McCarron v Akpata; Akpata v WorkCover Corporation No. Scciv-00-1328, Scciv-01-723

McCARRON v AKPATA;
AKPATA v WORKCOVER CORPORATION
[2001] SASC 365
Magistrates Appeal: Criminal

MULLIGHAN J The appellant was convicted by a learned Magistrate of various offences under s 120 of the Workers Rehabilitation and Compensation Act 1986 and sentenced to imprisonment for twelve months with a non-parole period of six months. He appeals against those convictions and the sentence. The respondent appeals against the order of the learned Magistrate dismissing various charges. I directed that the appeals be heard together. I first consider the appeals of the appellant.
The respondent is the Manager of WorkCover Corporation (“WorkCover”) which is established under the Act. On his complaint the appellant was charged with 49 counts of dishonestly making a statement about a claim under the Act knowing that it was false and misleading contrary to s 120(1)(c) of the Act (“the dishonest statements charges”). The offences were alleged to have been committed on specified dates during the period from 2^nd February 1999 to 31^st May 1999 inclusive. He was further charged, on the same complaint, with seven counts of dishonestly claiming to be entitled to a payment or benefit under the Act contrary to s 120(1)(b) of the Act (“the dishonest claims charges”). The offences were alleged to have been committed on specified dates between 10^th February 1999 until 27^th May 1999 inclusive. Also, he was charged on the same complaint with 25 charges of obtaining by dishonest means a payment or other benefit under the Act as income maintenance contrary to s 120(1)(a) of the Act (“the obtaining by dishonest means charges”). Those offences were alleged to have been committed on or about specified dates between 10^th February 1999 until 28^th July 1999 inclusive.
The alleged offences occurred with respect to the making of claims by the appellant and obtaining benefits under the Act. The appellant commenced employment with Gerard Industries in August 1998. He was injured at work on 9^th December 1998 when he cut his left wrist with a knife. The injury was sufficiently severe to require surgery which was undertaken by Dr Morgan, a plastic surgeon. The wound had penetrated the middle of the median nerve without damage to the fascicles which are the parts of the nerve which conduct both sensation and motor nerve. The appellant also suffered neurapraxia in that region of the nerve which Dr Morgan said in evidence before the learned Magistrate can be analogous to concussion of the brain. He expressed the opinion that the trauma to the nerve produces a temporary loss of function as there was no damage to the fascicles.
Thereafter the appellant saw Dr Morgan on occasions from time to time. He also consulted Dr May, a general medical practitioner, with respect to the injury to his left wrist. The first consultation was on 8^th February 1999 and he saw him thereafter on many occasions.
Dr Morgan referred the appellant to Dr Fewings, a neurologist, who first saw him on 10^th February 1999. Also he saw Mrs Potter, the Workers Rehabilitation and Compensation Officer at Gerard Industries, on 11^th February 1999 and 11^th April 1999. He saw Dr Leitch, also a plastic surgeon, at the request of the claims administration agent at WorkCover on 6^th May 1999 and Ms Minchin, an occupational therapist, on 26^th May 1999 and 31^st May 1999.
During the consultations with Dr Morgan, Dr May and Dr Fewings, the appellant made various statements and gave demonstrations about his left wrist and arm. It is unnecessary for present purposes to set out all of these statements. They are particularised in counts 1-49 inclusive in the complaint and included the statements that the appellant could not use his left arm. He said that he could not lift anything, could not drive a motor vehicle and could not touch his arm or move it without getting a lot of pain and a lot of swelling. He also told Dr May that he had been unable to do anything with his left arm, hand and fingers for the whole time since his operation. The presentations which the appellant gave were generally by holding his left arm, hand and fingers rigidly with the elbow bent. It was alleged that these presentations indicated to the doctors and the others that he was unable to move his left arm, hand or fingers freely. Each statement or occasion of such a presentation was the subject of a charge in the dishonest statements charges.
A brief summary of the appellant’s statements and representations is that over this period he was consistently stating, or representing by his posture, that he could not use his left arm and hand for any useful purpose or at all.
During the period from 29^th January 1999 until 23^rd April 1999 the appellant was under observation on ten separate days for a total period of 45 minutes and those observations were recorded by video. The learned Magistrate accepted, and it is not disputed, that the video recording shows that the appellant was able to use his arm, drive a motor vehicle, and carry objects. He did not hold his arm in the position which has been described and when using his arm did not show any signs of pain or discomfort.
