Thompson v Duffin - [2009] SASC 270

Supreme Court of South Australia
(Full Court: Criminal)
THOMPSON v DUFFIN
[2009] SASC 270
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
4 September 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
Appeal against the judgment and orders of Judge made on an appeal against conviction – appellant convicted by Magistrate of 16 counts of obtaining by dishonest means contrary to section 120 (a) of the Workers Rehabilitation and Compensation Act 1986 (SA) ("the Act") – Magistrate dismissed remaining 10 counts of obtaining by dishonest means and 69 counts of dishonestly making a statement about a claim contrary to s 120 (1) (c) of the Act – appellant sentenced to two years and four months imprisonment with a non-parole period of five months – judgment of the Magistrate appealed to a single Judge of this Court.
Single Judge allowed an appeal against conviction due to lack of procedural fairness at trial causing incurable prejudice to the appellant and the insufficient transparency of the Magistrate's reasons – Judge set aside the whole of the Magistrate's orders and remitted entire complaint for retrial.
Whether complaint duplicitous or oppressive – whether order of the Judge to remit the whole complaint for retrial exposes the appellant to double jeopardy on the counts for which an acquittal was recorded in the Magistrates Court – whether case to answer at trial – whether Magistrate's findings of fact sufficient to establish guilt beyond reasonable doubt regarding the counts for which convictions were recorded.
Appeal allowed – Judgment and orders of the Judge set aside – judgment and orders of the Magistrate set aside – entire complaint dismissed.
Observations as to proper role of prosecutor in prosecution of complaints.
Workers Rehabilitation and Compensation Act 1986 (SA) s 120; Acts Interpretation Act 1915 (SA) s 26; Magistrates Court Act 1991 (SA) s 42; WorkCover Corporation Act 1994 (SA) s 4, s 5, s 13, s 14A; Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Walsh v Tattersall (1996) 188 CLR 77; Fordham v Brideson [1986] VR 587; R v Carroll (2002) 213 CLR 635, applied.
S v The Queen (1989) 168 CLR 266; Heal v Police (1999) 75 SASR 331; Whitehorn v The Queen (1983) 152 CLR 657; Libke v The Queen (2007) 230 CLR 559, discussed.
Johnson v Miller (1937) 59 CLR 467 , considered.

THOMPSON v DUFFIN
[2009] SASC 270
Full Court: Bleby, Gray and Layton JJ
THE COURT
Introduction

The defendant and appellant, Jeffrey Ian Thompson was charged with 69 counts of dishonestly making a statement about a claim under the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”), contrary to section 120(1)(c) of the Act, and 26 counts of obtaining by dishonest means a payment or other benefit under the Act, contrary to section 120(1)(a) of the Act. In the Magistrates Court he was convicted of 16 of the section 120(1)(a) counts. All the other counts were dismissed.
Section 120(1) of the Act provides:
A person who—
(a)     obtains by dishonest means a payment or other benefit under this Act; or
(b)     dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c)     dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading; or
(d)     dishonestly makes an application, or gives a return, under this Act knowing the application or return to be false or misleading,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for one year.
The Magistrate imposed a sentence of two years and four months imprisonment with a non-parole period of five months. The sentence was not suspended. He ordered payment of $90,000 by way of restitution for the benefits received. There is no explanation as to how that figure was arrived at. The total of the payments the subject of the counts of which Mr Thompson was convicted was only $9,571.95.
WorkCover sought an order for payment of $721,065.04 reimbursement of the costs of investigating and prosecuting the offences. The Magistrate ordered payment of an amount of $60,000. An order for the payment of restitution and costs must, on the application of WorkCover, be made where a conviction is recorded or a finding of guilt is made.[1]
[1] Workers Rehabilitation and Compensation Act 1986, s 120(3).
Mr Thompson appealed against those convictions and orders to a judge of this Court. The Judge allowed the appeal, but not on all grounds. WorkCover did not appeal against the orders of dismissal. [2] The Judge set aside all the orders of the Magistrates Court, including the orders of dismissal, and ordered a retrial of all counts. The Judge subsequently remitted the costs of the trial to the Magistrates Court to be determined after the retrial. The Judge ordered that WorkCover pay Mr Thompson’s costs of the appeal fixed at $22,000.
[2] The complainant is an officer of WorkCover. Throughout these reasons the complainant is referred to as WorkCover.
Mr Thompson now appeals with permission to the Full Court against the orders of the Judge both as to disposition of the proceedings and as to the orders for costs. [3]
[3] Thompson v Duffin [2009] SASC 32.
Because of the complexity of the pleading and the need to refer to it in some detail in these reasons, we annex to these reasons a copy of the complaint and summons.
The 69 counts alleging a breach of section 120(1)(c) of the Act (“the dishonest statements counts”) covered a period from about 11 June 2002 to 5 April 2004. They were counts numbered 1–69 on the complaint and summons. Each count alleged by way of particulars a certain statement or statements alleged to have been made by Mr Thompson to various medical practitioners or neuropsychologists concerning his alleged symptoms.
The 26 counts alleging a breach of section 120(1)(a) of the Act (“the obtaining counts”) covered a period from about August 2001 to July 2004. Counts 70–74 related to the individual payments of income maintenance under the Act from August 2001 to August 2002. Counts 75-82 related to particular payments of income maintenance between about November 2002 and June 2004. It was only in respect of the latter counts that Mr Thompson was convicted in the Magistrates Court.
Counts 83-87 covered payments for reimbursement of expenses incurred by Mr Thompson between about August 2001 and August 2002. Counts 88–95 covered payments for reimbursement of expenses to the appellant from about November 2002 to July 2004. He was convicted of counts 88-95.
The significance of the counts of which Mr Thompson was convicted is that they related only to payments of income maintenance and reimbursements of expenses made after October 2002. That date was of some significance on the findings of the Magistrate.
Particulars of each of counts 70–73 referred to “The acts referred to in the general particulars of dishonesty paragraph 1 below”. The general particulars referred to were those under the heading “GENERAL PARTICULARS OF DISHONESTY” at the end of the complaint and summons (“the General Particulars”). Paragraph 1 of the General Particulars alleged a number of statements made by Mr Thompson to a neuropsychologist on or about 29 June 2001 and 17 July 2001. For convenience we here set out the material parts of the General Particulars:
GENERAL PARTICULARS OF DISHONESTY
These particulars of dishonesty are in additional (sic) to the dishonesty alleged in the counts above.
1.On or about 29 June 2001 and 17 July 2001 at Gilberton at a consultation with Mark Reid, neuropsychologist, in relation to his physical and cognitive symptoms the defendant stated words to the effect, …
[There follow 16 quoted statements each followed by the words “or similar’’ alleged to have been made to Mr Reid about his symptoms without indicating which statement was made when].
2.In general the complainant alleges the defendant dishonestly pretended that he suffered from a decompression illness sustained during the course of his employment with Kinkawooka Pty Ltd in 1994 and further that he maintained that pretence in order to receive income maintenance and other benefits in the period from August 2001 to the date of this complaint by making false statements particularised in counts 1 to 69 inclusive and paragraph 1 of these general particulars.
3.In the alternative to paragraph 2 of these general particulars, the complainant alleges that although the defendant initially sustained a decompression illness during the course of his employment with Kinkawooka Pty Ltd in 1994, the defendant recovered from the decompression illness in or about 1994. Thereafter the defendant dishonestly pretended that he continued to suffer from a decompression illness and further that he maintained that pretence in order to receive income maintenance and other benefits in the period from August 2001 to the date of this complaint by making false statements particularised in counts 1 to 69 inclusive of paragraph 1 of these general particulars.
4.In the period from 13 August 2001 to the date of this complaint the total sum of $128,593.55 was paid to the defendant by way of income maintenance, travel expenses, medical expenses and other payments.
The particulars of counts 74–82 relating to payment of income maintenance related in each case to particulars contained in some or all of counts 1–69, being the dishonest statements counts.
Particulars of counts 83–86 relating to the payment of expenses referred to paragraph 1 of the General Particulars. Particulars of counts 87–95, being the balance of the counts relating to payment of expenses, referred to particulars of some or all of counts 1–69.
It will be noted that, by the opening words of the General Particulars, they applied to all counts, whether or not those counts specifically referred to some or all of the General Particulars.
