The State of Western Australia v Workman - [2015] WADC 141

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- WORKMAN [2015] WADC 141

CORAM: MCCANN DCJ

HEARD: 23 NOVEMBER 2015

DELIVERED : 23 NOVEMBER 2015

FILE NO/S: IND 533 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SHANE RAKEIORA WORKMAN

Catchwords:

Criminal procedure - Doctrine of res judicata - Turns on own facts

Evidence - Admissibility of conviction for wilfully misleading police in a related fraud case

Legislation:

Road Traffic Act 1974 s 64, s 97
Evidence Act 1906 s 31A

Result:

Accused barred from controverting Road Traffic Act convictions in his trial for fraudulently obtaining a benefit (insurance)
Evidence of the convictions admissible in State's case

Representation:

Counsel:

The State of Western Australia : Ms J F Boots
Accused: Mr R W Keeley

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: R W Keeley

Case(s) referred to in judgment(s):

Bennett v The State of Western Australia [2012] WASCA 70
R v Storey (1978) 140 CLR 364
Re Jones; Ex Parte v The Commissioner of Police [1999] WASCA 99

MCCANN DCJ: (These reasons were delivered orally on 23 November 2015 and typed from transcript. They have been grammatically corrected, citations added and intercalated where shown.)
Mr Workman is charged that on 22 October 2013 at West Perth he, with intent to defraud by deceit or fraudulent means, gained a benefit, namely $22,246.70 in money for himself.
No particulars at all are pleaded as to the identity of the loser or the victim, or as to how the fraud was perpetrated. That information is to be found on the brief.
I have before me an application by the State dated 17 November 2015. The trial is due to commence tomorrow, 24 November 2015. This morning I convened my usual pre‑trial callover, and ordered that the State's application of 17 November be determined this morning, and the parties were ready.
The State's application is for the following orders.
Firstly, in any trial, in other words the trial, the State be permitted to lead evidence of:
(i)the conviction of the accused on 22 April 2014 for driving on 22 October 2013 whilst having a blood alcohol content in excess of .08 %; and
(ii)the conviction of the accused on 22 April 2014 for wilfully misleading the police on 22 October 2013 as to the identity of the driver of his vehicle.
Secondly, the State seeks an order that in the trial the accused not be permitted to adduce any evidence that controverts the abovementioned convictions.
Thirdly, the State seeks any other orders which the court considers necessary.
Mr Workman intends to plead not guilty to the charge of fraud and, through his counsel, Mr Keeley, he opposes the making of the orders in the State's application.
As to the particulars of the State case, it is necessary to go to the State's outline of submissions dated 18 November 2015.
To prove the intent to defraud charge against the accused, the State will need to prove the underlying factual basis for the intent to defraud, namely that:
(1)The accused was the driver of his vehicle at the time of the accident.
(2)That he drove whilst under the influence of alcohol, and with a blood alcohol level exceeding .05%.
(3)There was damage done to the accused's vehicle.
(4)The accused misled police when he told police his father was the driver of the accused's vehicle at the time of the accident so that police would breathalyse the accused's father and not himself.
All of this is said to be the underlying factual basis for the intent to defraud because, put shortly, the State case is that Mr Workman defrauded RAC Insurance by claiming on a motor vehicle insurance policy when he was not entitled to do so in respect of the vehicle which I have just mentioned.
The State's case is that Mr Workman knew that the policy would not respond to his claim because the driver of the vehicle, namely himself, was under the influence of alcohol and had a blood alcohol level exceeding .05%, which brought into play an exclusion in the policy which I shall come to in a moment.
Returning to the particulars of the State case, the State's submissions state that in addition to the abovementioned four matters the State will need to prove the following:
(5)That the accused told RAC Insurance that his father was the driver.
(6)That the accused did that knowing that he was the driver and not his father.
(7)That he was deceitful in his conversation with RAC when making the claim against his policy (by way of a telephone call 22 hours after the accident in which the vehicle was damaged).
(8)That the accused was deceitful with RAC Insurance in order to have RAC Insurance pay the damages to his vehicle in respect of which he knew he was not entitled.
(9)As a result of his deceit he obtained a benefit, namely a payment, from RAC Insurance to which he was not entitled.
