Sood v R - [2006] NSWCCA 114

No judgment structure available for this case.

Reported Decision:
165 A Crim R 453

New South Wales

Court of Criminal Appeal

CITATION: Suman SOOD v Regina [2006] NSWCCA 114
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 February 2006

JUDGMENT DATE:
12 April 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 114; Adams J at 137

DECISION: 1. Appeal Allowed.; 2. Conviction and sentence quashed.; 3. New trial ordered.

CATCHWORDS: CRIMINAL LAW – Appeal – Against Conviction – Particular offences – Dishonestly obtaining a benefit by deception, s134.2 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Elements of statutory scheme – Whether question of entitlement one of law or fact – Meaning of “with respect to”. - CRIMINAL LAW – Practice and Procedure – Whether trial judge made a ruling or gave a direction to jury on question of entitlement. - CRIMINAL LAW – Practice and Procedure – Whether directions on dishonesty constituted a miscarriage of justice, s134.1 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Practice and Procedure – Whether a new trial should be ordered.

LEGISLATION CITED: Criminal Code Act 1995 (Cth): s130.3, s134.1, 134.2
Health Insurance Act 1973 (Cth): s20, s20A

CASES CITED: Collector of Customs v AGFA-Gevaert Ltd (1995) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dalima Pty Ltd v Commonwealth of Australia (New South Wales Supreme Court, unreported, 22 October 1987)
Hope v Bathurst City Council (1980) 144 CLR 1
Peters v The Queen (1998) 192 CLR 493
R v Petroulias (2005) 62 NSWLR 663
Vetter v Lack Macquarie City Council (2001) 202 CLR 439
Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23
Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642

PARTIES: Suman SOOD (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2005/1710

COUNSEL: S Odgers SC (Applicant)
D Staehli (Respondent)

SOLICITORS: Craig Robinson - RBHM Commercial Lawyers (Applicant)
Pauline Caust - Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1102

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 14/02/2006

- 3 -

2005/1710

SPIGELMAN CJ
SIMPSON J
ADAMS J

WEDNESDAY 12 APRIL 2006

Suman SOOD v REGINA

Facts

The Appellant was convicted by a jury of 96 charges of dishonestly obtaining a financial benefit by deception contrary to s134.2 of the Criminal Code Act 1995 (Cth). The Appellant was a medical practitioner and a registered provider with the Health Insurance Commission (HIC). The Crown case was that she had obtained a financial advantage from the HIC by claiming assigned Medicare benefits (via “bulk billing” arrangements) for the termination of pregnancy services whilst also imposing additional charges for those services on patients.

It was uncontested that the Appellant’s patients were charged additional fees for counselling and theatre services, and that these fees varied according to how advanced the patient’s pregnancy was. The Crown contended that this arrangement was contrary to s20A of the Health Insurance Act 1973 (Cth), which relevantly provides for the assignment of Medicare benefits to practitioners “in full payment of the medical expenses incurred in respect of the professional service”. The claim form signed by the Appellant contained a declaration, which implemented this section in the form: “No payments have been sought … in respect of the professional services” the subject of the assignment.

The Crown case was that the Appellant was not entitled to make a claim for assigned benefits in the circumstances, that she knew this to be the case and, therefore, that she made a false statement on the claim forms in order to dishonestly obtain the benefits in question. At trial the question of entitlement was not seriously raised; the Defence case instead focusing on dishonesty. Whilst giving evidence, the Appellant appeared to accept that the arrangements at her clinic were contrary to the legislative scheme, although denied that she knew that at the relevant time.

Held (allowing the appeal):

1. Ruling by the Trial Judge on issue of entitlement
(per Spigelman CJ and Simpson J; Adams J not deciding)

The trial judge did not make a ruling that, as a matter of law, the Appellant made a false statement on the claim forms because she was not entitled to claim the benefits she did. [21], [24], [127].

2. Direction to the jury on false statement
(per Spigelman CJ, Simpson J contra; Adams J not deciding)

The effect of the trial judges summing up was a direction to the jury that, as a matter of law, the Appellant made a false statement on the claim forms. [29], [130].

3. Issue of entitlement question of law or fact
(per Spigelman CJ, Adams J agreeing, Simpson J dissenting)

The issue of entitlement was a question of law for the trial judge. [30], [121], [132], [134], [138], [148].

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 applied.

R v Petroulias (2005) 62 NSWLR 663; Collector of Customs v AGFA-Gevaert Ltd (1995) 186 CLR 389; Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 considered.

4. Whether additional services were “in respect of” procedure
(per Spigelman CJ, Adams J contra; Simpson J not deciding)

The additional services were “in respect of” the procedure, given the wide meaning of “in respect of” in the statutory scheme. [51]-[52], [54], [63]-[67], [138], [149], [156]-[157].

Dalima Pty Ltd v Commonwealth of Australia (New South Wales Supreme Court, Unreported, 22 October 1987); Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23 referred to.

5. Direction on Dishonesty
(Spigelman CJ, Simpson and Adams JJ agreeing)

The trial judge’s directions as to dishonesty were confusing with regard to a central element of the trial and therefore constituted a miscarriage of justice. The Trial judge failed to direct the jury in accordance with the definition of dishonesty in the Criminal Code . [86], [101], [104]-[106], [114], [137].

Peters v The Queen (1998) 192 CLR 493 considered.

6. Order for a new trial
(Spigelman CJ and Simpson J; Adams J dissenting)
A new trial should be ordered. [112], [114], [158], [161].

2005/1710

SPIGELMAN CJ
SIMPSON J
ADAMS J
WEDNESDAY 12 APRIL 2006

Suman SOOD v REGINA

Judgment

1 SPIGELMAN CJ: The Appellant was found guilty by a jury of 96 charges of dishonestly obtaining a financial benefit by deception contrary to s134.2 of the Criminal Code Act 1995 (Cth). The Crown case was that she had obtained a financial advantage from the Health Insurance Commission (“HIC”) pursuant to claim forms she had submitted claiming Medicare benefits for a particular item number with respect to professional services she had performed. She was sentenced to 300 hours of community service on the first charge plus a fine of $250 on each of the other 95 charges, totalling $23,750. There is no appeal against sentence.

2 The Appellant was a medical practitioner registered as a provider with the HIC, enabling her to make claims for assigned Medicare benefits. She operated a clinic at which she provided termination of pregnancy services.

3 Under the Medicare scheme patients have a right to benefits from the Commonwealth for medical expenses. Pursuant to what is known as a bulk billing arrangement, a doctor may make a claim for payment directly from the HIC for services provided to patients, if there has been an assignment by the patient of his or her right to the payment of the Medicare benefit to the providing doctor. On the Crown case the legislative scheme under the Health Insurance Act 1973 (Cth) (“the Act”) prohibited a claim for the payment of an assigned benefit where the Medicare benefit was not received as full payment for that professional service, i.e. where some other amount had been received by way of an additional charge for that service.

4 Each of the 96 counts referred to a claim for Medicare benefits under Item Number 35643 dealing with termination of pregnancy procedures (abortion). This Item Number specifies that a payment will be made for:

“Evacuation of the contents of the gravid uterus by curettage or suction curettage not being a service to which item 35639/35640 applies, including procedures to which item 35626, 35627 or 35630 applies, where performed (Anaes. 17705 = 3B+2T).”

5 There was no dispute that the Appellant performed this procedure in each of the cases. There was also no dispute that the Appellant charged the patients directly for what were described as counselling and operating theatre services and received cash payment for these services prior to claiming under the Item Number. The Crown case was that there was no entitlement to make a claim for assigned benefits in the circumstances, that the Appellant knew this to be the case and dishonestly claimed the benefits in question.

Claim Procedure

6 The critical document in the Crown case was a document headed “Claim for Assigned Benefits for Services Rendered to Non-Hospital Patients”. This document is known as a “batch header,” to which is annexed the assignment forms signed by patients who, as noted above, assign to the provider the patients’ rights to payment of Medicare benefits. The claim forms are pre-printed Medicare forms which make provision for the insertion of the provider’s name, address, provider number, date, number of assignment forms attached and the total benefit amount claimed.

7 The bottom half of the form contains printed declarations beneath which the practitioner who rendered the services was required to sign. One of the declarations was that: “No payments have been sought from any person in respect of the professional services specified in the attached assignment forms …”.

8 It was the signature by the Appellant of each such declaration that constituted the relevant conduct which was alleged to contravene s134.2 of the Criminal Code, with respect to each annexed assignment form.

9 The declaration reflected the practice with respect to bulk billing arrangements contained in a book provided to all approved Medicare providers, known as the Medicare Benefits Schedule Book, a copy of which was found at the Appellant’s practice. That book explained the Medicare system, identified item numbers and set out the basis for direct or bulk billing arrangements.

