CWDS
Criminal law and procedure - duplicity - Defendant convicted of one compendious count of an offence under s 120(1)(a) of the WorkersRehabilitation and Compensation Act 1986 alleging a systematic course of obtaining by dishonest pretences payments and benefits under the Act - the course of conduct involved allegations of 59 specific instances of presentation of medical certificates for the purpose of obtaining benefits under the Act which could each have been separately charged, and in fact were charged separately by way of alternative counts - held that the compendious count was not bad for duplicity. Archbold, Criminal Pleadings, Evidence and Practice (1995) paras 1-148 and 1-154; Lunn, Criminal Law South Australia Para 6395.7; Molloy (1921) 2 KB 364; Ballysingh (1953) 37 Cr App R 28; Wilson
(1979) 69 Cr App R 83; Jemmison v Priddle (1972) 1 QB 489; Merriman (1973) AC
584; Traino (1987)45 SASR 473; Daly v Me dwell (1986)40 SASR 281; Giretti
(1986)24 A Crim R 112; R v Clarke and Anor (1956) VR 643; Locchi (1991)22 NSWLR 309, considered.

Criminal law and procedure - Dietrich principle - The appellant in appealing against a conviction for dishonest obtaining of benefits under the WorkersRehabilitation and Compensation Act 1986 was refused an adjournment while an appeal against the refusal by the Legal Services Commission of the grant of legal assistance was considered, and was unrepresented throughout the presentation of the whole of the prosecution case - soon thereafter the appeal was allowed, counsel was appointed and after an adjournment while counsel was given an opportunity to read the transcript, all witnesses whom counsel for the defendant asked to be recalled were recalled for cross-examination - held that the principle which finds expression in Dietrich applies to the summary hearing of serious charges in the Magistrates Court - observations as to the manner in which cases are to be classified as serious for this purpose - however, although the adjournment should have been granted, in the circumstances there was no miscarriage of justice. Dietrich v R (,992)109 ALR
385, considered.

Workers compensation - obtaining payments and benefits by dishonest means - proof of dishonesty - Without determining whether the two-stage test in R v Ghosh is necessarily of application to proof of an offence against s 120(1) of the Workers Rehabilitation and Compensation Act 1986, held that the Magistrate hearing the charge had correctly applied the test. R v Ghosh (1982) QB 1053, considered.

Workers compensation - obtaining payments by dishonest means - The defendant worker on appeal attacked the factual findings of the Magistrate leading to his conviction of a charge of obtaining benefits by dishonest means contrary to s 120(1)(a) of the Workers Rehahilitation and Compensation Act 1986 - the worker was observed and filmed while involved in repairing second-hand motor vehicles in his back yard for re-sale - other observations as to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Weinel v Fedcheshen

Details

AGLC: Weinel v Fedcheshen [1995] SASC 5216
Case: [1995] SASC 5216
Decision Date: 18 August 1995

CaseChat Overview and Summary

Darko Fedcheshen was convicted in the Magistrates Court of sixty counts of obtaining payments and benefits by dishonest means under the Workers Rehabilitation and Compensation Act 1986. He appealed against his conviction and the complainant appealed against the penalty. The Supreme Court dismissed Fedcheshen's appeal against conviction. It found that the compendious count was not bad for duplicity and that the Magistrate had correctly applied the Ghosh test for dishonesty. The court found that all of the relevant factual findings were soundly based and fully justified having regard to the evidence. The court allowed the complainant's appeal against penalty. It held that the sentence of imprisonment should not have been suspended. The appeal against sentence was allowed to the extent that the order suspending the sentence was quashed and in lieu thereof there substituted an order that the term of eleven months imprisonment take effect as a custodial term of imprisonment. The order for repayment of the total amount involved was varied to $10,000.

Orders