The State contends that several of the findings of fact that the jury will be asked to make to establish the intent to defraud are identical to the facts already found proven by Magistrate Gluestein on the same set of circumstances and on the same evidence as gave rise to the convictions that I have mentioned.
In order to prove who was driving the State would, in the absence of the convictions referred to, be calling bystanders who witnessed the immediate aftermath to the accident, all of whom would identify Mr Workman and exclude the hypothesis that anyone else was driving the vehicle. Some of the bystanders will also point to implied admissions made by Mr Workman as to being the driver.
As to the issue of fraud, the State will call evidence from a claims investigator for RAC Insurance, namely Mr Andrew Fowler, and also will adduce the insurance policy itself which excludes, by exclusion (g)(2), a claim where the insured, namely Mr Workman, or any other person was driving or in charge of the vehicle with a blood alcohol content exceeding that permitted by [law in] Western Australia, in other words in excess of .05%.
The Magistrates [Court proceedings and] findings of fact were as follows.
Mr Workman was taken to Joondalup Police Station by police who attended the accident and gave a sample of his breach for analysis which gave a reading of .132 g per 210 litres which was calculated back to .102 g per 210 litres at the time of driving. He was therefore charged with driving with in excess of .08% blood alcohol. The drink driving charge alleged an offence pursuant to section 64 of the Road Traffic Act.
Mr Workman was also subsequently charged with the offence of wilfully misleading police contrary to s 97 of the Road Traffic Act for his conduct in telling police who attended the motor vehicle accident that his father was the driver of Mr Workman's vehicle at the time of the accident when that was not the case.
Mr Workman's father, Gary Raymond Workman, was also charged with the offence of wilfully misleading police contrary to s 97 of the Road Traffic Act for his conduct in telling the police at the scene of the accident that he was the driver of Mr Workman's vehicle and that was not the case.
Both Mr Workman and his father pleaded not guilty to the charges preferred against them and the matters proceeded to a hearing before his Honour Magistrate Gluestein in the Joondalup Magisrates Court on 14 April 2014. At the conclusion of the hearing his Honour reserved his decision.
On 22 April 2014 his Honour delivered his decision, finding both accused guilty of wilfully misleading the police. Mr Workman Jnr - the accused in the index charge before me ‑ was also found guilty of the offence of driving with excessive alcohol in his blood contrary to s 64 of the Road Traffic Act 1974.
His Honour imposed fines as penalties in relation to all the charges, namely, he fined [the accused Mr Shane Workman] $550 in relation to the drink driving charge and [imposed] a fine of $800 each against both men in respect of wilfully misleading the police. The accused Mr Shane Workman was also disqualified from driving a motor vehicle for a period of seven months.
From what I can tell from the learned magistrate's reasons, the same evidence was given in the prosecution in the Magistrates Court as will be given in the trial of this matter in relation to the issue as to the identity of the person who was driving the vehicle, which of course directly informs Mr Workman's knowledge of who was driving the vehicle at the time.
Turning to the issues before me, there are two separate issues for consideration. First, the admissibility of evidence of Mr Workman's convictions, and for that matter his father's conviction if the issue comes up, and second, the incontrovertibility or otherwise of the convictions.
These are separate and distinct issues, although they are not unrelated (Bennett v The State of Western Australia [2012] WASCA 70 [45] Martin CJ).
I propose to deal with the issue of the incontrovertibility or otherwise of the Magistrates Court convictions first.
Bennett and other authorities cited therein establish the following propositions, in my respectful opinion.
First, the doctrines of res judicata and issue estoppel are different. The doctrine of res judicata and its affiliates (such as autrefois acquit) provide that any right or defence which is litigated in a court, and which is decided to finality, merges in the judgment. Therefore an acquittal, or a conviction as the case may be, either after a trial or a plea of guilty, becomes an incontrovertible state of affairs and the essential elements and facts underlining that finding cannot be controverted in any other proceedings by a party, or a privy of a party.
It is not relevant, but for completeness I should say that a plea of guilty has a similar operation insofar as it works as an admission.
