Moore-McQuillan v Workcover Corporation No. Scgrg-98-507 Judgment No. S6671

[1998] SASC 6671

MOORE-McQUILLAN V POLICE

Magistrates Appeal

LANDER J

The appellant was charged between March 1993 and March 1995 of twenty counts of obtaining a payment or benefit by dishonest means contrary to s120(1)(a) of the Workers Rehabilitation and Compensation Act.  He was also charged that on 14 December 1994 he hindered or obstructed an authorised officer of Workcover in the exercise of his powers contrary to s110(9)(a) of the Act.  Initially he pleaded not guilty to eleven counts including the last mentioned count.  The other ten counts were withdrawn.

The next morning the matter was not called on but instead discussions took place between counsel.  Later that day counsel for the appellant sought an adjournment of the trial to enable an independent accountant to be retained.  That application was refused. 

The matter was adjourned until the next day.  That morning there was further discussion between counsel for the appellant and the learned Magistrate, some of which took place in the absence of the appellant.  There was then a discussion between the learned Magistrate and the appellant “regarding settling the matter.”  In the afternoon the appellant pleaded guilty and was convicted of six counts of obtaining a payment or benefit by dishonest means.  The remaining counts were withdrawn.

Pursuant to s18(a) of the Criminal Law (Sentencing) Act one penalty was imposed and he was released on a bond in the amount of $1,000 for a period of eighteen months, the terms of which stipulated that he be of good behaviour; appear for sentencing in the event of breach of the bond; not contact Workcover; not contact any officer of Workcover; and not contact the prosecutor in the proceedings in the Magistrates Court.

He was also ordered to pay Workcover compensation of $3,091 and he was further ordered to pay $8,000 investigation fees and $2,226 legal fees.

The terms of the order were that $7,500 of the total sum of $13,317 had to be paid within twenty-one days.  The balance was to be paid at the rate of $200 per week.

On 27 March 1996 he appealed from that order to this Court.  The grounds of appeal set out in the amended notice of appeal were:

“a)Inappropriate advice to plead guilty, the appellant now wishes to plead not guilty to the offences.

b)Abuse of the process by the prosecution.

c)Appellant was prejudiced through lack of time for preparation and inability to obtain clear concise legal advice, while held in custody immediately before the trial.

d)The pleas of guilty made by the appellant before Mr Deegan SM on the 13th March 1996 were entered as a result of a misapprehension, or mistake as to the basis of the plea.

e)The pleas of guilty were entered as a result of a miscarriage of justice.”

The appeal was heard by Perry J.  Affidavits were filed by the appellant, the appellant’s former solicitor and by the prosecutor and a report was obtained from the learned Special Magistrate in relation to the proceedings before him.  The affidavits disclosed that the appellant gave written instructions to his counsel in which he acknowledged that he was willing to plead to the six counts.  He also acknowledged a willingness to pay reasonable prosecution costs “of total liability between $7,500 and $10,000 dollars.”  His written instructions include the following:

“I have considered the above and have made these terms of my own free will and voluntarily agreed to settle the matter.”

The thrust of the argument before Perry J was that the appellant was misled into believing that a guilty plea to the six counts would lead to the resolution of other matters relating to restraining orders and the discharge of those orders.  Those other orders had been made by another Magistrate.  Perry J said in relation to the factual assertions:

“The appellant, in a further affidavit put before me after I had received the learned Special Magistrate’s report, states that the learned Special Magistrate told him that “he could govern and control the matters before Mr Harris SM” and further that he was left to understand that all matters would be resolved, including those before Mr Harris SM.  However, that assertion does not stand analysis against the learned Special Magistrate’s report and the affidavit of Mr Fletcher, quite apart from the affidavits of Mr Amey.”

Perry J was of the opinion that the Court had jurisdiction to entertain the appeal against convictions notwithstanding the convictions had been entered upon the appellant’s own plea of guilty.  He proceeded upon the basis that jurisdiction existed in an appeal court to intervene and to allow an appeal notwithstanding a plea of guilty where the failure to do so would result in a miscarriage of justice.  Having stated the principle he then addressed the facts of the appeal and he concluded:

“In this case, it appears to me that the overwhelming weight of evidence points to the conclusion that before he entered the plea of guilty, the appellant was fully advised of his rights by both his solicitor and counsel; that he well knew that the outstanding charges could not be dealt with on that occasion; and furthermore, that there was no agreement that they were to be withdrawn.

The appellant has failed to demonstrate that his entry of a plea of guilty has resulted in a miscarriage of justice.”

The outstanding charges to which his Honour referred were related to the restraining orders that had been made by the other Magistrate on a previous occasion.

The appellant thus on a review of the proceedings before the Magistrates Court obtained the opinion of this Court that no miscarriage of justice had occurred in the entry of the convictions on the appellant’s own plea of guilty on 13 March 1996.