It can therefore be seen that the allegation against Mr Thompson, as was WorkCover’s case at the trial, was that Mr Thompson had in fact never suffered from a decompression illness, but in the alternative, that if he did, he had recovered from it.
WorkCover, in laying a complaint containing 95 counts, adopted the approach of identifying an occasion when Mr Thompson was in consultation with a medical practitioner or neuropsychologist during which statements were allegedly made by Mr Thompson, ultimately leading to a certificate from the medical practitioner or neuropsychologist that was then used to obtain a benefit. WorkCover elected to utilise particular statements made by Mr Thompson on that occasion, to lay separate counts. For example, counts 2–6 all relate to statements being made during the one consultation with a medical practitioner. Another example of this process is to be seen in counts 7–23. Each of these counts relate to statements made by Mr Thompson to a consulting neuropsychologist, being statements made about symptoms of his illness. The legitimacy of this approach is discussed later in these reasons.
Through this technique, WorkCover produced a complaint that gave the appearance of many counts of dishonesty, which upon analysis, if made out, would prove dishonesty with respect to obtaining medical certificates with a view to obtaining benefits on a discreet number of occasions. There is an air of oppressiveness about this process.
These difficulties were compounded by later counts that alleged the obtaining by dishonest means of a payment. The particulars were provided by a reference back to acts identified in earlier, multiple counts. This added to the air of oppressiveness.
WorkCover then added, at the end of the complaint, the General Particulars. These allegations, by reason of their generality, had the effect of generalising rather than particularising, the allegations. The setting out of each count, without cross referencing, with the particulars relevant to each count being stated in full would produce a document of some hundreds of pages in length.
The practice of drawing a complaint in this way is to be deprecated. It would be oppressive and difficult for defence counsel to deal with, and even more so for the unrepresented litigant. The complexity of the present complaint has contributed to the difficulties confronting the Magistrate when conducting the trial and may explain many unfortunate occurrences in the course of the trial.
The Conduct of the Trial
At times throughout the trial Mr Thompson, who was unrepresented during the presentation of WorkCover’s case and also at other times, made and renewed applications for an adjournment. The single Judge had great difficulty in piecing together what had happened at various parts of the trial. The analysis revealed a number of procedural flaws which the respondent did not seek to defend. The simplest way of explaining what occurred is to repeat the single Judge’s findings:[4]
[4] [2008] SASC 200, [7]-[36].
The court record reveals that the trial appears to have proceeded in three distinct stages. The trial commenced on 17 October 2005 and the prosecution closed its case on 3 January 2006. Between 30 January 2006 and 29 September 2006 there were a number of directions hearings and arguments in relation to subpoenas and other matters. Then, on 2 April 2007 the trial recommenced and finally concluded on 23 May 2007. The magistrate delivered judgment on 24 May 2007.
The complaint containing 95 counts was issued on 13 August 2004. The first return date on the complaint was 5 October 2004. On that date the appellant was represented by Mr Lister.
Between 9 November 2004 and 30 September 2005 there were a number of directions hearings. The magistrate eventually listed the trial to commence on 17 October 2005.
Mr Lister who continued to appear on the appellant’s behalf, advised the court on more than one occasion that the appellant wished to fund his own defence and was awaiting the sale of his family home in order to secure his legal representation.
On 26 September 2005 when Mr Di Fazio appeared on behalf of the appellant, further detailed submissions were made to the magistrate in support of an application for an adjournment of the trial. Those submissions related to the complexity of the medical issues involved and the volume of material dating back to 1993 on which the prosecution case was based. The submissions also referred to the practical steps which the appellant had taken in the interim, in an endeavour to fund his defence. The magistrate indicated that the trial would nevertheless proceed.
On 17 October 2005 the magistrate refused a further application for an adjournment made by the appellant, who at that date was unrepresented. Prior to 17 October 2005 the appellant had tried to appeal the magistrate’s refusal to adjourn the proceedings but that appeal was abandoned.
The trial therefore proceeded on 17 October 2005. After examination in chief of the first prosecution witness, a Workcover investigator named Mark Faggoter, the appellant requested discovery of certain documents that he had previously requested, before proceeding with the cross examination of Mr Faggoter. That application was also refused and the appellant was required to commence his cross examination of Mr Faggoter on the same day.
The next day, 18 October 2005, a further application for adjournment was made, this time by the appellant’s solicitor, Mr Lister who advised that the appellant had now secured funding. An application for adjournment was made on the basis of the changed circumstances and was again refused.
On 18 October 2005, the appellant first raised the issue with the magistrate of the legality of the Workcover Corporation’s use of Family Court documents given to its agents by the witness, Ms Hazell, the ex-wife of the appellant. The magistrate’s response to that application was to indicate that he was not going to make a ruling on that issue at that time.
On 9 November 2005 the appellant renewed his application for an adjournment and also sought a copy of the transcript, making a request that the fee for providing the transcript be waived. The appellant told the magistrate that he was out of his depth and was unsure about how to argue any of the points with regard to the complaint. He stated that he wished to have counsel instructed in order to prepare a proper defence. The magistrate’s response was to note and refuse the application.
On 15 November 2005 the appellant complained of headaches and not being able to concentrate properly on the cross examination of any of the witnesses. On that day two medical witnesses, Dr Acott and a part heard witness, Mr Michael Wood, neuropsychologist, were due to give evidence. His Honour’s response was to advise the appellant to do his best to get through the witnesses for the next two days and then “we’ll all have a break from it”. Over the next two days evidence was taken from Dr Acott, Mr Wood, another medical witness Dr J Hallpike, an occupational physician Mr G Wright and a Workcover investigator Mr M Delaney.
On 3 January 2006, the prosecution closed its case. The appellant renewed the application for an adjournment in order to seek further particulars before making any submissions or making a decision whether to call witnesses. After a lengthy and somewhat confusing exchange between the appellant and the magistrate, his Honour refused an application for an adjournment and insisted that the appellant elect on that date whether he would be giving evidence or calling witnesses. The appellant elected not to give evidence or call any witnesses. His Honour ruled that there was a case to answer and then granted an adjournment to 31 January 2006.
Thereafter, it appears from the court record in affidavits filed on behalf of both the respondent and the appellant on this appeal, that there were a number of adjournments upon the application of either the appellant or later, the appellant’s then counsel or the respondent.
By 30 January 2006 the transcript was still not available and the matter was further adjourned to 4 April 2006. By that date the appellant was successful in securing representation and Mr Peek QC with Mr Halliday applied on 4 April 2006 to re-open the defence case. The matter was further adjourned on the application of the appellant after Mr Peek QC indicated that substantial submissions needed to be made in relation to the events which had already occurred. It was also noted that the appellant was awaiting numerous rulings yet to be made by the magistrate.
When the matter next came on for mention on 5 June 2006 a memorandum had been filed in the court (“the Peek memorandum”), setting out a lengthy list of complaints and topics about which the appellant wished to make submissions before the trial proceeded any further. The matter was set down for five days argument on 24 July 2006.
By that date it appears from the record that the respondent had briefed another counsel, Mr White. On 10 July 2006 before the argument was scheduled to proceed, the respondent through Mr White, sought to have the matter adjourned and heard in one six week time allotment. The appellant agreed to the application and the matter was further adjourned to recommence on 2 April 2007.
By 10 July 2006 the appellant had issued subpoenas. Some of the documents sought to be obtained by those subpoenas were produced by the respondent at court on 10 July 2006, however, there was a substantial list of other documents requested, but still not supplied.
The magistrate sought further detail from the appellant’s counsel as to the matters to be raised in submissions and made a number of comments which are relevant to an understanding of the events which occurred when the matter recommenced in April 2007.
The magistrate commented that he had impliedly accepted the validity of the complaint and saw no reason to resile from that, but would hear argument on the issue. He also sought clarification from the appellant as to the precise arguments to be raised as a consequence of the Peek memorandum which had been filed on 5 June 2006. He apparently made the following comments:
·       as to arguments regarding the course of the prosecution case, these needed to be raised on appeal;
·       as to arguments regarding the disclosure of relevant material to the appellant, the magistrate expressed a preliminary view that the appellant appeared to have more than adequate access to documents and a remarkable ability to collate and use them;
·       as to arguments regarding the refusals and failures to provide particulars, he observed that he would hear argument, but had not observed any occasion on which such a failure had affected the defendant’s skilful conduct of his own case up to that point.
