - CONDUCT AT MEDICAL EXAMINATION - PAYMENT OBTAINED UPON MEDICAL BENEFIT.
MAKING FALSE OR MISLEADING STATEMENTS TO DISHONESTLY OBTAIN BENEFIT - STATEMENTS AT MEDICAL EXAMINATIONS - FAILURE TO MAKE DISCLOSURES.
The appellant was charged with 53 offences against s.120 (1) of the Workers Rehabilitation and Compensation Act 1986 ("The Act") - counts 1-5 and 11 were dismissed - the other charges were found proved by the Magistrate - In 1995 at work the appellant slipped off a chair and sustained injuries to her lower back and left knee - the appellant underwent surgical procedures for the back injury - the appellant gave notice of her injury to her employer and submitted a claim for compensation under the Act - the appellant claimed income maintenance and home assistance on the basis that she was totally incapacitated from work and household duties - the appellant underwent a series of medical examinations and professional assessments in connection with the claim - the complainant alleged that the appellant dishonestly exaggerated the severity of her disability - the complainant tendered video footage of the appellant engaging in a variety of activities displaying a level of capacity inconsistent with her presentation to health professsionals - appeal against conviction - whether the Magistrate erred in taking into account the evidence put forward to prove counts 1-4 in deciding whether the prosecution had proved the commission of the offences of obtaining a benefit under the Act by dishonest means - whether the Magistrate erred in finding that the appellant was unaware of being filmed - whether the Magistrate erred in rejecting the medical evidence corroborative of the appellant's version - whether the Magistrate erred in relying upon the video footage as evidence to indicate what the appellant's actual condition was on earlier occasions on which it was claimed offences were committed - whether the Magistrate erred in finding that the appellant was not legally entitled to the payments under the Act relevant to counts 15-34 and 46-55 - appeal allowed to the extent that the finding of guilt in relation to counts 35-44 and count 12 are set aside - comments on inappropriateness of proceeding to conviction on counts 6-10, 13 and 14 because of double punishment - findings of guilt in relation to counts 15-34 and 45-55 upheld.
Workers Rehabilitation and Compensation Act 1986 ss 120(1), 120(1)(a) and 120(1)(c), referred to.
Sheriff v Workcover (1999) 205 LSJS 440; The Queen v O'Loughlin; ex parte Ralphs (1971) 1 SASR 219, applied.
Barca v The Queen (1975) 133 CLR 82, considered.

LOVERING v DUFFIN
[2004] SASC 190
Magistrates Appeal

DUGGAN J. The appellant was charged on a complaint filed in the Adelaide Magistrates Court alleging 53 offences against s 120(1) of the Workers Rehabilitation and Compensation Act 1986 (the Act). Counts 1-14 alleged that the appellant dishonestly made a statement about a claim under the Act, knowing that the statement was false and misleading contrary to s 120(1)(c) of the Act. Counts 15-55 alleged that the appellant obtained a payment or benefit under the Act by dishonest means contrary to s 120(1)(a). Counts 15-34 related to payments of income maintenance and counts 35-55 to home assistance payments.
Counts 1-5 and 11 were dismissed. The other charges were found proved. The appellant has appealed against the findings of guilt on these charges. She has not yet been sentenced.
The background to the prosecution is set out in the reasons for decision of the magistrate:
“According to the complainant’s case, in 1995 the defendant had an accident at work at a nursing agency. She slipped off a chair and landed on the floor on her buttocks. As a consequence, she sustained injuries to her lower back and to her left knee. She subsequently underwent surgical procedures for her back injury. Professor Fraser performed an anterior fusion at the L5-S1 level. Then Mr Terrence Hillier performed a posterior fusion to her lower back followed, about two years later, by a sacroiliac fusion.
Following the accident the defendant gave notice of disability to her employer and submitted a claim for compensation under the Act. She claimed payments of income maintenance and, later in 2000, she claimed additional payments as home assistance to her husband, Geoffrey Lovering, on the basis that, as a consequence of a compensable disability resulting from her injuries, she was totally incapacitated for work and was also unable to perform household tasks for which she required the assistance of her husband.
From time to time during a period from about February, 2001 until about October, 2001 the defendant underwent a series of examinations and assessments by an occupational therapist, various medical practitioners and a physiotherapist, in connection with her claim. It is the complainant’s case that, by her statements and manner of presentation on those occasions, the defendant portrayed herself as severely disabled and as having serious difficulties with her mobility.