The doctrine of res judicata or, to put it more correctly, the existence of a res judicata, binds the parties and their privies. It is not necessary for the prosecuting authority in each case to be identical. In my opinion, the authorities establish that it is the body politic that is involved which defines the parties and their privies, combined with the legal interests engaged. In other words, one looks to the body politic and the legal issues engaged in determining who the parties are.
In my opinion, in prosecutions arising out of the same offence or alleged offence (or series of offences) which have common elements, the police prosecutor and the State are privies of each other because they represent the same body politic and they both prosecute offences against the criminal law under a suite of criminal and procedural legislation in courts which have overlapping jurisdictions.
To illustrate, the only reason this fraud case is in this court is because of the amount in issue. Otherwise, this case could be dealt with in the Magistrates Court and prosecuted by a natural person with delegated authority under the relevant procedural laws.
So it is only a procedural issue which segregates this court from the Magistrates Court in terms of jurisdiction to deal with offending alleging fraudulent conduct.
Relating that back to the issue of privity, it could therefore be the case that the same natural person prosecuted both cases (the Road Traffic Act prosecutions and the fraud prosecution), or two different people. It matters not in terms of the substance of what is happening in the Magistrates Court, or in the Magistrates Court and this court, if the issues and the charges find their way to different tribunals or jurisdictions.
Re Jones; Ex Parte v The Commissioner of Police [1999] WASCA 99 was mentioned during submissions. In that case, the doctrines of issue estoppel and res judicata were touched on (obiter) and, in particular, reference was made to R v Storey (1978) 140 CLR 364 which has also been mentioned in submissions. It is said towards the end of [26] by Parker J (who gave the judgment of the court) that (emphasis added; citations omitted):
Generally, however, summary proceedings for criminal or statutory offences are between subject and subject and it would follow that in cases involving summary proceedings for civil or statutory offences there would not usually be an identity of parties so that res judicata estoppel could not apply.
So taking that dictum, it could be said that the doctrine of res judicata could not apply in this case. However, I firstly note that Parker J said that there would not usually be an identity of parties. He did not say there could never be an identity of parties.
Secondly, his Honour was speaking obiter because that was a civil case involving civil rights relating to the powers of the Commissioner of Police to cancel a firearms licence. [Re Jones] is distinguishable from this case and Bennett which is closer to the case that I am to decide today.
Reference was also made to a passage in Bennett in the judgment of the Chief Justice ([61] with which Mazza JA agreed) wherein the Chief Justice said, apropos of observations which had been made by his Honour about the incontrovertibility of certain judicial rulings (emphasis added):
These observations are directed to issues relating to the incontrovertibility of a prior conviction at least in proceedings between the State and the person convicted.
It might be contended that this passage supports the notion that this doctrine of res judicata, in other words, the incontrovertibility of a previous conviction, only applies in proceedings between the State and the person convicted and thus supports the contention based on Re Jones that a conviction arising from a prosecution between two natural persons in the Magistrates Court could not fulfil the criteria for res judicata where the second proceedings are in the District Court, as applies here.
In my respectful opinion, the Chief Justice's reasons must be read as a whole. In my view, his Honour reference to 'the State' [was] not necessarily a reference to the State of Western Australia qua the prosecuting body. In my respectful view, his Honour never intended to preclude the possibility that agencies of the State could be privies of the body politic known as the State of Western Australia.
Such agencies could include a prosecuting policeman charged with enforcing or bringing about prosecutions for the enforcement of exactly the same laws, such as fraud, [which], depending on the facts and circumstances, [could also] find their way into the superior courts.
The next principle which arises from my study of the authorities, particularly Bennett, is to the effect that the doctrine of res judicata binds an accused person whenever and wherever he is a party to a matter to which the res is relevant.
It does not have to be a prosecution for another offence arising out of the same res gestae as the first matter giving rise to the conviction. In other words, the res for the purposes of the doctrine of res judicata need not be the same as the res gestae giving rise to the earlier conviction.