10 Paragraph 7.5.2 of the Book provides:

“If a medical practitioner direct-bills, he/she undertakes to accept the relevant Medicare benefit as full payment for the service. Additional charges for that service (irrespective of the purpose or title of the charge) cannot be raised against the patient …”

11 The relevant section of the Act is:

“20A Assignment of Medicare benefit

the practitioner

(a) the first-mentioned eligible person assigns his or her right to the payment of the medicare benefit to the practitioner; and

(b) the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service by the first-mentioned eligible person.

…

(3) Where an assignment under this section takes effect, or an agreement under this section is entered into, with respect to a medicare benefit, the medicare benefit is, subject to section 20B, payable in accordance with the assignment or the agreement, as the case may be.

…

(5) An assignment of a medicare benefit shall not be made except in accordance with this section.”

12 Section 3 defines “professional service” relevantly as follows:

“professional service

(a) a service (other than a diagnostic imaging service) to which an item relates, being a clinically relevant service that is rendered by or on behalf of a medical practitioner; …”

13 The declaration on the claim form, referred to in [7] above, implemented s20A(1)(b) such that, where an assignment is made under s20A(1), the medical practitioner “accepts the assignment in full payment of the medical expenses incurred” (that is the amount payable) “in respect of the professional service by the” medical practitioner.

The Factual Background

14 The modus operandi of the Appellant’s practice was that, upon arrival at the Appellant’s clinic, patients went to reception where staff took an impression of the patient’s Medicare card on three separate assignment forms (two for the anaesthetist and one for Dr Sood). The patient then paid a fee in cash to the receptionist. There was no provision for credit card or any other form of payment. The additional fee varied depending on how advanced the patient’s pregnancy was. Charges for terminations varied from $120 for pregnancies of up to 12 weeks gestation to $1,000 for 19 weeks, with higher fees for weekend surgery. A receipt was written out for this additional payment which typically said “counselling and theatre” or “counselling and theatre services (or fees)”.

15 Before the termination procedure there was a form of interview or “counselling” undertaken by one of a number of nurses or nursing aides employed by the clinic, in addition to a consultation with Dr Sood. The consultation with Dr Sood was the subject of a separate claim for Medicare benefits pursuant to a bulk billing arrangement under Item Number 36, being for a consultation of over 20 minutes duration. This was in addition to the Medicare benefit claim for Item Number 35643 for the termination. The Crown did not pursue any case based on the Item Number 36 consultation. Its case focused on the combined effect, in the case of each termination, of the assigned claim under the bulk billing system for the one Item Number 35643 claim, together with the “counselling and theatre” fee paid in cash.

16 On 30 October 2001 officers of the Health Insurance Commission executed a search warrant at Dr Sood’s surgery. Records seized from the surgery included:

· receipt books for the additional payments for the period May 2001 to October 2001. Seven such books were located in surgical and biological waste material disposal bins in the patient recovery area of the surgery;

· original cash receipts for the period 16 October 2001 to 23 October 2001 which had also been found in one such bin. On the Crown case, both the books and the receipts had been put in the bins by the Appellant, she having been observed by Minna Zoretic, a nurse employed at the clinic, to have thrown something into one of the bins after the arrival of the HIC personnel at the clinic (T129.53). In evidence, the Appellant denied having disposed of the receipts in this way, or at all;

· “day books” listing the patients who attended Dr Sood’s surgery and summarising the Medicare benefits. The day books referred to the receipt written for each termination patient, but did not show the amount of any payment;

· a schedule of charges showing the additional charges payable by patients, depending on the stage of pregnancy;

· the Medicare Benefits Schedule Book.

17 The Appellant gave evidence. She denied that she had any dishonest intention. She said that she believed that she was entitled to charge the additional fees because the relevant item did not include any of the other services which she provided. She gave evidence that other clinics were charging additional fees of the same character. The defence tendered brochures from other clinics to this effect. The Appellant denied that she disposed of the receipt books which had been found in a bin on the premises at the time of the HIC search. During the course of the evidence she appeared to accept that the practice of requiring a patient to pay supplementary fees was not legal, but did not admit at any stage that she held that opinion at the time of making the relevant claims.

18 The focus of the case is the printed declaration beneath the batch header or claim form that: “No payments have been sought from any person in respect of a professional service as specified in the attached assignment forms”. This statement was the conduct which, on the Crown case, constituted the relevant deception and which was said to have been made dishonestly.

Ruling by the Trial Judge

19 Ground 1 of the appeal is:

“The trial judge erred in law in holding that, as a matter of law, the Appellant made a false statement when she stated that no payment had been sought ‘in respect of’ specified professional services.”

20 The ruling which the Appellant alleges the trial judge made occurred in the course of a discussion, in the absence of the jury, quite early in the trial. His Honour had asked the Crown Prosecutor to identify the relevant dishonesty. He drew attention to the declaration on the bottom of the claim forms. In the course of this discussion the following transpired:

“HIS HONOUR: … ‘In respect of’ is lifted straight from the legislation and whilst you might say, well, you wouldn’t interpret the form in the way as you would interpret legislation, the words ‘professional services’ must have the same meaning in the context.

CROWN PROSECUTOR: Yes.

HIS HONOUR: As a matter of law.

CROWN PROSECUTOR: As a matter of law it’s false.

HIS HONOUR: As a matter of law it’s false. That’s all I was concerned about yesterday. Obviously as a matter of law if it wasn’t false, then your case wouldn’t be looking very good.

CROWN PROSECUTOR: That’s right.

HIS HONOUR: But I am certainly sufficiently satisfied to say that is a matter of law, that it is false. I haven’t heard any argument to the contrary. I sort of have run this argument with you.

CROWN PROSECUTOR: Later on when it is foreshadowed.

AINSWORTH: There is no authority for the converse proposition, which is that this is not in respect of. Because you’re running a theatre, that the theatre is a separate entity, that you must maintain it separate from the charge and separate from the charge for the termination itself described by the Medicare number. And the theatre can only come down to a matter of belief that the money you are paid, bulk billed under that item number.

HIS HONOUR: I don’t know that you would concede that. If I were in your position, I wouldn’t. There are two issues: Firstly, the belief issue which is very clear. The second is the legal issue as to whether or it it’s in fact legally permissible to charge separate fees for separate services provided. The view I have reached depends upon the relationship between the service provided and the item which is the medical aspect of it.

AINSWORTH: I understand that.

HIS HONOUR: In my view these are closely enough related to be said to be ‘in respect of’ in accordance with the Act. It’s a matter for you whether you want to reserve your position in that argument for another place, if necessary.

AINSWORTH: I do.

HIS HONOUR: That’s noted on the record.

AINSWORTH: Thank you your Honour.

CROWN PROSECUTOR: Or for another time.

AINSWORTH: Another time. I will reserve my position.

CROWN PROSECUTOR: We might have further argument at the close of the Crown case.

HIS HONOUR: That’s possible. I don’t think the evidence itself won’t change.

AINSWORTH: The evidence won’t. The point has been taken. If comes up and somebody wants to run that elsewhere, well, they can. It might be locked out if I was –

HIS HONOUR: I won’t say any more about it because you might want to have more to say about it.

AINSWORTH: Thank you.”

21 At the end of this passage his Honour referred to the possibility that the argument would occur in “another place”, which is clearly a reference to an appeal. He also left open the possibility of further argument occurring at “another time”. That is clearly a reference to a subsequent point of time in the trial before his Honour. I do not regard this passage as indicating anything in the nature of a “ruling” by his Honour as relied upon in this ground of appeal. In the course of a preliminary discussion his Honour indicated a view as to what he would rule if called upon to do so. The circumstances in which such a ruling would have arisen could have included a no case to answer submission. However, in the event there was no such submission put. Alternatively, it could have arisen in the course of submissions about what were the appropriate directions to give to the jury in his Honour’s summing-up. There was no relevant submission on this matter.

22 The question of whether or not there was a false statement in the declaration on each of the claim forms could have been pertinent to the element in the offence of whether there was a “deception”. It could also have gone to the element in the offence of receiving a “financial benefit”. In neither respect was this matter pursued in the trial.

23 The defence case focused on the issue of dishonesty. It may be that this course of conduct arose by reason of the evidence given by the Respondent under cross-examination, which appeared to accept, as at the time of the trial, that she had no entitlement to the cash payments, implicitly agreeing that her statements were in fact false.

24 In any event, it appears that the trial judge was never called upon to make a ruling of the character which he had indicated in advance he would make if called upon to do so.