Video films were taken of the defendant on six occasions during the period between the 10 May, 2001 and the 2 July, 2001. Those films showed the defendant engaging in a variety of activities, including household tasks, walking and gardening. There appeared to be marked inconsistencies between the defendant’s manner of presentation to the health professionals and the level of capacity she exhibited during some of those filmed activities. To the health professionals she presented with severe restrictions in the movements of her back, including her ability to bend forwards and in her mobility and capacity to walk without the support of a walking stick or a frame. By her statements, she indicated to them that she was unable to carry out household tasks and that she relied on her husband to do them for her. In contrast, the video films, especially the one taken on the 10 May, 2001, showed the defendant performing household tasks, including gardening, and demonstrating her capacity to bend repeatedly without apparent restrictions and to walk in an apparently normal manner without any form of support.
According to the complainant’s case, there is no medical or psychiatric explanation for those apparent inconsistencies. In those circumstances, the complainant has inferred that, by her statements and manner of presentation, the defendant has misrepresented and exaggerated her level of disability. It is alleged that the defendant was presenting herself as severely disabled when she was not and, furthermore, that she has been doing so since at least June, 2000. In other words, it is the complainant’s case that, at some stage after the surgery to her back and before June 2000, the defendant substantially recovered from the effects of her injuries but chose not to reveal her increased capacity or mobility.
Against that background, the complainant’s case in relation to the 12 dishonest statements charges (counts 1-4, 6-10, 12-14) is that between about February, 2001 and about September, 2001, the defendant made oral statements about her claim to an occupational therapist (Bronwyn Willis) and to three medical practitioners (Doctors, Fry, McCulloch and North). Generally, those statements concerned her level of disability and her capacity to perform household tasks. She also made a written statement about her claim to the claims agent, HIH Workers Compensation (SA) Ltd (count 13), concerning her inability to climb the stairs to Dr McCulloch’s rooms. It is the complainant’s case that each of those statements was false and misleading and that, when the defendant made each statement, she did so, dishonestly, knowing that it was false and misleading.
It is convenient to deal with the charges of obtaining by dishonest means in chronological order, rather than the order in which they appear in the complaint. The complainant has alleged that, from about June, 2000 onwards, the defendant obtained, by dishonest means, payments as home assistance payments to her husband (counts 35-55). The dishonest means common to all of those twenty-one charges is the complainant’s allegation that the defendant claimed those payments knowing that she did not require the home assistance that was the subject of the claims. Because of the nature of the dishonest means alleged, it is implicit that, according to the prosecution case, the defendant was not entitled to any of those home assistance payments. The additional dishonest means confined to ten of those charges (counts 46-55) was, in essence, that the defendant portrayed herself as severely disabled when, in fact, she was not. The complainant relied on the defendant’s alleged acts in making false and misleading statements and in presenting herself in a manner that involved displaying restrictions in her capacity and mobility, which were not genuine.
The prosecution case in relation to the twenty charges of obtaining by dishonest means, payments of income maintenance (counts 15-34) are different in some respects. The starting point for that series of alleged offences is February, 2001, not June, 2000. The dishonest means alleged are different in that there is no allegation that the defendant claimed those payments knowing that she did not require, or was not entitled to, income maintenance. In other words, it is not a necessary part of the prosecution case that she was disentitled to each of those payments. Apart from that, the dishonest means are similar in that the complainant has alleged that the defendant, by her statements and manner of presentation, portrayed herself as severely disabled when, in fact, she was not. According to the complainant, in order to succeed in those twenty counts, it is sufficient to prove that there was a dishonest exaggeration in the level of disability portrayed by the defendant, and it is not necessary to prove that she was fully fit for work or that she was fit for a particular job.”
The use of the evidence in relation to counts 1-4 in order to prove the charges in other counts
According to the first ground of appeal, the magistrate erred in taking into account the evidence put forward by the prosecution to prove counts 1-4 in deciding whether the prosecution had proved the commission of the offences of obtaining a payment or benefit under the Act by dishonest means which were charged in subsequent counts.
The prosecution case in relation to counts 1-4 was based on allegedly false statements made in an interview conducted by Ms Willis, an occupational therapist who visited the appellant and her husband at their home. Ms Willis conducted the interview in order to provide an assessment of the appellant’s need for home support. The assessment was undertaken at the request of the claims agent acting on behalf of Workcover Corporation. The interview took place shortly before 13 February 2001.
