Thompson v DUFFIN - [2008] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THOMPSON v DUFFIN
[2008] SASC 200
Judgment of The Honourable Justice Kelly
22 July 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE
Appellant convicted of 16 counts of obtaining a benefit by dishonest means contrary to s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 - magistrate dismissed 79 remaining charges contrary to s 120(1)(a) and s 120(1)(c) of the Act - appellant sentenced to 2 years 4 months imprisonment with a non-parole period of 5 months - trial was complex - appellant unrepresented for whole of prosecution case - later represented by different counsel at different stages - many adjournments at conclusion of prosecution case - whether a miscarriage of justice occurred as a result of issues concerning procedural fairness - whether the complaint is defective on the ground of either latent or patent duplicity - whether evidence sufficient to support a finding beyond reasonable doubt - whether magistrate's reasons sufficient - whether magistrate erred in finding a case to answer - whether magistrate erred by admitting video surveillance evidence obtained unlawfully or improperly.
Held: appeal allowed - appellant not accorded procedural fairness during the trial - substantial delays and failure to grant adjournment applications to allow appellant sufficient time to obtain the necessary funds to engage legal representation and prepare his defence - appellant unrepresented during critical stage of the trial - although later obtained representation of various counsel, initial prejudice incurable - magistrate's reasons inadequate - magistrate did not differentiate between findings of fact and the narrative of the evidence - not clear what findings of fact supported the verdict - complaint adequately identifies particulars and is not duplicitous - magistrate correct in finding a case to answer - magistrate correct in admitting the video surveillance evidence as it was highly probative and interests of justice supported the admission of that evidence - whole of the orders made by the magistrate set aside - complaint remitted to the Adelaide Magistrates Court for re-hearing and determination before a different magistrate
Workers Rehabilitation and Compensation Act 1986 s 120(1)(a), s 120(1)(c); Summary Procedure Act 1921 s 22A; Family Court Rules 2004 r 13.07, referred to.
R v Traino (1987) 45 SASR 473; R v Pfitzner (1976) 15 SASR 171; Pearce v The Queen (1998) 194 CLR 610; Walsh v Tattersall (1996) 188 CLR 77; Dietrich v The Queen (1992) 177 CLR 292, applied.
Leete v Workcover Corporation (unreported, Supreme Court of South Australia, 1 October 1997, judgment no S6248); Nudd v R (2006) 225 ALR 161, considered.

THOMPSON v DUFFIN
[2008] SASC 200
Introduction

The appellant Jeffrey Ian Thompson was tried in the Adelaide Magistrates Court on 69 counts of dishonestly making a statement about a claim contrary to Section 120(1)(c) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) and 26 counts of obtaining…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson v DUFFIN

Details

AGLC: Thompson v DUFFIN [2008] SASC 200
Case: [2008] SASC 200
Decision Date: 22 July 2008

CaseChat Overview and Summary

The appellant, Thompson, was convicted by a magistrate of 16 counts of obtaining a benefit by dishonest means under the Workers Rehabilitation and Compensation Act 1986. The appellant was sentenced to 2 years and 4 months imprisonment, with a non-parole period of 5 months. The magistrate dismissed the remaining 79 charges. Thompson appealed against his conviction and sentence, raising numerous grounds of appeal which were ultimately consolidated into twelve key issues. The appeal was heard in the Supreme Court of South Australia. The primary legal issues centred around whether a miscarriage of justice had occurred due to procedural unfairness during the trial, the sufficiency of the evidence to support the verdicts, the adequacy of the magistrate's reasons, and the lawfulness of the admission of certain evidence.

The court found that Thompson was not accorded procedural fairness during the trial, primarily due to substantial delays and the failure to grant adjournment applications that would have allowed him sufficient time to secure legal representation and prepare his defence. This resulted in Thompson being unrepresented during a critical stage of the trial. Although he was later represented by different counsel at various stages, the initial prejudice was deemed incurable. The magistrate's reasons for the verdict were also found to be inadequate, as they did not clearly differentiate between findings of fact and the narrative of the evidence, making it unclear which findings supported the verdict. The court further found that the magistrate's complaint was not duplicitous, the magistrate correctly found a case to answer, and rightly admitted the video surveillance evidence as it was highly probative and the interests of justice supported its admission.

In light of the findings, the appeal was allowed. The orders made by the magistrate were set aside, and the complaint was remitted to the Adelaide Magistrates Court for re-hearing and determination before a different magistrate. The complexity of the trial, the numerous adjournments, and the failure to ensure procedural fairness during the proceedings led to the conclusion that a miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

There were numerous complaints made about the conduct of the trial which were eventually reduced down to twelve grounds of appeal. Before dealing with each of those grounds and in order to obtain a proper understanding of the context in which this appeal has been brought, it is necessary to set out in some detail, the chronology of the trial and some of the complexities which arose during the course of the trial. Background The matter was complex and the trial protracted. In reaching an understanding of this matter I have had regard to the transcript of the proceedings in the Adelaide Magistrates Court and the exhibits tendered. I have also had regard to numerous documents filed on behalf of both the appellant and the respondent in the form of various sworn affidavits and also in the form of schedules and summaries for the assistance of the court. I am indebted to both parties for the extensive work undertaken to ensure that this court has an accurate record of all relevant parts of the proceedings in the Adelaide Magistrates Court. For convenience those documents are identified in appendix A to this judgment. 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.

Evidence

Evidence Before The Court

I reject the submission that the magistrate should have ruled that there was no case to answer at the close of the prosecution case.Grounds 5, 6, 7 and 10: Sufficiency of Evidence and The Magistrate’s Reasons These four grounds as particularised, relate to the appellant’s complaint that the evidence as a whole was insufficient to support the verdicts of guilty on any of the 16 counts. Specifically, it was submitted that the magistrate erred in finding the element of dishonesty proved in light of his finding that the prosecution had not excluded as a reasonable possibility that the appellant suffered from depression or a pain disorder as a consequence of the decompression illness. It was also submitted that his Honour’s finding of guilt was inconsistent with his acceptance of some of the medical evidence and with other findings of fact he made. Grounds 7 and 10, broadly speaking, are complaints that the magistrate failed to make relevant findings of fact on important issues, or insofar as he did make findings of fact, then those findings are to some extent internally inconsistent with other findings of fact and inconsistent with his ultimate conclusion of guilt. Ground 10 is a further complaint that the magistrate’s reasons do not disclose how he reached a conclusion beyond reasonable doubt that the specific acts of obtaining in each of the 16 counts in respect of which the appellant was convicted, were causally connected to any proven dishonest acts (“the dishonest means”) in each of those counts. Each of these four grounds are interrelated and to some extent, overlap and for that reason I have dealt with them compendiously. The starting point for consideration of these grounds are the reasons of the magistrate.The Magistrate’s Reasons The critical findings which the magistrate made are to be found in paragraphs 154 to 156 of his judgment set out below: 154 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.155 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.156 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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