At the conclusion of the prosecution case the appellant, through his counsel, submitted that he had no case to answer on various counts, including a number of the dishonest statements charges. The learned Magistrate upheld that submission with respect to those counts in which it was alleged that the appellant had presented his condition by the posture of his arm in the manner described and had not made an oral statement. One of those charges alleged that the appellant would not allow Ms Minchin to touch his left arm, thereby indicating a severe degree of pain and sensitivity. There was no oral statement to that effect. The learned Magistrate concluded that a mere presentation by the appellant of the condition of his left arm by holding it in the manner described did not amount to a statement for the purposes of s 120 of the Act although she said that each case depended upon its own facts and “there may be cases where a presentation, coupled with a statement or presentation with an omission ........ may constitute a statement for” that purpose.
She found no case to answer on those charges which amounted to 17 in all and dismissed them. That order, with respect to most of the counts, is the subject of the respondent’s appeal which is addressed later.
The learned Magistrate also dismissed six of the other dishonest statements charges for other reasons which have no significance on this appeal.
The learned Magistrate found that the appellant was guilty of 15 counts of the dishonest statements charges. In brief terms, she found that the evidence of conduct of the appellant as shown in the video recordings was totally inconsistent with the statements made to the doctors and other persons referred to in those counts.
In order to prove a dishonest statement charge under s 120(1)(c) of the Act, the respondent had to prove that the appellant made a statement, that it was made about a claim under the Act, that it was made dishonestly knowing that the statement was false or misleading. There was no election or specification as to whether each statement was false or misleading but that is not an issue on this appeal. The learned Magistrate found each of these elements to have been proved beyond reasonable doubt. She accepted the evidence of each of Dr Morgan, Dr Fewings and Dr Leitch that there was no organic basis for the symptoms and disability which the appellant alleged in his left arm and hand. The learned Magistrate made the finding that his assertions were not “anatomically and clinically sustainable”. Psychiatric evidence led by the appellant did not cause the learned Magistrate to have a reasonable doubt about the issue of dishonesty. I return to this matter later as it is the subject of a ground of appeal by the appellant. There is no appeal about the finding of guilt on those charges.
In consequence of these dishonest statements the appellant received medical certificates from Dr Morgan and Dr May and presented them to the agent of WorkCover. All of the certificates, except two, referred to total incapacity and those two certificates certified that the appellant was unable to use his left arm. The dishonest claims charges alleged that the appellant submitted these certificates knowing that they had been issued following a false and misleading statement or representation referred to in a particular count of the dishonest statements charges. The learned Magistrate found the appellant guilty of each of those charges.
The dishonest means charges are based upon the obtaining of payments or benefits under the Act by dishonest means which were particularised as the statements made in some of the dishonest statements charges. These payments were of income maintenance of $694.75 each week for the period from 5^th February 1999 to 23^rd July 1999. The learned Magistrate accepted that the dishonesty which accompanied the false and misleading statements to the doctors contained the obtaining of the payments and benefits which is the subject of this third group of charges. The learned Magistrate found all of these charges proved. However, she declined to convict the appellant of all of the charges of which he had been found guilty. She convicted him only of the obtaining by dishonest means charges.
With respect to all of the charges of which the appellant had been convicted, the learned Magistrate imposed the one sentence which she declined to suspend. Pursuant to s 120(3)(a) of the Act, the learned Magistrate ordered the appellant to make good the loss to WorkCover which she fixed at $17,368. At a subsequent time she made an order that the appellant pay the costs of the complaint which she fixed at $15,000 and $1000 in respect of investigation costs.
The basis of the appeal against these convictions was, in essence, that the learned Magistrate erred in that she should have concluded that the complainant had not proved that at all relevant times the appellant was not suffering pain and incapacity due to a psychological condition and therefore had not proved that the obtaining of the benefits was dishonest.
The first ground of appeal is that the learned Magistrate did not disclose her reasons for the convictions for the obtaining by dishonest means charges. It was submitted that she had found the appellant guilty of the dishonest statements charges which necessarily involved dishonesty on the part of the appellant and proceeded to find him guilty of the dishonest claims charges and the obtaining by dishonest means charges without disclosing her reasoning process.
In order to appreciate this ground of appeal, it is necessary to first say something more about the evidence before the learned Magistrate.
