MOORE-MCQUILLAN v Work Cover Corporation - [2005] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOORE-MCQUILLAN v WORK COVER CORPORATION
Judgment of The Honourable Justice Anderson
21 January 2005
WORKERS' COMPENSATION - MISCELLANEOUS MATTERS - OFFENCES
Appellant appeals from his conviction and sentence in relation to two counts of dishonesty in contravention of s120 of the Workers Rehabilitation and Compensation Act 1986 (SA) - the claim which was the basis of the charges of dishonesty involved an accident in which the appellant claimed to have fallen due to his knee giving way, and consequently chipped his tooth - a knee injury was the subject of a previous work cover claim - a private investigator engaged by the respondent maintained surveillance of the appellant and gave evidence that he had witnessed the incident in which the appellant chipped his tooth - the private investigator claimed that the appellant's tooth was in fact chipped when he used his teeth to try to loosen a metal pin in some diving equipment - appellant objected that his privacy had been invaded - respondent had given an undertaking to the Workers Compensation Tribunal that it would not surveil the appellant - appellant asserted that his human rights had been interfered with - appellant claimed to have been prejudiced during trial by medical conditions - held: no error on the part of the Magistrate demonstrated - appeal dismissed.
Workers Rehabilitation and Compensation Act 1986 (SA) s120; Criminal Law (Undercover Operations) Act 1995 (SA); United Nations International Covenant on Civil and Political Rights 1966, referred to.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, applied.
R v Ridgeway (1998) 72 SASR 73, distinguished.

MOORE-MCQUILLAN v WORK COVER CORPORATION
[2005] SASC 13
Magistrates Appeal

ANDERSON J      The appellant was charged with offences contravening s120 of the Workers Rehabilitation and Compensation Act 1986 (SA) as amended (“the Act”). The prosecution arose from claims made by the appellant which were alleged to be false. There were three counts as follows:
The Charges
“1.     Count One
Statement of Offence
On or about 12 February 1999 at Adelaide dishonestly claimed a payment or other benefit under the Workers Rehabilitation and Compensation Act 1986, as amended, contrary to s120(1)(b) of the Act.
Particulars of Offence
On or about 12 February 1999 the defendant presented a Notice of Work Related Injury to WorkCover Corporations claim’s agent, Royal & Sun Alliance, in which he declared that he chipped a tooth on 21 January 1999 as a result of hitting the ground after his knee gave way, the contents of which he knew were incorrect.
2.     Count Two
Statement of Offence
In the alternative to count one hereof, on or about 12 February 1999 the defendant dishonestly made a statement about a claim under the Act knowing the statement to be false or misleading (section 120(1)(c) of the Act).
Particulars of Offence
On or about 12 February 1999 at Adelaide the defendant presented a Notice of Work Related Injury to WorkCover Corporation’s claims agent, Royal & Sun Alliance, in which he declared that he chipped a tooth on 21 January 1999 as a result of hitting the ground after his knee gave way, which declaration was false or misleading in that the defendant well new that he did not suffer the chipped tooth as a result of hitting the ground after his knee gave way.
3.     Count Three
Statement of Offence
On or about 12 February 1999 the defendant dishonestly made a statement about a claim under the Act knowing the statement to be false or misleading (section 120(1)(c) of the Act).
Particulars of Offence
On or about 12 February 1999 when discussing his claim for compensation the defendant told WorkCover’s claims agent, Royal & Sun Alliance, that WorkCover only needed to pay $110.00 of the dentist’s bill (as that $110.00 related to treatment for his chipped tooth) and the remaining $104.00 of his dentist’s account was for a non-work-related filling, which statement was false or misleading in that the defendant well new (sic) that he did not suffer a chipped tooth as a result of hitting the ground after his knee gave way.”
Section 120(1) states:
“120 – Dishonesty
(1)    A person who-
(a)     obtains by dishonest means a payment or other benefit under this Act; or
(b)    dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c)    dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading; or
(d)    dishonestly makes an application, or gives a return, under this Act knowing the application or return to be false or misleading,
is guilty of an offence.
Penalty: $50 000 or imprisonment for one year.”
Section 120(3) states:
“(3)   Where a court convicts a person of an offence against this section, or finds a person guilty of such an offence without recording a conviction, the court must, on application by the Corporation or an exempt employer, order the person who committed the offence-
(a)     to make good any loss to the applicant resulting from the commission of the offence; and
(b)    to reimburse costs incurred by the applicant in investigating and prosecuting the offence.”
