Weinel v Fedcheshen
[1995] SASC 5216
•18 August 1995
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J
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 his attendance at car auctions and wrecking yards and the like led to the conclusion that while claiming benefits with respect to an alleged injury to his neck and shoulder, he was carrying on a back yard business of repairing and selling cars - held that all relevant factual findings were soundly based and fully justified having regard to the evidence - observations as to the obligation of an appeal court under the Magistrates Court Act 1991 to make an independent review of the evidence while paying appropriate regard to the Magistrate's assessment of the credit of the witnesses. Taylor v Hayes (1990) 53 SASR 282; Coghlan v Cumberland (1989) 1 Ch 704, considered.
Criminal law and procedure - penalty - suspension of sentence of imprisonment - Following conviction of the respondent on a charge of dishonestly obtaining benefits under the Workers Rehabilitation and Compensation Act 1986, contrary to s120(l)(a), the sentencing Magistrate imposed a penalty of eleven months imprisonment which was suspended upon the entry by the respondent into a bond to be of good behaviour pursuant to s38 of the Criminal Law (Sentencing) Act 1988 - held that the suspension of the term of imprisonment reflected an inadequate appreciation by the sentencing Magistrate of the seriousness of the offence - appeal allowed and a custodial term of eleven months imprisonment substituted - observations as to the comparability of prosecutions for WorkCover fraud with prosecutions for social security fraud. WorkCover Corporation v Jelfs Cox J, 8 May 1995, unreported, judgment No. 5088 (available on SCALE), considered.
Criminal law and procedure - penalty - Consideration of the question of the propriety of an order for restitution of benefits unlawfully obtained by fraud under the Workers Rehabilitation and Compensation Act 1986 where the conviction witb respect to which the order was made was imposed on a single compendious charge - discussion of the approach to be taken where some but not all of the conduct said to be comprehended by the compendious charge was proved beyond reasonable doubt - order for repayment varied. workers REhabilitation and Compensation Act 1986 s 120(3), referred to.
HRNG ADELAIDE, 25-26 July, 11 August 1995 #DATE 18:8:1995 #ADD 20:9:1995
Counsel for appellant: Mr B Dixon
Solicitors for appellant: Dixon Gallasch
Counsel for respondent: Mr M Robertson QC with Mr D Lovell
Solicitors for respondent: Finlaysons
ORDER
Appeal against sentence allowed to the extent that the order suspending the sentence quashed and in lieu thereof there substituted an order that the term of eleven months imprisonment take effect as a custodial term of imprisonment.
JUDGE1 PERRY J Darko Fedcheshen was charged in the Magistrates Court constituted by a Special Magistrate sitting at Adelaide on a complaint issued by an officer of General Motors-Holden's Automotive Ltd ("GMH"). The complaint alleged sixty counts of offences against s120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 ("the Act"). GMH is an exempt employer under the Act (see s60) and accordingly is self-insured against the liabilities imposed by it. Mr Fedcheshen was an employee of GMH working on the car assembly line. The complaint alleged that by dishonest means he obtained various payments and benefits under the Act totalling $12,035.75. The payments and benefits were said to have been paid or made as a result of an injury alleged to have been suffered in the course of Mr Fedcheshen's employment on 12 February 1990.
2. At the conclusion of the hearing, the learned Special Magistrate convicted Mr Fedcheshen on the first count in the complaint, which was described as an "omnibus" count, upon which he ordered Mr Fedcheshen to be imprisoned for eleven months. He went on to suspend the term of imprisonment upon the entry by Mr Fedcheshen into a good behaviour bond in the sum of $500 for a period of two years. Pursuant to s120(3) of the Act, he ordered the defendant to pay to the Registrar of the Magistrates Court within three months the total sum of $12,022.88 for transmission to GMH. Additionally he ordered Mr Fedcheshen to pay $48,000 towards the costs of the prosecution.
3. There are two appeals: by Mr Fedcheshen against conviction, and by the complainant against penalty. I heard both appeals together. These reasons for judgment deal with both.
4. From now on I will refer to the complainant as such, and Mr Fedcheshen as the defendant.
5. I deal first with the appeal against conviction.
APPEAL AGAINST CONVICTION
6. I will say a little more about the background to the matter.
7. The injury is alleged to have occurred when the defendant was struck by a forklift. His claim for worker's compensation arising out of the injury was accepted by GMH by notice dated 13 March 1990.
8. Thereafter he was paid worker's compensation in the form of weekly payments of income maintenance for various days off work between 12 February 1990 and 18 August 1992. In addition, GMH paid fees for medical rehabilitation and the like services, and amounts for travelling allowances in connection with his treatment.