It was the appellant’s case, supported by his own evidence, that the statements made by him to the doctors and the others were not false or misleading and that he genuinely suffered the disability and pain in his left arm and hand which he mentioned to them. He told the learned Magistrate the pain would commence if he used the arm and remain but eventually reduce after a long period of time. He acknowledged that he undertook the movements and activities which are depicted in the video recording but said that they caused pain.
He consulted Dr Czechowicz, a psychiatrist, on 15^th December 1999 and thereafter saw him on another 10 occasions over the following year. Dr Czechowicz was called by the appellant. He told the learned Magistrate that he treated the appellant for depression which was associated with sickness and pain and that loss of function of the left arm was a contributory factor to the depression. He said that the pain was essentially related to the accident at work. The appellant made similar complaints to Dr Czechowicz about his pain and disability which he had made to the other doctors. Dr Czechowicz told the learned Magistrate that if there was no organic basis for the pain and disability which the appellant was suffering, the diagnosis for persistent pain is a somatoform pain disorder but if the pain is also associated with loss of function of the left arm, the diagnosis would be a conversion disorder. He explained that a brief explanation of somatoform pain disorder is that it is a condition which results in genuine pain to a greater degree than can be accounted for by organic dysfunction.
Dr Czechowicz had seen the video recordings before giving evidence and told the learned Magistrate that there was no inconsistency between the activities of the appellant as depicted in the video with his claimed symptoms of pain and loss of function of the left arm. Further, he said, that what he saw on the video was not inconsistent with the appellant suffering a somatoform pain disorder or a conversion disorder. He explained that the arm posture of the appellant as earlier described when he saw doctors could be explained by a medical consultation being a tense experience. Consequently he did not see any inconsistency between that presentation and what he saw on the video.
He said that the other possibilities, if there was no organic basis for the pain, were malingering (lying for a specific reason) or a factitious disorder (lying for no apparent gain). He then gave evidence of considerable significance:
QWith somatoform pain disorder, would you agree that it makes the symptoms worse consistently throughout the day throughout the week.
AIn general, that’s correct.
QIndeed, a patient who has this condition has the symptoms whether he believes he is being watched or not.
AThat’s correct. I mean there are fluctuations, it isn’t absolutely and there are days when people are better and there are days when people are worse, just the same as they are when the issue is a physical problem.”
He went on to explain his opinion of the conduct of the appellant as depicted in the video recordings which did not depict very much by way of physical activity of the left arm and hand of the appellant. That may be so, but he was not asked to consider the particular statements which the appellant was alleged to have made to the other doctors and other persons which the learned Magistrate found he had made. Dr Czechowicz told the learned Magistrate that the appellant had never presented to him with the arm and hand posture which has been described. He also said that he had seen transcript of the evidence of the other doctors and other witness as to how the appellant presented to them and these presentations were different from what he had observed of the appellant in the video and in his consultations with the appellant. However, he said that these differences did not exclude his diagnosis that the appellant may have been suffering from somatoform pain disorder. Dr Czechowicz qualified this conclusion:
“QBut you have agreed that the condition is reasonably consistent.
AI’m sorry, if I just take that back. It depends on the assumption that one makes. The assumption what you are asking me to say is that there is a reason which is not explained on psychiatric grounds for his change and that that reason is under conscious control, and therefore the somatoform pain disorder is ruled out on the grounds of malingering. That may be true. I can’t offer you a specific opinion on that. However, from my perspective, I have observed sufficient facts to say that what I saw and what I saw in the video is consistent with a person who has a somatoform pain disorder.”
He acknowledged that malingering was certainly a possibility. However, he maintained his opinion that the appellant had a somatoform pain disorder. He said that he appellant also had depressive features and therefore had significant psychiatric problems which required treatment.
Dr Czechowicz also expressed the opinion that the appellant had developed an adverse response to Dr Morgan in the nature of feeling victimized because the appellant perceived that Dr Morgan had been influenced against him by representatives of WorkCover or his former employer. The appellant could have regarded doctors’ rooms as rooms “of torture in a broad sense” and that he had developed what he called sensitisation to that situation. He gave the following evidence:
“QOn the assumption, and it is an assumption, that the video evidence depicts a fair cross-section of Mr Akpata’s life when he is not aware he is being observed, would you then rule out the diagnosis of somatoform pain disorder as an explanation for the symptoms in this case.
