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 income maintenance or travel, medical or other expenses by dishonest means contrary to s 120(1)(a) of the Act.
The prosecution case was that since 1994, the appellant maintained the dishonest pretence that he suffered from decompression illness in the course of his employment as a diver in the Port Lincoln tuna fishing industry in order to obtain workers compensation payments and other benefits up to October 2004.
After a trial which commenced in October 2005 he was eventually convicted of 16 counts contrary to s 120(1)(a) of the Act and sentenced to imprisonment for 2 years and 4 months with a non-parole period of 5 months unsuspended.
The appellant raised a number of issues concerning the conduct of this trial and the conclusions reached by the learned magistrate. Having reviewed the whole of the circumstances surrounding this trial, I am satisfied that there is a real risk that there has been a substantial miscarriage of justice. I have therefore reached the conclusion that the appeal should be allowed, the whole of the orders made by the magistrate set aside and the complaint remitted back to the Magistrates Court for hearing and determination before a different magistrate.
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.
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.
Grounds of Appeal
The grounds of appeal which were argued are identified in the Consolidated Grounds Of Appeal dated 23 January 2008, each of which raises separate but related complaints.
Ground 1 raises an issue of the sufficiency of the complaint dated 13 August 2004. The appellant submitted that the complaint is defective on the ground of both patent and latent duplicity. As a result, the complaint should have been dismissed by the magistrate.
Ground 2 raises issues of procedural fairness mainly centred on the events which took place while the appellant was unrepresented at trial.
Ground 3 raises an issue of abuse of process, specifically in relation to the respondent’s investigation of the appellant and the commencement of criminal proceedings against the appellant on the basis of evidence unlawfully or improperly obtained. This ground relates to the evidence of surveillance of the appellant during an overseas trip in October 2002.
Ground 4 raises an issue about the respondent’s utilisation of s 110 of the Act and the status of evidence obtained as a consequence of authorisations issued (or not, as the case may be) under the terms of that section.
Ground 5 is a complaint that the magistrate wrongly concluded beyond reasonable doubt that the appellant had acted dishonestly by failing to exclude the possibility that the appellant suffered from depression or some other pain disorder as a sequela to decompression illness.
Grounds 6 and 10 are related to Ground 5, in that they raise the issue of the sufficiency of the evidence. The appellant submits that the evidence was not sufficient to support a finding beyond reasonable doubt.

Ground 7 is a complaint about the sufficiency of the magistrate’s reasons, in particular a complaint about the magistrate’s failure to make specific findings of fact and/or his failure to adequately explain the reasons for the verdicts.
Ground 8 is a complaint that the magistrate erred by placing any reliance whatsoever on the evidence of a civilian witness, Ms Hazell.
Ground 9 is a complaint that the evidence of an expert witness, Dr Lunn, was inadmissible or in the alternative, should not have been relied upon by the magistrate.
Ground 11 is a complaint that the magistrate was wrong to find a case to answer with respect to each and every count in the complaint.
Finally, Ground 12 complains that the magistrate erred by imposing a sentence that was manifestly excessive and by failing to suspend the sentence in any event. For the reasons which follow, I do not consider it necessary to deal with the appeal against sentence.
In reaching the conclusion that the appeal should be allowed, it was not necessary to deal with all of the appellant’s grounds of appeal against conviction. However, some may be relevant in the event that there is to be a retrial and I have therefore expressed my view about all of the grounds of appeal.
Ground 1: Is the Complaint Valid?
The appellant submitted that the complaint, on its face, is duplicitous and offends against the principle enunciated in Walsh v Tattersall (1996) 188 CLR 77. The appellant complained that it is impossible to discern the basis for the convictions on counts 75-82 and 88-95 inclusive. It was submitted that this uncertainty flows from the patently duplicitous drafting of the complaint.
The complaint contains 95 counts. Counts 1-69 are offences contrary to s 120(1)(c) of the Act. Counts 70-95 are offences contrary to s 120(1)(a) of the Act.
Each of the offences contrary to s 120(1)(a) of the Act, being allegations of obtaining income maintenance or travel, medical or other expenses by dishonest means, are pleaded in chronological order of each payment made.
The offences contrary to s 120(1)(c) of the Act, being allegations of dishonestly making a statement about a claim under the Act, are presented in the chronological order of the statements allegedly made by the appellant to each of the various medical professionals referred to in the complaint.
For example, counts 1-6 and counts 51-69 relate to various consultations with Dr Griffin on various dates between 11 June 2002 and 5 April 2004. Counts 7-21 relate to one consultation with Mr Mark Reid, a neuropsychologist on 1 August 2002. Counts 22-25 relate to two consultations with Dr Christopher Acott on 1 August 2002 and 29 August 2002. Counts 26-34 relate to one consultation with Mr Michael Wood, a psychologist on 17 December 2002. Count 34 relates to one consultation with Dr Penelope Briscoe on 2 January 2003. Counts 35-48 relate to one consultation with Dr. John Meegan on 6 March 2003. Finally, counts 49 and 50 relate to one consultation with Dr Julia Racioppi on 11 June 2003.
The complaint also contains general particulars of dishonesty which relate to two consultations with Mr Mark Reid on 29 June 2001 and 17 July 2001. It is alleged that the appellant made a number of dishonest statements in those two consultations.
The general particulars also contain allegations in the alternative that the appellant dishonestly pretended to suffer from decompression illness in 1994 and maintained that pretence in order to receive income maintenance and other benefits from August 2001 to 5 October 2004. Alternatively, if the appellant did suffer initially from a decompression illness in 1994, then he recovered from that illness in 1994 and thereafter dishonestly pretended to suffer from decompression illness in order to receive income maintenance and other benefits from August 2001 to 5 October 2004.
S 120(1) of the Act provides:
120—Dishonesty
(1)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 appellant submitted that as a result of the drafting of the particulars in each complaint, and the dismissal of the remaining 79 counts, it is impossible for the appellant to know the basis on which convictions were recorded in relation to the 16 counts, being counts 75-83 and 88-95 inclusive. In addition to that complaint there was a further complaint that those counts alleging offences contrary to s 120(1)(c) of the Act which contained allegations of more than one statement by the appellant, were also inherently duplicitous as each statement amounted to a separate offence and ought to have been pleaded separately in order to comply with the principle enunciated in Walsh v Tattersall.
The appellant sought to illustrate his argument by reference to the verdict of guilty in relation to count 75. Count 75 was pleaded in the following terms:
75.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 $668.26 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.
The acts relied on, by referring to counts 1-25, related to false statements allegedly made to Dr Griffin on 11 June 2002 and 9 July 2002, to Mr Mark Reid on 1 August 2002 and to Dr Christopher Acott on 1 August 2002 and 29 August 2002. Each of those experts were called and gave evidence about the various statements made by the appellant which were referred to in each of counts 1-25.