9. At some stage GMH became suspicious of the genuineness of the defendant's ongoing claims for compensation payments and benefits. They arranged for his activities in the back yard of his home and at other places to be placed under surveillance, and made other investigations.
10. The surveillance and other investigations satisfied the complainant that the defendant was engaged, at least between November 1991 and September 1992, in a business of buying and restoring motor vehicles in his back yard and selling them. The range and extent of the physical work involved in that activity, some of which was recorded over a long period by the taking of video film, together with other matters which I come to in due course, convinced the complainant that the defendant's claim for compensation and other benefits was fraudulent.
11. By a letter dated 3 September 1992 over the signature of the complainant, GMH terminated the defendant's employment forthwith. The explanation given in the letter was that the complainant considered that the defendant had acted dishonestly in connection with his claim for worker's compensation and that he had committed various offences under the Act. The letter put the defendant on notice that GMH would be proceeding with charges against him for breaches of the Act.
12. The complaint was duly taken out on 17 December 1992. As I have already indicated, the complaint contained sixty counts. Counts alleging a dishonest obtaining of weekly payments of income maintenance referred to a total sum of $6,094.43. The amount involved in counts relating to the obtaining of medical, rehabilitation and like expenses was $5,613. Travelling expenses alleged to have been obtained by dishonest means amounted to $438.32.
13. It is the aggregate of those three amounts, with a minor adjustment not relevant for present purposes, which, following his conviction, the defendant was ordered to repay.
14. I turn now to deal with the various grounds put forward by the defendant in support of his appeal against the conviction.
LACK OF LEGAL REPRESENTATION
15. To understand this ground of appeal, it is necessary to refer to the course of the proceedings before the learned Special Magistrate.
16. The complaint was returnable on 2 February 1992 when the defendant appeared unrepresented. It was adjourned for hearing to 2 March 1993 when the defendant was represented by counsel. It was then adjourned over on a number of dates without any substantial hearing. Most of the endorsements on the complaint do not indicate the reason why it was stood over. Eventually, on 25 November 1993, when the accused was represented by counsel, the matter was set for trial for two weeks between 9 and 20 May 1994.
17. The matter was called on again ahead of the trial date, namely, on 15 April 1994. At that stage counsel for the defendant sought leave to withdraw, which was granted. The defendant was then unrepresented. The Magistrate noted on the complaint (in the defendant's presence):
"Matter to proceed at date set for trial (9.5.94 at 9.30 for
two weeks) - defendant informed accordingly."
18. The matter duly came on for hearing on 9 May 1994. The defendant again appeared unrepresented. The commencement of the transcript for that day reads:
"Defendant seeks adjournment pending outcome of his appeal
for legal aid. Opposed by Mr Smith. Application refused."
19. Following the refusal of the application, the charges were read, and on the defendant's plea of not guilty to each count, the trial commenced. The trial proceeded more or less from day to day until 20 May 1994. At that stage, the prosecution case had been completed, the learned Special Magistrate had ruled that there was a case to answer, and the defendant had given a little of his evidence in chief, and had interposed a short witness.
20. It is not clear from the transcript whether the ruling as to a case to answer followed a submission by the defendant, or was made on the initiative of the learned Special Magistrate. Be that as it may, on the completion of the hearing on that day, the hearing was adjourned to 11 July 1994.
21. Before 11 July 1994, the refusal of legal aid funding was overturned on appeal, and counsel, Mr Paul Gabrynowicz, was engaged to represent the defendant.
22. The matter was called on for mention on 8 July 1994 when Mr Gabrynowicz appeared for the defendant and applied for an adjournment beyond 11 July 1994 in order to give him time to peruse the transcript and other documents in the matter. His request was granted and the matter was listed for further mention on 15 July 1994.
23. Before 15 July 1994 Mr Gabrynowicz discussed the matter with counsel for the complainant, as a result of which agreement was reached between them as to the recall of a number of witnesses whom Mr Gabrynowicz wished further to cross-examine. Apparently counsel for the complainant intimated to Mr Gabrynowicz that he was at liberty to ask for the recall of any witnesses. The complainant agreed to recall all of those whom he named.
24. The matter was mentioned again before the learned trial Magistrate on 15 July 1994. Formal leave was given for the witnesses to be recalled, and the matter was stood over for that purpose and for the resumption of the trial generally, to 26 October 1994.
25. The trial resumed on that date and ran for a further seven days. The taking of evidence and submissions was completed on 24 November 1994.
