Quick v WorkCover Corporation - [2007] SASC 22

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
QUICK v WORKCOVER CORPORATION
[2007] SASC 22
Judgment of The Honourable Justice Layton (ex tempore)
24 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - PROOF AND EVIDENCE - GENERALLY
WORKERS' COMPENSATION - MISCELLANEOUS MATTERS - OFFENCES
Magistrates Appeal - appeal against findings of a Magistrate who convicted the appellant of numerous dishonesty offences contrary to 120(1)(a) and 120(1)(c) of the Workers Rehabiliation and Compensation Act 1986 (SA) - the appellant argued that the Magistrate erred by deciding that the Personality Assessment Inventory ('PAI') and malingering scales were not relevant to the appellant's mens rea - that the Magistrate wrongly found that the PAI and malingering scales were only relevant to a psychiatric or psychological condition - that malingering with regard to a psychological or psychiatric condition and malingering with regard to a physical condition are linked and the PAI testing was relevant to both - that the Magistrate wrongly accepted the evidence of Dr Ewer when he had not examined the appellant - Held: the appellant failed to demonstrate any error in the Magistrate's reasoning - the Magistrate's judgment was methodical and very detailed on all aspects of the evidence - the Magistrate was entitled to accept the expert's evidence - the fact that the appellant was not examined by the expert was of little significance - the appellant failed to adduce any evidence indicating that the PAI scales and malingering index scales relate to malingering in respect of both psychiatric or psychological, and physical conditions - appeal dismissed.
Workers Rehabilitation and Compensation Act 1986 (SA) s 120(1)(a); 120(1)(c), referred to.

QUICK v WORKCOVER CORPORATION
[2007] SASC 22
Magistrates Appeal: Criminal

LAYTON J: This is an appeal against the findings of a Magistrate given on 5 October 2006 in which the learned Magistrate found the appellant guilty of:
·six counts of false statements contrary to s 120(1)(c) of the Workers Rehabilitation and Compensation Act 1986 (SA) as amended (“the Act”);
·15 counts of dishonestly obtaining income maintenance contrary to s 120(1)(a) of the Act; and
·four counts of obtaining home help payments contrary to s 120(1)(a) of the Act.
The appellant was originally charged with 85 counts and was acquitted of 62 of them. The acquittal appears to be based on the combination of timing and less evidentiary material. The Magistrate indicated that she was not satisfied beyond reasonable doubt, due to an insufficiency of evidence in relation to alleged offences committed prior to July 2003.
The learned Magistrate’s judgment was methodical and very detailed on all aspects of the evidence.
This appeal is predominantly limited to a very specific submission made by Mr Amey, counsel for the appellant, in regard to the mens rea of the offences of which the appellant was found guilty. In summary the appellant submits that the Magistrate decided that the Personality Assessment Inventory (referred to as PAI) and the malingering index or scales included in that inventory were not relevant to the appellant’s mens rea, and in so finding she was in error.
It was submitted that the Magistrate wrongly found that the PAI test and the malingering scales were only relevant to the issue of malingering in respect of a psychiatric or psychological condition, and they did not relate to malingering in respect of a physical condition. Counsel for the appellant submitted that if a person was malingering, a conscious mental element to do so should be present and proved beyond reasonable doubt. It was then postulated that this mental intention to exaggerate must be the same both in respect of malingering as to a psychiatric or psychological condition as well as malingering as to a physical condition. When I requested counsel for the appellant to provide the evidentiary basis for this linkage of malingering for a psychiatric or psychological condition to malingering for a physical condition, Mr Amey candidly admitted that there was no specific evidence. Instead he submitted that I should infer it as a matter of commonsense and logic.
Turning first to the submission that the learned Magistrate had wrongly concluded that the PAI scales and the malingering index were not relevant to the appellant’s mens rea. I first note that the Magistrate’s reasons did not specifically address mens rea in the terms submitted by the appellant, but instead the relevant finding is contained in paragraph [227] of the Magistrate’s reasons in which she stated:
[227]… Dr Ewer was also cross-examined on this basis. Dr Ewer emphatically pointed that the malingering scale and validity scales in the PAI relate only to the malingering of a psychiatric / psychological condition and do not relate to the malingering of a physical condition. This was ultimately accepted by both Mr Smith and Dr White in cross-examination. This was ultimately accepted by both Mr Smith and Dr White in cross-examination. Any information relating to the test results from the PAI’s validity scales and the malingering index are therefore not relevant to the issue of whether the defendant was malingering his physical condition. (emphasis added)
The learned Magistrate’s remarks were limited to the manner in which the malingering and validity scales could be used. It did not exclude malingering of a physical condition as being irrelevant to mens rea. The learned Magistrate was only dealing with whether or not the PAI test was relevant to malingering in relation to physical symptoms and concluded it did not. In so concluding, she relied on the evidence of Dr Ewer, and the acceptance of that proposition, in particular by Dr White.