The magistrate convicted the appellant in relation to count 75, however, counts 1-25 were dismissed. The appellant submitted that by dismissing each of the counts which were, by virtue of the particulars pleaded, the basis of count 75, it is not now possible to discern on what basis the magistrate did convict the appellant of count 75.
The appellant’s identification of the ambiguity in the verdicts of guilty may well be correct however, I do not consider that this ambiguity is attributable to any inherent ambiguity in the drafting of the complaint.
An examination of each of the counts 75-95, which are all charges alleging breaches of s 120(1)(a) of the Act, reveals that each particular count identifies a specific payment made to the appellant by the respondent on a specified date. It is obvious that each count has been framed in accordance with the following statement from the majority judgment in Walsh v Tattersall (per Gummow and Gaudron J at 89):
Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained “by dishonest means”. In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining…
Far from offending against the principle in Walsh v Tattersall I consider that the drafting of the charges contrary to s 120(1)(a) of the Act does identify each occasion and the basis of that charge separately thereby avoiding any duplicity or unfairness to the appellant.
In addition, the general particulars of dishonesty and the particulars relied on in each of counts 75-95 refer back to a number of allegedly untrue statements. When the complaint is viewed as a whole, taking into account both the general particulars and the particulars in each count, it is obvious that the respondent was seeking to rely on a compendious course of conduct in relation to the counts alleging obtaining by dishonest means.
It is relevant to observe that the purpose of particulars is to ensure that a defendant is aware of the case he or she is being called upon to answer. A very clear statement of that principle is to be found in the judgment of Wells J in R v Pfitzner (1976) 15 SASR 171 at 192:
Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining exactly what the defence is called on to answer…
The respondent was required to comply with the provisions of s 22A of the Summary Procedure Act 1921. That section provides:
22A—Description of offence
(1)Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3)After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.
When the terms of the complaint are analysed as a whole I consider that the complaint did conform to the requirements of s 22A of the Summary Procedure Act and did provide the appellant fair notice of the case to be met.
Insofar as the acts and statements the subject of counts 1-69 were also relied on to establish the dishonest means alleged in counts 75-95, there was a potential problem of unfairness to the appellant. Plainly he is not to be punished twice for actions common to both sets of offences. However, that potential unfairness did not render the complaint duplicitous: Pearce v The Queen (1998) 194 CLR 610.
The magistrate was well aware of that potential and it is obvious from his remarks that at least some of the remaining 79 counts must have been dismissed to avoid unfairness.
After analysing the counts dealing with offences contrary to s 120(1)(c) of the Act, I do not consider that the appellant’s complaint about the inherent duplicity in those counts is sustainable either.
When those counts are examined it can be seen that each of the offences contrary to s 120(1)(c) of the Act have been pleaded on the basis of one statement or a number of statements made about three distinct topics:
·the appellant’s cognitive deficits;
·the appellant’s physical disabilities; and
·the appellant’s depression.
The series of utterances by the appellant in the consultation on 9 July 2002 particularised in count 3, all relate to the appellant’s physical disabilities. The series of statements particularised in count 4 relate to the appellant’s depression and the series of statements alleged in count 15 relate to the appellant’s cognitive deficits.
In each of the counts where more than one statement is pleaded it seems reasonably clear that each of the utterances alleged relate to one of those distinct topics, that is, the appellant’s physical disability, cognitive deficits or his state of mind. Viewed in that way I do not consider that there is any duplicity in those counts alleging more than one utterance, as it is clear that what is being alleged here is essentially one false statement about a particular aspect of the appellant’s functioning.
In R v Traino (1987) 45 SASR 473, King CJ at 475 said:
…It is not always easy to know when a number of answers in evidence amount to a single false statement or when they constitute separate false statements. As with charges in relation to other areas of criminal activity, it is a question which must be answered “by applying common sense and by deciding what is fair in the circumstances”: Director of Public Prosecutions v Merriman [1973] AC 584 at 593 per Lord Morris. Lord Diplock pointed out in the same case (at 607) that the rule against duplicity “has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence.” I have no difficulty in envisaging a situation in which the cumulative effect of a number of false statements, perhaps each chargeable as a separate perjury, may amount to a single compendious lie which is chargeable as such in a single count. Thus, for example, a number of false statements as to various disabilities may amount to a compendious statement that the witness is incapable of performing heavy work or is incapable of performing remunerative work or is incapable of undertaking physical exercise or is incapable of engaging in active sporting activities. I see no reason why such a compendious false statement should not be charged as a single assignment of perjury in a single count of an information. Whether that course is proper in a particular case must depend upon the circumstances.
Although in Traino’s case the court was there dealing with a charge of perjury, in my view the reasoning in that case is equally applicable to an analysis of the counts alleging offences contrary to s 120(1)(c) of the Act.
Viewed in this way, I consider that the particulars given for each of the counts alleging breaches of s 120(1)(c) of the Act, did sufficiently identify the occasion, both by the consultation date and the false statement, by reference in some counts to a single utterance and in other counts by reference to a series of utterances about the same topic.
In the course of the argument on this aspect of the complaint some reliance was placed on the decision of Leete v Workcover Corporation (unreported, Supreme Court of South Australia, 1 October 1997, judgment no S6248). An examination of the court’s reasons in that case reveals that the court determined the outcome of the appeal on the basis of a number of deficiencies, including the sufficiency of the magistrate’s reasons and the view which the court took of the sufficiency of the evidence to support some of the convictions. Moreover, it is reasonably clear that at least some of the counts in Leete’s case which were found to be duplicitous, were drafted before the High Court decision in Walsh v Tattersall and plainly offended against the principle established in that case. The current complaint does not suffer from the same defects and therefore I do not consider the reasoning in Leete’s case on the duplicity aspect to be of any relevance to the outcome of this appeal.
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.
For these reasons I consider that the appellant’s submissions as to the validity of the complaint must be rejected.
Ground 2: Procedural Fairness
The appellant raised a multitude of complaints in support of the argument that he was denied procedural fairness and therefore did not have a fair trial according to law. In evaluating each of the appellant’s complaints, it is necessary to bear in mind the nature of the prosecution case and the way in which the trial unfolded.
Broadly speaking all of the offences related to the appellant’s claim for workers compensation benefits as a result of a decompression illness allegedly suffered by him in the course of his employment as a tuna diver in Port Lincoln in 1994. By reason of the limitation period, all of the offences charged were alleged to have been committed in the period from 11 June 2002 to 5 April 2004.