The next principle is that the identification of the res is a matter of substance and not form. A fortiori, the jurisdiction in which the res was initially dealt with, and/or the capacity of the prosecutor, is a matter of substance and not form. It is necessary to focus on the elements of the charges in each case, and the substance of what occurred.
It must be remembered that the doctrine of res judicata is intended to prevent abuses, including contradictory decision‑making. The abuse which would be inherent in allowing an accused to controvert his own conviction in cases such as the present one is a good guide to whether the res should be treated as the same and the prosecuting parties treated as privies of each other.
Against this background, it has been said that the doctrine of issue estoppel per se is not applicable in criminal proceedings, because the doctrine of res judicata or autrefois acquit (as the case may be) are all that is necessary to achieve the required objectives of law. And we are dealing here with a substantive doctrine of law and not a rule of evidence.
The next principle is that the previous adjudication must be in a court of competent jurisdiction (Buss JA in Bennett at [127]). I stress that the words are 'a court of competent jurisdiction', not the same court or a court of the same level in the general hierarchy.
As I have already pointed out, we have a suite of laws relating to the regulation of behaviour by criminal sanction and procedures for the same in which the responsibilities of the various bodies politic for the prosecution and the trying of the cases overlap. There is, in effect, a significant degree of homogeneity across the courts and in the prosecutorial authorities as to how criminal prosecutions are conducted and resolved.
To illustrate, as I have already said, in this case the fraud charge could be dealt with in the Magistrates Court on a prosecution notice issued at the behest of a natural person if the amount in issue was less than it is. The seriousness of the criminal charge is not materially altered by the amount, except as to sentence. Except as to sentence, everything is the same.
In dealing with the doctrine of issue estoppel, Gibbs J said in Storey (380) that:
… it would be most unfortunate if an issue estoppel could be raised against a person accused of a serious crime. If that were done the jury might be precluded from trying the real issue on which guilt or innocence depended, and its verdict might in fact be dictated by an earlier decision in a case which, because of the comparative triviality of the charge then preferred, was not contested with sufficient vigour or at all by the court or jury which decided it.
For present purposes, putting aside the last phrase and concentrating on the first part of what his Honour there had to say, what is important is trying the real issue on which guilt or innocence depends.
None of the charges which Mr Workman has faced in respect of what happened to his car on 22 October 2013 are trivial. None were contested with any less vigour, or addressed by the court with any less discipline, than would a charge in the Magistrates Court for fraud if the amount in issue in respect of the insurance claim permitted it.
It seems to me to be a distinction without a difference to say that there is any material distinction between the Magistrates Court and the identity of the policeman who brought the earlier charges [on the one hand], and the way in which this indictment was issued and the jurisdiction which is dealing with it [on the other hand].
Before I turn to my ultimate assessment, there is one other principle which I think needs to be made clear. We are dealing here with the incontrovertibility or otherwise of a judicial finding, a res judicata. We are not here dealing with whether or not the prosecution can lead evidence on it.
Not only can an accused person not adduce evidence which would contradict or be inconsistent with the earlier adjudication, the jury should be directed that they cannot interpret the evidence in a way which denies the conviction. This of course limits the way in which the case would be left to the jury, and would very strongly lead to certain findings of fact, one would think, irrespective of the evidence brought by the accused.
In this case, the Magistrates Court prosecution dealt with the same res as the fraud prosecution, albeit in the Magistrates Court the res was an element, whereas in this case it is a circumstantial fact which informs the issue of deceit and intent to defraud rather than comprise an element in its own right.
That res was relevant in the Magistrates Court to an element, namely that Mr Workman was driving with an excessive blood alcohol content and had misled the police and it is relevant in this case to who was driving the vehicle [and] whether the driver had [an] excessive blood alcohol level.