Ms Willis said that the interview was held predominantly in the lounge room of the appellant’s house. It was clear on her evidence that all relevant statements were made when both the appellant and her husband were present and this was accepted by the magistrate. In cross-examination Ms Willis denied that she and Mr Lovering went into the bedroom at one stage to discuss bed making. She made notes at the time and subsequently prepared a written report. According to Ms Willis, both answered questions, but the appellant answered more questions than her husband. Ms Willis said she did not recall any disagreement by either the appellant or Mr Lovering with the answers given by the other. When asked whether she could recall the extent to which each answered questions she said:
“AI can’t give an exact percentage obviously. What I do recall is on some of the subjective information where I was just asking the questions in relation to sort of household chores, that I can’t remember whether they were either answered by Mr or Mrs Lovering, and that was possibly 60, 70% of the consultation, I suppose. The observed physical capabilities that I looked at and limitations would have been answered by Mrs Lovering.
QYou said you observed physical capabilities that were answered by Mrs Lovering, could you just clarify what you mean by that?
ASorry, yes, I guess when I was asking Mrs Lovering to undertake some of the physical activities such as indicated on p3 of my handwritten report in relation to the standing, walking, reaching, bending, when asked –when getting Mrs Lovering to do those I would have expected, I would have asked for a response from her in relation to any limitations that she may have been having.
QSo you asked for a response from her, and can you say whether the response, in fact, came from her?
AYes.”
During the interview Ms Willis was told that Mr Lovering attended to all of the household chores. This included the shopping and attending to the laundry and ironing. Mr Lovering did the cooking but the appellant assisted her husband. This was due to her physical condition. Ms Willis was told that the appellant used a scooter to prune in the garden.
Ms Willis said she was also told that the appellant had a tolerance of ten minutes when standing or walking and required support from a walking frame or a walking stick. When asked to demonstrate her mobility the appellant exhibited difficulty. Ms Willis was told that Mr Lovering assisted the appellant in getting out of bed in the morning.
These and other matters dealt with at the interview were incorporated into a report prepared by Ms Willis shortly after the interview and tendered as an exhibit at the trial.
The magistrate dealt with the evidence of Ms Willis in the following passage in his reasons:
“Ms Bronwyn Willis and the defendant and her husband gave evidence in relation to the dishonest statements charges in counts 1 to 4. Although a number of factual disputes arose from that evidence, it is not necessary for me to resolve all of them. I intend to focus, primarily, on the principal issue in relation to each charge. The main issue was not whether the alleged statements were made but whether the defendant was the person who made them.
Ms Willis was obviously an honest and candid witness. Mr Amey conceded as much in his final address. Ms Willis said that, during the assessment referred to in paragraph (18) of my preliminary findings, both the defendant and her husband were present and that they both responded to her questions seeking information about the defendant. While Ms Willis was adamant that her notes and her report (Exhibit P14) accurately reflected the information they conveyed to her at the time, she was unable to recall whether it was the defendant or her husband who made the particular statements, and her notes were of no assistance to her in that respect.
Having regard to my preliminary findings as to Ms Willis’s evidence, which I accept, I am satisfied beyond reasonable doubt, and I find, that, during the assessment, the defendant displayed severe restriction in movements of the back and that, in reference to her back and general body disability, the information from Ms Willis’s report set out in paragraph (18) of my preliminary findings was conveyed to her in oral statements made by the defendant or by Geoffrey Lovering in the defendant’s presence. Because I cannot exclude, beyond reasonable doubt, the possibility that Geoffrey Lovering, not the defendant, may have made those statements, each of the charges in counts 1 to 4 must fail.”
It would appear that in dismissing counts 1-4 the magistrate took the view that, in the case of an offence of making a false statement charged under s 120(1)(c) the statement must be made by the defendant and not someone in his or her presence.
Further reference was made to this evidence in the reasons at [70]:
“By way of further inference, I am satisfied beyond reasonable doubt, and I find:
(1)that, at the time of the assessment by Bronwyn Willis on or about the 13 February, 2001:
(a)    the defendant was capable of doing some household chores and that the statements alleged in count 1 which she, or her husband, made to Ms Willis, were not an accurate indication of her abilities;
(b)    the defendant was capable of standing and walking for more than ten minutes and did not require support from a walking frame or walking stick;
(c)    the defendant was capable of standing and walking for at least short to medium distances, and did not require support from a walking frame or walking stick and did not require the use of an electric scooter when in the garden (see Exhibit P41 page 30 line 10);
(d)    the defendant was capable of reaching overhead and below waist level without undue discomfort;
(e)    each of the statements alleged in counts 1 to 4, whether they were made by the defendant, or by her husband, in her presence, were false and misleading in a material particular.”