AThis ruling out works in a different way. I can rule out somatoform pain disorder if we make a positive diagnosis of malingering. I cannot make a positive diagnosis of malingering. I cannot deny that he is malingering. That’s not my decision to make. In broad terms, I think that he is consistent in the way that he presents the symptoms of somatoform pain disorder and I accept that he has the problem of pain whether he is moving or not and at other times. I haven’t seen him for over a month and at that time I didn’t specifically ask him about the court case, but I did ask him about whether the pain and impairment persists and he said that ‘yes, it did’ so I am prepared to believe this pain is persistent and continuous until the present time.”
Dr Czechowicz was asked about the statements which the appellant had made to the doctors and others which were alleged, and subsequently found by the learned Magistrate, to be untrue. He said that somatoform pain disorder would not explain the making of untrue statements and that the only psychiatric explanation would be a variant of conversion disorder with amnesia. He said that he did not have evidence that such was the case. He went on to say that if the statements made by the appellant were untrue and that he made them under conscious control, then the appellant was malingering. If the statements were not made under conscious control, the explanation would be that the appellant had an amnesia episode which is part of conversion disorder which, in turn, is part of somatoform disorders. He acknowledged that the Court was in a better position than he was to decide if the appellant was consciously making false statements and malingering.
I mention two other pieces of evidence. I have perused the video recordings of the conduct of the respondent. In my view, the learned Magistrate was correct in her finding that these recordings establish conclusively that the appellant could drive a motor car using an automatic gear lever and handbrake and, I would add, using his left hand. He could carry plastic shopping bags in both hands, carry a bottle in his left hand, open a door on his motor vehicle with his left hand, close the hatch of his motor vehicle using his left hand, assisted by his right hand and that he performed these tasks without visible signs of discomfort. Also, the video recordings show his ability to swing and raise the left arm in an apparently normal manner. The learned Magistrate was correct, in my view, in her conclusions that the statements made by the appellant set out in the dishonest statement charges, of which she found him guilty, were inconsistent with activities shown in the video. The differences are striking.
The second piece of evidence is that given by Dr Ewer, a psychiatrist, who saw the appellant on one occasion on 21^st October 1999 for medico-legal purposes at the request of WorkCover. He was called by the complainant and told the learned Magistrate that, in his opinion, the appellant was not suffering from any psychiatric or psychological illness or disorder although he did notice some emotional disquiet. He had read transcript of the evidence of the doctors and others as to the false statements and seen the video recordings before giving evidence. He noted the differences and said that they could not be explained on the basis of a psychiatric condition.

Dr Ewer rejected sensitisation as an explanation of the discrepancies between the statements of the appellant to doctors and others and the use of his left arm and hand as shown in the video recordings. He also rejected the view that the appellant may have been suffering from a somatoform pain disorder. He explained that condition as a disorder where the symptom is pain and unconscious psychological factors are thought to be the cause of that pain. He told the learned Magistrate that if a person is suffering such a disorder, the presentation is relatively uniform. A significant or dramatic change from time to time, upon change of circumstances, is not expected. According to him, a person suffering this condition would present in much the same manner whether that person was being observed or not.
When the appellant saw Dr Ewer he was accompanied by his solicitor. The reason for that circumstance is irrelevant for present purposes but, according to Dr Ewer, there was a consequence because there were some matters regarding visits to doctors which the appellant was not willing to discuss. However, Dr Ewer said that this matter did not affect the question which he had been asked to address, whether there was any psychiatric explanation for the differences in the presentation of the appellant to doctors and others and what was observed of the appellant on the video recordings.
Dr Ewer also expressed the opinion that there would generally be consistency in the presentation if a person suffered a conversion disorder. He concluded that the appellant did not suffer any psychiatric or psychological disorder and accepted the opinion of other doctors that there was no organic basis for the pain from which he alleged he was suffering.
He also rejected the possibility that the appellant could have suffered from a combination of somatoform pain disorder or conversion disorder and elevated sensitisation as an explanation for the difference in the presentation of the appellant on the video recording and to the doctors and others. In his view, the only other possibility, having accepted that there was no organic basis for the alleged symptoms, was malingering. He disagreed with the opinions expressed by Dr Czechowicz which favoured the appellant.
