Moss, Thomas Ervin v Brown, Bruce Raymond

[1984] FCA 155

Re: THOMAS ERVIN MOSS
And: BRUCE RAYMOND BROWN
And: PETER LAMB
No. G250 of 1982
Administrative Decisions (Judicial Review) Act 1977

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.

CATCHWORDS

Administrative Decisions (Judicial Review) Act 1977 - Review of decision by committing Magistrate that prima facie case of conspiracy to defraud made out - Inferences to be drawn from alleged sham consultations between medical practitioner and patient - Whether prima facie case made out.

Administrative Decisions (Judicial Review) Act 1977

Crimes Act 1914 - s.86(1)(e).

HEARING

SYDNEY

#DATE 23:5:1984

ORDER

1. The application be dismissed.

2. The applicant pay the costs of the second respondent.

3. No order as to costs of the first respondent.

JUDGE1

On 31 March 1978 the applicant was charged on the information of the second respondent pursuant to s.86(1)(e) of the Crimes Act 1914 as follows:-

"That Thomas Ervin Moss between the 1st July, 1972 to 31st March, 1978 at Sydney in the State of New South Wales did conspire with Alexander John TAHMINDJIS, Demetrious HADJIPANAYIOTIS, John CASTANOS, Nicholas CASSIMATIS, Anthony Henry DINNEN and divers persons unknown to defraud the Commonwealth."

1. Committal proceedings commenced and after a lengthy hearing counsel for the prosecution announced it was no longer pursuing the above charge but submitted that the evidence already adduced supported a prima facie case of a narrower conspiracy pursuant to the same section of that Act and after submissions from counsel for various defendants including the applicant, the applicant, Nicholas Cassimatis, and John Castanos were charged as follows:-
   
   

"That at Sydney between 18 December 1977 and 30 March 1978 you did conspire with Demetrious Hadjipanayiotis then with each other to defraud the Commonwealth."

1. Application under the provisions of the Administrative Decisions (Judicial Review) Act 1977 was made to this Court to review the decision of the first respondent that a prima facie case of conspiracy had been made out and secondly, a review of the first respondent's conduct in refusing an application to recall certain witnesses. An objection to the competence of this Court to review the decisions and conduct was dismissed and an appeal against that dismissal was in turn dismissed (Lamb v. Moss & Anor. 49 ALR 533). The Full Court remitted the application to a single judge for hearing.

2. In the reasons for judgment of the Full Court it was held that on such an application as this under the Administrative Decisions (Judicial Review) Act, the Court had a discretion to refuse relief without proceeding to a full investigation of the merits. At p.564 the Court said:-
   
   

"The power to make an order of review under the Act in respect of committal proceedings should be exercised only in the most exceptional cases especially in respect of a decision in the course of proceedings. Additional considerations might intrude at the final stage; for example, in respect of committal for trial and commitment to prison pending trial."

1. Counsel who appeared before me also appeared before the Full Court and assured me that the question of discretion was not argued before the Full Court and counsel for the applicant submitted that the Full Court's judgment so far as it related to discretion, was obiter dicta and not binding upon me. Rather than embark upon an evaluation of this submission and in order to avoid the possible consequence of a further appeal, I decided that it was in the best interests of justice and the parties to proceed to examine the merits of the application, leaving aside the question whether a discretion existed or not.

2. The applicant points to errors of law in the magistrate's reasons, firstly suggesting that two pieces of evidence taken into account were not evidence against the applicant and secondly, that the evidence as a whole did not make out a prima facie case. As to the two pieces of evidence which the learned magistrate took into account in holding that there was a prima facie case, I think it pointless to examine them in any detail because if I came to the conclusion that he was in error I would still have to examine the rest of the evidence available to him in order to determine whether the prima facie case had been made out. I propose to deal first with the application to review the conduct of the learned magistrate in refusing to order the recall of certain witnesses for further cross-examination. Counsel for the applicant submitted that further cross-examination was necessary and justified because of the change in the content of the charge. However, he conceded that all the evidence which would have been admissible against the applicant in the original charge would also be admissible in the latter charge. Dr. Moss was separately represented at the committal proceedings and in the circumstance that there was no change in the content of admissible evidence I feel that the learned magistrate was perfectly justified in his refusal to recall the witnesses.