The identity of the driver per se is not the key point for the purposes of the fraud prosecution. The key point is the knowledge or otherwise of the accused as the insured making a claim which he knows is excluded under the policy.
So therefore the res is not only who was driving the vehicle, but the knowledge of the blood alcohol reading.
As I have said, the State would seek to lead exactly the same evidence on both issues in the trial before the jury as was led before the magistrate.
Of course the two offences or prosecutions are independent of each other and came into being at different times, at least 22 hours apart, and involve different elements. The infringement of the State's interest in each case is different. One offence involved driving in a public place with excessive alcohol in the blood and misleading police who sought to investigate that offence, whereas the other involves an alleged fraud on a private citizen about the application of a contract. But the State is still the aggrieved party in the fraud proceedings. That is why the indictment does not mention the name of the victim.
There is, of course, some commonality and this is principally in respect of the defences which arose in the Magistrates Court prosecutions and in this court, namely who was driving and, as I say, the knowledge of Mr Workman as to the blood alcohol reading of that person.
Both of these defences, in other words, the identity of the driver and the driver's blood alcohol level were adjudicated on in the Magistrates Court. All the requirements of a res judicata are satisfied in relation to the issues as to the identity of the driver of Mr Workman's vehicle, in other words, the insured vehicle, and the blood alcohol reading of that person.
There is no res judicata as to Mr Workman's knowledge of the blood alcohol reading of that person unless there was evidence given that the police told him what it was, which might be in the form of a prosecution notice or something of that kind. I do not understand the magistrate to have ruled on that and it certainly was not an element of the charge. So we just have a res judicata on the identity of the driver and the driver's blood alcohol level.
In my view, pursuant to the doctrine of res judicata, Mr Workman is not permitted in these proceedings to controvert those two facts.
There will be nothing to stop him, if he felt it was right to do so, from running an argument that he did not know the blood alcohol level at any material time, up to and including when he collected the cheque, because that has not been decided on by any magistrate, remembering we are dealing here with a technical legal issue and not making findings of fact per se.
To recapitulate, I think the parties are the same, if one includes privies. The jurisdiction is not decisive, the substance of the charges is very close, namely who was driving the car, Mr Workman's knowledge of who was driving the car and the blood alcohol level of that person.
There is a large distinction insofar as one charge is a statutory one of driving with too much blood alcohol and misleading police about who was driving, whereas on the other one, we have a fraud against a citizen, but in each case, it is the criminal law of the State that is infringed.
In each case, the body politic, known as the State of Western Australia, has its legal interests infringed and not just the innocent bystander, which in the case of the alleged fraud was RAC Insurance.
So that deals with what Mr Workman is, or is not, allowed to contend or invite the jury to consider.
I have not yet dealt with whether the State is allowed to lead evidence of any of these things.
The question of admissibility turns on relevance. If something is not relevant, it can never be admissible. If something is relevant, it must pass through certain filters intended to ensure the integrity of evidence which goes before a jury and to avoid risks of unfairness, prejudice and the like.
The relevance of evidence turns on whether a fact, or evidence of that fact, is such as to increase the likelihood of a disputed fact being true.
I now address whether the conviction for driving on 22 October 2013 whilst having a blood alcohol content in excess of .08% is relevant. In my view it is relevant, because as I have already explained, it goes to the identity of the driver and the blood alcohol level of the driver.
I stress at this stage, that whilst it might be relevant to Mr Workman's knowledge of the blood alcohol level of the driver, it is not conclusive proof of it pursuant to the doctrine of res judicata.
So the drink driving conviction is relevant.
The next question is, can the State lead evidence of it? The fundamental question is whether a conviction in the Magistrates Court is evidence in its own right. It might be said to be circumstantial evidence that can be led as proof of the facts comprised in the res.
In Bennett's case the Chief Justice (with Mazza JA agreeing) held ([61] and [65]) in the affirmative. As I understand it, Buss JA reached a similar conclusion, albeit for his own reasons. Therefore, in my opinion, the State is permitted to lead evidence of the conviction for the drink driving offence as evidence as part of its own case.
Moving on now to the conviction of 22 April 2014 for wilfully misleading police on 22 October 2013 as to the identity of the driver of the vehicle, one must firstly bear in mind that the issue in the trial is whether Mr Workman misled RAC Insurance 22 hours after he has been found to have misled the police.
In my opinion, a finding that Mr Workman misled the police is not relevant to whether or not he misled RAC Insurance or did so intentionally and dishonestly or, if it is relevant, it is of minor relevance.
To be admissible it would need to be admissible under s 31A of the Evidence Act 1906 .
I do not think it is significantly probative, in other words of importance or of consequence. There are quite different issues involved in lying to the police about who was driving a car for the purpose of shifting blame for driving a car in contravention of the law, and the issues of fraud and deceit inherent in a prosecution for fraud.
The Magistrates Court prosecution was a Road Traffic Act matter, the gravamen of which was misleading or obstructing an investigation of an authorised person under that Act and it says very little about the intention of Mr Workman when he lodged the insurance claim.
If I am wrong about that, in my opinion fair‑minded people would believe that evidence of the second conviction should be excluded. There is a very tangible risk of prejudice. The distinction I have just made about the difference between lying to the police and lying to the insurance company might be a little too abstract for a jury, and directions given for the purpose of making clear the admissibility of the evidence might not be followable or followed.
Therefore, in my opinion, the conviction for misleading the police is not admissible as part of the State case, but I reiterate [that], if it comes into the proceedings, Mr Workman will not be allowed to controvert it. How it might come into the proceedings is not for me to speculate, but perhaps there might be credibility issues which give rise to it.
In conclusion, evidence of the conviction for the drink driving offence is relevant and admissible as part of the State case. Evidence of misleading the police is insufficiently relevant and inadmissible as part of the State case.
Mr Workman cannot controvert his conviction on either matter if the matter properly comes up in trial.
I need to give some directions. My current thinking is that all that should be allowed [in evidence] is the bare minimum of the fact of the prosecution and the conviction allied with a direction from myself as the trial judge that the jury must accept the magistrate's judgment as conclusive proof, as to which I repeat that the jury cannot interpret the evidence in a way which denies the conviction.
I do not think that it is appropriate that the jury be given all the evidence, that is, it will just confuse. It is up to the State to decide whether it calls the bystanders. I am not going to express an opinion about whether the State should. It is up to them. At this stage all I have done is rule that the bare facts as to the drink driving conviction can be led as conclusive and incontrovertible evidence.