It must be acknowledged that Dr Ewer may have been at a disadvantage in his examination of the appellant in view of the presence of the solicitor and that he saw him on only one occasion in contrast to Dr Czechowicz who saw the appellant on a number of occasions over a period of time. Nevertheless, the opinions of Dr Ewer were before the learned Magistrate and there is nothing about any of them which suggests that they are unacceptable. The learned Magistrate was entitled to prefer his evidence to that of Dr Czechowicz where there were differences.
I now turn to the reasons given by the learned Magistrate for finding the appellant guilty of the obtaining by dishonest means charges. The learned Magistrate found that the statements made by the appellant to the doctors and others about his disabilities were inconsistent with his activities as shown on the video recording. She further found that his clinical symptoms could not be the consequence of an organic condition. She then considered the evidence of Dr Ewer and Dr Czechowicz, and the contention of the appellant that he did suffer disability in his arm due to a psychiatric condition as had been suggested as a possibility by Dr Czechowicz. She reviewed the psychiatric evidence. She concluded that none of the possible conditions mentioned by Dr Czechowicz was an explanation for the differences between the statements of the appellant as to his disability and his activities as shown in the video recording. She found that he made false and misleading statements to the doctors and others which was done by conscious control.
It is plain from her reasons for judgment that, having found that the statements made by the appellant to the doctors were dishonest, which finding has not been challenged in this appeal, it was in consequence of those dishonest statements that Dr Morgan and Dr May issued medical certificates following their respective examinations.
The appellant submitted the certificates in support of a claim for benefits. Whilst the learned Magistrate did not specifically say so in her reasons for judgment, her finding that the appellant was guilty of the dishonest claims charges necessarily involved a finding that he used the certificates in the knowledge that they were the product of the dishonest statements which he had made to Dr Morgan and Dr May.
It was submitted on behalf of the appellant that the convictions on the dishonest means charges cannot stand because the learned Magistrate did not disclose her reasoning which enabled her to conclude that the finding that the appellant had made the statements to the doctors and others dishonestly led to a finding beyond reasonable doubt of guilt of obtaining by dishonest means. It was submitted that she did not deal with the question of dishonest intention and that the respondent had to have proved beyond reasonable doubt that the appellant had acted dishonestly in that he did not honestly believe he was entitled to the benefits he received. The submission was that the evidence permitted a finding that, notwithstanding that the appellant made the false and misleading statements to the doctors, he had an honest belief that he was incapacitated for work and was therefore entitled to the benefits.
The effect of the evidence of the appellant is that he did not make any false statements on claims because he had pain and could not use his hand without suffering pain. He said that he could not undertake the activities seen in the video recording without pain and that he did have restrictions in movement. The denial that he held his hand and arm in the manner which has been described when seeing doctors and others to give the impression that he suffered considerable pain and restriction was plainly false. His denial that he was capable of undertaking light duties was also false. He had deliberately given the impression to doctors that he was disabled to avoid doing any work. It was contended that the evidence of Dr Czechowicz provided support for the appellant’s evidence and that it was a reasonable possibility that the appellant had an honest belief that he was incapacitated for work and entitled to benefits. Furthermore, the video recordings did not exclude the possibility of such a belief.
It was further submitted that the learned Magistrate did not adopt the correct approach when deciding whether the conduct of the appellant when providing the certificates and making the claims was dishonest. In Peters v The Queen (1998) 192 CLR 493, Toohey and Gaudron JJ said at page 504:
“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if ‘dishonest’ is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.”
It was submitted that the learned Magistrate did not deal with the question of dishonest intent in accordance with Peters or at all, and further, that it was open on the evidence that at all relevant times the appellant was suffering a psychological injury causing him the incapacity which should not be excluded as a reasonable possibility. Consequently it could not be proved beyond reasonable doubt that he did not have an honest belief that he was incapacitated. Therefore the essential element of dishonestly was not found.
As has been mentioned, the dishonest means charges were particularised as the statements made in some of the dishonest statements charges. They were the dishonest statements made to doctors. The dates of offending were particularised as when benefits were received as following the making of those statements and the receipt and use of the medical certificates.
The learned Magistrate had concluded that the appellant acted dishonestly in making the statements and in using the medical certificates. In a practical sense those incidents were virtually contemporaneous, the making of the false statements, the use of the medical certificates, the making of the claims and the obtaining of the benefit, were continuous, in that the certificate concerned a period of time when benefits were received. Once the appellant made the dishonest statements and made the claims, what happened thereafter was very much a matter for administration. The certificates were issued and received by the claims agent for WorkCover who processed them and benefits were paid. The dishonesty found by the learned Magistrate continued through the whole process.