On 29 September 2006 there was a further directions hearing in which the topic of subpoenas was again agitated. The solicitor for the respondent informed the court that a Kadlunga list of documents had not yet been settled due to Mr White’s commitments in another trial but that it would be provided within the next seven days. A further discussion ensued about documents and subpoenas.
The transcript of the proceedings on this date is unavailable, however, from the appellant’s notes of proceedings on that date, it appears that the magistrate adjourned the matter sine die with liberty to apply in the event that further difficulties arose.
It appears that on that day the magistrate made a number of general comments to the effect that the difficulties which he saw ranged over a broad spectrum, in that certain expert witnesses had already given opinions based on assumptions which it now appeared were wrong. His Honour also expressed concerns that the ongoing subpoena process was becoming disproportionate and mused whether the appellant might be better to rely on the deficiencies in the prosecution case. There was a reference by the magistrate to the fact that given the fragility of the complainant’s case, he wondered whether it was more appropriate to look at rebuilding the complainant’s case in the hope that it collapses brick by brick.
There was no further court appearance until 2 April 2007 when the trial recommenced. By that stage Mr Di Fazio had stepped in as counsel for the appellant.
The transcript of the hearing on 2 April 2007 reveals that by that stage the magistrate had very real concerns as to the continuation of the trial. There was a factual dispute between the appellant and the respondent as to the effect of the magistrate’s comments made on that day. The respondent contended at the hearing of this appeal that a number of arguments raised in the Peek memorandum were abandoned by the appellant through his counsel on that day. The appellant, on the other hand, maintained that at no stage did he abandon any of the arguments raised in the Peek memorandum. It will be necessary to return to this issue later in these reasons.
On 5 April 2007 the magistrate made certain rulings on the validity of the complaint and the admissibility of evidence. Thereafter the appellant sought the recall of eight prosecution witnesses at the conclusion of which there were further submissions made by counsel for the appellant in relation to the admissibility of evidence.
There was a dispute between the appellant and the respondent as to the events which occurred on 16 May 2007. On that date the appellant said that his counsel advised that he had a witness, namely Mr Derek Craig whom he wished to call on the voir dire. The appellant maintained that the issue of a subpoena from Mr Craig was raised with the magistrate on several occasions. On 16 May when the intention to call Mr Craig was announced by Mr Di Fazio, the appellant contended that the magistrate indicated that there were other matters to be dealt with first and simply got up and exited the courtroom without any opportunity for the witness to be called on that day.
The respondent disputed the appellant’s version of those events and submitted that at no stage was there any application by Mr Di Fazio to call Mr Craig either on that day, or subsequently.
I have been unable to resolve this dispute, as the record for the proceedings during this period is incomplete. It would appear that there was a misunderstanding between Mr Di Fazio and Mr White. The magistrate’s role is unclear, however for the reasons which follow it does not matter that this factual issue cannot be resolved as I have formed the view that there should be a retrial in any event.
On 16 May 2007 the magistrate gave further rulings in relation to the admissibility of evidence. On 21 and 22 May counsel made closing submissions and on 24 May the magistrate entered verdicts of guilty on 16 counts of obtaining a benefit by dishonest means contrary to section 120(1)(a) of the Act. He then adjourned, to enable the parties to consider their respective positions and to hear further submissions in relation to sentence and the outstanding 79 counts in respect of which no orders had yet been made.
On 5 July 2007 (or 6 July 2007, depending on whether the court record or the magistrate’s sentencing remarks are accepted) the appellant was sentenced to a term of imprisonment of 2 years and 4 months with a non-parole period of 5 months. The magistrate declined to suspend the sentence and dismissed the remaining 79 counts. The basis on which the remaining 79 counts were dismissed was also very much a matter in issue on the hearing of this appeal.

As a consequence of the refusal of the adjournment applications, Mr Thompson was unrepresented during critical stages of the trial, and although he later obtained representation, the initial prejudice was incurable. In addition, other irregularities took place throughout the course of the trial, compounding this initial prejudice.
The Judge concluded that a number of procedural flaws had occurred. WorkCover accepted these conclusions. The Judge found that the appellant was not accorded procedural fairness at trial. Mr Thompson suffered disadvantages caused by the failure of the Magistrate to grant adjournment applications to allow sufficient time to obtain necessary funds to engage legal representation and prepare his defence. This failure to grant adjournments occurred despite evidence before the Court as to the steps taken by Mr Thompson to endeavour to fund his defence.
The Judge concluded that as a result of the irregularities occurring during the course of the trial, Mr Thompson did not receive a fair trial. This conclusion was not challenged on appeal in this Court.
The Magistrate’s Findings and the Convictions
At the outset of his reasons for judgment the Magistrate observed that there was no dispute about the fact of the payments which gave rise to counts 70–95. He correctly observed that Mr Thompson could not be fairly convicted of both the dishonest statements counts and the obtaining counts, as they were founded on respectively identical allegations of dishonesty.
The Magistrate summarised the evidence of Mr Thompson’s treatment following Mr Thompson’s reported symptoms of work-related decompression illness. It is not necessary to repeat all those findings. When dealing with the evidence of particular medical experts the Magistrate made findings as to whether the evidence of that witness was accepted or rejected or accepted with qualifications. The Magistrate followed a similar pattern with respect to non-medical witnesses.
The Magistrate was satisfied, and there was abundant evidence to justify that Mr Thompson had in fact suffered a work-related decompression illness which affected him for some years. However, based on some elliptical reasoning which is not easy to comprehend, and based also, in part, on some observations of Mr Thompson during a trip to Europe in October 2002, the Magistrate concluded that, as from October 2002 counts 75–82 and 88–95 had been made out. He dismissed the earlier obtaining counts which preceded October 2002, presumably because they occurred at a time when the Magistrate considered that there was a possibility that Mr Thompson was still reporting genuine symptoms. He was not satisfied that those counts had been proved beyond reasonable doubt. He also dismissed all the dishonest statement counts. The inferred reason for that is that they either concerned events before October 2002 or, if they occurred after that date, Mr Thompson could not be fairly convicted of the dishonest statements counts which were based on the same facts as the counts for which convictions were recorded.
The Magistrate’s conclusions of primary relevance to this appeal are contained in two paragraphs of lengthy reasons:
It is impossible and unreasonable to declare that it has been proved beyond reasonable doubt that every particularised post October 2002 statement was made dishonestly and with knowledge that it was false and misleading. Perhaps, as Mr Thompson claimed, he did have trouble relating to people, perhaps he had become socially withdrawn. Perhaps when he reported that he felt bloody miserable some days he did. Perhaps when he reported that he felt depressed and unhappy, he did feel that way.
I find that Mr Thompson suffered decompression illness in or about March or April 1994. I find that he recovered from that condition. I find that at the latest that recovery was complete before October 2002. I find that while the vicissitudes of his life may have contributed to the intervention of clinical depression, he, between October 2002 and July 2004, obtained by dishonest means payments or other benefits under the Act. I say that he did that by dishonestly and knowingly stating that he continued to suffer from decompression illness.
In some respects those findings are perverse and indicate that the Magistrate took a broad axe without considering each of the individual counts on which convictions were entered. Indeed, the first paragraph would suggest that dishonesty, in respect of some unspecified occasions after October 2002, had not been made out. This would suggest that WorkCover had not excluded a reasonable hypothesis consistent with innocence. If Mr Thompson honestly reported his symptoms and others wrongly interpreted those symptoms as relating to the decompression injury resulting in a payment to Mr Thompson, that does not constitute a breach of the Act on Mr Thompson’s part.
There is no evidence to justify the finding that Mr Thompson dishonestly and knowingly stated “that he continued to suffer from decompression illness”. The opinion of some of the doctors who were called by WorkCover, especially Dr Griffin, was to the contrary. On the face of his reasons, there is an obvious difficulty in supporting the convictions entered by the Magistrate.
