Moore-McQuillan v WorkCover Corporation - [2005] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Leave to Appeal in Private)
MOORE-MCQUILLAN v WORKCOVER CORPORATION
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
11 April 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES
WORKERS' COMPENSATION - MISCELLANEOUS MATTERS - OFFENCES
Workers Rehabilitation and Compensation Act 1986 (SA) s 120(1); Criminal Law (Undercover Operations) Act 1995 (SA), referred to.

MOORE-MCQUILLAN v WORKCOVER CORPORATION
[2005] SASC 134
Full Court: Gray, Sulan and Layton JJ
GRAY J

This is an application for leave to appeal.
On 6 February 2004, the applicant was convicted of offences of dishonestly claiming a payment contrary to section 120(1)(b) of the Workers Rehabilitation and Compensation Act 1986 (SA) and of dishonestly making a statement about a claim contrary to section 120(1)(c) of the Act.
The magistrate presiding at the trial provided detailed reasons for his conclusions. A review of those reasons discloses that the magistrate paid close attention to each of the elements of the offences, reviewed the evidence, reached findings of fact beyond reasonable doubt and concluded ultimately that each of the elements of the offences had been established beyond reasonable doubt.
In relation to the complaint of dishonestly claiming a payment, the magistrate concluded:
I find beyond reasonable doubt that the defendant on the 12^th day of February 1999, at Adelaide, dishonestly claimed $110.00 as a payment from WorkCover corporation’s claim’s agent, Royal and Sun Alliance unrelated to any work related injury compensable under the Workers Rehabilitation Act 1986 as amended. The defendant well knew he had not chipped a tooth as a result of hitting the ground after his knee gave way while sending P17 and P18.
In relation to the complaint of dishonestly making a statement about a claim, the magistrate concluded:
I find proven beyond reasonable doubt, that on the 12^th day of February 1999, the defendant dishonestly made a statement about a claim for under the provisions of the same Act, knowing that his statement to Duncan was both false and misleading. In fact the defendant knew R&SA as WorkCover’s claims agent was not liable to pay $110 of the $214 dental account he represented as work related dental repair. He knew that the $104 dental fee was likewise not work related either. In fact, he knew that his statement regarding any part of the dental account was attributable to work related injury, and consequently compensable, was completely false.
The applicant appealed to a Judge of this Court, who dismissed the appeal and refused a subsequent application for leave to appeal. It is from the dismissal of the appeal that the present application for leave is made.
The Judge in dismissing the appeal rejected the complaints concerning the magistrate’s findings of fact and conclusion that each of the elements of the offences had been established. The Judge concluded:
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.
This conclusion was open to the learned Judge.
The appeal from the magistrate challenged the admissibility of evidence at trial. A private investigator at trial gave evidence of observations that he had made. However, the applicant claimed that the private investigator made these observations in circumstances that involved a serious breach of privacy. The applicant also claimed that the evidence had been obtained in circumstances of illegality. When rejecting this complaint, the Judge reasoned:
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 applicant made a further matter of complaint that the magistrate had failed to consider the provisions of the Criminal Law (Undercover Operations) Act 1995 (SA), and that the provisions of this Act had been breached. This, the applicant contended, should have led to the exclusion of the evidence of the private investigator. The Judge in this respect reasoned:
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 applicant further contended that there had been an interference with his human rights. He suggested that evidence of the investigation should have been excluded because of a breach of provisions of the United Nations International Covenant on Civil and Political Rights. In this respect, the Judge concluded:
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.
The Judge’s conclusions with respect to the contentions concerning the exclusion of evidence appear well based. There is no reason to doubt their correctness.
Before the Judge, the applicant also complained about a denial of procedural fairness. He claimed to be suffering from a medical condition, which included a post-traumatic stress disorder. It was said that this condition was not taken into account by the magistrate. The Judge dealt with this issue in the following terms:
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.
No basis has been identified to challenge the correctness of the Judge’s observations or conclusions.
The applicant, in support of his application for leave to appeal to this Court, alleges that the Judge on appeal displayed prejudice and bias. The basis of this complaint appears to have been that the applicant was given insufficient time to present oral argument and was unable to cover all the points that he wished to raise.
There is no basis for this complaint. Time for oral argument was restricted but the opportunity for full written argument was provided. There was no evidence of any bias on the part of the Judge toward Mr Moore-McQuillan or any prejudice towards him. There is no evidence to support an allegation of an appearance of bias.
The applicant also seeks leave to appeal in respect of an order made for costs. The Judge dealt with that complaint in the following terms:
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.
The Court has a broad discretion on the question of costs. Nothing has been advanced to suggest that the magistrate’s discretion miscarried. No arguable error of law has been identified. It is not suggested that material matters were overlooked or irrelevant matters considered.
This Court’s practice is to grant leave to appeal only if a question of general principle arises. The Court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, in the end the Court must act as interests of justice require.
In this application, no question of general principle arises. There is no reason to doubt the correctness of the decision of the learned Judge. The interests of justice do not require a grant of leave.
This application for leave to appeal should be dismissed.
SULAN J: I agree that leave should be refused, for the reasons given by Gray J.
LAYTON J: I agree with the reasoning of Gray J and have nothing further to add.