Whilst it is true that the learned Magistrate did not mention Peters or set out her process of reasoning in detail, it is clear that she rejected the evidence of the appellant that he suffered pain and was disabled. It is clear also that she rejected as a reasonable possibility all of the various possibilities suggested by Dr Czechowicz which would have afforded an innocent explanation for the conduct of the appellant. Although the learned Magistrate did not discuss this matter in her reasons, it is plain that she rejected the contentions of the defence that the appellant could have acted honestly with respect to the obtaining by dishonest means charges, or any of the charges, for that matter. In my view that was the only option open to her on the evidence and proof of relevant dishonesty beyond reasonable doubt was established.
The appellant also contended that the convictions with respect to counts 73 to 81 inclusive should be set aside for a different reason. Those counts relate to the obtaining of benefits based upon the medical certificate given by Dr May in consequence of the appellant consulting him on 27 May 1999. The evidence of Dr May as to what occurred on that occasion, including what the appellant said to him, was excluded by the learned Magistrate in the exercise of her discretion on grounds of fairness. The factual basis for that exclusion is of no significance for present purposes.
During the course of the trial the appellant objected to this evidence and sought a hearing on the voir dire. The learned Magistrate heard the evidence of Dr May and declined to grant a hearing on the voir dire. At the end of the prosecution case she declined a request by the prosecutor for a ruling on the application that the evidence be excluded. She said that she wanted to hear the evidence of the appellant in support of his application before making a decision as to whether the evidence should be excluded. She said:
“I do not agree that it is appropriate at this time for me to make rulings on the voir dire application as is usual in the Magistrates Courts for efficiency or pro-active case flow management.”
I suspect that the learned Magistrate has not been correctly reported and that what she said was to the effect that case flow management and efficiency dictate that separate voir dire hearings should not usually be undertaken. She said that she heard the evidence de bene esse which was done with the consent of the parties. In consequence the appellant gave evidence about what he said to Dr May on that occasion.
At the end of the case the learned Magistrate, in her reasons for judgment, announced that she had excluded the evidence of the conversation between the appellant and Dr May on that day. Consequently it is now submitted that there was no evidence of false and misleading statements on that occasion or dishonesty on the part of the appellant which could justify a finding of guilt on the obtaining by dishonest means charges which are based upon the medical certificate of that date. It was submitted that the appellant should not have been required to give evidence about that consultation.
I think the procedure adopted by the learned Magistrate was unsatisfactory even though the parties consented. The appellant was entitled to have his application for exclusion of the evidence decided at the earliest possible time. The learned Magistrate should have conducted a voir dire hearing and made her ruling during the prosecution case. If that had occurred the evidence given by Dr May and the appellant at such a hearing would not have been part of the evidence in the case. The parties would then have known where they stood in relation to the incident of 27 May 1999. If the evidence was to be admitted, the parties could then decide if the evidence given on the voir dire would be part of the evidence in the trial. Magistrates exercise jurisdiction in very serious criminal cases and this matter is no exception. The rules of criminal practice and procedure should be followed. In the present case the parties did not know if the evidence was to be excluded until after the conclusion of the trial. The prosecutor did not know if evidence in support of various charges was to be before the Court and the appellant did not know if he had to meet a case in relation to those charges.
It remains to be considered if there was any evidence to support the convictions on charges 73 to 81 inclusive, in the absence of evidence as to what occurred between the appellant and Dr May on 27 May 1999. In my view there was sufficient evidence without that evidence. The learned Magistrate found that from 27 May 1999 the appellant was not disabled as he claimed. It will be remembered that the period of observation of him as recorded on video was from 29 January 1999 until 23 April 1999 and that he had dishonestly made false statements about his condition over that time. Having rejected the evidence of the appellant and the various possibilities advanced by Dr Czechowicz , the learned Magistrate could safely draw the inference that when the appellant received the benefits in consequence of the certificate issued by Dr May on 27 May 1999, nothing had changed and the appellant had continued to make the claims for benefits dishonestly and thereby obtained payments and benefits by dishonest means.
I dismiss the appeal by the appellant against conviction.