The prosecution presented thirty three witnesses during the course of its case. Investigators and claims managers from the respondent were called in order to prove the fact that payments were made as alleged in each of the charges contrary to s 120(1)(a) of the Act. A number of civilian witnesses, Cheryl Hazell, Lorraine Pope, Neville Pope and Graham Hurrell were called to give evidence of their dealings with the appellant between 1994 and 2002.
A number of witnesses from the tuna industry were also called, including Mr Puglisi the appellant’s former employer, Ian McLeery who employed the appellant as a door to door salesman for an approximate period of 14 to 15 months in 1999, Mr Octomann and Mr Carlson employed in the tuna industry as diver and boat captain respectively, and Mark Stewart and Angelika Wandell, two TAFE lecturers from the Port Lincoln TAFE college where the appellant studied aquaculture in 1995.
The remaining nineteen witnesses were professional medical witnesses who were either involved in the treatment of the appellant or were called to express expert opinions as to the appellant’s complaints about various physical and psychological disabilities.
It is significant to note in the context of this ground of appeal that during the period when the appellant was unrepresented the prosecution presented all of its evidence, the case was closed, the magistrate found a case to answer and the appellant was called upon to elect whether he would give evidence.
The appellant complains that the lack of procedural fairness accorded to him during the conduct of the trial resulted in a miscarriage of justice in that he was not able to adequately defend himself at a crucial stage in the trial. He was deprived of the opportunity to challenge much of the evidence upon which the convictions were ultimately based, notwithstanding the fact that in the period from 3 January 2006 to 24 May 2007, he was represented by various counsel. The appellant submitted that the effect of the substantial delays between the close of the prosecution case, its reopening, the recalling of further witnesses and the taking of final submissions, together with all of the events which occurred in between, have resulted in a substantial miscarriage of justice. That is, in the sense that the combination of events which occurred meant that the accused may have lost a chance of an acquittal.
The respondent on the other hand, submitted that if any unfairness resulted from one or more of these factors raised by the appellant, then such unfairness was effectively cured once and for all as soon as the appellant was represented by counsel.
The respondent points to the fact that at least for the latter part of the trial the appellant was represented by experienced counsel. There is no suggestion that his counsel was incompetent or did not properly advise him.
The respondent submits that in the period from 3 January 2006 until May 2007 adjournments were granted specifically for the purpose of ensuring that the appellant’s then trial counsel could obtain informed instructions, prepare submissions and explain matters to the appellant.
As to the period during which the appellant was unrepresented (the whole of the prosecution case) the respondent suggested that the appellant was effective in representing himself. This is demonstrated by the comments made by the magistrate and indeed by the expert witness Dr Lunn, who was specifically called upon in re-examination to comment on the appellant’s performance during cross examination.

The respondent maintains that the decisions made by Mr Di Fazio during the course of April and May 2007, specifically the decision to abandon certain arguments set out in the Peek memorandum, were made advisedly and after due consideration of the alternatives available to him. The respondent submits that the appellant cannot now complain about forensic decisions made on his behalf in the latter part of the trial during which he was competently represented by experienced counsel. The respondent relied on the authority of Nudd v R (2006) 225 ALR 161.
Analysis
There was a factual dispute between the appellant and the respondent as to which arguments were abandoned by the appellant during the period when he was represented by Mr Di Fazio. Accordingly, it will be necessary to go into further detail as to what transpired once the appellant was represented by Mr Di Fazio.
By the time Mr Di Fazio came into the trial the prosecution case had been closed and the magistrate had already found a case to answer. Another experienced senior counsel, Mr Peek QC with Mr Halliday had been involved in advising the appellant for the best part of the previous year. Unfortunately, notwithstanding the submissions prepared by Mr Peek QC, no real progress was made in 12 months in advancing either the trial or any argument about the abandonment of the trial as foreshadowed in the memorandum prepared. At one stage Mr Peek QC advised the court that he wished to re-argue the case to answer and that his client would probably now seek to give evidence and call evidence.
Against that background, counsel for the appellant Mr Di Fazio, was in an invidious position. In fact, it is difficult to imagine a counsel having to pick up a more difficult brief in all of the circumstances. A perusal of the transcript from the date when Mr Di Fazio became involved, confirms the submission made by both counsel at the hearing of this appeal, that there is no question about the diligence or competence with which Mr Di Fazio discharged his duties. The transcript reveals that he attended properly to his duty insofar as he was able to do so, given the events that had already transpired.
The respondent submits that the appellant elected to abandon certain arguments at the hearing before the magistrate, including the argument as to procedural fairness, and should not now be permitted to argue that ground on appeal.
Having read the transcript of hearing on 2 and 3 April 2007, I do not agree that the appellant did abandon those arguments. To the contrary, I find that Mr Di Fazio explicitly refused to abandon them.
Notwithstanding the fact that the appellant did not abandon these arguments, the respondent submitted that the unfairness, if any, which had previously arisen, was cured. This is in light of the fact that the appellant was then permitted to recall any prosecution witnesses, to re-argue the case to answer and to put any submissions in relation to the admissibility of evidence and the validity of the complaint.
In considering this argument, I have read the affidavit of the appellant sworn on 6 May 2008. It is clear that Mr Di Fazio made decisions in relation to the conduct of the appellant’s trial and the recall of witnesses against the specific background of the appellant’s want of means and ability to fund a new trial. The trial to that point had been a costly exercise for the appellant, well beyond his reasonable means. The fact that this is so seems to be an unfortunate consequence of the fact that this trial on any view of the matter was poorly managed from the outset. As far as the appellant’s interests are concerned the only tangible result of the delay between January 2006 and April 2007, seems to have been that the funds he acquired from the sale of his home to pay for his representation were whittled away.
Mr Di Fazio did what he could to redress some of the obvious deficiencies in the conduct of the trial to that date by requesting the recall of nine witnesses. However, I am not able to conclude that his intervention at that point in the trial, against the background of what took place, did in fact effectively cure the prejudice suffered by the appellant as a result of the lack of representation at an earlier stage of the trial.
On the hearing of this appeal much attention was focussed on the minutiae of the many and varied complaints of the appellant. Some of the more serious complaints are:
·       the failure by the magistrate to grant adjournment applications made between 17 March 2005 up to and including 3 January 2006;
·       the failure to produce documents relevant to the cross examination of a number of prosecution witnesses including Faggoter, Daniel, Hazell, N and L Pope, Briscoe, Gadd, Denson and Wong;
·       the refusal of the magistrate to give leave to the appellant to issue subpoenas for the production of documents and for the calling of witnesses; and
·       the failure, in all of the circumstances of the magistrate to give the appellant sufficient time in order to prepare for cross examination, especially in relation to the expert witnesses.