The Appeal to the Single Judge
The first ground of appeal attacked the validity of the complaint on the ground that the complaint, on its face, was duplicitous and offended against the principle enunciated in Walsh v Tattersall.[5] The Judge rejected both arguments. It was recognised that there was a potential unfairness given that the statements the subject of counts 1–69 were also relied on to establish the dishonest means alleged in counts 75–95. The Judge recognised that Mr Thompson was not to be punished twice for actions common to both sets of offences, but that did not go to the validity of the complaint. The Judge concluded:
In summary, I do not consider that the framing of the counts contrary to s 120(1)(c) of the Act by including more than one utterance rendered those counts duplicitous. The appellant’s complaint that it is not possible to discern the basis on which the appellant was convicted of counts 75-82 and 88-95 is justified, but that ambiguity is not attributable to the framing of the complaint. Rather it arises out of the failure of the magistrate to adequately explain his reasons for conviction and in particular his reasons for dismissing the remaining 79 counts.[6]
It will be noted that, at that point, the Judge was finding it difficult to discern the basis on which Mr Thompson was convicted of counts 75–82 and 88–95.
[5] Walsh v Tattersall (1996) 188 CLR 77, 89.
[6] Thompson v Duffin [2008] SASC 200, [79].
The second ground related to the alleged lack of procedural fairness. The Judge dealt with a number of aspects of the conduct of the trial. The Judge concluded that the “unfortunate concatenation of circumstances which occurred in the course of [the] trial combined to cause irreparable prejudice” to Mr Thompson. In particular, those circumstances included:
·       the fact that notwithstanding ten applications for an adjournment to enable the appellant to obtain the necessary cash funds from the sale of his house, the magistrate refused to postpone or adjourn the trial;
·       at the close of the prosecution case, after finding a case to answer and requiring the appellant to elect, the magistrate thereafter was prepared to adjourn the trial repeatedly for a period of 15 months during which various counsel came and went without progressing the matter;
·       the fact that during that 15 months the appellant’s financial means were depleted;
·       the fact that during the period of that adjournment the magistrate made a number of comments as to the strength of the prosecution case and the insidious unfairness, as he saw it, to the appellant of the proceedings to date. These comments may well have influenced the decisions made by Mr Di Fazio in April 2007; and
· the failure of the magistrate to rule on the appellant’s challenges to the evidence in a timely way, in particular his challenges to the authorisations under s 110 of the Act. This might have prejudiced the ability of the appellant to effectively challenge that evidence at all.[7]
[7] Ibid [111].
The third ground related to an alleged abuse of process resulting in the video surveillance of Mr Thompson while he was in Europe in October 2002. It was alleged that the disclosure of the appellant’s itinerary by his estranged former wife was contrary to rule 13.07 of the Family Law Rules 2004 (Cth) and amounted to a contempt of the Family Court of Australia. The Judge rejected this complaint.
The fourth ground related to alleged defective authorisations under section 110 of the Act. The Judge considered that that ground was subsumed into the argument on ground 2 and in reality was another example of the way in which the course of the trial had miscarried.
Two other grounds related to the supposed reliance by the Magistrate on the evidence of two witnesses. It was claimed that the evidence of one of them was inadmissible. Those grounds were dismissed by the Judge. Another ground related to the Magistrate’s ruling that there was a case to answer with respect to every count in the complaint. That complaint was also dismissed.
Four of the grounds related to the sufficiency of evidence and the Magistrate’s reasons. In particular, it was contended that it was impossible to discern the basis on which the Magistrate reached a state of satisfaction beyond reasonable doubt on counts 75–82 and 88–95.
This complaint was understandable given the two paragraphs of the Magistrate’s final reasons which we have set out above. Despite a comprehensive analysis of the Magistrate’s reasons, the Judge was unable to conclude the basis on which he had convicted Mr Thompson of the obtaining counts. The Judge did not find it necessary to attempt to reach a conclusion as to the basis on which the convictions were arrived at, concluding:
In any event, I have reached the conclusion that the irregularities during the course of the trial were so numerous and at times so significant that the appellant did not receive a fair trial.
Finally, I do not consider that the magistrate’s reasons, given the complexity of this case, are sufficiently transparent for this court to properly review the magistrate’s decision. In particular, the decision to dismiss 79 counts inextricably linked to the 16 counts in respect of which guilty verdicts were recorded, called for a clear explanation.
For these reasons the appeal is allowed. The whole of the magistrate’s orders are set aside. The complaint is remitted to the Adelaide Magistrates Court for re-hearing and determination before another magistrate. I will hear the parties in relation to costs.[8]
[8] Ibid [201]-[203].
The Appeal to the Full Court
WorkCover did not seek to justify the procedural defects on which the Judge relied in setting aside the convictions. It argued that the order for retrial should stand on the footing of WorkCover’s undertaking on the retrial not to allege that Mr Thompson had never suffered a decompression injury, and upon the stated intention not to call a number of identified witnesses at the retrial, given the findings of the Magistrate rejecting their evidence. WorkCover opposed any order for acquittal on the counts on which Mr Thompson was convicted.
We consider in turn the various grounds relied upon by the appellant in arguing for an acquittal on the counts on which the appellant was convicted, rather than a retrial.
The Form of the Complaint and Duplicity
The appeal asserts that the complaint was bad for duplicity and/or latent ambiguity and should have been dismissed by the Magistrate in its entirety because of unfairness and oppression.
The argument put forward on behalf of Mr Thompson was that the principles discussed in Johnson v Miller[9] and Walsh v Tattersall,[10] and similar authorities, had been contravened in the formulation of the complaint.
[9] (1937) 59 CLR 467.
[10] (1996) 188 CLR 77.
As previously indicated above, 69 of the offences contained in the complaint alleged contraventions of s 120(1)(c) of the Act and 26 offences alleged contraventions of s 120(1)(a) of the Act.
In essence, it was submitted that Johnson’s case was authority for the proposition that the general prima facie rule was that only one offence can be alleged under one count. The later case of Walsh indicated that exceptions to this general rule were permitted in circumstances such as when the nature of the offence by definition contemplated multiple acts or continuous activity or where the acts occurred in very close proximity both in time and place.
It was submitted that this was not how the complaint had been framed in this case. Instead, more than one offence was charged contrary to the prima facie rule and it did not fall within the accepted exceptions. Instead, multiple dishonest statements which founded the charges under s 120(1)(a), as well as s 120(1)(c), were alleged to have occurred sometimes on the same occasion, and sometimes on different days to different practitioners. In addition, the formulation of the work-related disability being the subject of the claims and in relation to which it was alleged that Mr Thompson had made the dishonest statements and dishonestly obtained payments or benefits, was pleaded in the alternative and itself gave rise to more than one manner of offending. Mr Thompson complained that as a result of these matters the complaint lacked clarity and the appellant did not know the facts and elements which were alleged to comprise the particular counts. It was submitted that Mr Thompson was thereby unfairly prejudiced.
Kirby J in Walsh conveniently summarised the principles which govern duplicity. His Honour articulated nine principles. The first three address the history of the development of the principles of duplicity, noting that the rule long rested on fairness and that the accused should know the case he or she was required to meet. This was necessary so that the defendant could know how to plead and also make objections to the admission of arguably irrelevant evidence. Principles 5 to 8 are instructive in their description of the exceptions to the general rule and the passages set out hereafter are useful in considering the circumstances of the complaint in this case:[11]
4.For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law. In the present case, the Full Court recognised that this was the general rule and the preferable prosecution practice. So much is borne out by many authorities. But certain questions remain. They are: what exceptions to, or modifications of, the strict rule are allowed, and what is to happen where, as here, no objection is taken at the trial but only later on appeal?
5.The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity.
6.Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. … Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller; Kitto J dissented in Montgomery v Stewart; and Brennan J (as he then was) dissented in S v The Queen.
7.… Where the alleged duplicity in the charge is latent, it may only be manifested by the way in which evidence is presented to support the charge. It may not be until the prosecution's case is concluded that it becomes apparent that the prosecution cannot prove all of the acts that have been rolled together in a single composite charge, making plain the unsuitability of the process reliant on that charge. Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases. …
8.Although some writers have suggested that the law should be changed to prevent a duplicity objection being first taken on appeal (see, eg, Glanville Williams), this is not the common law. … In this appeal the availability of the challenge to the appellant was never contested.
[Footnotes omitted.]
[11] Walsh v Tattersall (1996) 188 CLR 77, 104-10 (Kirby J).