On 16 October 1996, Mr Grasso SM allowed a further six months to pay the sum of $7,500 ordered to be paid by Mr Deegan SM, and reduced the weekly payments from $200 per week to $160 per week.  On 14 November 1996 Mr Grasso SM refused a further variation except to allow the first weekly payment to commence on 6 December 1997.  On 25 March 1997 Mr Gurry SM reduced the weekly payments from $160 per week to $125 per week.

On 4 April 1997 the appellant sought leave from Perry J to appeal from his dismissal of the appeal on 2 August 1996, but on 23 May 1997 Perry J refused leave to appeal.

On 29 May 1997 Mr Grasso SM refused to reduce the weekly payments from the sum of $125 per week ordered to be paid by Mr Gurry SM but allowed until 29 June 1997 the payment of the sum of $7,500 by way of a lump sum.

On 20 July 1997 the Full Court refused leave to appeal from the decision of Perry J given on 2 August 1996.  The application for leave to appeal to the Full Court raised a number of matters.  Importantly the appellant claimed that Workcover had misused the restraint orders; that documents had been withheld from him; that false documents had been provided to him; that Workcover had not complied with the Freedom Of Information Act; that there had been a deliberate underpayment by Workcover and that Workcover had knowingly used incorrect calculations to obtain a conviction.  Moreover he claimed that evidence had been withheld from Perry J in the hearing of the appeal.  Specifically he claimed in an affidavit sworn on 4 April 1997.

“3/The appeal before J Perry 25/06/96, 02/08/96 and 17/09/96 did not have enough evidence to make a decision because legal representation did not follow my instructions and withheld evidence.

4/That Workcover have refused to supply documents under F.O.I. that prove my innocents (sic).

5/That evidence was withheld from Mr J Perry that did prejudice the appelant (sic).

6/The legal representation that represented the appellant did prejudice the appellant by withholding documentation from Mr T Kerrin and the appellant.

7/The appellant has evidence not heard before Mr J Perry that I believe would alter his decision.

8/Documents have now come about to prove a not guilty plead required.

9/The respondent did prejudice the appellant by manipulating the Magistrates Court.”

On 8 August 1997 the applicant made yet a further application for an extension of time in which to pay the sum of $7,500 but on the hearing of that application on 25 August 1997, the applicant failed to appear.  A medical certificate was presented claiming that he was unavailable by reason of a medical condition.

On 18 September 1997 the applicant applied for special leave to appeal to the High Court.

On 28 October 1997 the applicant sought yet another adjournment of the application before Mr Grasso SM for an extension of time to pay the $7,500.  The matter was adjourned to 2 December 1997 and then further adjourned until 14 January 1998, and then in turn further adjourned to 2 March 1998. 

On 1 December 1997 Deputy President Thomson heard a claim by the appellant that his entitlement to payments of weekly maintenance under the Workers Rehabilitation and Compensation Act had been underpaid by an amount of up to $10,000 for the period 1 January 1993 to 31 October 1995.  In ex tempore reasons he dismissed that application.  It is right to say that the Deputy President’s reasons were highly critical of Workcover in its accounting and record keeping processes over the period in contention.  In the end result the Deputy President concluded that on the balance of probabilities the Corporation was not indebted to the worker for income maintenance for the period under consideration nor was he persuaded that the worker had been overpaid by the Corporation.

On 19 January 1998 Deputy President Thomson published his reasons for decision which had been delivered ex tempore on 1 December 1997.

On 2 February 1998 the appellant wrote to Mr Speer, the Registrar of the Magistrates Court seeking, pursuant to s76A(3)(b) and (c) of the Summary Procedure Act, that the conviction and penalty imposed by Mr Deegan on 13 March 1996 be set aside. 

On 3 February 1998 Mr Speer responded to that letter advising that the matter had been completed in the Magistrates Court on 14 March 1996 (sic) and an appeal brought from those proceedings to the Supreme Court had been delivered on 2 August 1996, and that in those circumstances the Magistrates Court was without jurisdiction to further consider the matter.

On 18 March 1998 the appellant filed an application under s76A of the Summary Procedure Act 1921 seeking an order that the convictions entered on 13 March 1996 be set aside.

That matter came on for hearing before Ms Hayes SM on 31 March 1998.  In the application to the learned Magistrate and indeed on this appeal the same matters as were agitated before Perry J and sought to be agitated before the Full Court were raised.  An additional matter, being the decision of Deputy President Thomson was relied on.  It was put that his decision was further evidence that Workcover could never have proved beyond reasonable doubt any of the counts to which the appellant pleaded.  In truth the appellant wished to argue before the learned Magistrate the matters which had been raised before Perry J.  These matters had not persuaded Perry J that there had been any miscarriage of justice.    The learned Magistrate dismissed the application without giving reasons but apparently because the Magistrates Court did not have jurisdiction to hear the matter.

This is an appeal from Ms Hayes SM’s dismissal of the application made by the appellant pursuant to s76A of the Summary Procedure Act.

Section 76A provides:

“(1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.

(2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.

(3)The Court may set aside a conviction or order under this section if satisfied -

(a)that the parties consent to have it set aside;

(b)that the conviction or order was made in error; or

(c)that it is in the interests of justice to set aside the conviction or order.