It is appropriate to next consider the appeal of the respondent against the order of the learned Magistrate dismissing 17
of the dishonest statements charges. These charges were not based upon an oral or written statement by the appellant to a doctor or another person but by the manner in which he presented his arm and hand which has been described earlier. The issue raised by this appeal is whether the word “statement” in s 120(1)(c) can be something which is not said or written. The learned Magistrate concluded that mere presentation or conduct is not a statement dismissed the charges which were based upon presentation.
Section 120(1)(c) of the Act provides:
“(1)A person who-
..........
(c) dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading .....
.........
is guilty of an offence.”
What then is the meaning of “statement” in this context? The most relevant definition of “statement” for present purposes is to be found in the Shorter English Oxford Dictionary and it is “a written or oral communication setting forth facts, arguments, demands and the like”.
The definition in the Macquarie Dictionary is “a communication or declaration in speech or writing setting forth facts, particulars, etc”. It may be seen that the ordinary English meaning of the word “statement” involves speech or writing. I see no reason to construe the word in s 120(1)(c) in any other way.
No authority as to the meaning of the word “statement” was cited to me and I was informed that counsel had not been able to find any authority which extends beyond speech or writing. In Fuller v Duchaternier (1995) 62 Part I SAIR 425 the Full Court of the Industrial Court had to consider whether a person could dishonestly make a statement in relation to a claim under the Act (s 120(1)(c)) in circumstances where oral statements about disability were made and relevant information was withheld. The Court held that the withholding of such information could render the oral statement actually made to have been made dishonestly. However, the Court was not required to consider the meaning of “statement” in the section and whether something other than an oral or written statement could amount to a statement under the section. I do not consider that the decision assists in deciding the meaning of the word “statement”. In Quinn v Turner (1995) 180 LSJS 230 Olsson J had to consider the offence under s 120(1)(c). In that case the worker had told a doctor that she did not have any previous medical disorder other than two matters which were irrelevant. In part she had an existing back injury which was highly relevant. It was submitted on behalf of the respondent that this was an example of statement by omission. It was not. It was a false verbal statement that there was no pre-existing condition. It was held that the failure to disclose relevant information may render a statement false or misleading.
The respondent relied upon a passage in the judgment of Martin J in Sherriff v WorkCover (1999) 205 LSJS 440. The defendant had been convicted of offences under s 120(1)(a), (b) and (c). It was proved that the defendant had embarked upon a fraudulent course of conduct with the intention of dishonestly obtaining benefits from WorkCover. That course of conduct included failing to declare that he had been working, an omission relevant to the periods for which he obtained benefits. Martin J said, at p 442:
“In those circumstances, in my opinion it was inevitable that Her Honour would find that the failure to disclose the work as a landscaper was dishonest and amounted to a dishonest statement which, to the knowledge of the appellant, was false or misleading.”
The report of this case does not disclose the content of the statements made by the defendant but it appears that he made statements that he was incapacitated and unable to work. The finding that he had worked as a landscaper and had not revealed that work in his statements to the doctors permitted the finding that the statements were false, misleading and dishonest. Martin J was not required to consider the meaning of “statement” and his observation should not be construed as indicating that a statement may be made by omission, although clearly a statement made orally or in writing may be rendered false, misleading and dishonest by reason of matters which are omitted.
I was also referred to cases involving false pretences by conduct: R v Barnard (1837) 7 C&P 784 where the false pretence did not involve words or meaning and R v Kuff [1962] VR 578 where the false pretence was the use of a post dated cheque. Neither of these decisions assists in resolving the true meaning of the word “statement”.
In Police v McNaughton [1970] NZLR 889 at 891 it was held that the word “statement” in s 127 of the Social Security Act 1964 “is sufficiently wide to cover any form of representation, whether written or oral, just as the other limb of the section dealing with misleading the officer is wide enough to embrace conduct alone, or words and conduct combined”. Whilst the issue was not whether a statement may be made by conduct, the observation of the Court proceeded on the basis that a statement is either written or oral. This case does not assist in resolving the true meaning of “statement”.

In my view there is no reason to give the word “statement” in s 120(1)(c) a meaning other than its plain English meaning which is that it must be either written or oral. The learned Magistrate was correct in her decision. In so far as she admitted of the possibility of mere conduct being capable of being a statement without words or writing, if that is what she meant, I would disagree.
I dismiss the appeal of the respondent.