Finally, principle 9 indicates that a finding of duplicity does not require dismissal of the charge. For reasons explained by Kirby J:[12]
9.A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment. Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment. If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction.
[Footnotes omitted.]
[12] Walsh v Tattersall (1996) 188 CLR 77, 110.
In this case s 120(1)(a) of the Act, by reason of the description of the nature of the offence, which refers to obtaining “by dishonest means”, may by its description comprise conduct consisting of a number of untrue statements extending over a period of time. It may therefore be seen as an example of one of the exceptions so long as that conduct relates to the obtaining of a particular payment or benefit.[13] This interpretation does not appear to apply to the nature and description of the offence under s 120(1)(c) of the Act. This section, by its nature, refers to making a “statement” about a claim knowing “the statement” is false or misleading. The reference to “the statement” reinforces the singularity by referring to the definite article. While s 26 of the Acts Interpretation Act 1915 indicates that the singular is to be construed as including the plural, the dual reference to the word “statement” in the context of the section suggests that the nature of the offence is focused on the particular statement which is alleged to be false or misleading and does not, in its description, suggest that it includes multiple statements.[14] This interpretation appears to be consistent with the fundamental purpose of the rules against duplicity, namely that an accused should know what case is to be met. Multiple statements, any one of which may give rise to liability in relation to the one count, can potentially be productive of uncertainty and unfairness. At the same time, it is necessary to consider what is meant by a “statement” in the particular context. A statement could presumably include more than one sentence or assertion and, as Kirby J indicated in Walsh, this would be a matter of fact and degree in each case.[15]
[13] Walsh v Tattersall (1996) 188 CLR 77.
[14] The context indicates a contrary intention to the strict application of section 26 see Fordham v Brideson [1986] VR 587.
[15] (1996) 188 CLR 77, 108.

Therefore, when considering the pleading in this case, s 120(1)(a) of the Act permits the pleading of a count to refer to multiple statements in one count, whereas s 120(1)(c) does not permit reference to multiple statements which amount to a separate offence unless they can be linked by point of time, similarity, physical proximity and intention.
We have previously adverted to the complicated and intertwining nature of the particulars to the counts. In considering whether the complaint in respect of counts alleging breaches of s 120(1)(c) are duplicitous, it is necessary to return to consider counts 1-69. There is a formulaic similarity in the manner of pleading each of these counts. Each refers to a specific consultation with a specified medical practitioner on a specified day. The particulars in each case set out what purport to be complaints alleged to have been made by Mr Thompson as to his symptoms. In some counts the complaint is a singular symptom, but overwhelmingly most of the particulars refer to separate statements involving multiple symptoms.
Using count 3 as an illustration of the latter manner of pleading, this count states:
3.On or about 9 July 2002 at Adelaide, dishonestly made a statement about a claim under the Act knowing that the statement was false and misleading. Section 120(1)(c) of the Act
Particulars
At a consultation with Dr Christopher Griffin, psychiatrist, in reference to his physical symptoms the defendant stated words to the effect,
“I find it hard to sleep with the pain. It is a constant dull ache now. I lay in bed at night and can’t sleep” or similar, and
“I have pain involving both knees, my left hip, both shoulders and the left is worse” or similar.
In fact the defendant did not experience such joint pains and aches as described, nor did such pains and aches make it difficult for him to sleep. The statements were not an accurate indication of symptoms experienced by the defendant.
Therefore, this count asserts that Mr Thompson complained of a number of symptoms to different parts of his body and that each of the complaints was dishonest in that he did not experience those symptoms. The count also acknowledges that they comprised “statements” of Mr Thompson. It is not necessary for us to consider whether this count on its face is duplicitous. We note the reasons of the Judge which provide a basis for concluding that count 3 standing alone may not be duplicitous. [16] However, the pleading of count 3 is required to be interpreted within the context of the whole complaint, and this reveals more serious concerns.
[16] [2008] SASC 200, [72]-[77].
As we have previously noted, all counts, including counts 1-69 inclusive, which of course includes count 3, are also the subject of the General Particulars.
The General Particulars add in two earlier additional consultations with Mr Reid on 29 June 2001 and 17 July 2001, being a year prior to the date referred to in count 3. Thereafter, 16 separate statements referring to diverse symptoms are set out. Incidentally, there is no identification as to which consultation each of the statements refers.
In addition, particulars 2 and 3 of the General Particulars give rise to different problems. Particular 2 asserts that Mr Thompson dishonestly pretended that he suffered from decompression illness sustained in the course of employment in 1994 and that he did so in order to receive income maintenance and other benefits in a period running from August 2001 to the date of the complaint, which is 13 August 2004. Particular 2 expresses that this is based on false statements particularised in counts 1–69, which goes beyond the date of 9 July 2002, and includes a period up to 5 April 2004. This particular alone contains within it allegations as to a time period which inexplicably extends beyond the date of the alleged offence.
To add even further complication, there is an alternative casting of the offending set out in particular 3 of the General Particulars. This particular is expressed to be an alternative to particular 2. It states that although Mr Thompson had initially sustained a decompression illness in the course of employment, he had “recovered from the decompression illness in or about 1994” (no more specific time being indicated) and thereafter dishonestly pretended still to suffer from that illness and did so in order to receive income maintenance and other benefits from 2001 to the date of the complaint. Again, there is express reliance on the false statements particularised in counts 1–69, as well as paragraph 1 of the General Particulars.
Omitting the contradictory and inconsistent allegations of time, particulars 2 and 3 of the General Particulars expressly assert alternative means of offending in relation to all counts whereby it is stated that the appellant either pretended to suffer from work-related decompression when he had not or, alternatively, he had suffered work-related decompression from which he had recovered in about 1994, being the same year in which it was alleged that the decompression had been sustained. No more specific time for recovery is stated.
It is necessary to bring these allegations together and focus on their application to count 3. In answering that complaint the complainant was required to address:
·the statements concerning a number of different symptoms as set out in the particulars of count 3;
·at the same time to have regard to the General Particulars which referred to statements allegedly made in 2001 and, further;
·to take into account two alternative formulations as to the dishonesty of the statements alleged to have been made in relation to an alleged work-related disability.
Mr Thompson was therefore facing charges comprised of multiple false statements alleged to have been made on many different occasions to different medical practitioners for diverse symptoms. Further, he did not know whether these allegations were alleging dishonest statements by arguably four different possible routes:
·He pretended he had sustained a work-related decompression illness in 1994 when he had not; or
·He pretended he had symptoms relating to a decompression injury when he did not; or
·He did have symptoms complained of, but pretended they were related to a decompression injury sustained at work in 1994, when they were not; or
·He had initially suffered from symptoms due to a work-related decompression injury in 1994, but as from some point after 1994 he had recovered but pretended that he continued to suffer symptoms from that condition when he did not.
This complex formulation of count 3 applies to each of counts 1–69.
In our view, this complaint is duplicitous at multiple levels. It was not simply latently ambiguous, but patently ambiguous.
Notably, particulars 2 and 3 of the General Particulars offended the formulation of the rule as articulated by Dixon J in Johnson’s Case:[17]
Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v. Needham, the proper course is to put the complainant to his election. In such a case, to wait to the end of his evidence before doing so may be convenient and may cause no injustice. But it is the converse of the present case, where the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.
[Footnote omitted.]
[17] Johnson v Miller (1937) 59 CLR 467, 489-90.
Although further particularisation was requested, it had been refused. There was no election made by the prosecution before the Magistrate to clarify exactly what the prosecution’s case was, especially in relation to particulars 2 and 3 of the General Particulars. Therefore, Mr Thompson did not know with clarity what were the factual bases for the particular elements of the alternative offences alleged against him. This lack of clarity resulted, in our view, in manifest injustice and clear oppression.
Even aside from these counts offending the rule against duplicity, the sheer enormity of potential avenues used to charge Mr Thompson which included multiple statements and contradictory alternative assertions all contained within a 28 page complaint, clearly fell short of any standard of fairness.
Having said that, the Magistrate found that Mr Thompson was guilty of 16 offences, being counts 75–82 and also 87–95. The remaining 79 counts, which included counts 1–69 were dismissed. Therefore, no conviction was recorded in respect of the duplicitous charges alleging contravention of s 120(1). This result does not overcome the effect of the duplicity, nor the oppression. The charges alleging breach of s 120(1)(a) are also infected. Using count 75, being one of those on which a conviction was recorded, as an example, count 75 states:
In or about November 2002 at Port Lincoln or elsewhere, obtained by dishonest means a payment or other benefit under the Act, namely a payment of $524.61 as income maintenance for the period ending on 6 November 2002. Section 120(1)(a) of the Act.