The magistrate also concluded that, at the time each statement alleged in counts 1-4 was made, the appellant knew that it was false and misleading.
It was submitted on behalf of the appellant that the magistrate was not entitled to take into account the evidence in relation to counts 1-4 when considering whether charges in other counts had been proved. In this connection I was referred to Barca v The Queen (1975) 133 CLR 82.
Whilst it is true that statements are not admissible against a party simply because they are made in his or her presence, the conduct of that party may render them admissible.
In the joint judgment of Gibbs, Stephen and Mason JJ in Barca their Honours said at 107:
“It is trite law that a statement made in the presence of a party is only evidence against him of the truth of the matter asserted if he has in some way admitted its truth. If an accused person denies the truth of a statement when it is made and there is nothing in his conduct and demeanour from which the jury, notwithstanding his denial, could infer that he acknowledged its truth in whole or in part, it would accord with accepted practice to exclude the statement altogether: R v Christie [1914] AC 545 at p 565. In any case, where evidence is admitted of statements made in the presence of an accused it is in general desirable that the judge should explain to the jury that they can only use the statements as evidence of the truth of what was stated if they are satisfied that the accused has by his speech, silence or conduct admitted their truth.”
The fact that the magistrate dismissed the charges alleged in the first four counts did not prevent him from taking into account evidence led in relation to those charges when considering whether the respondent had proved the charges alleged in the subsequent counts. It is evident from the passages in his reasons which are quoted above that he accepted Ms Willis as a truthful and reliable witness. He found beyond reasonable doubt that the statements upon which counts 1-4 were based were made by either the appellant or her husband in her presence.
The counts on which the evidence was taken into account by the magistrate alleged the obtaining of a payment or benefit under the Act by dishonest means. These words are of wide import and are capable of referring to statements or conduct by the appellant. It was open to the magistrate to conclude that, in the circumstances of the interview with Ms Willis when the appellant and her husband were giving information about the appellant’s condition, the appellant’s failure to contradict anything her husband said about her condition and its effects was dishonest conduct for the purposes of the section if she knew the statements to be false. It is apparent from the reasons of the magistrate that this is the approach which he adopted. In my view he was entitled to use the evidence for this purpose.
The video evidence

In the summary of the facts in the reasons of the magistrate which are set out above reference is made to the video filming of the appellant between 10 May and 2 July 2001. The video of most significance was filmed on 10 May. The evidence was used to establish the falsity of statements made by the appellant in relation to claims under the Act. The magistrate summarised this evidence:
“As the evidence revealed, there appeared to be significant inconsistencies between the manner of the defendant’s presentation to the doctors and others she consulted during that period and her manner of presentation in the video films taken during the period from the 10 May, 2001 to the 2 July, 2001, especially the film taken on the 10 May, 2001 by Steve Treloar (Exhibit P4).
That film showed the defendant on her feet for lengthy periods and walking without any aid. She demonstrated an ability to walk on differing surfaces and gradients without any apparent restrictions in her mobility. She demonstrated her capacity to bend forward from the waist repeatedly and for prolonged periods while reaching to the ground. She was able to squat and kneel for significant periods. She was able to perform a variety of gardening and other tasks without assistance for her husband. She repeatedly lifted and carried bags of plant material. At various times, she lifted and carried, pots and a watering can. On another occasion she helped her husband to carry a garden seat. She was also filmed sweeping a garden path. On another occasion, in a different film, she was depicted bending down, picking up items of washing and reaching up to hang them on a clothesline. There was no apparent restriction in the movements of her back, in her capacity to bend and to walk and in her ability to perform gardening and other household activities.
In her evidence, the defendant offered a explanation for her behaviour on the 10 May, 2001 as depicted in the video film, Exhibit P4. She said that, on that day, she became aware that she was under surveillance. She was angry. After dosing herself up with morphine she went outside and ‘put on a show’ for the surveillance operators with the object of embarrassing them. In his evidence, her husband, Geoffrey Lovering, corroborated that version of events. In his psychological report (Exhibit D15 paragraph 4.6 at page 16), Dr White stated that such a reaction on the part of the defendant was consistent with her general personality that reflected a level of stubbornness and headstrong behaviour.”