25 In the course of her cross-examination reference was made to a Dr Brodie who had conducted a practice in a similar manner. The following questions and answers occurred:

“Q. You agree it is technically illegal to charge an out-of-pocket fee to supplement the Medicare rebate the way Dr Brodie was doing it in his clinic?

A. Yes because we were told that now.

Q. Told that now?

A. I mean at that time.

Q. That is what you were doing?

A. Yes I was doing it but nobody had told me it was wrong.

Q. So you now accept what you were doing was illegal?

A. Yes if that is what the HIC law says that charge, or a private clinic cannot charge a theatre cost, that is right.

Q. I suggest you knew at the time you charged the termination patients cash in 2001 you knew then it was illegal?

A. That is absolutely wrong.”

26 This passage in the cross-examination was referred to a number of times, not always accurately, in the summing-up in a manner which, in effect, amounted to a direction of law to the jury on the issue of falsity.

27 His Honour said:

“The Crown submits that there is simply no doubt on the evidence that the accused filled those forms in and that the representation made by so doing, by filling in those forms, was in fact a false representation.

The accused in her evidence said that she now accepts that at least technically the statement is false. Of course her case is that she did not know or believe when she completed that form that the statement was false. She said that she believed she was entitled to charge that additional fee for the use of the operating theatre and for counselling.

This aspect of the case is closely related to the second element, namely, the element of dishonesty and I will set out in more detail why the accused says that she believed she was entitled to charge those fees and why she therefore did not believe that the statement made in the batch form was false.” (SU 13-14)

28 Soon after this passage his Honour said:

“The evidence that supports the making of the allegedly false statements is not essentially in dispute.” (SU 15)

“Dr Sood does not contend that the patients were not charged an additional fee. She also does not contend that she did not complete the batch forms. She does not contend that it is not technically false that is, she says that she now understands that to be the case, but she contends that at the time when she completed those forms and that at the relevant time as far as these charges are concerned she did not believe the statement was false. To the contrary she contends that she believed that she was entitled to charge a fee for use of the operating theatre and for counselling …” (SU 15-16)

29 It does appear that the effect of the summing-up was, in substance, a direction to the jury that, as a matter of law, the statements were false.

30 Before the trial judge and in this Court both the Appellant and the Respondent proceeded on the basis that the issue of falsity was an issue of law for the trial judge. This can sometimes be a difficult question to determine. (See, e.g. R v Petroulias (2005) 62 NSWLR 663 esp at [12]-[15] and cf [123]-[132].) There is no universally applicable test for distinguishing questions of law from questions of fact. (Collector of Customs v AGFA-Gevaert Ltd (1995) 186 CLR 389 at 394.) Whether facts fully found fall within a statutory formulation is usually a question of law. (Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[26].) This Court should proceed on the basis accepted at trial and urged on this Court by both parties. Whether a payment has been made “in respect of a professional service” is analogous to whether a procedure was “connected with the rearing of livestock”, found to be a question of law in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

31 It does appear, on the above analysis, that counsel for the Appellant at trial had left open to him the opportunity of making submissions on the issue of falsity prior to the summing-up, which opportunity he did not take up. Rule 4 applies. In the circumstances I would grant leave.

32 First, during the course of the discussions there was an express reservation of the ability to take the point on appeal. Secondly, the issue is, on the basis accepted by both parties, a pure question of law and many of the considerations concerned with the finality of a jury trial, with respect to taking points on appeal not taken at trial, do not apply. Thirdly, if the Appellant’s contention is right, and the statements were not false as a matter of law, there would be a clear miscarriage of justice.

33 In any event, the issue of entitlement is of significance to whether this Court should order a new trial if, as I will indicate is the case on Ground 2, the Court allows the appeal on another ground. Accordingly, it needs to be addressed.

The False Statement Issue

34 The basic submission of the Appellant turns on the terminology of Item Number 35643 and specifically on the introductory words: “evacuation of the contents of the gravid uterus by curettage …”. The series of acts so performed by a medical practitioner are the acts involved in the removal of the contents of the patient’s uterus. The Appellant submits that the benefit is payable for that procedure and does not include counselling provided to the patient prior to such procedure. Nor, the Appellant submits, does it include payment for the use of facilities where the procedure is performed. Accordingly, the Appellant submits that the counselling/theatre fee that was charged was not a charge “in respect of the professional service” specified in Item No 35643.

35 The Crown’s submissions are based on the width of the phrase “in respect of” in s20A(1)(b) reflected, in terms, in the declaration on the claim form. The Crown relies on the judgment of Enderby J in Dalima Pty Ltd v Commonwealth of Australia (New South Wales Supreme Court, Unreported, 22 October 1987).

36 In Dalima a “facilities fee” was charged to patients attending medical centres. The issue that arose was whether or not these fees constituted “an amount payable in respect of medical services” rendered at the centres within the meaning of s20A of the Health Insurance Act 1973. One of the issues was whether or not a medical practitioner who made the statement that “no payments have been sought from any person for professional services” was false or misleading in a material particular within s129 of the Act, which proscribed the making of false or misleading statements.

37 Enderby J accepted the submission that the words “in respect of” were of “notoriously wide import” and were “sufficiently wide to make the facility fee an additional fee in respect of the service rendered”. He rejected a submission on behalf of the medical service provider in that case to the effect that the medical services could only be said to be provided when the doctor and patient were “face to face”. His Honour said:

“I hope the law reflects reality and I have no doubt that the reality of what is happening in the two sentences is that a fee called a ‘facility fee’ is being charged by Dr Edelstein’s company to patients as a condition of them being able to use the centres and gain access to a doctor and receive medical services from a doctor.

The facility fee is an amount payable in respect of the service. It matters not that the service is being rendered also relates to an item in the table.”

38 His Honour went on to hold that the imposition of a facility fee prevented the medical service provider in that case from accepting an assignment and bulk billing.

39 Since the judgment of Enderby J in Dalima the High Court has had occasion to observe that the wide meaning accorded to the words “in respect of” is not always appropriate.

40 In Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642, Wilson and Gaudron JJ said at 646-647:

Trustees Executors & Agency Co. Ltd. v. Reilly

State Government Insurance Office (Q.) v. Crittenden

McDowell v Baker

State Government Insurance Office (Q.) v. Rees

41 To similar effect are the observations of Dean, Dawson and Toohey JJ in that case at 653-654:

Trustees Executors & Agency Co. Ltd. v. Reilly

42 The authorities have recently been set out by Campbell J in Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23 at [41]-[43].

43 The width of the phrase “in respect of” depends on the statutory context. This was not a matter on which the Court received detailed submissions.

44 The relevant statutory context is not criminal legislation but a system for government subsidy of medical payments with complex safeguards for the revenue. The bulk billing system manifests a policy objective of limiting patient expenditure on medical services, whilst retaining the traditional doctor/patient relationship. Medical practitioners receive the certainty of payment without any bad debts, in exchange for restraint on the fees they can charge.

45 The words “in respect of” are ubiquitous in the legislative scheme. They appear in numerous sections other than s20A. A quick overview of the Act would suggest that they appear well over 100 times. The focus of attention in this case is the use of the word in s20A(1)(b), namely the reference to the assignment being accepted in full payment of “medical expenses incurred in respect of the professional service by the first mentioned eligible person”. It is this formulation that finds its way into the declaration in the claims form.

46 In s20A(1) the words, “first mentioned eligible person” are a reference back to the introductory words of the section which, to repeat, states: “Where a medicare benefit is payable to an eligible person in respect of a professional service rendered to the eligible person”. As can be seen the words “in respect of” occur in this formulation also. Where there occurring they constitute a reference back to s20(1) which states:

“20(1) Subject to this Part, medicare benefit in respect of a professional service is payable by the Commission on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service.”

47 Again, as can be seen, the words “in respect of” appear twice in this subsection.

48 The use of the phrase appears again in the particular circumstance from which s20(2) makes provision as follows:

“20(2) Where a person to whom a medicare benefit is payable under subsection (1) in respect of a professional service has not paid the medical expenses that he or she has incurred in respect of that professional service, he or she shall not be paid the medicare benefit but, if he or she so requests, there shall, in lieu of that payment, be given to him or her … a cheque for the amount of the medicare benefit drawn in favour of the person by whom, or on whose behalf, the professional service was rendered.”

49 Section 20 is concerned to identify the persons who are entitled to Medicare benefits. It is s10 which establishes the entitlement to Medicare benefits, again with use of the phrase “in respect of”. That section provides:

“10(1) Where, on or after 1 February 1984, medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with subsection (2) is payable, subject to and in accordance with this Act, in respect of that professional service.”