In addition, the appellant complained that at the time, he was unaware of his right to challenge the expert opinion expressed by Dr Lunn, and that he was required to cross examine other experts such as Dr Acott at times when he was suffering from headaches and was not in a fit state to concentrate. The appellant also says that he was unaware that he was able to cross examine his own psychiatrist Dr Griffin on the totality of his appointments with him. It was not just confined as he thought during the cross examination, to the attendances out of which charges had arisen.
One example the appellant proffered in relation to the effect of the failure of the respondent to give timely discovery, is contained in the affidavit of Mr Cronshaw dated 7 February 2008. In that affidavit the appellant’s solicitor attests to his attempts to communicate with the Adelaide Magistrates Court during the period of adjournment between 11 December 2006 and 10 January 2007 about the provision of documents which had been obtained as a result of subpoenas issued earlier that year. That affidavit attests to the receipt of a number of documents supplied well after the prosecution closed its case in January 2006 but before the resumption of the trial in April 2007. The affidavit is replete with examples of documents which, had they been supplied prior to the commencement of the trial in October 2005, would have been of assistance in cross examination of a number of witnesses including Dr Lunn, Dr Wong, Dr Acott and Dr Williamson.
The respondent, on the other hand, argued that although documents relevant to some witnesses were not produced, and some of the witnesses were not called, in the end the magistrate did not rely upon the evidence of those witnesses, or specifically stated that he disbelieved them. The respondent also argued that some of the witnesses were actually helpful to the appellant. Whilst many of the respondent’s submissions are factually correct, in the end I cannot overlook the fact that the evidence in the main, on which the magistrate relied to satisfy himself beyond reasonable doubt of the proof of the appellant’s guilt, unfolded during the period of time when the appellant was unrepresented.
Moreover, the magistrate considered the state of the evidence at that time and ruled that there was a case to answer. The fact that he was later prepared to hear further submissions on the topic of the case to answer cannot change the fact that he had already made up his mind on that particular topic some 12 months earlier.
The same point can be made with regard to some of the other matters which were agitated by Mr Di Fazio towards the end of the trial. For example, the argument as to the validity of the complaint which had first surfaced much earlier, was put to the magistrate in April 2007 after he had commented much earlier that he had impliedly already accepted the validity of the complaint.
In Dietrich v The Queen (1992) 177 CLR 292, the High Court considered whether the conviction of a man who was unrepresented during his trial should be set aside by virtue of the trial judge’s failure to adjourn, postpone or stay the trial until legal representation was available.
In Dietrich’s case, Gaudron J commented that at least insofar as serious offences are concerned, legal representation where it is desired is essential for a fair trial.
At page 370 she stated:
There are two features of the criminal trial that strongly challenge the assumption that a trial may be fair notwithstanding that the accused, contrary to his wishes, is not represented. The first is the adversarial nature of the proceedings. The second is the nature of the forensic contest involved…
Decisions as to the evidence to be called and as to the course of cross-examination determine the factual account on which the jury must reach its verdict. And it must be expected that that evidentiary account will, on occasions, differ from the underlying facts (66). Further, as Certoma (67) points out, the factual account that emerges does so as a product of collaboration between the parties, whether overt or otherwise. Thus, in any given case, the way in which the case is conducted may affect its outcome. And, of course, that means that the knowledge and forensic skills which legal representation would bring to bear might also affect its outcome.
In summary I do not consider that given the constraints within which Mr Di Fazio was required to represent the appellant, the prejudice the appellant had suffered as a result of the entire Crown case unfolding during a period when he was unrepresented, was cured. The unfortunate concatenation of circumstances which occurred in the course of this trial combined to cause irreparable prejudice to the appellant. 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.
There were a number of other additional points made by the appellant during the course of argument however, I have highlighted only the matters which I consider to have been substantially causative of a miscarriage of justice. For these reasons I would allow the appeal on this ground.
Ground 3: Abuse of Process
Ground 3 relates to the ruling of the magistrate to admit the evidence of the video surveillance of the appellant whilst he was in Europe in October 2002. It was submitted that the respondent’s use of an itinerary obtained from Ms Hazell, was in breach of an explicit or implied undertaking in the Family Court of Australia.
The appellant submitted that Ms Hazell’s disclosure of the itinerary to the respondent was contrary to Rule 13.07 of the Family Law Rules 2004 (Cth) and amounted to a contempt of the Family Court of Australia. Therefore the material obtained as a result of that unlawful disclosure should have been excluded in the exercise of the court’s discretion.
There is no doubt that the respondent, through its investigators, relied on the disclosure of the itinerary to pursue the appellant to Europe and obtain the video tendered in evidence (Exhibit C11).
In his ruling of 16 May 2007, the magistrate concluded that it was quite wrong for Ms Hazell to have passed on the material to the respondent and also wrong for the respondent to have used it. The evidence given on the topic by both Ms Hazell and Mr Cowling a Workcover investigator, reveals that no-one turned their mind to the possibility of the contempt at the relevant time. Certainly in the case of Ms Hazell, the evidence did not permit any finding that her actions amounted to a deliberate and conscious breach of the Family Court Rules.
Having concluded nevertheless that Ms Hazell’s actions and the respondent’s actions were wrong, the magistrate in the exercise of his discretion declined to exclude the document. After reviewing the material in relation to this topic, I have reached the same conclusion as the magistrate.
In any event any suggested impropriety on the part of Ms Hazell or outright contempt of court in handing over the appellant’s European itinerary, seems very remote from the evidence ultimately relied on by the respondent in the video (C11). As the magistrate observed, the surveillance of the appellant would, in all probability, have proceeded with only slightly less difficulty without the provision of the itinerary. There appears to have been no deliberate breach of the Family Court Rules by any person involved. The evidence obtained was highly probative. In these circumstances I consider the interests of justice supported the admission of that material, notwithstanding the wrongful actions of Ms Hazell in providing it.
Ground 4: Authorisations under s 110 of the Act
Ground 4 of the appellant’s appeal was originally framed in terms of a complaint that the exercise of various powers by the respondent and its delegates under the provisions of s 110 of the Act, was beyond power and therefore invalid.
This objection was raised before the magistrate at a very early stage by the appellant. However, the magistrate declined to make any rulings in relation to that objection or to hear argument on it. In the end he was not asked to make any ruling in relation to the issues which arose as to the requirements of s 110 of the Act as Mr Di Fazio did not pursue that argument after the re-commencement of the trial in April 2007.
Nevertheless, the appellant maintained at the hearing of this appeal that the failure of the magistrate to deal with this issue at trial when first requested to do so, caused further prejudice to the appellant.