The magistrate rejected the explanation given by the appellant and her husband for the manner in which she acted during the filming of the videos. He concluded that she was unaware of being filmed on 10 May and that there was no medical or psychiatric explanation for the inconsistencies in the appellant’s portrayal of her condition and her actions at the times of filming. In reaching this conclusion, he set out the views of various medical witnesses as to the marked difference between her filmed actions and her presentation to them at the time of the medical examinations which they conducted.
The appellant challenges the magistrate’s conclusion that the appellant did not know she was being filmed. The magistrate stated in his reasons for decision that there was a body of circumstantial evidence which pointed to the conclusion that the appellant did not know on 10 May 2001 that she was under surveillance. After referring to this evidence, he commented on the defence contention that the appellant was aware she was being filmed on 10 May 2001. He referred specifically to an argument that the defence case in this respect was supported by the cross-examination of a prosecution witness, Mr Aloi. This witness was an injury claims consultant employed by a claims agent which managed claims on behalf of Workcover Corporation. He was aware of the fact that video surveillance had been undertaken in relation to the defendant.
The witness was cross-examined about a telephone conversation he had with the appellant in September 2001:
“QHadn’t you had a conversation with Mrs Lovering prior to that date where she told you that – and she was quite cross – about being put under surveillance on 10 and 11 May?
AWhen she, what day was that? What date she telephoned me or discussed that issue?
QYou would have made a note of these phone calls with her, wouldn’t you?
AI probably would have, but probably at the time I was – could be on leave all the time or, but I do recall something about she did ask me about something about that.
QIs this the case, that at some stage after 10 May when the filming started, she rang you and told you that she’d seen people filming her on 10 May and 11 May. Firstly, can you remember that?
AYes, I can recall that.
QShe was pretty cross about being filmed, do you remember that?
AYes, I can recall that.
QShe asked you if she was being filmed?
AYes.
QAnd you told her she wasn’t?
AThat’s correct.
QThat was a lie, you lied to her?
AThat’s the first time I’ve been in a position where a worker, any worker, in my career of 13 years of workers comp work, has actually came a direct line with me and said that ‘Have I been filmed?’ and that’s the first time a worker came up and actually asked me, and my first reaction was no, because I didn’t know how to handle that, so that’s what happened.
QSo you lied to her because you didn’t know how to handle it?
AIn relation to that question only.
QI’m just wondering why you couldn’t have said something to her like ‘I can’t discuss that with you’, or ‘I can’t comment’. Did it cross your mind to say that to her?
AMy first reaction was no.
QYour first reaction was to lie?
AMr first reaction was no.
QWhich wasn’t true?
AMy first reaction at that point in time was no.
QWhich wasn’t true because you knew she’d been filmed?
AAfter discussing further with certain people, I should have – that matter should have been referred on.
QBefore she asked you about being filmed on 10 and 11 May, you knew that she was being filmed on 10 and 11 May?
AIn relation to that direction question, yes.”
The magistrate dealt with this evidence in the following extract from this reasons for decision:
“Bruno Aloi’s evidence was based on his recollection. On the 11 August, 2003 he was attempting to recall a telephone conversation that had taken place at some time prior to 7 June, 2001. His recollection of the conversation appeared to be vague. According to him, any record that he may have made of that conversation could not be located. The question that was put to him at line 27 on page 507 of the transcript contained a number of propositions. The cross-examiner did not direct Mr Aloi’s mind to each individual proposition. The question (transcript page 507 line 30), ‘Firstly, can you remember that?’ and Mr Aloi’s response to it, were apt to be misleading. In the context it is likely that Mr Aloi was simply assenting to the proposition that he could remember that a conversation had taken place. The cross-examiner did not, at any stage of the cross-examination, ask Mr Aloi, specifically, whether, during that conversation, the defendant had told him that she had seen people filming her on 10 May, 2001. In the circumstances, I do not consider that Aloi’s evidence amounted to an admission that the defendant had alluded to the 10 May, 2001 during their conversation.
As a result of my assessment of the evidence, I consider that the defendant’s explanation for her conduct on the 10 May, 2001 was so inherently improbable as to be incredible. My confidence in her credibility, and that of her husband, and in the reliability of their evidence in relation to this issue, was so seriously undermined that I reject it. By way of inference, I am satisfied beyond reasonable doubt, and I find, that, on the 10 May, 2001, the defendant did not know that she was being filmed. It follows that I reject, as untrue, her explanation for her conduct while being filmed on that day. That finding has implications for the credibility of both the defendant and her husband in relation to other issues. As the defendant gave the same version of the events of the 10 May, 2001 to Dr Heah and to Dr White, the finding also has the potential to undermine, to some degree, the reliability of the opinions that they have expressed.”