50 Subsequent sections of the Act use the phrase “in respect of a professional service” in numerous different contexts including:

· Stating that a Medicare benefit shall not exceed the medical expenses incurred (s14).

· Restricting the Medicare benefit payable where two or more operations are performed on the one occasion where each constitute a professional service covered by a separate Item (s15).

· Restricting the circumstances in which Medicare benefit is payable with respect to the administration of an anaesthetic (s16) or with respect to a pathology service (s16) or with respect to a certain diagnostic imaging service (s16B).

· Establishing that Medicare benefit is not payable if medical expenses “in respect of that service” have been paid to a recognised hospital that was prescribed and an amount had been paid pursuant to a scheme under which a health programme grant had been made.

· Establishing that Medicare benefit is not payable where a person has received compensation for personal injury (s18).

· Establishing that Medicare benefit is not payable for a medical examination for the purposes of life insurance or superannuation (s19).

51 Numerous other provisions could be added to this list. The cumulative effect is such that, in the scheme of this legislation, there is no basis for giving anything but a broad meaning to the words “in respect of a professional service”.

52 The Court should be very slow to find in such a statutory context that the words “in respect of a professional service” are not intended to encompass all matters directly incidental to the provision of that service.

53 The concluding words of Item Number 35643, which I have quoted above, are “Anaes. 17722”. This is a reference back to another part of the table which provides for the provision of anaesthetic services. That part is said to apply in the following manner: “Administration of an anaesthetic – in connection with a medical service which has been assigned an anaesthetic unit value …”, relevantly 17722. The table makes provision for an amount payable for the anaesthetic service. Accordingly, where another medical service that is incidental to the abortion itself has been identified as justifying a separate payment, express reference is made. It is true that this service is provided by a different medical specialisation, but nevertheless this linkage is indicative.

54 As set out above, Item 35643 does not apply where Item 35639/35640 applies. That item is:

“Uterus, curettage of … where undertaken in a hospital or approved day hospital facility …”

55 Accordingly, in the relevant context, the table makes separate provision, where thought appropriate, with respect to the place that the medical service is provided. This indicates that a separate theatre fee is impermissible for bulk billing.

56 Since writing the above, I have read the judgment of Adams J in draft.

57 His Honour refers to the modesty of the fee as a matter suggesting a restrictive interpretation of “in respect of”. The appropriateness or otherwise of the fee in relation to the costs of providing a medical service is, no doubt, an important issue of a political character in determining fees in the table and the structure of the table where, as in this case, more than one fee is payable with respect to a single operation. In my opinion, the asserted “modesty” of the fee is of no assistance on statutory interpretation. In any event, the evidence of the Appellant on the inadequacy of the fee, which may have been relevant to the issue of dishonesty, is an inadequate evidentiary foundation for any inference, if relevant at all.

58 His Honour also relies on the proposition that a “minimum standard” is an “assumption inherent in the item”. There is no evidentiary basis for any such “assumption”. Nor is there, in my opinion, any warrant for the inference that charging patients for a ‘higher standard’ of services is consistent with the bulk billing regime. Indeed, in my opinion, bulk billing is, in part, directed to preventing such conduct which results in higher charges to patients.

59 Each of the additional payments in issue in the present case were identified as being for counselling and theatre fees, although sometimes there were separate charges. The evidence by the various employees of the medical centre operated by the Appellant, and of the Appellant herself, confirmed that the counselling and theatre fees charged were inextricably connected with the termination itself. In the case of a theatre component of the fee it was a fee for the location in which the termination was conducted. In the case of the counselling component it was payment for a consultation as to whether or not the termination should proceed.

60 In the Appellant’s own evidence she gave the following answers:

“Q. If they were having a termination they were charged for the theatre because they were in there having a termination?

A. Yes, you are right.

Q. They were charged for counselling because they were there to have a termination?

A. Yes they were. We had patients who did not have termination and had counselling also and we had patients who were not for termination and had counselling also.

Q. I’m just asking you about the patients who had terminations at the moment, all right? The patients who had terminations were charged for counselling because they were there to have a termination, correct?

A. It’s a juggling of words I think. We were charging counselling which was just counselling. It could be for anything.”

61 In subsequent questioning she was asked whether or not the counselling was “part of the process” and replied that it was a “pre-requisite” for the termination but not “part of the termination”. In my opinion, a “pre-requisite” is sufficiently closely connected to be “in respect of the professional service” for which it is a “pre-requisite”.

62 As indicated above, the fee, most often a single fee for both matters, was charged on the sliding scale depending on the length of the pregnancy. Indeed, where persons had been charged a certain amount on the assumption that a pregnancy was of a certain period, but it transpired subsequently that the period was in fact longer, then an additional fee was charged.

63 I am of the view that the position with respect to the theatre charges is quite clear. It was an essential part of the provision of the medical service for a termination of pregnancy that a sterile place be provided for the conduct of the operation. Under the bulk billing arrangements, there is no more justification for charging extra for this service than there would be for charging extra for other matters necessarily incidental to the conduct of a physical facility in which the service is to be provided. In this respect it is identical to the “facility fee” found to be inextricably linked in Dalima.

64 The “consultation fee”, for those few cases when it was separate, is not so clear. The evidence suggests that this is a consultation by a nurse as to whether or not the abortion should proceed at all. It is not clear why this is separate from the consultation by Dr Sood herself for which a separate charge was made in each case. These claims were not challenged in the proceedings as outlined above at [15]. Presumably, where the result of the consultation with a nurse is that the abortion does not proceed, no Medicare benefit claim could be made under Item Number 35643. In such a case there could be no assignment of the Medicare benefit and it could not be said that any consultation fee paid was “in respect of the professional service”, being the termination.

65 The issue for present purposes is what is the position with respect to those occasions on which the consultation resulted in the termination proceeding, when a claim was made. My mind has fluctuated on this but, in the event, I have formed the view that the words “in respect of” in the context are so wide that they cannot be relevantly read down. In my opinion, the preliminary consultation is encompassed within the termination to which the relevant item number relates.

66 I am influenced in this conclusion by a number of considerations of the facts of this case. First, no patient was offered a choice. It was an essential precondition of any termination that there be such a consultation. Secondly, in many, it appears most, cases, there was no differentiation between the “theatre” and the “consultation” fee. Thirdly, in every case, the fee was increased depending on the length of the pregnancy. Each of these matters suggest that, as a matter of practice in this medical clinic, the consultation fees were inextricably linked to the termination itself. Accordingly, these fees were paid “in respect of the professional service” to which Item 35643 refers.

67 On this basis, the lack of entitlement was made out as a matter of law. Other submissions were made under this ground of appeal but it is unnecessary to deal with them.

The Directions on Dishonesty

68 Ground 2 is:

“The trial judge erred in respect of the directions to the jury in respect of dishonesty.”

69 Each of the charges was lain pursuant to s134.1 of the Criminal Code which provides:

“134.1(1) A person is guilty of an offence if:

(a) the person, by deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and

(b) the property belongs to a Commonwealth entity.”

70 The Code also contains a definition of dishonesty as follows:

“130.3 For the purposes of this Chapter dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.”

71 The two elements identified in this section are in accordance with the test at common law for dishonesty, known as the Ghosh test, which the High Court determined would no longer apply to the common law of Australia in Peters v The Queen (1998) 192 CLR 493. Relevantly, the High Court held that the test was inappropriate by reason of its inclusion of the element of whether or not an accused knew that the conduct was dishonest according to the standards of ordinary people.

72 The reintroduction by 130.3(b) of this second element in the Ghosh test was deliberate. The Explanatory Memorandum for the Criminal Code expressly addresses itself to the judgment in Peters and indicates that the proposal was intended to reinstate the second element in the Ghosh test as a matter of legislative policy. This had been approved by the Standing Committee of Attorneys-General. (Explanatory Memorandum par [62]-[65].)

73 During the course of the trial no one drew his Honour’s attention to the definition of “dishonesty” found in the Code. Accordingly, when his Honour came to direct the jury on the second element of the charges, having dealt with the element of “deception”, his Honour said:

“The element of dishonesty is in effect a control issue. The jury as representatives of the community must judge the accused’s conduct and decide to what extent that conduct corresponds with the standards of reasonable decent people in the community.”

74 The Crown relied on this passage as conveying the substance of s130.3. However, as can be observed, there is no reference to the second limb of the definition of dishonesty with respect to the knowledge of the accused.