I now turn to the appeal of the appellant against sentence. It is contended that both the head sentence and the period to be served in prison are manifestly excessive.
It is submitted that an incident at work compromised the decision of the appellant to return to work and is relevant to the question of sentence. It was alleged that a senior officer at Gerard Industries, who was the Manager of the appellant, sexually assaulted the appellant’s wife. That allegation was reported to the police and denied. No prosecution ensued but, for present purposes, I accept that the appellant genuinely believes that the sexual assault occurred. He claims to have felt unable to return to the workplace after he became aware of the allegation.
The appellant does not have Australian Citizenship and is not entitled to Social Security benefits. He would not obtain financial benefits for himself and his family and at relevant times was in difficult financial circumstances. Imprisonment has several financial effects upon his wife and children.
He is aged 38 years and is married with two dependant children. He was born in Nigeria and suffered considerable difficulties in that country. He had a stable family life and was well educated. However, his family suffered at the hands of the military regime in that country and a brother was killed. The family lived in fear, lost the family home and was constantly hiding from oppressors. The appellant was a good sportsman and represented his country at World Youth Soccer in Sweden. He undertook Bible studies and became a preacher. He spoke out against atrocities in his country and due to violence and oppression left Nigeria in 1991. He went to Zimbabwe and eventually to New Zealand to undertake Theological studies with the assistance of international scholarships. His mother was later killed in riots and he has had little recent contact with the surviving members of his family. He says he is unable to return to Nigeria. He arrived in Australia in 1994. After further study he took up a position as a Pastor in a Church.
The appellant had a stable employment history in Nigeria, New Zealand and Australia until 1996 when he was imprisoned for 12 months with a non-parole period of five months upon having been convicted of false pretences. Being in financial difficulty he wrote and passed cheques with no expectation that they would be met. He claimed that he had a gambling problem at that time caused by his financial difficulties. The amount of money involved in these offences was in excess of $20,000. He had the benefit of early release from prison. Whilst in prison he suffered depression and was admitted to James Nash House.
In 1997 the appellant established his own Church and at one time it had a congregation of about 170 members. It dwindled to about 20-30 members before he was sentenced.
There has been substantial publicity of the present case which has caused hardship and distress.
The learned Magistrate had before her a pre-sentence report from a social worker and a report from Mr Balfour, a forensic psychologist. According to Mr Balfour, the appellant does not suffer from any mental illness or any disorder which would predispose him to offending behaviour. It may be inferred from Mr Balfour’s report that he regards the appellant as having significant prospects of rehabilitation, particularly if he does not suffer financial hardship. His financial problems may reduce if he is granted Australian Citizenship or other status which will give him access to social security.
It is clear from her remarks on sentencing that the learned Magistrate had regard to the reports, the contents of which she accepted. She took a serious view of the offences and concluded that a sentence of imprisonment to be served was required. She accepted that the scheme administered by WorkCover depends upon the honesty of injured and disabled workers in order to be as effective as possible. She acknowledged that fraud is difficult to detect although, for a reason which she did not mention, she said that was not a matter relevant to his offending. In my view, it was a matter of considerable importance because his dishonesty was proved with the assistance of the surveillance as shown on the video recordings and may not have been proved without that evidence. The significance of this matter is that it underscores the requirement of honesty.
The learned Magistrate had regard to the long period of time of offending, from early February to late July, and the substantial amount of benefits obtained by the appellant’s dishonesty. Clearly she regarded the offending as a serious breach of the criminal law and correctly so in my view. She had regard to his personal circumstances, including his prior offending and the perceived problem with the Manager at work. She also had regard to the serious consequence of his imprisonment upon the family and said so expressly.
In my view, the sentence was justified in all the circumstances. Indeed, the learned Magistrate tended towards leniency. Given the previous offending, I think she showed considerable mercy, an approach which was appropriate given the personal circumstances of the appellant, some of which excite sympathy. A schedule of sentences in other cases involving offences of this nature was placed before me and, so far as that type of information can assist, it confirms my view that leniency was extended to the appellant by the learned Magistrate.
The orders for reparation and costs were appropriate. The sentence was not manifestly excessive. The learned Magistrate had regard to all relevant matters, including the inability of the appellant to obtain social security in view of his immigration status, in so far as that matter was relevant.
In my view, there was no error in the exercise of the sentencing discretion and the appeal against sentence is also dismissed.

[2001] SASC 365

31 October 2001