In my view, it was open to the magistrate to make these findings. It is clear from the evidence that Mr Aloi had only a vague memory of this conversation which had taken place approximately two years previously. The cross-examiner’s question about the telephone conversation contains two propositions, namely, that the conversation took place and that the appellant had told the witness that she had seen people filming her on 10 and 11 May. The question “Firstly, can you remember that?” leaves the way open to an ambiguous answer. It is not clear from the answer whether the witness is assenting to the first or second proposition or both. The word “firstly”, appears to direct attention to the first part of the question. The next suggestion put to the witness is that the appellant asked if she was being filmed. I think the magistrate was entitled to conclude that there was no clear assent by the witness to the proposition that the appellant stated she knew she was being filmed. Mr Aloi’s evidence in cross-examination does not stand in the way of the magistrate’s finding that the appellant did not know she was being filmed at the relevant time.
The evidence of Dr White
The conclusions reached by the magistrate in relation to the filming of the appellant on 10 May were of relevance to the view which he took of the evidence of Dr White, a psychologist called by the defence. The magistrate’s approach to Dr White’s evidence was criticised on appeal.
Dr White conducted various psychological tests on the appellant. He said one test put her in the “non-malingering range”. He found that she had a history of psychological problems related to anxiety and depression. He expressed the opinion that her general clinical profile was elevated on measures of somatisation, depression, social detachment, thought disorder, affective instability, irritability, negative relationships, affective anxiety, and physiological anxiety.
Dr White concluded that the behaviour shown by the appellant on the video was not “bizarre or unusual behaviour”. He said it was possible that the combination of strong pain killing medication and a stubborn personality could have resulted in the observed behaviours. According to Dr White, Ms Lovering did not show any evidence of exaggeration or malingering on the tests. He said that the appellant was likely to satisfy the relevant diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood and that she also exhibited various traits consistent with a borderline personality disorder.
Dr White said in his report:
“In conclusion, your client’s condition is not consistent with that of a malingerer, but rather consistent with that of an individual who generally deals poorly with life problems, who is belligerent and stubborn and who tends to focus on her physical ailments.”
In assessing the evidence of Dr White, the magistrate referred to the evidence of a number of the prosecution medical experts who expressed the opinion that there was no medical explanation for the difference between the appellant’s presentation to them and her movements as depicted in the film. For example he referred to the view of Dr McCulloch that where there is a chronic condition, the condition does not vary markedly from day to day. He said “There may be some fluctuation but you certainly don’t get the degree of fluctuation of having apparent normal mobility and yet, at a time within a few weeks, having severe immobility”. These views were accepted by the magistrate.
The magistrate also referred to the evidence of Dr Ewer, the only qualified psychiatrist called to give evidence. Dr Ewer reached the conclusion that the appellant was a malingerer. The magistrate accepted his view over Dr White’s.
The magistrate also expressed the view that the appellant had supplied Dr White with information which, on the magistrate’s findings, was untrue. He was referring to the appellant’s claim that she knew she was being filmed. He commented that the actions of the appellant had undermined the reliability of the opinions on which she sought to rely.
I cannot detect any error in the general approach of the magistrate to these aspects of the evidence. He was required to assess Dr White’s evidence against the evidence as a whole and the competing medical views in particular. He canvassed the evidence at some length in his reasons for decision and reached conclusions which were open to him. In so far as he relied to an extent on the question as to whether the appellant realised she was being filmed on 10 May, I have already expressed the view that the court’s conclusions on that issue were appropriate.
The evidence of Dr Heah
For the same reasons, I am of the view that the magistrate was correct in rejecting the evidence of Dr Heah, the appellant’s general practitioner. Dr Heah said that he believed that on 10 May the appellant might have had a good day or she might have taken lots of pain tablets to go out and do what she did. This view contrasted with that of the four medical experts called by the prosecution. The magistrate found that those opinions were based on adequate information and on sound reasons and judgment. Nothing in the submissions put by the appellant’s counsel on appeal reveals that the magistrate’s approach was wrong in this respect.
Criticism of a further inference drawn from the video evidence
Mr Griffin, for the appellant, criticised the reasoning in the following passage of the magistrate’s reasons at [69]:
“According to the evidence, the defendant has a long-standing, chronic condition. She said in evidence that her condition has not changed much since 1999 (transcript page 719 line 19). In those circumstances, it is open to infer that her condition during the relevant periods from February, 2001, to July, 2001 and from June, 2000, to October, 2001 would have been substantially the same as her condition during the period that the video films were taken.”