Particulars
The acts referred to in counts 1 to 25 inclusive above.
Count 75 refers to allegations that “In or about November 2002” the appellant, by dishonest means, obtained $524.61, being income maintenance for a period “ending on 6 November 2002”. The particulars include the acts referred to in counts 1–25, being themselves duplicitous by reference to the General Particulars. Counts 1–25 collectively refer to multiple dishonest statements alleged to have been made on four different occasions separated by time and physical proximity, namely on 11 June 2002, 9 July 2002, 1 August 2002 and 29 August 2002, to three different medical practitioners, Christopher Griffin, Mark Reid and Christopher Acott. Even if the reference to the acts in counts 1–25 could be interpreted as referring simply to the contents of those counts absent the additional reference to the General Particulars, count 75 is itself included, in its own right, the General Particulars. It is included as one of the “counts above”.
All of the observations we have made about lack of clarity and oppression in respect of the pleading of breaches of section 120(1)(c) are further reinforced in the pleading of alleged breaches of section 120(1)(a). The consequence of this lack of clarity is illustrated by the findings of liability made by the Magistrate in paragraphs to which we have already referred but which bear repeating in this context:
It is impossible and unreasonable to declare that it has been proved beyond reasonable doubt that every particularised post October 2002 statement was made dishonestly and with knowledge that it was false and misleading. Perhaps, as Mr Thompson claimed, he did have trouble relating to people, perhaps he had become socially withdrawn. Perhaps when he reported that he felt bloody miserable some days he did. Perhaps when he reported that he felt depressed and unhappy, he did feel that way.
I find that Mr Thompson suffered decompression illness in or about March or April 1994. I find that he recovered from that condition. I find that at the latest that recovery was complete before October 2002. If find that while the vicissitudes of his life may have contributed to the intervention of clinical depression, he, between October 2002 and July 2004, obtained by dishonest means payments or other benefits under the Act. I say that he did that by dishonestly and knowingly stating that he continued to suffer from decompression illness.
I therefore find proved the following counts, 75, 76, 77, 78, 79, 80, 81, 82, 88, 89, 90, 91, 92, 93, 94 and 95. I offer no formal findings at this stage as to any of the false and misleading statement accounts. Of course the allegations here are not simply of obtaining payments to which Mr Thompson was not lawfully entitled. The allegations are allegations of “obtaining by dishonest means”. I close by saying that the possibility of a psychiatric or neurological or any other explanation inconsistent with a finding of dishonesty has been in my mind from start to finish. It no longer remains in my mind as a reasonable possibility. It languishes on the road between Strasbourg and Krun.
[Original emphasis]
The Magistrate found that counts 75–95 were made out, but counts 1–25 which formed the foundation of counts 75 etc., were not found to have been proved. Therefore, the final conclusion of the Magistrate resulted in inconsistent verdicts.
This result illustrates the problems which were identified in S v The Queen:[18]
There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict…
[18] S v The Queen (1989) 168 CLR 266, 284.
Yet a further complication of the findings was that the Magistrate did not find that Mr Thompson had recovered from a decompression illness in 1994. Instead, the Magistrate found, without there having been any amendment of the complaint, that the appellant had recovered at a later time, namely “at the latest before October 2002”, whatever that finding may mean.
In summary, we consider that the Magistrate should have dismissed the entire complaint. Mr Thompson was prejudiced by reason of its duplicitous and oppressive nature. It is not necessary for us to decide whether election may have overcome the prejudice suffered as a result of the pleading. We would allow the appeal on the basis of unfairness arising from duplicity of pleading and most importantly for the overall oppression of its pleading.
The Quashing of the Order Dismissing the 79 Counts and the Power to Order a Retrial
Section 42 of the Magistrates Court Act 1991 (SA), under which the appeal to the Judge was brought, relevantly provides:
Appeals
…
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)    it may remit the case for hearing or further hearing before the Magistrates Court;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
…
Rule 292 of the Supreme Court Civil Rules 2006 (SA) also provides:
Hearing of appeal
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b)    amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c)     remit the case or part of the case for rehearing or reconsideration;
(d)    make orders for the costs of the appeal.
The powers of this Court on appeal from the Magistrates Court are extremely wide. Technically, they would allow the Court to order a retrial of counts which have been dismissed, even in the absence, as here, of a prosecution appeal. However, any such action could only be taken if it is in the interests of justice to do so.[19]
[19] Magistrates Court Act 1991 (SA) s 42(5).
Counsel was unable to find any authority which related to a judge ordering a retrial upon an acquittal in the absence of a prosecution appeal. It appears that there is none. Mr Thompson relied on the decision in Heal v Police,[20] where this Court[21] made it clear that the legislation did not intend to confer a power to increase a sentence on a defence appeal where there was no prosecution appeal. Mr Thompson also relied on a number of persuasive discretionary factors which would militate against the ordering of a retrial in this case.
[20] [1999] SASC 374, (1997) 75 SASR 331.
[21] Millhouse, Duggan and Lander JJ.
It is not necessary, in the circumstances, to analyse those arguments. Whether or not the convictions on counts 75–82 and 88–95 were justified, and despite the apparent confusion in the Magistrate’s reasons for convicting on those counts, it now seems quite clear from our analysis of the Magistrate’s reasons that the Magistrate was satisfied that Mr Thompson had suffered a disabling decompression injury. It is also quite clear from the reasons that it was only in respect of events after October 2002 that the Magistrate could be satisfied that Mr Thompson was no longer afflicted by those symptoms. Therefore, whatever may be the weakness of the Magistrate’s finding in respect of the offences alleged to have occurred after that date, it is clear that he could not be satisfied beyond reasonable doubt that the statements made by Mr Thompson to the various medical practitioners and the neuropsychologist as to his symptoms before that date were untrue. It follows that the alleged dishonest means which were said to have brought about the payments before October 2002 had not been proved to the required criminal standard. It followed that the dishonest statements counts for that period also had to be dismissed.
The Judge’s order of a retrial on all counts exposed Mr Thompson to a second trial on counts on which the finder of fact had acquitted him. In these circumstances the interests of justice demand that full effect be given to the rule firmly embedded in the criminal justice system that a defendant not be exposed to double jeopardy and the possibility of a further trial and conviction of offences for which he has already been acquitted.[22]
[22] See R v Carroll [2002] HCA 55, (2002) 213 CLR 635.
There was a further objection to the ordering of a retrial on the dismissed counts based on the fact that the Judge did not hear the parties as to the appropriate order to be made in respect of these counts. That amounted to a lack of procedural fairness, particularly when no one had sought such orders.
These reasons are sufficient to require the setting aside of the Judge’s order that there be a retrial on all counts. Whether there should be a retrial of the counts on which Mr Thompson was found guilty is a matter for further consideration.
Whether there was a Case to Answer

In view of the final disposition of this appeal, it is not necessary to dwell on this ground of appeal. In dealing with this ground in the appeal below the Judge observed:
I take into account the difference between a submission that the evidence presented by the prosecution, at its highest, was not capable as a matter of law of proving the elements of each of the offences in respect of which the appellant was convicted, contrasted with a submission that the prosecution evidence was so weak and unreliable that no reasonable finder of fact could safely base any conviction upon it. The appellant’s submissions before this court were mainly directed to establishing the latter basis.
Having perused the whole of the transcript and the exhibits tendered in support of the prosecution case, I conclude there was a case to answer. There was a vast amount of evidence concerning the activities of the appellant from 1994 up to and including the date of the complaint in October 2004.
Whilst the evidence as a whole, in my opinion, did not support the prosecution primary case that the appellant had never suffered from decompression illness in 1994, there was evidence if accepted by the magistrate to support the conclusion that he had recovered from that illness by as early as 1995. The fact that the magistrate went on later to reject much of the evidence which supported the contention that the appellant was feigning the illness between 1994 and 2002, is not relevant to whether there was in fact a case to answer at the conclusion of the prosecution’s case.[23]
[23] Thompson v Duffin [2008] SASC 200, [146]-[148].