It was contended on behalf of the appellant that the respondent’s failure to comply with the requirements of s 110 of the Act in relation to the appointment of both Kerry Clark and Mark Delaney as authorised officers, raised a legitimate objection to the reception of evidence obtained as a result of those authorisations.
One of the witnesses whom the appellant wished to question was Ian Basey, a case manager employed by the respondent. He was in charge of the overall investigation of the appellant and was involved with other investigators who were witnesses in the trial, such as Mark Delaney. In the appellant’s submission, this witness could have assisted the court in relation to the circumstances in which certain investigators were given authorisations under s 110 of the Act. Mr Basey was not called to give evidence by the respondent, notwithstanding that the appellant had been told in the first part of the trial that he would be called.
The appellant contends that the failure of the magistrate to deal with those issues as and when they arose, lead to the consequence that the appellant was effectively deprived of making any application to exclude evidence obtained by the Workcover investigators, in the course of exercising the powers contained in the authorisations under s 110 of the Act.
Given the course of the earlier proceedings, by the time Mr Di Fazio came into the trial, he was in a difficult position. He was not able to question Mr Basey who had not been called and the evidence to which he would have objected had already been admitted and was part of the material in respect of which the magistrate had already determined there was a case to answer. In the appellant’s submission, the course of events made it impossible for Mr Di Fazio to make any cogent submissions on the legality of the respondent’s actions utilising s 110 of the Act.
It is now impossible to determine what evidence in particular might have been excluded, however I accept that by the time Mr Di Fazio became involved, the appellant had already effectively lost his opportunity to contest that evidence.
Viewed in this light, the complaint advanced by the appellant in support of ground 4, is subsumed into the argument in ground 2, namely that this is one more example of the way in which the course of the trial and the magistrate’s failure to deal with these issues as they arose, prejudiced the appellant and deprived him of a lost opportunity.
Ground 8: Ms Hazell
Ms Hazell, the appellant’s former wife was one of the civilian witnesses relied on by the prosecution but ultimately, in the main, disbelieved by the magistrate. Most of the matters to which this witness deposed concerned actions and events which occurred well prior to 2002, save for the fact that it was this witness who had provided the investigators with the itinerary enabling them to film the appellant on his European trip in October 2002.
The magistrate formed an adverse impression of this witness and after noting the motives that Ms Hazell may have had to lie, and the fact that she was a witness about whom a not unreasonable allegation of perjury had been made out, said “I do not entirely reject her evidence but I treat it with the highest level of caution”. It is this comment which gives rise to the complaint that the magistrate erred by placing any weight whatsoever upon her evidence.
It is clear from the magistrate’s conclusion of guilt on 16 counts after October 2002, that he did not place any reliance on the evidence of those witnesses attesting to the appellant’s recovery at an earlier date. Since the bulk of Ms Hazell’s evidence related to matters and actions occurring prior to October 2002, it is reasonable to conclude that the magistrate ultimately did not rely on her evidence as the basis for any of the verdicts in respect of which the appellant was found guilty.
It was open in any event to the magistrate to accept or reject the whole or any part of this witness’ evidence. There is no basis to conclude that he inappropriately relied on any aspect of this witness’ evidence, even taking into account that she admitted perjury during the course of the evidence. This ground of appeal has not been made out.
Ground 9: Dr Lunn
It was submitted by the appellant that the evidence of Dr Lunn should not have been admitted or in the alternative, that the magistrate should not have relied on the evidence. Some of the appellant’s complaints about the evidence of Dr Lunn touched on aspects of what the appellant claims was the procedural unfairness accorded to him during the trial. However, the appellant did maintain throughout that the evidence of Dr Lunn was inadmissible and ought not to have been relied on by the magistrate.
Complaint was made that the doctor’s opinion was expressed in terms of satisfaction on the balance of probabilities which is inconsistent with the criminal standard of proof.
It was argued that he had not examined the appellant at any stage, and his opinions were therefore based on hearsay and inferences.
The appellant also argued that Dr Lunn insufficiently identified the materials on which he had based his opinion, which therefore made it difficult for the appellant to challenge this opinion. In addition the prosecution failed to discover the scientific articles on which the doctor based his opinion. The appellant complained that he suffered a disadvantage by being confronted with the evidence of this witness which was described as ‘surprise’ evidence.

The appellant’s complaints need to be evaluated against the following background. Dr Lunn is a United Kingdom based neuropsychiatrist who specialises in decompression illness. He has been involved with treating divers from all over the United Kingdom and other parts of the world for many years. There were no other medical practitioners in Australia with the same experience as this witness in all three relevant areas of neurology, psychiatry and hyperbaric medicine and it appears that it is for that reason the opinion of this witness was sought by the respondent.
There is no doubt that the magistrate accepted Dr Lunn as a properly qualified expert in the specialist field of neuropsychiatry and hyperbaric medicine. His Honour was impressed by the evidence of Dr Lunn. The evidence of this witness was central to the magistrate’s finding of guilt in relation to the 16 counts of obtaining by dishonest means after October 2002.
I comment elsewhere in this judgment on the timing of the calling of Dr Lunn and the circumstances surrounding the appellant’s cross examination of him during the period when he was unrepresented. Putting that issue aside, after reviewing the evidence of Dr Lunn, I can see no reason why the magistrate should not have relied upon this witness’ evidence. He was plainly properly qualified. He was asked to give an opinion about a wide range of topics, including the previous results of cognitive testing on the appellant, his participation in the TAFE courses and the issue of depression. The witness expressed a very cautious and conservative opinion that on the balance of probabilities, he was not able to say whether the appellant did or did not suffer decompression illness. However, he remarked that if he had, there was no evidence that the appellant had suffered a significant injury that had affected his cognitive functioning.
Dr Lunn appears to have placed heavy reliance on his viewing of the video (C11) and highlighted two matters of particular importance in his conclusion, namely the apparent ability of the appellant to read a map and his ability to drive a motor vehicle on unfamiliar roads in Europe. These matters were highly significant in that the magistrate appears finally to have concluded beyond reasonable doubt the appellant’s guilt on the basis of his observations of the appellant’s behaviour on that video.
In some respects this witness was in the same position as any other expert witness called at a trial who has not had the opportunity to examine an accused person personally but is reliant on secondary material from other sources. The fact that an expert witness called in these circumstances bases his or her opinion on a number of assumptions and inferences, is not a basis for excluding their evidence. It may, depending upon the validity of the assumptions and inferences, affect the weight of the evidence given by that witness.
Many of the facts upon which Dr Lunn relied in expressing his conclusion were contained in the brief of evidence in the appellant’s possession prior to trial and were well known to the appellant and his advisors. Dr Lunn’s report was provided to the appellant well in advance of the commencement of the trial. In that sense it is difficult to understand the appellant’s submission that Dr Lunn’s evidence was “surprise evidence”.