75 Although, plainly, it would have been preferable for the jury to be directed in accordance with the statutory provision, Mr Odgers SC, who appeared for the Appellant in this Court, acknowledged that he could not suggest a miscarriage of justice had occurred if the balance of the summing-up with respect to the element of dishonesty conveyed the substance of s130.3(b). In particular, to use the terminology of the submissions and of the direction in this case, which I will set out in some further detail below, Mr Odgers acknowledged that, if the jury had been directed that the Crown had to prove beyond reasonable doubt that the accused “did know that she was not entitled to charge a fee and bulk bill her clients”, then he could not contend that the substance of the second limb of the definition of dishonesty in the Code had not been conveyed to the jury. He accepted that if the Appellant knew that she was not entitled to charge the fee, then she must have known that this was dishonest in accordance with the standards of the community.

76 The Appellant also submitted that his Honour erred in referring to recklessness on the issue of dishonesty. In a passage of the summing-up where his Honour was directing the jury with respect to the first element, i.e. the matter of “deception”, he had said:

“Deception is defined in the law to mean an intentional or reckless deception whether by words or by conduct. Deception is the intentional or reckless inducing in another of a state of mind which the accused knows does not accord with the fact.”

77 His Honour was there reciting the relevant part of the definition of “deception” in the Code. The difficulty was that it was not part of the Crown case that the deception in these proceedings involved an element of “recklessness”. The Crown case was directed, and directed only, to an intentional act of deception.

78 His Honour went on to say, again when dealing with the element of deception:

“Here the Crown submits that the accused represented to the Health Insurance Commission in each offence that she had not charged any additional amount in respect of the professional service that she was bulk billing for. I have used that colloquial term bulk billing but I hope you all understand what it means by now. In each case the Crown alleged that the statement involved a deliberate inducing of the Health Insurance Commission and the statement we are referring to and the one that the Crown referred to is conveniently contained in one of the documents that you were given a copy of, we marked it as MFI 1 but you probably recognise it as I hold it up to you. The statement is this statement here which I have highlighted but it read this:

‘No payments have been sought from any person in respect of the professional services specified in the attached assignment forms.’

alternatively the Crown alleges a reckless inducement, that is, that the statement was made by the accused without her caring whether it was true or not

79 As it appears, his Honour asserted that the Crown case did, in the alternative, allege a “reckless” deception. This was never the Crown case, as the Crown acknowledges in this Court. The Appellant relies on this error by his Honour, in combination with his Honour’s directions on dishonesty, as leading to a miscarriage of justice.

80 That the issues of deception and dishonesty overlapped was clear. His Honour indicated, in a passage shortly after reciting the definition of deception as quoted above:

“This aspect of the case is closely related to the second element, namely, the element of dishonesty and I will set out in more detail why the accused says that she believed that she was entitled to charge those fees and why she therefore did not believe that the statement made in the batch form was false.”

81 Furthermore, shortly before turning to the element of dishonesty, his Honour reiterated the proposition when he said:

“However, as you will appreciate this element and the second element of dishonesty are closely related. If you are not satisfied beyond reasonable doubt that the Crown have proved that there was a deception employed by Dr Sood when she completed the various batch forms which included the statement to the effect that she had not charged any additional amount in respect of the scheduled item then you should find the accused not guilty, otherwise you move on to consider the second element.”

82 His Honour then went on to deal with the second element i.e. dishonesty. Thereafter his Honour employed terminology of a closely related, but quite distinctive character, when identifying for the jury the way they should approach the issues that had arisen with respect to the second element.

83 On some occasions his Honour used the formulation that the Appellant “did not believe that she was entitled to charge” the cash fees. On other occasions his Honour formulated the proposition in terms that she “did know that she was not entitled to charge” the cash fees and bulk bill her clients. As can be seen these two ways of expressing the proposition are quite distinct. Nevertheless, both matters arose.

84 As Mr D Staehli SC, who appeared for the Crown, submitted, the Crown had to establish beyond reasonable doubt that the Respondent did not believe that she was entitled to charge the fees. That was the precise case that had been mounted by the defence on the basis of the Respondent’s own evidence expressed in those terms, namely, that she believed that she was entitled to charge the fees. Accordingly, he submitted, the Crown had to establish beyond reasonable doubt that this defence was not made out and his Honour’s references of this character should be understood as directed to this proposition.

85 However, with respect to the Crown’s own obligation to prove beyond reasonable doubt the dishonesty element of the offence, it was necessary for the Crown to prove that the accused did know that she was not entitled to charge the cash fees and bulk bill. Plainly there was scope for confusion.

86 It was unnecessary for the jury to be separately directed with respect to the Crown’s technical obligation to establish that the defence was not made out in this respect. Ultimately the jury had to find that the accused knew that she was not entitled to charge the fees. Such a finding necessarily encompassed a finding that she did not believe that she was so entitled. The prospect of confusion was such that it was better that no direction in the latter form be made at all. However, no miscarriage of justice would have occurred if the directions on the two distinct issues that arose had been clearly separated.

87 I propose to set out the various passages in the summing-up in which his Honour used the two alternative formulations with a view to determining whether the summing-up was adequate in this respect, particularly in view of the direction about recklessness that he had given in the context of the directions on the element of deception and in view of his Honour’s failure to direct in the terms of s130.3 of the Code.

88 Immediately after his Honour introduced the second element i.e. the element of dishonesty, in the passage I have quoted above in [73] his Honour said:

Has the Crown satisfied you beyond reasonable doubt that the accused did not believe that she was entitled to obtain a Medicare benefit fee

I will repeat

Has the Crown satisfied you beyond reasonable doubt that the accused did not believe that she was entitled to obtain a Medicare benefit

An answer to that question will assist you to decide whether the accused could be said to have acted dishonestly

the accused did know that she was not entitled

89 I will refer to this as the first direction on dishonesty.

90 His Honour went on to outline the evidence on which the Crown relied for the last proposition, i.e. that “the accused did know that she was not entitled to charge such a fee”. His Honour referred to the batch document itself and the declaration contained in it; the Medicare Guidelines document found in the accused’s office; Dr Sood’s own evidence that she had read those Guidelines; and, finally, the dumping of the receipts in the bin. His Honour went on to say:

the accused in fact did know that she was not entitled to charge the additional fee

91 Subsequently, when reviewing the submissions made by the parties his Honour commenced with the reliance placed by the Crown on the declaration on each of the claim forms and said:

she knew that she was telling a lie a

92 His Honour also said in this context:

she knew that a professional was not entitled to bulk bill

Dr Sood knew that she was making deliberate falsehoods

93 As can be seen, each of the references quoted in [87]-[89] are correct. However, his Honour also used the alternative formulation, relevant to rebuttal of the defence case, and never distinguished between the two formulations.

94 While still dealing with the Crown case, his Honour said:

she did not believe that she was being dishonest

95 His Honour then referred to the receipts being found in the bin and said:

whether or not the accused honestly believed that she was entitled to charge a cash fee

96 His Honour’s concluding reference to the Crown case was:

whether the Crown has proved that she did not honestly believe that she was entitled to charge

97 His Honour then turned to the defence case and noted that counsel for the Crown had posed a question in terms of “Whether she believed that she was entitled to so charge on the 96 claims that were made?” (SU 27.1). He then referred to the submission for the Appellant in the following terms:

she did know

that she was not entitled to

98 Various aspects of the Appellant’s conduct were relied upon in this respect. His Honour then set out the following submission for the Appellant:

she did not believe she was entitled to charge

99 Again, as can be seen, the two formulations were used without differentiation.

100 A test that: “She did not believe she was entitled” is deceptively similar to a test: “She knew she was not entitled”. Both issues arose. It was important that the former test, if mentioned at all, be linked expressly to the Crown negativing the defence case. However, in view of the burden and standard of proof, it was imperative that the jury be left in no doubt that the latter test had to be that which was ultimately applied and that the former was merely a step along the way. This was not, in my opinion, done.

101 As the extracts I have set out above indicate, the two tests were intermingled in a way which could have left the jury with the impression that all the Crown had to do was establish that the Appellant did not believe that she was entitled.

102 I place particular weight on what I have called above the first direction on dishonesty set out in [88]. This direction occurred at the outset of his Honour’s directions on the “second element”. He was not reciting submissions. This was the direction of law which the jury had to obey.

103 In the course of this direction his Honour said, twice, that the question the jury had to ask was whether “the accused did not believe that she was entitled”. This question was reinforced by the statement that: “An answer to that question will assist you to decide whether the accused could be said to have acted dishonestly”.

104 It is the case that his Honour immediately referred to the Crown’s “contention” that the “accused did know that she was not entitled” and repeated the formulation shortly thereafter. At the very least, this was confusing. It concerned the central element of the trial. In my view this constituted a miscarriage of justice.