There was no demonstrable error on the part of the Judge and no reason to doubt the conclusion reached. The argument of Mr Thompson in this Court was based on a finding of the Judge elsewhere that the Magistrate’s finding of a complete recovery no later than October 2002 did not of itself establish the causal link between the dishonest means and the obtaining of the payments from November 2002 to October 2004. Such a finding does not assist the submission on this ground.
When making the above observation the Judge was referring to the Magistrate’s finding of guilt in respect of the counts which were allegedly committed after October 2002 insofar as the payments concerned were based in whole or in part on statements made by Mr Thompson before October 2002 and in respect of which he was acquitted of any finding of dishonesty. That had nothing to do with the state of the evidence at the close of the prosecution case. The Magistrate was not required to rule on Mr Thompson’s guilt at that stage, even though, ultimately, Mr Thompson called no evidence. As the Judge observed, at the close of the prosecution case there was abundant evidence on which a finding of guilt could be made.
The orders of this Court – Whether there should be a retrial on counts 75-82 and 88-95
In the course of his reasons, the Magistrate concluded that it had been established beyond reasonable doubt that Mr Thompson obtained by dishonest means, payment or benefits under the Workers and Rehabilitation Compensation Act. The Magistrate was explicit in the basis for this conclusion:
I say that he did that by dishonestly and knowingly stating that he continued to suffer from a decompression illness.
The difficulty for WorkCover flowing from this finding is that it was a finding outside the particulars provided in respect of counts 75–82 and 88–95 on which convictions were recorded. In no count was it alleged that Mr Thompson had dishonestly and knowingly stated that he continued to suffer from decompression illness. To put it another way, the finding of the Magistrate did not justify the conclusion that any of the counts on which convictions were recorded had been established beyond reasonable doubt.
The particulars to each of those counts alleged that Mr Thompson made different statements consequent upon his decompression illness. The Magistrate failed to make findings as to any of the particular statements.
For the convictions to be sustained, WorkCover needed to point to findings of fact beyond reasonable doubt to support the particulars of each of counts 75–82 and 88–95 and reasoning to allow the conclusion that the elements of each count had been proved beyond reasonable doubt.
A primary contention of Mr Thompson was that the Magistrate had made findings of fact that necessarily lead to the conclusion that elements of each count had not been established beyond reasonable doubt. Mr Thompson contended that as a consequence, WorkCover had not excluded the reasonable possibility that Mr Thompson suffered from an illness justifying his claim for benefits, that is, a reasonable hypothesis consistent with innocence.
The Magistrate made a finding that Mr Thompson suffered decompression illness in or about March or April of 1994, and that he recovered from that condition, at the latest by October 2002. If follows that all counts that relied on representations of that illness and its effects prior to October 2002 had not been proved beyond reasonable doubt. As a consequence, as earlier observed, the Magistrate was correct to dismiss those counts.
Although concluding that recovery from the decompression illness was complete by October 2002, the Magistrate made a positive finding that Mr Thompson suffered from clinical depression between October 2002 and July 2004. The Magistrate concluded that the vicissitudes of life, may have contributed to the intervention of this depression. We have already quoted those findings twice and need not do so again, although they are essential to the Magistrate’s conclusion.
Although the finding is expressed in an ambiguous manner, it is clear that the Magistrate considered that WorkCover had not excluded the reasonable possibility that Mr Thompson suffered clinical depression, in part caused by or linked to his decompression illness, and that although Mr Thompson had recovered from the decompression illness itself, the associated clinical depression remained.
There was a substantial body of evidence led by WorkCover that established that Mr Thompson continued to suffer from clinical depression up to and beyond July 2004. This included evidence from a treating psychiatrist, Christopher Griffin, that Mr Thompson was suffering from depression – depression sufficiently serious to be diagnosed and classified as a psychiatric illness. In his report dated 2 April 1996, tendered by WorkCover, Dr Griffin outlined his assessment of Mr Thompson:[24]
It would appear the patient has suffered a succession of loss events, each of which has been novel and unexpected. These have included the loss of physical and emotional well-being in association with occupational hazards as a diver, which, in turn, incompletely responded to appropriate treatment.
The marital uneasiness may well have been a secondary phenomena, arising from the neuropsychological impairments associated with the “decompression sickness”. Regrettably, his convalescence from that condition has involved exposure to further disappointment and frustration. That, in turn, has tested his capacity to trust others, and been associated with a great deal of personal insecurity. He made reference to pressure that had been experienced by his medical practitioners, which had added to his sense of worry whenever he consulted them.
Referral for neuropsychological assessment and consideration of neurological evaluation merits consideration. There was evidence for a depressive syndrome, probably major depressive disorder, and adjustment to the antidepressant medication, combined with psychotherapy to assist the patient at a time of great personal need, may be of benefit.
[24] P 414 Case Book.
This was updated by a report dated 30 July 2002. Dr Griffin at that time highlighted a range of symptoms suffered which supported the diagnosis of the depressive disorder:
On the basis of the information available to me and with reference to the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association it was my opinion Mr Thompson was suffering the following concurrent psychiatric conditions:
(a) Major Depressive Disorder, moderate of chronic duration:
In my opinion that diagnosis was supported by Mr Thompson’s report of symptoms including:
·Depressed mood
·Sleep disturbance
·Loss of energy
·Subjective impairment of memory and concentration
·Loss of interest and pleasure
·Ideas of personal shortcomings.
The conclusion that Mr Thompson suffered a depressive illness remained unchanged in reports provided by Dr Griffin on 16 July 2003, 2 October 2003 and 15 April 2004. These reports outline Mr Thompson’s medical illness, progress and prognosis in some depth. It is not insignificant that as recently as 15 April 2004, Dr Griffin indicated that in his opinion, Mr Thompson continued to suffer from his depressive illness.
Dr Griffin’s opinion that Mr Thompson suffered from a depressive illness amounting to a psychiatric illness in association with his original physical symptoms was confirmed in evidence:
Q.While it’s not part of your role to identify malingerers, is it sometimes part of your role to consider whether complaints of apparent physical symptoms may be psychosomatic in origin and, if so, did you consider that when assessing [the appellant].
A.Yes That’s a very important issue in clinical practice and has a long established historical precedent. It is well recognised that patients presenting with physical symptoms may have both anatomical [and] pathological changes in the body, contributing to physical symptoms, and there may be different forms of concurrent psychological reaction present which may modify the way in which those symptoms are described and the way in which those symptoms influence activities of daily life.
Q.Did you consider those matters in assessing [the appellant].
A.Yes.
Q. Did you come to any conclusion about it.
A.I took the view that [the appellant] was experiencing different forms of what could be described as co-morbidity. In other words, he had more than one condition present and it was my understanding that there was more [than] one form of psychiatric condition present and the origins of those conditions were associated with a form of onset of physical changes following adverse events while diving. During the follow-up consultations, which gave me an opportunity to review [the appellant’s] number and severity of symptoms and his level of function, I had concern that more than one of those conditions were continuing to have an adverse effect upon his wellbeing.
[Emphasis added]
This evidence led by WorkCover was not challenged. The Magistrate was critical of Dr Griffin’s evidence as to his conclusions concerning the cause of Mr Thompson’s repeated symptoms. However, the Magistrate’s essential findings repeated elsewhere do not amount to a finding beyond reasonable doubt that Mr Thompson’s description of his symptoms was untrue.
The finding that Mr Thompson suffered decompression illness between March 1994 and October 2002 necessarily led to the conclusion that the counts referrable to that period of time were properly dismissed. Given the findings of the Magistrate, it is difficult to see how there could be a retrial on counts 75-82 and 88-95 and at the same time leave the orders for dismissal in place. For the reasons earlier mentioned, the findings of the Magistrate, should have led to the dismissal of all counts, and on his findings, the order of the Court should be that the convictions recorded be set aside, and orders of dismissal be made in lieu. The consequence is that all 95 counts should be dismissed.
If it were appropriate to consider the remittal of the matter for rehearing, there is good reason why that should not occur in the interests of justice. The events, the subject of the complaints, concluded more than five years ago. The complaint was drawn in a way that was oppressive and duplicitous. Mr Thompson has been drained of resources. The evidence led at trial by WorkCover made out a decompression illness together with a developed ongoing case of clinical depression. It might be expected that the whole of the litigation process, including the manner in which it was conducted, would have added to and compounded the depression. In these circumstances, even if it were open to consider a remittal for a retrial, we would exercise our discretion not to do so.