I do not consider the fact that Dr Lunn chose to refer to the balance of probabilities in describing his state of mind about the conclusion he had reached to be an error. It was for the expert to express his opinion in whatever terms he chose. It was for the magistrate, not Dr Lunn to be satisfied beyond reasonable doubt.
While I have concerns about the manner and timing of this witness’ evidence, after reviewing the evidence of Dr Lunn, I do not consider there to be any substance in the complaint that this witness’ evidence was either inadmissible or if admissible, should not have been relied upon by the court. It was important evidence given by a properly qualified expert and the magistrate was entitled to rely upon it. I therefore do not consider that there is any substance in Ground 9 of the appeal.
Ground 11: No Case to Answer
Ground 11 of the appellant’s notice of appeal contained a submission that the magistrate should have found there was no case to answer in relation to each and every count contained in the complaint. As the respondent was convicted of only counts 75-82 and 88-95, I consider that this submission is only relevant in relation to those proven counts.
In the circumstances of this case where the appellant elected not to give or to call any evidence, this ground of appeal is really subsumed in those grounds of appeal which challenge the sufficiency. However, I shall deal with that ground briefly now.
There were two applications made by the appellant that there was no case to answer. The first was made by the appellant whilst he was self represented, at the close of the prosecution case on 3 January 2006. The second submission was made by Mr Di Fazio on 21 and 22 May 2007, in the course of the appellant’s closing submissions.
I deal with this ground of appeal on the basis that the operative ruling was that made by the magistrate on 3 January 2006. 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.
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.
The court record confirms that no verdict was entered on that date with regard to the remaining 79 counts. The magistrate invited the parties to make further submissions in relation to the disposal of the remainder of the complaint at a later date. That occurred apparently on 29 June 2007 when both parties filed written submissions supplemented by oral submissions.
On 5 July 2007 the magistrate dismissed all 79 remaining counts without any further elaboration and sentenced the appellant.
The appellant complains that it is impossible to discern the basis on which the magistrate reached a state of satisfaction beyond reasonable doubt on counts 75-82 and 88-95. The appellant pointed to the fact that the prosecution chose to particularise the dishonest means in each of those counts by reference to a series of false statements made to various medical professionals. These various statements themselves were particularised in one or more of the 79 counts which the magistrate dismissed. Thus, on the appellant’s argument the dismissal of the 79 remaining counts necessarily implied that the magistrate was not satisfied beyond reasonable doubt of any of the false statements referred to in those counts.
In a case where the prosecution has chosen to particularise the dishonest means by reference to a series of false statements, it follows that the trial court must be satisfied of one or more of those false statements before being satisfied about the element of “dishonest means” for the purpose of an offence contrary to s 120(1)(a) of the Act.
The conclusion, without more, that by 2002 the appellant had recovered from the decompression illness does not of itself indicate which aspects of the evidence the magistrate accepted in order to reach the conclusion that he was satisfied beyond reasonable doubt of guilt on the 16 counts.
The respondent’s contention was that the “dishonest means” for the purpose of an offence contrary to s 120(1)(a) of the Act, may be constituted by dishonest statements as alleged in the appellant’s case, or by acts, omissions or a combination of all these things. In the circumstances of this case it was suggested that the only matter about which the magistrate needed to be satisfied was that there was a course of conduct which included a series of dishonest, false or misleading statements. It was contended that the appellant’s argument overlooked the fact that the magistrate needed to be satisfied beyond reasonable doubt of the element of “dishonest means” as opposed to any particular dishonest statement or statements.
The respondent submitted that in light of the magistrate’s finding that the appellant had recovered from decompression illness by October 2002, it followed that the magistrate found proven beyond reasonable doubt a course of conduct as to events which occurred after that date. Accordingly it was unnecessary to make specific findings about each and every statement particularised.
In any event the respondent submitted that the magistrate did make findings in respect of a large number of the particularised statements in the period after October 2002 but not in respect of each and every one. The respondent pointed to paragraphs 143 to 147 of the magistrate’s reasons set out below:
143    Looking at his statements to doctors, made after Mr Thompson’s return from his trip to Europe in October 2002, we find that so many of them are, in a sense that I shall explain, out of date. Many relate to joint pain:
I can’t sleep at night because of the pain. …My sleep is disturbed because of the pain…I suffer from pain in my joints. I experience significant pain in my hips, knees and shoulders.
144    These complaints are out of date in the sense that they had been investigated and no clinical explanation for such pain has been found. The complaints relating to cognitive or intellectual deprivations:
I have difficulty concentrating. ...I have difficulty reading. …I have trouble filling in bank slips.
145    together with the broad assertion that he was unemployable were out of date in the sense that they had been refuted in advance by even the most conservative appraisal of Mr Thompson’s academic and employment achievements.
146    Claims about disorientation while driving, even in Port Lincoln and an ability to drive only for short distances, are silently refuted by the unexpressed qualification that Mr Thompson had been spared those difficulties while driving far from the familiar roads of Port Lincoln and on the unfamiliar roads of Europe in October 2002.
147    On 6 December 2002, he told Mr Mark Reid of a need to:
attempt some semblance of normal life while acknowledging the limitations. …If driving, he shares the driving load. Travel by aircraft is easier than car travel within South Australia, especially where he has to drive himself.
The respondent contended that the “dishonest means” which the magistrate found proved were the statements referred to by him in the paragraphs above.
The respondent’s contention went further to suggest that, in light of the magistrate’s findings that the appellant had fully recovered from decompression illness by October 2002, that he should then have acquitted the appellant on counts 1-25 and 70-74 inclusive because they relate to a time period before October 2002. The magistrate should have acquitted the appellant on counts 36, 42, 46, 53, 55, 59, 62, 63, 64 and 69 because those counts related to reported symptoms of depression which the magistrate was not able to exclude as a reasonable possibility having been made honestly. Applying the same reasoning the magistrate should also have found counts 26-35, 37-41, 43-45, 47-54, 56-58, 60, 61 and 65-68 proven; however the respondent accepted that the magistrate should not have proceeded to convict in relation to those counts as it would be unfair to convict the appellant on charges which formed the same basis as the convictions recorded on counts 75-82 and 88-95.
It can be accepted that the magistrate was entitled to take into account the evidence in its entirety when considering whether the respondent had proved beyond reasonable doubt each of the counts 75-82 and 88-95. The fact that the magistrate may not have been persuaded beyond reasonable doubt of the guilt of the appellant in relation to counts 1-79, was no bar to the magistrate proceeding to make findings of fact on evidence which was common to both sets of charges.