105 Furthermore, it highlights his Honour’s failure to direct in the terms of s130.3 of the Code. I am not satisfied that the jury was directed that it had to find that the Appellant knew she was not entitled. As Mr Odgers submitted, in the absence of such a direction, the jury could not have applied the definition of dishonesty in s130.3 of the Code.

106 The references to recklessness were inaccurate. If that had been the only error, it may have been appropriate to refuse leave under Rule 4. However, the combined effect of the errors on the critical issue in the trial is such as to justify leave being given. The Appellant has not had a trial according to law. The deficiencies in the trial were of fundamental significance to the issues in dispute.

Direction on Consciousness of Guilt

107 Ground 3 is:

“The trial judge erred in failing to give proper directions regarding evidence relied upon to show consciousness of guilt.”

108 In view of my conclusion on Ground 2, it is unnecessary to consider this ground. There is a real issue whether the point was pressed at trial. No doubt it will be at a retrial. In any new trial the directions in this respect may well be different.

Conclusion

109 The Appellant submitted that, if the Court came to the conclusion that the appeal should be allowed, the Court should not order a new trial. She relied on a number of factors in this regard.

110 The Appellant submitted that the prosecution case could not be regarded as strong and noted, in particular, the evidence of the Appellant herself about her belief as to her entitlement to charge the additional fees and the experience of the practice of other clinics in this regard. Whether or not the Appellant should be believed in this respect was a matter for the jury. This Court should be very slow to intervene with the exercise of the prosecutorial discretion to put the Appellant to trial on any such basis.

111 The Appellant also submitted that the public interest in the administration of justice was not engaged to a high degree, by reason of the fact that the offence related only to the bulk billing system. The Appellant could make charges of the relevant character directly to the clients. The issue that has arisen is one concerning the process of payment, not the amount paid. This, again, is a matter for the exercise of a prosecutorial discretion. Whether or not criminal charges should be lain with respect to perceived abuse of one of the nations most fundamental social welfare systems raises considerations of a general character well beyond the individual case. This is not a matter on which the Court should place weight when determining whether or not to override the exercise of a prosecutorial discretion.

112 The only substantive matter raised in this regard concerned the issue of entitlement. If this Court had come to the conclusion that, as a matter of law, the Appellant was entitled to charge an additional fee then, no order for a new trial would have been appropriate. As indicated above, the Appellant’s contentions in this respect should be rejected.

113 The orders I propose are:

1 Appeal allowed.

2 Conviction and sentence quashed.

114 SIMPSON J: I have read in draft the judgment of the Chief Justice. I agree, for the reasons given by his Honour, that Ground 2 should be upheld and a new trial ordered.

115 I have found Ground 1 more troubling. I regret that I am unable to agree with his Honour’s approach to, or analysis of, this ground. In order to express my concerns it is necessary that I say something about the background. I do not propose to restate all the factual matters that are set out in the judgment of the Chief Justice.

116 Each of the 96 charges against the appellant was framed in the following way:

“For that she on or about [date] ... did by deception dishonestly obtain a financial advantage from ... the Health Insurance Commission ... in that she submitted claim form number ... claiming Medicare benefits for item number 35643 being professional services performed by her in respect of which she had already sought and received payment from the patient.”

117 In each case the financial advantage alleged was the payment to the appellant of the Medicare fee under what is known as “bulk-billing” arrangements in respect of the performance by her of a pregnancy termination. The deception alleged was the signing by the appellant of a declaration that:

“No payments have been sought from any person in respect of the professional services specified in the attached assignment forms and claims transmission summary sheet.”

118 It is not necessary at this point to say anything about the element of dishonesty.

119 The evidence that the appellant had performed the pregnancy termination procedures, that she had used the bulk-billing arrangements to receive payment, that she had charged each patient a separate fee for counselling and theatre services, that the counselling and theatre services were associated with, or provided in relation to, the pregnancy termination, and that she had signed the declarations, was undisputed. The nub of the Crown case was that the declarations made by the appellant were false – that is, that it was false to declare, as the appellant declared, that no payment had been sought from any person in respect of the professional services (the pregnancy termination services). Whether each declaration was false depended upon whether the counselling services and/or theatre services were an integral part of, or so closely related as properly to be seen as part of, the pregnancy termination procedure – that is, whether they were payments in respect of the pregnancy termination.

120 It was the Crown contention that these services were services provided in respect of the pregnancy termination procedures. As it happened, the appellant in effect conceded that this was so. She conceded that (given her use of the bulk-billing arrangements) she was not entitled to charge the separate fees. That amounted to a concession that those fees were payments she had sought in respect of the pregnancy termination procedure. That necessarily entailed a concession that the declarations were false.

121 Ground 1 of the appeal is pleaded in the following terms:

“The trial judged erred in law in holding that, as a matter of law, the appellant made a false statement when she stated that no payment had been sought ‘in respect of’ specified professional services.”

122 The ruling of law was said (on behalf of the appellant) to have been made during the course of the trial, on the third day. At this stage only two witnesses had given evidence. Both were women who had worked in the appellant’s clinic during the period covered by the charges. Each gave evidence about the counselling and theatre fees. Cross-examination of each witness was minimal and did not incorporate any challenge to her evidence. Their evidence was, and remained, undisputed and unchallenged. When the appellant gave evidence she effectively confirmed it. Importantly, for the purpose of analysing this ground of appeal, she also accepted, in cross-examination, that she was not entitled to receive the fees (if she were also to bulk bill for the pregnancy terminations). This was the basis for the concession to which I have referred. The appellant’s case was that she had, at the time, believed in her entitlement to receive the fees and that the Crown had not proved the element of dishonesty. Having regard to her acceptance that the counselling and theatre fees were impermissible, she did not take issue with the Crown contention that the declarations were false.

123 After these two witnesses had given evidence there was quite extensive discussion, on the second and third days of the trial, between Blackmore DCJ and both counsel. This ranged over a number of areas. There does not appear to have been any particular application or request that gave rise to the discussion. It appears to have been a fairly cooperative exercise on the part of the trial judge and both counsel to explore legal issues that might arise in the trial. In any event, at one stage on the second day, the Crown Prosecutor put to his Honour:

as a matter of law

Dalima Pty Ltd v Commonwealth of Australia

“Your response is, isn’t it, that she charges for a consultation in her room and charges for an operative procedure in the theatre. It is the operative procedure in the theatre which is so closely related to what the service fee is that you couldn’t say that there are otherwise ‘in respect of’. That’s fair enough. I can understand that point. I think you are on very strong ground on that aspect. It would be the counselling one that I think you would be on less strong ground with because it is possible to have counselling without the procedure. Presumably it is possible to have counselling and you’re not even necessarily thinking of the procedure.”

124 It is the appellant’s present contention that his Honour then ruled, as a matter of law, that the declarations were false. She draws this from the following passages attributed to his Honour:

In my view these are closely enough related to be said to be ‘in respect of’ in accordance with the Act

125 The Crown did not accept that this passage shows that a final ruling was made. The Chief Justice is of the same view. (See para [21].) Blackmore DCJ certainly appeared, in the final sentence, to be expressing a view, or even holding, that the counselling services and operating theatre services were services so closely associated with the pregnancy termination services that payments sought in respect of them (the counselling and theatre services) were payments sought in respect of the pregnancy termination services.

126 The passage has, to my mind, the flavour, at least, of a finding that the additional charges were impermissible. Implicit in this is a finding that the declarations that no payments had been sought were false. If that is what his Honour intended, it represents, in my view, for reasons that appear below, an error of law.

127 However, I respectfully agree with the Chief Justice that the passages do not amount to a ruling, and certainly not to a final ruling, to that effect.

128 Despite his Honour’s expressly reserving the opportunity to raise the matter again, no more was said on this issue. His Honour then directed the jury, relevantly, in the terms extracted in the judgment of Chief Justice in paras [27] and [28].

129 Although the Crown did not accept that the view expressed by Blackmore DCJ on the third day of the trial was necessarily a final view, it did appear, in its written submissions, to accept that the “ruling of law” upon which Ground 1 is based was made. It sought to defend the ground of appeal by defending the correctness of the so-called “ruling of law”. In written submissions the Crown put:

“22 ... Clearly the additional fee charged by the appellant was a condition of the service provided, notwithstanding that any additional acts were not intrinsically part of ‘evacuation’ in item 35643. If the appellant’s argument is correct, a practitioner could render additional charges for consumables, nursing staff, scrubbing up, sterilising instruments or walking in the door of the theatre and still bulk bill. Clearly this would fly in the face of what was intended, as the appellant conceded in evidence in relation to the charges of general practitioners for consultations.

...