According to the argument, the film was used to depict the appellant’s physical ability as at the date of the filming in May and July 2001. However, it was argued that there is no evidence to indicate what her actual condition was on earlier occasions on which it is claimed offences were committed.
The magistrate acted on evidence which enabled him to conclude that there was a very significant difference between the appellant’s physical condition at the time of the filming and what she claimed was her condition. It was her evidence that she had been suffering from the disabilities she claimed to exist throughout the period covered by the charges. Dr North said there was a gross discrepancy between her presentation on the video and his examination of her on 5 July 2001. Dr Ghan said that she did not appear to have any disability on the video. Dr Fry said that, on the video, the appellant behaved in a “thoroughly normal fashion”.
Dr Ewer, a surgeon, said that the appellant demonstrated a good range of movement on the film and that it was probably within the normal range for her age. The witness was then asked to comment on his view of her condition in mid-February 2001, when it was alleged that some of the offences were committed. He answered:
AI think in general terms it’s preferable to have as small a gap in time between assessments and statements being made and then comparing that with how a person appears in video surveillance evidence because the shorter the gap the less chance there is for other factors, confounding variables to influence the person’s condition and presentation. Having made that general point the specific point I would make in regards to Mrs Lovering’s case is that her condition has been portrayed as being chronic and longstanding, dating back in fact a number of years. So that would lessen the importance of having a very narrow time frame, that is you may not expect spontaneous improvement in those months given the chronicity of the condition.
QYou’ve read various medical reports concerning this matter as you’ve mentioned, are you able to reach any conclusion as to your own opinion on the particular point of that time differential?
AGiven the fact that her condition is chronic and longstanding I think the time differential of the three months or so that we are considering is not that significant.
QWould the same principles apply after the date of which the video was taken?
ACould you elaborate on that question please?
QIf we ask the question about statements allegedly made after the video was taken by Mrs Lovering, there’s a time differential of course from the last of the video or the last of the video that you consider is relevant for any purpose, until the statement is allegedly made, would the same considerations apply to that time span?
AYes I’d apply the same principles of logic.”
In cross-examination he said:
“I think it’s preferable if the gap between the two events – the statements and the video – is as brief as possible because confounding variables can enter in the longer the gap is, so for example a person may spontaneously improve and they may have made statements that they were in a very bad way in February but there’s been spontaneous improvement by May. Two issues: I mean, as a medical practitioner, given the condition is chronic, I wouldn’t have thought that would be a great problem but equally I would defer to the opinions of specialists in physical medicine on that particular issue.”
Later in cross-examination, the witness was asked about relating back the appellant’s condition as seen on the film to mid-2000. He said that it would certainly be more satisfactory if there was a much lesser gap. He added:
“In terms of the inferences if that’s accepted that the explanation is malingering then it’s a matter of what inferences you draw from that. Whether the person may have been malingering in May 2000 it’s hard to know. It’s possible but I would offer that opinion with a lesser degree of certainty than about what was going on in the year 2001.”
I accept the respondent’s argument that the magistrate was entitled to take into account the evidence in its entirety when considering this issue, but Dr Ewer’s evidence was particularly important in this regard. He appears to have been confident in his view in relation to the appellant’s condition in 2001, but he expressed reservations about making an assessment as far back as mid-2000.
In the light of these considerations, it is my view that the findings of guilt in relation to the offences alleged to have taken place in 2000 should be set aside. These are the offences alleged in counts 35-44 inclusive.
The visits to Drs McCulloch and North
Mr Griffin made specific submissions in relation to counts 12, 13 and 14. The charges in counts 12 and 13 relate to a visit and a proposed further visit to one of the respondent’s medical specialists, Dr McCulloch. The appellant was seen by Dr McCulloch on 19 March 2001. Dr McCulloch was unable to complete the consultation and he did not have sufficient time to conduct an examination, although he recorded that the appellant displayed severe restriction in movements of the back. He advised the appellant that she would be required to attend on another occasion. Dr McCulloch’s rooms are on an upper level. According to his evidence, the appellant “was not happy with that because she indicated she would have trouble getting up the set of steps leading to my rooms”. Dr McCulloch was unable to give evidence of the precise wording of the appellant’s statement to him. The statement was used as the basis of count 12.