In relation to count one, the learned Magistrate found proved beyond reasonable doubt that the defendant dishonestly had claimed the sum of $110 as a payment from WorkCover unrelated to any work-related injury. In relation to count three, the learned Magistrate found proved beyond reasonable doubt that the defendant dishonestly made a statement about a claim, and found that his statement was false and misleading. He found that the dental fee was not work-related and that he knew that his statement regarding the part of the dental account being attributable to a work-related injury was completely false. Count two was an alternative to count one.
Background Facts
In September of 1990, the appellant suffered an injury to his left knee. His occupation at the time was a diving instructor. He still claimed in early 1999 that he was totally incapacitated for work as a result of his knee injury.
He made a claim to Work Cover on 12 February 1999 alleging that he had chipped a tooth when he fell at home after his knee gave way. He alleged that this occurred on 21 January 1999 and claimed reimbursement for his dentist’s bill. The prosecution alleged that his claim was false because the injury was in fact caused when he used his teeth to try and loosen a metal pin in some diving equipment. If that were the case, then it was not work-related and was not compensable. There was evidence from a Mr Rorie who said he saw the appellant actually use his teeth to attempt to remove a pin from a piece of diving equipment.
The learned Magistrate described the competing versions of events at [9] as follows:
“On the day the defendant injured his tooth, the agent and witness Rorie is alleged to have been present washing diving gear. He claimed to observe the defendant endeavour to remove a metal pin from a metal diving apparatus tube. The pin had corroded into that location as a consequence of improper rinsing techniques performed by the defendant’s students. Rorie claimed the defendant performed the attempted removal with his teeth, and that was the cause of the defendant suddenly rising and disappearing into the house to phone the dentist. Alleged contemporaneous statements accompanied the defendant’s action. Ironically enough, it is alleged that the defendant claimed in the Notice of Work Related Injury form (P17) that Rorie was a witness to the chipping of his teeth. The defendant allegedly wrote that the injury was caused “walking”, and that his “knee gave way”. Consequently he claimed “hitting the ground” had “chipped” his “tooth”. The complainant claimed that the defendant’s alleged contemporaneous statements at the time were consistent with Rorie’s observations rather than the defendant’s statement regarding his injury.”
A key aspect of the prosecution case was that the incident regarding the injury to the tooth was witnessed by Rorie who was a private investigator. At the time, that is, on 21 January 1999 and in the weeks preceding, Rorie had been maintaining observations on the appellant’s activities after Rorie had enrolled in a course conducted by the appellant. The surveillance was organised because the respondent did not accept the appellant’s continuing incapacity for work.
The learned Magistrate summarised the role of Rorie at [15] as follows:
“The defendant carried on his business at his own home, viz., 8 Baagna Road, Morphett Vale. The witness Rorie became a student and then befriended the defendant. It is perhaps the betrayal of the friendship that has most enraged the defendant subsequently. Rorie gained his invitation by deception (“a cover story”) and payment for tuition as an underwater diving student. Accordingly, the defendant’s only legal basis for complaint is the fact that Rorie, being the person indirectly employed contractually by the complainant to enrol and take diving lessons, did so for a period during which the complainant had quite clearly given an undertaking to the Workers Compensation Tribunal that surveillance of the defendant would not take place.”
The appellant, representing himself, claimed that the evidence of Rorie should have been excluded because the evidence was obtained in breach of an undertaking which had previously been given to a Deputy President of the Workers Compensation Tribunal during a mediation process. That undertaking was that there would be no surveillance of the appellant whilst mediation proceedings were in place.
As a result, there was a voir dire hearing in which Mr Rorie gave evidence along with a representative of Work Cover and a solicitor for Work Cover to the effect that the mediation proceedings had come to an end because of the appellant’s lack of cooperation, and that once it was decided that there was no point in continuing the mediation, instructions were given for the surveillance of the appellant.
The learned Magistrate accepted the evidence of those witnesses and declined to exclude the evidence. That is the major complaint which the appellant makes in this appeal. Given the evidence accepted by the Magistrate it seems clear that any chance of mediating had passed. It is impossible to say that the Magistrate was in error in accepting that evidence, and indeed I think that it was the correct interpretation of the evidence.
The prosecution called numerous witnesses to establish the making of the claim by the appellant including the dentist who repaired the tooth, and a further witness who was called by the prosecution to rebut an alibi put up by the appellant, namely, that at the relevant time, he was attending for physiotherapy treatment.