30 The Crown submits that his Honour’s interpretation was correct.” (internal references omitted)

130 In my opinion the relevant passages have to be read in the context of what had actually happened in the trial. They were references to the appellant’s evidence, to the Crown argument, and to the case advanced on behalf of the appellant. For that reason, I am unable to agree that the summing up amounts to a direction to the jury that, as a matter of law, the statements were false. At most, the summing up proceeds on the basis that the appellant herself had accepted that the statements were false. This was correct. She had accepted that the statements were false. In my opinion the directions do not go so far as to record a finding or direction that, as a matter of law, they were false.

131 I would therefore reject Ground 1 of the appeal. It is, in my opinion, based on a premise that is false.

132 Inherent in the approach taken by the parties was an acceptance that it was open to the trial judge to make a ruling, as a matter of law, on the falsity or otherwise of the declarations. This is the second fundamental misconception upon which Ground 1 was argued. It seems to me that whether a declaration is false or not is a matter of fact to be decided by the jury. In this case the issue has been masked by what amounts to a concession on the part of the appellant that the declarations were false. But in a case where, for example, the foundational facts were disputed, it is unlikely, in my opinion, that it would be open to a trial judge to make such a ruling. The trial judge would have available only the evidence given in the trial, of which the trial judge is not the arbiter of fact.

133 In this case, no evidence was given of what would ordinarily be encompassed in the provision of the pregnancy services constituting item number 35643. Whether counselling or operating services come within that item number as set out more fully in its description, is an issue of fact, which may, in some cases, be disputed, and the subject of evidence, probably expert evidence. The relationship between the additional services and the professional services the subject of the bulk-billing claim will vary from case to case. Many cases will involve issues of fact and degree.

134 It follows that I am unable to agree with the conclusions of the Chief Justice expressed in paras [59] – [62]. My view is that these are matters for determination by a jury. They are not matters of law to be determined either by the trial judge or by this Court. Since the falsity (or otherwise) of the declarations is a matter of fact, as to which the Crown bears the onus, a reasonable possibility that the declarations were not false would be sufficient to require an acquittal. It would, as is conventional in such circumstances, be necessary to direct the jury to that effect.

135 I would, however, for the reasons I have already given, reject Ground 1 of the appeal.

136 I am conscious that the views I have here expressed have been arrived at without the benefit of full argument. That is because I take an approach to the question that is fundamentally different from that taken by the parties on the appeal.

137 ADAMS J: I have read in draft the judgment of the Chief Justice. I agree, for the reasons given by his Honour, that Ground 2 should be upheld.

138 I agree with the Chief Justice’s conclusion and the reasons given for it that the question whether the appellant had made a false statement when she asserted that no payment had been sought “in respect of” the specified Item is a question of law. However, with respect, I do not agree that either the counselling or the theatre charges were made “in respect of” the Item in question.

139 The facts and regulatory context have been extensively set out in the judgment of the Chief Justice. I do not intend to repeat that material, except to the extent that it will make it easier to follow my reasons.

140 The crucial facts, which are not in dispute, appear to me to be as follows:

(1) The doctor was paid $144.35, by way of direct-billing for a service described in the following terms –

“Item 35643 Evacuation of the contents of the gravid uterus by curettage or suction curettage not being a service to which Items 35639 or 35640 applies, including procedures to which Items 35626, 35627 or 35630 applies, where performed (Anaes. 17705=3B + 2T)”.

In lay terms, this is an abortion.
(2) Before any abortion was performed the patient was required to participate in what was described as “counselling”. That involved an interview with either an enrolled nurse or an assistant in nursing. The interview was structured by using a form which listed the following questions-

“(i) How do you feel about keeping your pregnancy?
(ii) How would it affect your present or future life?

(iii) Have you considered any options other than TOP?

(iv) How do you feel after reaching a decision?
(v) Do you have any cultural or religious conflicts influencing your decision?
(vi) Does your partner know about this pregnancy and how does he feel about the pregnancy and the termination?
(vii) Have you used any contraception before hand and do you plan to use contraception in the future?
(viii) Are you aware of the risks and effects of the procedure?
(ix) If you decide to have the TOP you will need to have a discussion with the doctor about the TOP, the procedure and the risks involved again in detail”.

The nurses discussed any concerns the patient might have about the matters raised by the questionnaire. The patient’s answers to the questions were noted and she and the counsellor signed the counselling form. The questions were wide ranging and raised important personal issues but not medical ones. It was not suggested that what transpired in these interviews was not fairly described as counselling, nor was it any part of the Crown case that the nurses were not qualified, by their experience or otherwise to conduct them. It was not suggested that the counselling was a sham or was in any way inappropriate.

(3) Each patient was seen by the appellant before the procedure. This consultation was separately direct-billed. It was an essential prerequisite for the procedure. The Crown did not suggest that the appellant was not entitled to charge for this consultation.

(4) The procedures were undertaken in an operating theatre situated in part of the premises occupied by Dr Sood’s practice.

(5). The charges varied depending on the gestation period, eg the fee was increased by $20 if the period was greater than 12 weeks but less than 14 weeks and increased again if greater than 16 weeks and again if greater than 18 weeks and so on. The fee was also greater if the procedure was undertaken on a weekend as distinct from a weekday.

(6) The charges were made for “counselling and theatre” with no distinct amount attributed to each element.
(7) The appellant signed claim forms asserting, “no payments have been sought from any person in respect of the professional services specified in the attached assignment forms”.

141 Some additional observations should be made about these facts. First, there was no expert (or, for that matter, other) evidence called by the Crown as to the nature and immediate concomitants of the procedure itself. It appeared that it was conducted under anaesthetic but whether general or otherwise was not stated. There was no evidence as to whether such procedures must be or should be performed in an operating theatre as distinct from the doctor’s consulting room. There was no evidence as to whether, or the extent, of any difference in procedures or personnel necessary or desirable to be present (except for the anaesthetist) in conducting such procedure if it took place in a theatre or the consulting room. The Item itself made no reference to the place at which or the conditions under which the procedure should or could be performed. In this respect it differed from many other Items concerning professional attendances.

142 The only other source of evidence as to the distinctions between procedures carried out in a consulting room and an operating theatre was the appellant. Her evidence, in substance, was that there were a number of substantial differences. The Crown did not seek – indeed, was not in a position to do so – to contradict her evidence on this point. The Crown simply argued that the charge for performing the procedure in a theatre was a payment sought in respect of the Item.

143 The appellant said that additional charge “was to run the theatre and provide…counselling service”. She said that “running a theatre” involved, “lots of things: we need different gases, anaesthetic appliances; we need medications, injections, disposables, instruments and cleaning material, sheets and drinks, so many things”. The appellant also said –

“… you cannot run a theatre properly or provide the service properly in the $140 Medicare gives you…You could maybe do Third World work, somewhere where you cut short on services. You could not afford to pay fully registered nurses, could not afford to keep up to the standard of your sterilisation, all the services, you couldn’t do it with $140 if you had to run a practice.”

144 The Crown prosecutor did not dispute this evidence or cross-examine the appellant to suggest that what she said was false, although he asked the jury, in effect, to disbelieve her upon a basis that, to my mind, was quite spurious.

145 In cross-examination the prosecutor asked the appellant about costs that a general practitioner might have. The appellant replied –

“We are talking of two entirely different sorts of situations, different sort of requirements and procedures, different level of staff required. They are entirely different. A GP has a nurse, he has one nurse sitting in a treatment room, could be just an enrolled nurse. He cannot sedate patients and observe, he won’t need anaesthetists or the equipment to do that. We had gases to run a theatre. We had oxygen suction pipes in all the walls and these led to every bed. General practitioners do not need that. In the medical centre we have a pulse ovymetre, you only have to put your finger on that to read the pulse. That costs $600.”

146 The appellant explained the increased charge for longer gestation periods in this way –

“Basically, the theatre charges I explained earlier consisted of many things. For a patient 8 weeks pregnant compared to a patient 14 weeks pregnant we would have to use a lot of extra theatre time, extra medication, everything involved in the procedure would be many folds(ie, times) more than what 8 week terminations would be. That is why we charge extra”.

147 The appellant conceded that on the view of the law taken by the Health Insurance Commission she had indeed charged for services “in respect of” the procedure described in Item 35643. However, she maintained throughout her evidence that the additional charges were not “for the procedure which Medicare is paying us”, stating this repeatedly in answer to attempts by the Crown prosecutor – quite wrongly in my view – to extract from her what could only amount to an opinion about the interpretation of the law and its application to the facts.