3. Moving now to the merits of the application to review the decision that a prima facie case had been made out it is first necessary to give a broad conspectus of the evidence called in support of the conspiracy. George Theodorakis, a police officer, was assigned the role of an undercover agent in which he pretended to be a person fraudulently seeking to establish a claim to an invalid pension which is awarded in respect of permanent incapacity to work. He adopted the name of Yiannoulakis and was commonly referred to throughout the proceedings, for the sake of convenience, as George. Another alleged conspirator was Demetrious Hadjipanayiotis (conveniently referred to as Demos), a person of Greek extraction who acted as a go-between and interpreter between members of the Greek community and various medical practitioners. John Castanos was a clinical psychologist and broadly, the evidence against him was that he openly discussed with Demos and George the fraudulent purpose and the means of achieving it. Cassimatis was a psychiatrist against whom there was evidence that he openly discussed the fraudulent object of obtaining an invalid pension with George and gave reports to further that purpose. The applicant Moss was a medical practitioner in general practice to whom Castanos referred George and who in turn referred George to Cassimatis. The evidence against the applicant Moss does not include any such obviously open discussion with George of the fraudulent purpose and is largely based upon an assertion by the second respondent that Moss knew of and participated in the fraudulent purpose and this could be inferred from his behaviour in relation to George when George attended his surgery for consultations. The prosecution case against Moss therefore, is largely based upon the inferences which can be drawn from his conduct in relation to George and in that regard I have been referred to a number of authorities for guidance as to the proper approach towards the evaluation of inferences in criminal prosecution. The two main ones in this area are Peacock v. The King 13 CLR 619 and Plomp v. The Queen 110 CLR 234. In the latter case, Sir Owen Dixon, at p 243, said:-
   
   

"Much difficulty is found in stating the rule, a difficulty which has not been overcome by employing the expression 'more consistent' as if there could be degrees of consistency. In the case cited (Martin v. Osborne 55 CLR 367) what is said is: 'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.'"

1. George was equipped with a tape recorder concealed on his body and made recordings of conversations with the alleged conspirators including the applicant Moss. These recordings contain an almost complete record of what happened on his four consultations with the applicant. The tape recorder also allowed him to time precisely the length of those consultations and also to pick up other sounds from which it could be inferred certain things were being done during the consultations.

2. Before going to the content of the conversations themselves, it is necessary to set out some evidence of an expert medical nature in order to evaluate Moss' conduct. George proposed basing his application for an invalid pension upon mental illness. The expert evidence contained some definitions of psychiatric and neurotic conditions. Psychiatric illnesses are broadly divided into two classes, psychotic and neurotic. One psychotic illness is schizophrenia which is a severe mental illness or disturbance which necessarily involves a loss of contact with reality, withdrawal from the patient's environment, and may involve delusions and bizarre behaviour. The fundamental difference between neurotic and psychotic illness lies in the loss of contact with reality in the psychotic condition, whereas in the neurotic condition a person still has firm contact with reality but a mal-adaptation to his circumstances. Endogenous depression is severe in nature and accompanied by self-reproach and loss of weight and appetite and with one of its main features being difficulty in sleeping. Endogenous depression tends to occur later in life, in middle-age and beyond, for which no causative factor can be found.

3. There was also evidence that psychology is a science of assessment of intelligence and intellectual function and behavioural patterns of the normal individual. Psychiatry is the medical discipline of assessment, diagnosis and treatment of abnormal mental states.

4. There was evidence in the prosecution case from a number of general practitioners that when a patient presented complaining of mental problems it was almost invariable practice to examine the patient physically in order to eliminate possible physical causes and to reassure the patient. There was also evidence that medication would be prescribed and the results of that medication evaluated after a short time, such as a fortnight.

5. With these matters in mind, I go to the four consultations between George and the applicant Moss.

6. At the first consultation on 20 December 1977, George was accompanied by Demos, and a letter from Castanos stating that George was suffering from paranoid psychosis and endogenous depression was handed to Moss. Demos introduced George as "a new one" who spoke perfect English and who was suffering from nerves and headaches. Moss asked him to tell his story and George stated that he had been born in Crete, came to Australia at an early age and went to a country town where his father had a business and his family was the only Greek family there, and added "you're like, something funny". He described his work as that of a labourer, taxi driver and cook and said that he hadn't worked for nearly a month. Moss then asked Demos whether he wanted him (George) to go on sickness benefits. When Demos said he did, Moss wrote out a certificate in which he said that he had examined George and that he would be unfit for work for approximately two months. Moss also stated "now in a while we can start sending him to a psychiatrist. Get it all under way, all right?" On the certificate Moss reproduced the condition of paranoid psychosis and endogenous depression as the relevant illness. The prosecution relied upon the deficiencies in this consultation such as the failure to physically examine, the failure to take a history, the failure to prescribe any medication, the failure to refer the patient to a specialist, the failure to arrange any other appointment, coupled with a long period of incapacity for a very severe illness. The consultation was timed by George as four minutes three seconds and there was evidence from general practitioners that the initial consultation with a patient presenting with mental illness was at least twenty minutes. For the applicant, it is suggested that Moss was entitled to rely upon the diagnosis of Castanos but the second respondent counters this by pointing out that Castanos had no medical qualifications.