The matter proceeded before the learned Magistrate with many hearing dates between March 2003 and February 2004. It was a long and complicated prosecution.
The learned Magistrate had some difficulty with Rorie’s evidence, and from his comments it is clear that were it not for other evidence, the case put by the complainant would have not been sufficient to convict the appellant. However, the other evidence combined with those parts of Rorie’s evidence which the Magistrate accepted were sufficient. These included the document lodged in respect of the claim, facts relating to the chipping of the tooth, the attendance at the dental surgery and the nature of the repairs, the telephone call to an officer of Work Cover, the evidence of the physiotherapist denying the appellant’s version of events, and the lack of any entry in a mileage log book relating to the visit to the physiotherapist.
It is clear that the learned Magistrate very carefully considered all of this evidence and correctly directed himself in relation to the presumption of innocence. He specifically said that despite his misgivings about the defendant’s truthfulness and demeanour, he had nevertheless to be satisfied that the complaint was proved beyond reasonable doubt.
Invasion of Privacy
Added to the factual issues required to be decided, the appellant made an overall objection that his privacy had been invaded. The learned Magistrate dealt with this in some detail. In particular, he said at [19]:
“The actions and words claimed to be seen and heard by Rorie could not be considered a breach of confidence or of privacy. In fact Rorie’s name was given to the complainant as a witness to the alleged incident … Moreover, upon the allegations made, Rorie did absolutely nothing to induce the act allegedly observed, the claim to entitlement, or any statement in relation to the entitlement said to be lodged by the defendant.”
The learned Magistrate acknowledged that the law as to invasion of privacy was in a state of development, but in my view, quite correctly summarised the present law by reference to the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 225.
Gleeson CJ said, in relation to the facts of that case:
“If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
By current standards, the manner in which the information in the present case was obtained was hardly sophisticated, and, if there were a relevant kind of privacy invaded, the invasion was not subtle. The law should be more astute than in the past to identify and protect the interests of a kind which fall into the category of privacy.”
The learned Magistrate, following his consideration of the cases, went on to say at [20]:
“Lest the defendant think the statements of law are conclusive to the facts alleged in the present matter, it is pertinent to note that the confidential information sought to be protected in the Lenah Meats case did not achieve that status sought for protection because no legal or equitable rights had been asserted by the applicant in that case which might have been enforced by final judgment. In the present matter, the complainant asserts that the observer Rorie merely made alleged observations. These observations were inconsistent with the claim to entitlement for dental reimbursement expenses. The observations further conflicted with the alleged dishonest statements made about the event said to have incurred the expenses and incidentally, their extent. The investigation was one authorised by a statutorily created authority to detect criminal abuses of claims for entitlements.”
In my view, given the fact that it was an essential part of the appellant’s claim for reimbursement to have nominated Rorie as a witness, he could hardly have been heard to say that Rorie was involved in inducing the act that he subsequently complained of.
The appellant represented himself in the appeal before me and produced a detailed written expansion of his appeal points after he concluded his oral submission. His first major ground was that the Magistrate was in error in not taking into account the decision in R v Ridgeway (1998) 72 SASR 73. This case involved the unlawful acts of law enforcement officers which preceded, were an integral part of and procured the commission of the offence and the question of whether a stay of prosecution should be granted in those circumstances. In my view, the case has no application here. This case does not involve acts of law enforcement officers, nor are the cases similar on their facts.
The appellant also argued that the Criminal Law (Undercover Operations) Act 1995 (SA) had not been considered by the Magistrate. This Act, in some circumstances, grants immunity from criminal liability in relation to certain undercover operations as defined in the Act.
Again, in my view, this Act has no operation because the activities of the investigator here were not undercover operations within the meaning of the definition.
The appellant also asserted that his human rights have been interfered with. Australia ratified the United Nations International Covenant on Civil and Political Rights 1966 on 13 August 1980. The argument, as I understand it, was that the surveillance operations conducted by Rorie were in breach of his rights under the United Nations covenant. I can see no basis upon which this is relevant in this case.
Another major ground of appeal was that the appellant had been prejudiced during the trial by virtue of medical conditions he suffered from, namely, post-traumatic stress and fugue, and that this was not properly taken into account by the Magistrate.