To that extent the respondent’s argument as to the appropriate course which the magistrate should have adopted in the recording of convictions and acquittals, is both logical and attractive. However, it is not clear from either the transcript or the magistrate’s reasons, that this is what the magistrate in fact did. I cannot discern from the judgment, whether the magistrate did reason in this way or whether he even directed his mind to the evidence in support of each of the counts when determining whether he was satisfied beyond reasonable doubt in relation to a particular count.
It appears from the judgment as a whole, that the first twenty six pages were largely a narrative account and summary of the evidence he had heard. The appellant contended that in the summary of the evidence the magistrate in fact made a number of findings inconsistent with his ultimate conclusion of guilt.
The respondent’s contention was that on a proper reading of the judgment, the “findings” complained of by the appellant, really amount to a repetition of statements made by the appellant to various medical professions or the repetition of submissions made by the appellant at the trial. In the respondent’s submission the only relevant findings complained of are the findings at the conclusion of the judgment that the respondent’s recovery from decompression illness was complete by October 2002 and that Dr Lunn’s opinion that it was unlikely that the appellant had suffered from decompression illness serious enough to cause long term loss of function, should be accepted.
I consider the respondent’s submission about this aspect is correct however, therein lies a difficulty. The findings in paragraphs 154-156 when analysed really do no more than announce the magistrate’s conclusion that he was satisfied beyond reasonable doubt of the appellant’s guilt on counts 75-82 and 88-95.
There is no real differentiation in most of the judgment between the narrative of the evidence and the magistrate’s findings of fact on important items of evidence, in particular the medical evidence. The problem is compounded by the fact that much of the prosecution evidence concerned events and consultations with professionals over a very long period of time between 1994 and 2002. That evidence was lead to support the prosecution’s primary case which was that the appellant had never suffered from decompression illness and that he had set out to feign the symptoms of decompression illness from the outset.
The primary prosecution case was unequivocally rejected by the magistrate. It follows from the magistrate’s rejection of the prosecution’s primary case, that he must have accepted a substantial portion of the medical evidence lead by the prosecution about decompression illness, its diagnosis and treatment and the treatment of the appellant during that period of time.
The difficulty is illustrated by reference to the magistrate’s discussion about the evidence of Dr Acott. He said at paragraphs 85-88:
85Dr Acott reviewed Mr Thompson twice in August 2002. Mr Thompson complained of:
1.     Pain in his right and left shoulders and left hip.
2.     A “burning sensation” in both his knees.
3.     On going fatigue and forgetfulness.
86    Dr Acott was unequivocal when he reported to Mr Daniel, Allianz Case Manager on 10 October 2002:
Mr Thompson’s clinical condition has not changed since he was last reviewed by Dr J Williamson in 1996. His on going complaints are sequela to decompression illness suffered in 1994.
87In re-examination of Dr Acott he was asked:
Q.    You spoke about a relapse occurring during treatment or soon after treatment.
A.    Yes.
Q.    Is there a possibility of a relapse at a much later time: a year or more later.
A.    From the medical data on decompression illness, probably not. Again I reflect on – we were dealing with a unique type of diving profile and if somebody came complaining of symptoms I just accepted it because they were a unique group of divers….
88    Remembering Dr Acott’s qualifications and experience and my lack of them in this field, throughout my analysis of the evidence I bear in mind his cautionary observation:
The more I know about the disease, the more I realise we don’t know much about it at all.

The magistrate appears at face value, to have accepted Dr Acott as a truthful and honest witness whose evidence could be relied upon. This witness’ evidence was supportive of the appellant’s defence and on the face of it, inconsistent with the conclusions expressed by the expert Dr Lunn whose evidence was relied on by the magistrate.
It was open to the magistrate to conclude as he did, that the evidence of Dr. Lunn in conjunction with the video surveillance of the appellant on his overseas trip in Europe in October 2002, were sufficient for him to conclude that the appellant had recovered from the decompression illness by October 2002.
However, there was other medical evidence before the magistrate which might have supported a different conclusion. As well, a number of other medical professionals were shown the video. Some of those witnesses were more impressed than others with the apparent inconsistency between the appellant’s presentation and behaviour in that video and his presentation, behaviour and complaints to various doctors at about the same time.
The magistrate did not deal with any of the opinions which differed from Dr. Lunn as to the effect of that video. Apart from narrating those opinions there is no analysis by the magistrate of those other medical opinions or any indication as to why he preferred the opinion of Dr Lunn over the appellant’s treating doctors.
In my view it was necessary for the magistrate to deal with those opinions as it is quite obvious that it was the opinion of Dr Lunn together with the impression made upon the magistrate of the video evidence which caused him to be satisfied beyond reasonable doubt of the appellant’s recovery by October 2002.
Moreover the finding of recovery no later than October 2002, did not of itself, establish the causal link between the dishonest means and the obtaining of payments from November 2002 to October 2004.
Counts 75 and 88 raise a particular problem in this regard. Both those counts allege the obtaining of benefits by dishonest means in November 2002. Each of those counts refers to payments made to the appellant on 6 November 2002 and 21 November 2002 respectively. The dishonest means particularised in relation to those two counts are a number of dishonest statements allegedly made between 11 June 2002 and 29 August 2002. Those statements were the subject of counts 1-25 all of which were dismissed at the conclusion of the trial.
Even accepting the correctness of the respondent’s submission that the evidence supporting the convictions on those 16 counts was a compendious course of conduct including false statements made to Dr Griffin, there is no apparent connection between the making of any of those false statements and the issue of the periodic maintenance certificates which caused the payments to the appellant for the income period ending 6 November 2002 and 21 November 2002 respectively. In short, the temporal finding by the magistrate that the appellant had recovered by October 2002 does not elucidate or establish any causal connection between the dishonest means alleged in count 75 and 88 and the payments.
The magistrate’s comments in paragraph 154 of the judgment do not assist in resolving this ambiguity. In my view the magistrate needed to identify at least one or more of the statements which he found to be dishonest and misleading or other conduct which he found to constitute the dishonest means, by causally linking them to the payments made in each of the counts which he found proved.
Furthermore, it was necessary to deal with the issue of depression as a sequela of decompression illness and its relevance, or not, as the case may be, before concluding that the appellant had acted dishonestly.
It appears from the reasons that the magistrate accepted that the appellant’s statements relating to the issue of depression were not made dishonestly and with intent to mislead. Apart from announcing the conclusion that the “vicissitudes of the appellant’s life may have contributed to intervention of clinical depression” it is not clear why he concluded that depression as a sequela of decompression illness, had been excluded as a reasonable possibility.
The respondent submitted that even if the magistrate’s reasons are inadequate, this court should nevertheless conclude after the independent review of the evidence, that the convictions are justified.