(4)Where the Court sets aside a conviction or order under this section it may, without further formality -

(a)proceed to re-hear the proceedings in which the conviction or order was made; or

(b)adjourn the proceedings for subsequent re-hearing.”

Section 76A (1) provides that the Court can on its own initiative set aside a conviction or order.  Moreover the Court can on the application of any party set aside a conviction or order.

Section 76A (2) provides a time within which an application must be made.  Section 76A (1) discriminates between the Court acting on its own initiative or the Court acting on the motion of the party.  It may be, although it is not necessary for me to decide, that the Court could on its own initiative set aside a conviction or order at any time where the Court is satisfied that that is appropriate for any of the reasons under s76A (3).  However, where the Court is acting on the motion of a party the application must be made within fourteen days.

There are good reasons why an application ought to be made within that time. Pursuant to s42 of the Magistrates Court Act an appeal lies from any judgment given in a criminal action.  A judgment includes any judgment, order or decision and includes an interlocutory judgment or order.  The appeal must be brought within fourteen days from the judgment the subject of the appeal (see r96C.02).

It would be inappropriate to have a party bringing an appeal from a conviction or order of the kind to which s42 applies and at the same time making an application to set aside that conviction or order for any of the reasons under s76A (3). There would be a confusion of jurisdictions between the Magistrates Court and the Supreme Court.

The Summary Procedure Act does not provide a mechanism to extend time for the doing of any act.          In my opinion a conviction or order in s76A relates to a criminal action or a criminal proceeding and therefore ss47 and 48 of the Limitations Of Actions Act do not apply: Meverley v Commane (1987) 47 SASR 162. However there may be an in built mechanism within s76A if the court acts on its own initiative. Where the court believes that any of the matters under s76A have been made out but the application is not made within fourteen days it could of its own initiative make an order under s76A (1).

The application in this matter was made nearly two years after the convictions and order were entered.  In those circumstances the application is clearly out of time.

Section 76A was introduced in its current form in 1992.  It repealed a section which had been first introduced in 1982.  The repealed s72A was in the following form:

“76a.(1)    Subject to this section, a person against whom a conviction or order is made by a court of summary jurisdiction may apply to the same or some other court of summary jurisdiction for an order setting aside the conviction or order.

(2)An application under this section must be made within fourteen days of the day on which the applicant receives notice of the conviction or order to which the application relates.

(3)Where a court of summary jurisdiction is satisfied, upon an application under this section, that—

(a)the applicant did not receive notice of the proceedings in which the conviction or order was made, or not in sufficient time to enable him to attend the hearing;

or

(b)the applicant failed to attend the hearing for reasons that render it desirable, in the interests of justice, that the conviction or order should be set aside and the proceedings re-heard,

the court may set aside the conviction or order to which the application relates.

(4)Where a court of summary jurisdiction sets aside a conviction or order under this section it may, without further formality—

(a)proceed to re-hear the proceedings in which the conviction or order was made;

or

(b)refer the proceedings for re-hearing by some other court of summary jurisdiction.”

The repealed s76A only allowed a conviction or order to be set aside in the two circumstances referred to in s76A(3).

Clearly enough the new s76A has a much wider application.  It allows the Court to set aside a conviction or order on the application of any party, not only on the application of the person who has been convicted.  Moreover, the Court can act on its own motion.  The circumstances in which the order may be made are wider.  The Court can set aside the order if the parties consent or the Court is satisfied that a conviction or order was made in error or that it is in the interests of justice to set the conviction or order aside.  It is not limited to the two factual situations in the repealed s76A.  That section only served to operate in circumstances where for either of the reasons in the repealed s76A(3) the person against whom the conviction was entered or order made did not attend the Court.

Now it is envisaged that, even if the person the subject of the conviction or order did attend, the section may operate to set aside the conviction or order.

Notwithstanding the breadth of the section it does not operate, in my opinion, to allow a party after exhausting the appeal procedures to then make application to a magistrate for what is in truth a re-hearing of an appeal.  It cannot operate that way because there would be no finality.  This very matter shows that the section is not designed in that way.  In the present case the appellant is re-agitating on this appeal the same matters which were raised before Perry J and sought to be raised before the Full Court.

In my opinion it would not have been appropriate for the learned Magistrate to assume jurisdiction and entertain this application.

It cannot be said, in my opinion, that the learned Magistrate ought to have acted on her own initiative to make any of the orders under s76A (3). 

This Court has already determined that the appellant was not subject to a miscarriage of justice in that he had been made fully aware of his rights at the time that he entered his guilty pleas.  In those circumstances the decision of Perry J answered any application under s76A (3) (b) and (c) even if made within time.  Further an application for leave to appeal from the decision of Perry J was refused by the Full Court of this Court many months ago.

Moreover if the appellant claims to be entitled to any relief in relation to any error on the part of Perry J or the Full Court then application for special leave to the High Court is still alive.

I do not agree that any error has been demonstrated on the part of the learned Magistrate and in my opinion this appeal should be dismissed.