The conduct of the prosecution
Given the substantial injustices sustained by Mr Thompson in the conduct of this litigation, it is appropriate that we make some observations of the manner in which the case was prepared and presented, and as to the obligations of those responsible for such prosecutions.
The number of charges was quite excessive in the circumstances. It obscured the essential features of the case, contrary to the interests of justice.
For reasons which we have identified, the particularisation of the charges was quite oppressive. There was no proper characterisation of what the alleged statements conveyed or what they were intended to convey.
The alternative particulars made it impossible for Mr Thompson to have a fair trial. On the one hand, he faced an allegation that he had suffered no compensable injury. At the same time, he faced an allegation that he did suffer a compensable injury but had recovered. That may be a satisfactory way of pleading a civil claim or of defending a claim for payment of compensation. It renders it impossible effectively to conduct a defence to a criminal charge.
As the description of the proceedings by the single Judge indicates, the hearing was conducted by WorkCover in a manner which was quite oppressive and without regard to the rights of a person facing a large number of serious charges, each one of which carried a possible term of imprisonment of 12 months or a possible fine of $50,000.
WorkCover vigorously opposed adjournments to which Mr Thompson should have been entitled when it was aware of the procedural unfairness to which the appellant had been subjected. It also failed to produce relevant documents to Mr Thompson in a timely fashion, many highly relevant documents not even being produced until after the close of the prosecution case.
As the Magistrate found, the case that the appellant had in fact suffered a disabling decompression injury was overwhelming, and was apparent from the documents held by WorkCover which were not disclosed until after the prosecution case was closed.
The observations of the Magistrate about some of the witnesses called, if well-founded, also raised concerns about whether they should have been called at all.
The proper role of a prosecutor is not to secure a conviction at all costs. It is to present facts to the Court fairly and impartially, to ensure that the facts are presented in an intelligible way and to ensure that the Court is able adequately to apply the law to the facts.
In Whitehorn v The Queen[25] Dawson J spoke of the general obligation which is imposed upon a Crown prosecutor “to act fairly in the discharge of the function which he performs in a criminal trial”. His Honour continued:[26]
That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that he is a detached or disinterested role in the trial process.
[25] (1983) 152 CLR 657.
[26] Ibid 675.
In the same case Deane J said:[27]
Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered.
[27] Ibid 663.
Those remarks were directed at the role of the prosecutor in a criminal trial. They have no less application to a prosecution of this nature by WorkCover. Although Deane J referred to the ordering of a new trial “where appropriate”, the way the trial was conducted by WorkCover was only one of the reasons why the trial miscarried. For other reasons it is not appropriate in this case to order a new trial.
The remarks of Dawson and Deane JJ quoted above were cited with approval by Kirby and Callinan JJ in Libke v The Queen.[28] Although their Honours dissented in the result in Libke, the majority expressed a similar view. Hayne J, with whom Gleeson CJ and Haydon J agreed, said:[29]
[28] [2007] HCA 30, [34], (2007) 230 CLR 559, 576-577.
[29] Ibid [71]-[72], 586-587.
A criminal trial in Australia is an accusatorial and adversarial process. In that process, prosecuting counsel has a role that is bounded by long-established duties and responsibilities. Those duties and responsibilities are summarised when it is said that "[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice". In the Supreme Court of Canada, Rand J described the role of the prosecutor as being:
“not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
[Emphasis added]
A central, even the central, element in that role is "ensuring that the Crown case is presented with fairness to the accused".
The prosecution case is to be presented in the context of an adversarial process in which each side "is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked". But again, there are boundaries to that process. The choices that have been described are to be made "subject to the rules of evidence, fairness and admissibility".
[Original emphasis, footnotes omitted]
Finally, as one learned commentator has said:[30]
Always the principle holds that Crown counsel is concerned with justice first, justice second and conviction a very bad third.
[30] Christmas Humphreys QC, [1955] CrimLR 739, 746.
WorkCover is an instrumentality or agency of the Crown. It holds its property on behalf of the Crown.[31] The members of the Board are appointed by the Governor.[32] Its primary statutory function is to administer the Workers Rehabilitation and Compensation Act.[33] Subject to the provisions of the WorkCover Corporation Act, it is subject to the direction and control of the Minister.[34] In prosecuting for alleged breaches of the Workers Rehabilitation and Compensation Act, WorkCover, its staff and its solicitors are acting on behalf of the Crown. They must be subjected to the same restrictions and requirements as any responsible public prosecuting authority. The way this prosecution was handled gives rise to three principal areas of concern.
[31] WorkCover Corporation Act 1994 (SA) s 4(3).
[32] Ibid s 5(2).
[33] Ibid s13(1)(a).
[34] Ibid s 14A(1).

We have already referred to the various miscarriages which occurred during the course of the trial. The case was conducted as if it were a civil recovery action on the part of WorkCover or as if it were defending a claim for income maintenance and other benefits under the Workers Rehabilitation and Compensation Act. It bore all the hallmarks of a desire to win at all costs, with scant regard to the fact that it was prosecuting serious criminal offences. The formal complainant was an officer of WorkCover. WorkCover engaged its own solicitors. The Court was told that WorkCover has no prosecution guidelines such as are applicable almost universally to State prosecuting authorities, and which are designed to ensure fairness in the prosecution process.
The proceedings revealed that there was already a genuine dispute between WorkCover and Mr Thompson as to whether Mr Thompson had suffered a compensable injury or whether, if he did, he had recovered from it. That fact had to be resolved before questions of dishonesty on the part of Mr Thompson could be addressed. However, it appears that the prosecution was launched without that issue having been addressed and in the manner of a disputed claim for compensation. We accept that it was necessary to establish, as part of the prosecution case, that the statements made were untrue because Mr Thompson, so it was alleged, had never had or had recovered from a decompression illness. But Workcover had to decide which of those two allegations it was going to rely on. It was inappropriate to try to resolve a disputed entitlement to various forms of compensation in a criminal prosecution. The proper forum for determination of such issues was the Workers Compensation Tribunal. Only then, in the light of any relevant findings, could consideration then properly be given to whether a prosecution was appropriate at all and, if so, in respect of what period. Had a responsible attitude been taken to the decision to prosecute and to the conduct of the prosecution, many of the problems which afflicted this case would probably not have occurred.
The second matter of concern relates to the position of WorkCover as a complainant or “victim” and WorkCover as a prosecutor. In most cases of criminal prosecutions, an independent agency of the State will conduct a prosecution based on information supplied by a complainant. However, the prosecutor does not represent the complainant. A prosecution will always be conducted by taking account of the complainant’s views, but the prosecutor will always be wary of attaching too much importance to them, and will remain mindful of the need to conduct the prosecution with fairness and impartiality. In this case, WorkCover was, in effect, the complainant or victim, having allegedly paid to Mr Thompson substantial benefits under the Workers Rehabilitation and Compensation Act which it believed had been paid in circumstances where there was a breach of s 120 of the Act. But it was also the prosecutor. The nominal complainant was an officer of WorkCover. WorkCover gave the instructions. The prosecution was conducted by WorkCover’s solicitors, not a State prosecuting authority. There was not that necessary degree of detachment between complainant or victim and prosecutor.
The third point is related to the second. If a prosecuting lawyer frequently acts for the true complainant in other capacities, the lawyer’s independence is likely to be at risk if that lawyer prosecutes a contentious case involving an allegedly substantial loss to the complainant, and when a successful prosecution will have consequences for the commercial interests of the complainant, such as did these prosecutions by virtue of s 120(3) of the Act. There is a grave risk that the personal feelings of the officers of WorkCover giving the instructions and of their solicitors, and the alignment of the latter with the commercial interests of WorkCover, will endanger what should be impartial views as to the proper conduct of a serious prosecution which may result in deprivation of a person’s liberty.
There are indications that the principles to which we have referred were not properly observed on this occasion.
Conclusion
The appeal is allowed. The orders of the Judge under appeal are set aside. The convictions and orders recorded by the Magistrate are set aside. There is substituted for those orders an order that the complaint is dismissed.