The respondent’s contention was that the dismissal of the 79 remaining counts could not have prejudiced the appellant and since there was ample evidence to support the verdicts of guilty on counts 75-82 and 88-95, this court should affirm the convictions.
For the reasons which I have explained, I consider that there was a degree of unfairness to the appellant in the way the trial unfolded.
It was obvious from the outset that the trial which involved 95 counts of dishonesty, would necessitate the presentation of evidence of events spanning a 10 year period from 1994 to 2004.
It was also obvious on the face of the pleadings that the respondent was presenting an alternative case. That is, either that the appellant never suffered decompression illness or if he did, that he recovered from that illness in or about 1994. The proof of those matters required the calling of numerous medical witnesses and there were complex medical issues to be resolved. During the course of argument I was told that the sheer volume of material amassed by the prosecution which was disclosed to the appellant prior to the commencement of the trial was very substantial.
It was, in my view, and as both Mr Lister and Mr Di Fazio pointed out to the magistrate at the time, self evident that the volume and complexity of material was beyond the appellant’s capacity to represent himself in any intelligible manner.
One of the dilemmas confronting the appellant which was identified at the outset, was that if the appellant was required to represent himself he would be placed in the invidious position that if he performed well that would also be held against him. That is what did happen. It can be seen in the re-examination of Dr Lunn who expressed his expert opinion based on the appellant’s cross examination of him only moments before, that the appellant’s performance in cross examining him was inconsistent with the claimed cognitive deficits.
That point was seized upon by counsel for the respondent and was later commented upon by the magistrate. Everyone seems to have overlooked the fact that the presentation of the appellant in January 2006 while cross examining Dr Lunn, was not necessarily relevant to establish the appellant’s presentation and claimed disability some 2-3 years earlier.
Despite compelling submissions made at the time, the magistrate persistently refused any adjournment of the trial, even at the conclusion of the prosecution case, to enable the appellant to obtain legal advice about the course of action he wished to pursue in relation to the giving of evidence and the calling of other witnesses. It appears that the only reason the matter was ultimately adjourned at the end of January 2006 was because the transcript of the trial was still not available. The first adjournment which the magistrate was prepared to grant on expressed grounds of “fairness and practicality”, was on 4 April 2006 when he was confronted with extensive submissions from Mr Peek QC as to the events which had transpired to that date.
I cannot overlook that by this stage the evidence was completed and the magistrate had already found a case to answer. This is so, notwithstanding some apparently contradictory remarks which the magistrate made later in the course of an exchange between the bench and Mr Peek QC. Thereafter the trial was adjourned a number of times and did not resume again until April 2007.
It is against that background that the respondent submitted that any prejudice to the appellant was cured by the actions of counsel Mr Di Fazio who came into the trial in April 2007.
For the reasons I have already expressed I consider that at that stage the appellant was in an unenviable position. The trial had commenced over 18 months earlier. Substantial costs had been incurred by the appellant between the date he finally secured sufficient funds to brief counsel and the date the trial resumed in April 2007. A number of counsel had been engaged and apparently passed on without progressing the matter.
In the course of the magistrate’s ruling on the admissibility of the evidence of the video surveillance (C11), he adverted to some of the complications which as he saw it, had arisen in the trial by virtue of the reception of evidence prior to any ruling being made as to its admissibility. His Honour referred to the analogy of trying to remove flour from a baked cake. That comment applies with equal force to the position in which Mr Di Fazio found himself in April 2007.
Thus in my view, contrary to the submission made by counsel for the respondent, the authority of Nudd has no application to the resolution of the problems which arose in this trial. Here there has been no suggestion, nor could there be, that counsel was incompetent. It is a question of considering whether any counsel, given the previous course of events and the constraints within which the appellant was required to conduct the trial, could have cured the accumulated prejudice in any way at all. In my view, the situation was by then irretrievable.
In the course of reviewing the evidence I viewed the video surveillance of the appellant in Europe in 2002 (C11). Even with the benefit of Mr Cowling’s evidence of the observations of the appellant whilst he was in Europe, I note that the evidence of this video surveillance as to the appellant’s reading of maps appears to have been very brief, occupying perhaps less than three seconds of the video. It is not surprising that the various expert witnesses shown the video had different views as to its significance.
The respondent’s submission that an appellate court on an appeal of this nature can, after an independent review of the evidence, reach its own conclusion as to the appropriate verdict is undoubtedly correct. Nevertheless, given the complexity of the issues involved in this trial in particular the fact that a great deal of the evidence consisted of the evidence of experts, some of whom came to apparently different conclusions, leads me to conclude that I should not adopt that course in this case. Without the benefit of having seen and heard the witnesses it is by no means apparent to me that there is inevitably only one conclusion reasonably open on the evidence.
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.
APPENDIX A
Outlines of Argument
·Outline of Argument of the Appellant dated 23 January 2008
·Schedules A - I referred to in the Appellant’s Outline dated 23 January 2008
·Documents 1 – 14 referred to in the Appellant’s Outline dated 23 January 2008
·Outline of Argument of the Respondent dated 13 March 2008
·Outline of Argument of the Respondent on Factual Issues dated 26 March 2008
·Further Outline of Argument of the Respondent dated 1 May 2008
·Outline of Argument of the Respondent on Grounds 9 & 11 dated 6 May 2008.
Affidavits filed by the respondent
·Affidavit of Eve Danielle Thomson dated 27 February 2008 and annexures EDT-1 to EDT-5
·Affirmation of Eve Danielle Thomson dated 1 May 2008
Affidavits filed by the appellant
·Affidavit of Jon Lister dated 6 February 2008 and annexures JL-1 to JL-3
·Affidavit of Faz Di Fazio dated 6 February 2008
·Affidavit of John Anthony Cronshaw dated 7 December 2007 and annexures JAC-1 to JAC -4
·Affidavit of John Anthony Cronshaw dated 29 January 2008 and annexure JAC-1
·Affidavit of John Anthony Cronshaw dated 7 February 2008 and annexures JAC-1 to JAC-15
·Affidavit of John Anthony Cronshaw dated 7 March 2008 and annexure JAC-1
·Affidavit of Jeffrey Ian Thompson dated 29 January 2008 and annexure JIT-1
·Affidavit of Jeffrey Ian Thompson dated 7 March 2008 and annexures JIT-1 to JIT-10
·Affidavit of Jeffrey Ian Thompson dated 5 February 2008 and annexures JIT-1 to JIT-24
·Affidavit of Jeffrey Ian Thompson dated 9 April 2008
·Affidavit of Jeffrey Ian Thompson dated 7 May 2008 and annexure JIT-1