In my view, this evidence is insufficient to support a finding of guilt for the offence of dishonestly making a statement about a claim under the Act. The evidence of the statement is somewhat vague and its spontaneous nature by way of a reply concerning arrangements for a future appointment gives rise to some doubt as to whether it is to be regarded as a dishonest statement for the purpose stated in the charge. The finding of guilt in relation to count 12 will be set aside. This is not to say that the evidence in relation to count 12 is irrelevant in relation to other counts; although its weight is slight.
Count 13 alleged that the appellant dishonestly made a statement about a claim under the Act by sending a facsimile to the claims agent on 22 March 2001 stating that she was unable to climb the stairs leading to Dr McCulloch’s rooms and that she had therefore cancelled a future appointment with Dr McCulloch.
She said in the facsimile that she had been unable to climb the stairs herself and that her husband was required to carry her. In my view, the magistrate was correct in finding that this was a deliberately dishonest statement. As it was conveyed to the claims agent, it is properly described as being made in relation to a claim under the Act.
Count 14 alleged that on 2 July 2001 the appellant dishonestly made a statement about a claim under the Act knowing that the statement was false and misleading in that she displayed severe restriction in movements of the back when examined by Dr North and that she said words to the effect:
“On my best days, I am unable to get around the house slowly using a walking stick. On ordinary days, I use a frame and on bad days, I have to use a wheelchair to get around the house because of pain mainly in my back.”
Dr North gave evidence of statements by the appellant along the lines alleged in the particulars. I reject the suggestion that the wording of this count was vague. Furthermore, I am of the view that the video evidence supports the conclusion that it was false and misleading.
The effect of a legal entitlement to payments under the Act
Mr Griffin asserted that there was no evidence before the court to the effect that the appellant was not legally entitled to the payments under the Act which are the subject of counts 15-34 and 46-55. He said that in these circumstances the appellant could not be found guilty of obtaining the payments by dishonest means.
According to the argument, it was not in dispute that the appellant suffered a compensable disability and that there was a partial incapacity for work. Under the provisions of the Act, the partial incapacity was to be treated as total incapacity because suitable employment had not been found for her. It was submitted that an essential element of the offences charged in the counts referred to was that there was no legal entitlement to the payments which the appellant received.
The essential elements of an offence contrary to s 120(1)(a) are that a payment or other benefit under the Act was obtained by dishonest means. If dishonest means are established, the only remaining question is the causal element, namely, whether a payment or benefit under the Act was obtained by those means. In a case such as the present, the question will be whether Workcover Corporation or the employer acted upon the conduct and statements of the appellant so as to make a payment or provide a benefit to the appellant.
In my view, it need not be proved that the person was not entitled to the benefit. The essence of the offence is that a benefit was obtained as a result of the dishonest means. The question as to whether the same payment could have been obtained by honest means is irrelevant and would involve the court in an enquiry into a collateral issue.
One of the effects of the appellant’s dishonest conduct was that medical certificates were issued which indicated total incapacity. Accordingly, it would have been inappropriate for the appellant to be offered work. I do not think it can be said that the appellant was entitled to the benefit of the deeming provisions in the context of these charges.
The risk of being punished twice
I have said that the charges for offences in counts 1-5 inclusive were dismissed. However, the offences charged in counts 6-10 and 13 and 14 were found proved. These counts alleged offences of dishonestly making a statement about a claim under the Act contrary to s 120(1)(c).
The false statements alleged in these counts were also relied upon to prove the dishonest means alleged in those counts which charged offences of obtaining payment by dishonest means contrary to s 120(1)(a).
It is clear that the appellant cannot be punished for the same conduct twice. This would occur if she were sentenced in respect of offences of obtaining payments by dishonest means, namely, false statements and offences constituted by the making of those statements: Sheriff v Workcover (1999) 205 LSJS 440.
Although the offences charged in counts 6-10 and 13 and 14 were found proved, it would be inappropriate for the court to proceed to a conviction or impose any penalty in respect of them: The Queen v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219 at 285.
For these reasons, the appeal will be allowed to the extent that the findings of guilt in relation to counts 35-44 inclusive and count 12 will be set aside. I have said that it would be inappropriate to proceed to conviction on counts 6-10 and 13 and 14. I am satisfied that there was ample evidence upon which to base the findings of guilt in relation to counts 15-34 and 45-55. The evidence relied upon by the magistrate in reaching his conclusions in relation to these charges was relevant and admissible for that purpose and I reject the suggestion that he erred in some way in applying the burden and standard of proof. The findings in respect of these charges will be confirmed.