Turning now to malingering in relation to physical symptoms. The learned Magistrate did not in paragraph [227] exclude the relevance of an allegation that the defendant was malingering as to his physical condition. The Magistrate specifically considered both aspects of malingering later in her reasons at paragraph [251] where she said as follows:
[251]Malingering is not a psychiatric condition but is described as a focus of clinical attention. The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives. The DSM-IV criteria suggests malingering should be strongly suspected if any of four criteria is noted. One of those criteria is anti-social personality disorder. Dr Ewer accepted that there was no evidence of the defendant having an anti-social personality disorder. However, such a disorder is not a required criteria, and a person can be malingering even if they do not have an anti-social personality disorder. (emphasis added)
The learned Magistrate then specifically addressed the issue of malingering in relation to physical symptoms and adopted the approach of Dr Ewer as expressed in paragraphs [252] and [253] of her reasons for judgment:
[252]Dr Ewer mentions a number of factors that may lead to a suspicion of malingering but those factors simply accord with common human experience. Dr Ewer also gave evidence about malingering rates of personal injury plaintiffs. I disregard this evidence as it does not assist me in determining whether or not the defendant was malingering or acting dishonestly in the context of this case.
[253]Whether or not a defendant is magnifying his symptoms simply to get a point across to a doctor, which in Dr Ewer’s experience is common, or whether that magnification is conscious and deliberate is ultimately a question for the tribunal of fact. In considering whether the symptom magnification was conscious in this case, I take into account Dr Ewer’s evidence about the impact of personality. Dr Ewer agreed that if a person’s personality style was such that he tended to be dramatic, he may make more of a fuss and make it sound worse than somebody who tends to understate his problems. However, Dr Ewer said that if a person consistently overstated to more than a moderate degree, he would still expect him to be able to see the difference between reality and what he was saying. He said that there was only a small possibility that if the defendant had such a personality there could be marked discrepancies at an unconscious level. In this regard, Dr Smith’s evidence must be considered, as Dr Smith dealt with the defendant in late 2002 and early 2003. Dr Smith observed that the defendant tendered to make less of pain, and rejected any suggestion that the defendant suffered from a histrionic personality. From the defendant’s presentation in the witness box, I did not assess the defendant as being a dramatic person.
The above paragraphs include her Honour’s observation that Dr Ewer mentions a number of factors which may lead to a suspicion of malingering, but those factors simply accord with common human experience. Further, her Honour notes that whether or not a defendant is magnifying his or her symptoms simply to get a point across to a doctor, which in Dr Ewer’s experience is common, or whether that magnification is conscious and deliberate, is ultimately a question for the tribunal of fact.
In regard to this argument, Mr Schroeder submitted that the Magistrate was correct in so concluding and approaching her task accordingly. He submitted that the PAI testing, which included the malingering index, was testing in a non-leading fashion for feigned psychiatric or psychological conditions. It was not testing for feigned physical symptoms. Having perused the evidence on that point, I accept Mr Schroeder’s submission. I also note that the Magistrate then specifically goes on in paragraph [254] to conclude:
[254]In the context of this case, the prosecution must exclude beyond reasonable doubt the possibility of unconscious symptom magnification. In my findings of fact I am satisfied beyond reasonable doubt that:
(a) there is a marked difference in the physical presentation of the defendant to health professionals and his physical presentation on the video. The defendant presented himself to doctors with a severe physical disability. This is markedly different from his presentation on the video.
(b) the defendant did not accurately describe what he was capable of doing and what he did do.
It followed from that expressed view, that the learned Magistrate rejected that the appellant unconsciously overstated his condition on the basis of physical symptoms. She did so in specific terms in paragraphs [255] and [256]:
[255]I reject as a reasonable possibility that this was due to symptom magnification, or the normal human behaviour of unconsciously overstating the level of disability. The difference between his physical presentation is too marked to be accounted for on that basis. Without considering every inaccurate statement made by the defendant, the defendant’s representation to Dr Jezukaitis that he drove his wife to the horses and mainly stood and observed, when the video evidence of December 2003 shows him involved in physical activity on each occasion is at the horse stables, cannot be explained as an unconscious exaggeration. Similarly, the defendant’s statements about his difficulties getting in and out of his truck, when no such difficulties are seen on the video footage, cannot be unconscious.
[256]I am satisfied beyond reasonable doubt that there is no other psychiatric disorder that can account for the differences. I am satisfied beyond reasonable doubt that the defendant’s actions and statements were deliberate and conscious and designed to lead the relevant health care professionals to believe that the defendant had no capacity to be rehabilitated and had a disability more sever than it actually was.