7. The second consultation took place on 31 January 1978 after George had complained to Demos that he had not received his sickness benefit. The consultation took two minutes thirteen seconds. Moss prescribed stelazine, cogentin and mogadon. There was no enquiry by Moss as to George's condition and Moss stated that he would see George in a couple of weeks because his certificate for sickness benefits would have expired and "then I'll give you a letter to see a psychiatrist". The prosecution makes much the same comments about this consultation as the first one. Before this consultation Castanos had written a letter to Moss in which he had stated that George "is a happy married man", setting out a history and symptoms and ending under the heading "Impression" a statement that George was a schizoid personality who is displaying a paranoid psychosis.

8. The third consultation took place on 7 March 1978 in which George informed Moss that Castanos had asked him to get a letter from Moss for Cassimatis. Such a letter was later given to Demos. A certificate for sickness benefit stating that George was suffering from paranoid schizophrenia and dated 6 March 1978 was signed by Dr. Moss. This consultation took four minutes twenty seconds, during which a letter to Cassimatis stating that George appeared to be suffering from a paranoid depressive illness was written. The prosecution points to the failure to enquire as to the effects of the drugs prescribed, the failure to examine, the failure to prescribe and that it was only when George asked when he was to come back that Dr. Moss told him to come back in two weeks time.

9. The fourth and last consultation took place on 21 March 1978 and lasted only one minute eight seconds. George informed him that his last certificate had "run out" on 6 March and that he had already seen Dr. Cassimatis. There was some discussion between George, Demos and Moss, about where the application for the pension would be dealt with. A certificate dated 21 March was issued in which Dr. Moss certified that he had examined George and that in his opinion he was suffering from paranoid psychosis and would be unfit to resume work until 23 May 1978. The prosecution relies upon the deficiencies in this consultation similar to those in the first three.

10. The prosecution also relied on the basis for which a sickness benefit was payable, namely the inability of the recipient to work because of illness. No enquiry at any consultation was made by Dr. Moss to ascertain the reason why George's condition prevented him from working.

11. At this point it is appropriate to revert to the first consultation and the words used by Moss when he said "now in a while we can start sending him to a psychiatrist. Get it all under way all right". The second respondent by counsel submits that the reasonable inference is that the "it" is the scheme to defraud. When the deficiencies of that and the subsequent consultations are taken into account, there is much force in the submission. The "we" may not have the significance of a joint effort between Demos and Moss but that significance could not be excluded. To my mind the absence of any interest in the patient's welfare is the most uncharacteristic element of the consultations when they are compared with normal consultations.

12. I have not reproduced all the facts or all the evidence and inferences therefrom which the prosecution relied upon but those reproduced are sufficient for an adequate perspective.

13. The applicant by his counsel submitted that the circumstances did not warrant the inferences sought to be drawn by the prosecution and in particular submitted that Dr. Moss was entitled to rely upon what Castanos had reported to him about George's condition.

14. George gave evidence that he adopted facial expressions; manner of speech and conduct designed to give verisimilitude to his role of a mentally ill person and the applicant points to this as excusing some at least of the deficiencies in the consultations. If George's acting was successful the need for treatment and supervision was increased.

15. There was evidence that Demos coached George to relate a history consistent with mental illness when he first consulted Moss and the applicant relied upon this to support an inference of lack of knowledge of fraudulent purpose in Moss. However, the knowledge that in this ultimate George would be examined by a government medical officer where such coaching may bear fruit reduces its significance.

16. Having regard to the nature of the relationship between patient and medical practitioner and the purposes of that relationship, the obligation upon a medical practitioner to ensure as far as possible the genuineness of illnesses relied upon to support payment from the public purse and Moss' failure in this regard, I am well satisfied that a jury could well convict on the evidence presented and that the first respondent was correct in his assessment that a prima facie case has been made out. Adapting the words of Menzies J. in Plomp's case at p.247 of the report, it would be open to a jury to be satisfied beyond reasonable doubt that the applicant was a conspirator.

17. The application is dismissed and the applicant is ordered to pay the costs of the second respondent. As to the first respondent's costs I make no order as he appeared only to abide the order of the Court and was excused immediately on making the appearance.