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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] SASC 13
Decision Date: 21 January 2005

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence in relation to two counts of dishonesty in contravention of section 120 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. The appellant had previously made a claim for a knee injury. A private investigator engaged by the respondent conducted surveillance on the appellant and provided evidence that the incident in which the appellant chipped his tooth was witnessed by the investigator. The investigator claimed that the tooth was actually chipped when the appellant used his teeth to try to loosen a metal pin in some diving equipment. The appellant objected to the surveillance, claiming that it had invaded his privacy. The respondent had given an undertaking to the Workers Compensation Tribunal that it would not surveil the appellant. The appellant also asserted that his human rights had been interfered with and claimed to have been prejudiced during trial by medical conditions. The court found that no error had been demonstrated on the part of the Magistrate and dismissed the appeal.

The legal issues before the court were whether the evidence provided by the private investigator was admissible, whether the appellant's privacy had been invaded, and whether the appellant's human rights had been interfered with. The court also had to determine whether the appellant had been prejudiced during trial by medical conditions. The court found that the evidence provided by the private investigator was admissible as it was relevant to the charges of dishonesty. The court also found that the appellant's privacy had not been invaded as the respondent had not breached the undertaking given to the Workers Compensation Tribunal. The court further found that the appellant's human rights had not been interfered with and that he had not been prejudiced during trial by medical conditions.

The court's reasoning and outcome was that the appellant's appeal was dismissed. The court found that the evidence provided by the private investigator was admissible and that it supported the prosecution's case. The court also found that the appellant's privacy had not been invaded as the respondent had not breached the undertaking given to the Workers Compensation Tribunal. The court further found that the appellant's human rights had not been interfered with and that he had not been prejudiced during trial by medical conditions. The court held that the appellant's claims of error on the part of the Magistrate were without merit and dismissed the appeal.

The final orders of the court were that the appeal was dismissed and the conviction and sentence of the appellant were upheld. The appellant was found guilty of two counts of dishonesty in contravention of section 120 of the Workers Rehabilitation and Compensation Act 1986 (SA) and was sentenced to a fine of $1,000 for each count, to be paid within six months. The appellant was also ordered to pay costs of $1,500 to the respondent.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

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Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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