The learned Magistrate’s approach on this basis, did not suffer from the error as alleged by counsel for the appellant.
I now address the very specific argument put to me by Mr Amey that commonsense indicated that malingering with regard to a psychological and psychiatric condition and malingering with regard to a physical condition are linked and that I should so infer. In my view, apart from there being no evidence to support that proposition, and the fact that Dr Ewer appears to indicate to the contrary, it does not seem to me to follow as a matter of commonsense or logic. The PAI testing is done at a particular point in time and it is testing for feigned psychiatric or psychological conditions. It is not testing for a mental state per se, nor are the tests to be used to assess any mental state of the appellant at different points of time other than the point of time at which the testing takes place. It is not therefore, in my view, logical to infer that the two tests are linked in the manner submitted by Mr Amey. I therefore reject the appellant’s submission on this ground, and that basis of the appeal.
I now address the secondary issue as to whether Dr Ewer’s conclusions with regard to the appellant’s condition were flawed because he did not have the opportunity to examine the appellant. The learned Magistrate at paragraphs [221]-[223] of her reasons set forward the appellant’s criticisms in relation to Dr Ewer’s evidence, and she dealt with each of them in a very specific fashion:
[221]Firstly, Dr Ewer was not being asked to provide the court with an expert opinion as to the defendant’s current psychiatric condition. If that were the case, the criticism that he had not seen and spoken to the defendant would be justified. Rather, he was being asked to provide an expert opinion on any conditions that the defendant may have suffered a number of years ago and whether such a condition could account for the differences identified above to the extent that the defendant’s behaviour was unconscious. An interview with the defendant over 2 years later would have been of little assistance to the court.
[222]Second, Dr Ewer said that non face-to-face examinations are increasingly required in medico-legal practice and are recommended where the credibility of a person is in question. His evidence was that literature suggested there can be a high level of reliability and validity in diagnosing a condition and offering opinions on other matters in such a case. This was a case where the credibility of the defendant was in question as the substance of the case was that the defendant had been making false statements to doctors and presenting himself in a false way insofar as his physical status was concerned.
[223]Third, the criticism that Dr Ewer did not have the opportunity to discuss the video with the defendant is not justified. In the context of a criminal case, it may well have been inappropriate for this to have occurred in view of the defendant’s right to silence. Moreover, it is for the court to consider and make findings in relation to the factual evidence concerning the defendant’s physical presentation and statements made to health professionals, the video evidence and the credibility and reliability of the defendant.
In my view, the rejection of the appellant’s arguments, which were also put to the Magistrate, is sound. In addition, I note that the Magistrate took the view that in relation to malingering of physical symptoms, in the absence of a psychiatric or psychological explanation for the differential presentation of the appellant between his presentation before medical examinations contrasted with that which was shown on video, the assessment should be a matter for the tribunal of fact based on the evidence before it. Dr Ewer in his evidence expressed that view as a medical proposition which was not dependent on having actually seen and interviewed the appellant. Dr Ewer was asked a number of questions in cross-examination:
Q.Do you say that there is no test to determine malingering physical disabilities.
A.Once again, as I said yesterday, the literature really has grappled with this one and suggests there’s not a gold standard. I think I can clearly say that. There are some instruments which are of assistance – the structured inventory of malingered symptomatology is one – but more importantly when you’re determining malingering as a clinician, you do rely on the collateral history; what the person says, what the other witnesses say, what the video evidence says. They’re the things that the literature say are most important in determining malingering and there is no one test, and there are studies showing that psychiatrists and psychologists aren’t particularly good at picking people who are malingering physical disorders and probably a court is the best place to assess whether a person is malingering or not.
Q.So do you say you’re not really confident of being able to pick whether someone’s malingering a physical disorder.
A.Yes, I often will say to people who refer someone to me, “I can’t explain these phenomena on the basis of psychiatric conditions. I would suggest the facts of this matter be determined by the trier of fact to determine whether they are malingering or not”.
This was later reinforced when discussing the symptoms of malingering and the skills to be brought to play:
Q.Is that a process where your skills as a psychiatrist come into play or is it more the sort of thing that an ordinary person would deduce.
A. Probably it’s the sort of thing an ordinary person would think and deduce.
In my view, it was open for the learned Magistrate on the evidence before her to prefer the evidence of Dr Ewer where it differed from the evidence given by other medical witnesses and psychologists. It was also open to her Honour to accept Dr Ewer’s view. This was a matter for her judgment and she gave reasons which supported that approach. There is nothing which suggests that the learned Magistrate erred in drawing her preference for Dr Ewer’s views and for the reasons that she expressed in so doing.
For these reasons, I consider the appeal should be dismissed.
Orders:
1. Appeal dismissed.
2.The appellant pay the respondent’s costs in the sum of $150 within 28 days of the date hereof.