Medical evidence was called, and the doctor who gave evidence was able to tell the Magistrate that the appellant was fit to attend court and give evidence. The appellant maintains that his own doctor should have been called and not a relieving locum. The fact is that a legally qualified medical practitioner gave the evidence and I can see no unfairness against the appellant.
Mr Boylan QC, for the respondent, referred to many instances during the hearing where the Magistrate went out of his way to ensure that the appellant received a fair trial. This same type of complaint is made in relation to another ground of appeal which is, as I understand it, that the legal argument was beyond the appellant’s understanding. I was directed to various parts of the transcript where it is apparent to me that the Magistrate was at pains to assist, and explain to the extent that he could, the various legal complexities as they arose. In particular, the Magistrate warned himself against assuming that the appellant did have sufficient experience to handle the legal issues because of his numerous appearances before different courts in this State.
The appellant claims that he was not given the benefit of doubt, and that the prosecution did not prove its case beyond reasonable doubt. It seems to me that the appellant having put the prosecution to proof on every issue, the prosecution was able to produce cogent evidence to establish all of the matters necessary for them to secure a conviction. There is nothing in front of me in the Magistrate’s analysis of the facts contested by the appellant which indicate any error by the Magistrate.
The learned Magistrate carefully analysed the evidence from Mr Duncan, the case manager handling claims made by the appellant, Ms Foster of the Telstra Corporation, and from Dr Van Der Linden, the dentist who repaired the appellant’s tooth.
In short, Mr Duncan gave evidence that the person who lodged the claim was the appellant. He spoke to the appellant on the telephone and recognised the appellant from previous conversations. Following the telephone conversation, he received a faxed copy of the appellant’s claim. That was followed by a further conversation in which the appellant confirmed that Mr Duncan had received the fax. As indicated, the appellant was well known to Mr Duncan. Apart from recognising his voice on the telephone, he also recognised the appellant’s handwriting on the fax.
Ms Foster gave evidence by way of production of telephone records confirming Mr Duncan’s evidence of both faxes and telephone calls from the appellant’s telephone line.
Dr Van Der Linden gave evidence in relation to his repair of the tooth, and as to details of the account.

A Ms Clarkson was called to rebut the alibi put forward by the appellant, namely, that he was at a physiotherapy attendance. Ms Clarkson indicated that there were no records at the physiotherapy practice showing that the appellant attended there on the day in question. The prosecution also produced mileage records prepared by the appellant. He had a habit of claiming for all motor vehicle expenses associated with his work-related injury. There was no record for any claim for mileage in respect of the alleged visit to the physiotherapist on the day in question.
In my view, the learned Magistrate has covered all of this evidence comprehensively, and I can see no error in the way he has dealt with it.
The appellant also appeals against the sentence which was handed down, and claims that the Magistrate’s broad axe assessment of costs was incorrect. The fact is that on this aspect, that is, costs, the Magistrate had an unfettered discretion. The matter was one of considerable difficulty, made more difficult by the appellant requiring everything to be proved, which of course he was entitled to do. Nevertheless, that means that the costs of necessity were larger. In my opinion the appellant has been unable to demonstrate any error by the learned Magistrate in his broad discretionary exercise of assessing costs.
The Magistrate reasoned that a fine was inappropriate because the appellant was not able to pay any fine imposed. He further reasoned that imprisonment was too harsh a sentence, and considered that the recording of convictions was, in itself, sufficient penalty together with the costs in relation to the proceedings. In addition, the Magistrate ordered the defendant to perform 56 community service hours within a period of nine months.
The Magistrate made these comments in relation to the hearing in his ex tempore sentencing remarks:
“The professional fees are typical of a protracted hearing in which the issues involved were not particularly complex. However, the belligerent unrepresented defendant’s conduct of the defence was. Whatever amount is awarded, true indemnity of the complainant corporation could never be achieved. It is especially so having regard to the task required to prove the fraudulent activity in relation to such a small amount of money, which was the subject of the fraudulent activity. I believe the matter was fit for Senior Counsel.”
The appellant argued that costs had been imposed upon him in the nature of a penalty which was contrary to accepted principle. He referred to a notice which he said he had received as a result of the non-payment of the costs. He said this notice indicated that they truly were a penalty and therefore should not be enforced. The notice never became part of the exhibits before me, but assuming that what I was told by the appellant is correct, the simple answer would appear to be that it is merely an administrative way for the Courts Department to attempt to recover the costs. I agree with Mr Boylan’s analysis along these lines.
In all the circumstances therefore I dismiss the appeal.