148 In my view the concession was not an admission of any relevant fact. Even accepting the question whether the charges were “in respect of” Item 35643 is one of fact, it was not a fact capable of being proved by being admitted by an answer in cross-examination. It was an objective fact requiring determination by the jury. The “admission” was no more than the appellant’s opinion, and was substantially qualified. The nature of the necessary relationship between the additional charge and the Item to make the former charge “in respect of” the Item was not of a kind as to which the opinion of a witness could be asked. In this respect the appellant was merely a witness. I do not say that a formal admission could not be made under s 184 of the Evidence Act 1995 but this is a completely different matter. In respect to this issue, no light is shed by the passage in R v Petroulias (2005) 62 NSWLR 663 at 671, to which the Crown referred.

The meaning of “in respect of”

149 If I may respectively say so, the Chief Justice is right to draw attention to the ubiquity in the Act of the phrase “in respect of a professional service”. However, in each case the phrase could have substituted for it the word “for” without any loss of syntactical correctness. Is there a loss of referential meaning? The answer would be “yes” only if the underlying assumption is that more was intended to be covered than would be covered by the word “for”. Aside from the phrase itself, the Act does not, in my respectful view, suggest the need for wider reference. The difficulty in accepting that the phrase itself is intended to reflect a wider reference is that it entails considerable uncertainty in a context where precision of scope if of considerable importance.

150 The striking characteristic of the Table prescribed in the Health Insurance (General Medical Services Table) Regulations 2005 is the clinical and minute precision in which each service (of which there are well over 50,000) is described.

151 Although the Regulations comprise a distinct statutory instrument, it forms part of a detailed, comprehensive scheme. In my respectful opinion, the acceptance of the Crown submission would, in effect, surround each item with a penumbra of indeterminate meaning inconsistent with the structure of the legislative scheme and unfair to the medical practitioners attempting to work within its boundaries.

152 I do not accept that the legislature intended to place doctors in the position where a not unreasonable interpretation of the Act leads them to make a claim which ex post facto a judge (or, for that matter, a jury) will find to be wrong and render them liable to criminal prosecution. The mere fact that the prosecution must prove dishonesty as an additional element is no answer to this point. The question of interpretation is debatable and the fact that a doctor makes a claim, even if he or she thinks it might not be justifiable but upon an available interpretation of the Act and the Regulation, should not render him or her liable to prosecution.

153 The terms of the Department’s own publication advising doctor’s how to apply the Medical Benefits Schedule in respect of billing procedures. Paragraph 7.5.2 states –

7.5.2

for the service

for that service

154 I think it is also worth noting that the fee payable at the time for a termination under Item 35643 was $144.35. Of course, the medical issues become more difficult the longer the gestation period. It cannot be doubted that termination of pregnancy by surgical intervention requires a high level of skill and experience. To my mind the modesty of the Medicare fee strongly suggests that it applies only to undertaking the specific matters described in the Item.

155 The phrase “in respect of” is capable of involving a wide range of circumstances focussed on a particular subject but not limited to that act or event. It can also simply mean “for”. Where it is intended to refer to or cover more than simply the specifically described subject, other commonly used phrases are, however, much more apt. The most obvious are “in relation to” or “in connection with”. These phrases themselves suggest that there exist a penumbra of circumstances linked to the subject matter which it is also intended to cover by the description of the subject matter. That these terms are not used in a situation which (if the Crown contention be correct) calls for a clear indication that connected services are intended to be covered although not specifically described (and this against a threat of criminal prosecution) is a clear signal, to my mind, that no such wider reference is intended.

156 It follows that Item 35643 does not include counselling services and the fact that the appellant would not perform the procedure unless the patient had undergone counselling session is irrelevant. The position of the theatre fee is not so clear. However, the provision of theatre facilities in which the service is performed is not the provision of the service. This might suggest that by parity of reasoning a doctor is entitled to charge, for example, for use of the consulting room where, say, the procedure is undertaken. There are several answers to this suggestion. It seems obvious that the Item necessarily assumes that the procedure will take place in an appropriate place and that provision of such a place is necessarily part of the service itself. But the assumed place is that which is sufficient to satisfy accepted medical standards of care. The only evidence bearing on this point came from the appellant and was inconclusive. The clear thrust of it, however, was that the standard of care was significantly greater than the minimum necessary to satisfy relevant standards. If a doctor charged for the use of his or her consulting room, it would, it seems to me, be obvious that the real nature such a charge was that it paid for the general costs of running the doctor’s practice. The Item is predicated upon the existence of appropriate means for carrying it out. The presence of those means is thus part of the provision of the service. Charging for them is thus a charge for the service. Where more than that minimum standard is provided, it falls outside the assumption inherent in the Item. Charging for that extra level of safety is thus not within the Item.

157 I acknowledge that this reasoning is not entirely convincing. This, however, is merely a function of the lack of clarity of the language of the Act. No entirely satisfactory interpretation of the Act is as it seems to me, available. However, I have formed the view – not without significant wavering – that the interpretation I respectfully propose has the advantage of greater (though not complete) certainty than that proposed by the Chief Justice.

New Trial

158 It follows that I am of the opinion that the appellant should be acquitted and, accordingly, no order for a new trial should be made.

159 Simpson J has concluded that the question whether the counselling and theatre fees were charges in respect of Item 35643 is one of fact and, hence, for the jury and not the judge to determine.

160 If this were so, a direction would be required to the effect that, if it were reasonably possible that the charges for neither counselling and use of the theatre were in respect of Item 35643, the appellant must be acquitted. In my view, it is impossible rationally to exclude such a reasonable possibility. The circumstances are inherently and irreducibly ambiguous. Even if this were not so as a general proposition, upon the analysis of the evidentiary position explained in Simpson J’s judgment, the state of the evidence called by the Crown in the trial was such that no conclusion adverse to the appellant was open on the evidence. The calling of expert evidence in an attempt to fill the substantial evidentiary gap would represent to my mind such a major change in the Crown case as to make it inappropriate to order a new trial. The Crown went to trial relying on no expert evidence at all. That was plainly a deliberate forensic decision. The appellant gave evidence in answer to that case. The Crown urged a view of the law which – if Simpson J be correct – was wrong. The Crown was content with the way the matter was put to the jury. I do not consider that, having made these tactical forensic decisions, the Crown should now be permitted to mount a completely different trial.

161 Accordingly, if I am wrong about the interpretation of the Act and Simpson J’s analysis be correct, this Court should not order a new trial.

**********

12/04/2006 - Name of Solicitor incorrectly spelt Robertson - Robinson - Paragraph(s) Cover Sheet

04/07/2006 - Trial being heard - Paragraph(s) 1

Citations

Sood v R [2006] NSWCCA 114

Most Recent Citation

Cases Citing This Decision

9

Rory McDonnell v Mehanna Holdings Pty Ltd as Trustee for the Mehanna Discretionary Trust [2019] NSWSC 1768

Director of Public Prosecutions v Gramelis [2010] NSWSC 787

Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347

Cases Cited

10

Statutory Material Cited

2

Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456

R v Petroulias [2005] NSWCCA 75

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CITATION:	Suman SOOD v Regina [2006] NSWCCA 114 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 February 2006
JUDGMENT DATE:	12 April 2006
JUDGMENT OF:	Spigelman CJ at 1; Simpson J at 114; Adams J at 137
DECISION:	1. Appeal Allowed.; 2. Conviction and sentence quashed.; 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW – Appeal – Against Conviction – Particular offences – Dishonestly obtaining a benefit by deception, s134.2 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Elements of statutory scheme – Whether question of entitlement one of law or fact – Meaning of “with respect to”. - CRIMINAL LAW – Practice and Procedure – Whether trial judge made a ruling or gave a direction to jury on question of entitlement. - CRIMINAL LAW – Practice and Procedure – Whether directions on dishonesty constituted a miscarriage of justice, s134.1 Criminal Code Act 1995 (Cth). - CRIMINAL LAW – Practice and Procedure – Whether a new trial should be ordered.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth): s130.3, s134.1, 134.2 Health Insurance Act 1973 (Cth): s20, s20A
CASES CITED:	Collector of Customs v AGFA-Gevaert Ltd (1995) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Dalima Pty Ltd v Commonwealth of Australia (New South Wales Supreme Court, unreported, 22 October 1987) Hope v Bathurst City Council (1980) 144 CLR 1 Peters v The Queen (1998) 192 CLR 493 R v Petroulias (2005) 62 NSWLR 663 Vetter v Lack Macquarie City Council (2001) 202 CLR 439 Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23 Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
PARTIES:	Suman SOOD (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2005/1710
COUNSEL:	S Odgers SC (Applicant) D Staehli (Respondent)
SOLICITORS:	Craig Robinson - RBHM Commercial Lawyers (Applicant) Pauline Caust - Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1102
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	14/02/2006