26. On 3 May 1995 the learned trial Magistrate announced his decision and delivered his reasons. Subsequently, on 31 May 1995 he entered a conviction on the first count upon which the penalties to which I have referred were imposed. He remanded the defendant further on counts 2 to 60, which were not at that stage disposed of, on the footing that they would be reconsidered in the light of any appeal.
27. In the notice of appeal, the defendant complains:
"5.2 That the refusal of the Learned Magistrate to adjourn
the trial when the appellant was unable, through no fault of
his own, to obtain legal representation resulted in the
appellant suffering irreparable prejudice not capable of
being adequately rectified even after counsel was able to be
engaged."
28. In advancing this ground of appeal the defendant referred to the decision of the High Court in Dietrich v R (1992) 109 ALR 385. The statement of principle for which that case is authority is best identified in the following passage from the joint judgment of Mason CJ and McHugh J (399):
"In view of the differences in the reasoning of the members
of the court constituting the majority in the present case,
it is desirable that, at the risk of some repetition, we
identify what the majority considers to be the approach
which should be adopted by a trial judge who is faced with
an application for an adjournment or a stay by an indigent
accused charged with a serious offence who, through no fault
on his or her part, is unable to obtain legal
representation. In that situation, in the absence of
exceptional circumstances, the trial in such a case should
be adjourned, postponed or stayed until legal representation
is available. If, in those circumstances, an application
that the trial be delayed is refused and, by reason of the
lack of representation of the accused, the resulting trial
is not a fair one, any conviction of the accused must be
quashed by an appellate court for the reason that there has
been a miscarriage of justice in that the accused has been
convicted without a fair trial."
29. A question might arise as to whether or not that statement of principle applies to summary hearings conducted in the Magistrates Court. There is no reason why it should not. What attracts consideration of the application of the principle is the situation where an unrepresented indigent person is charged with a serious offence. In recent years, changes in the legislation which defines the allocation of cases between the various courts have resulted in substantial increases in the jurisdiction of Magistrates Courts. They are now empowered to try comparatively serious charges which hitherto have been the exclusive province of the District or Supreme Courts.
30. That is not to say that in addressing the question whether a failure to adjourn or stay a trial while an accused person takes steps to obtain legal representation has resulted in a miscarriage of justice, the fact that the case was heard by a Magistrate sitting alone may not be relevant.
31. While generally speaking, offences carrying a penalty of imprisonment should be regarded for these purposes as "serious", it is not difficult to imagine cases where, although the penalty of imprisonment was open, the risk of imprisonment might be slight and the offence, on any view, could not be regarded as serious. Conversely, I suppose that there may well be rare examples of offences which do not carry a penalty of imprisonment which might, nonetheless, properly be characterised as serious for the purposes of the rule.
32. Be that as it may, although heard in the Magistrates Court, the charges in question not only carried a penalty of imprisonment, but the circumstances alleged were of such a nature that the principles laid down in Dietrich were invoked.
33. I have already pointed out that according to the transcript, the defendant's application made on 9 May 1995 for an adjournment pending the outcome of his appeal relating to an application for legal aid was opposed. Before me, it was agreed between the parties that this was not so. I received an affidavit of Ms Heidi Craig, a solicitor in the employ of the solicitors responsible for giving instructions to counsel who presented the case before the learned Special Magistrate. In her affidavit she deposes, inter alia, to the following:
"6. Mr David Smith appeared on behalf of General Motors
Holden's Automotive Ltd. Mr Smith indicated to Mr Field
that in the ordinary course of events he would oppose such
an adjournment, however, in the interests of fairness and in
view of the High Court authority of Dietrich, Mr Fedcheshen
should be represented. If Mr Field was to grant an
adjournment, enquiries should be made with the Legal
Services Commission in relation to his prospects of
obtaining legal aid.
7. Mr Field refused Mr Fedcheshen's application for an
adjournment and the matter proceeded forthwith."
34. While I have every sympathy for the position in which the learned Special Magistrate found himself, in my opinion, an adjournment should have been granted. True it is that two weeks had been set aside for the hearing some considerable time before 9 May 1995. True it is that after a long history of adjournments, when the defendant's counsel was given leave to withdraw, the defendant was told plainly that the trial would proceed on that date. True it is also that in a busy court a last minute adjournment of a matter for which a substantial amount of time has been allocated is apt to cause a serious disruption to the orderly disposal of other cases within the list.
35. But while a serious disruption to the list is certainly a matter to be taken into account, at the end of the day the overriding consideration in the case of the trial of a serious offence is whether or not, if an adjournment is refused, there is a likelihood that the defendant will not receive a fair trial.
36. In making that observation I am fully aware that there are many accused persons who are apt to "play the system", particularly in the Magistrates Court which disposes of the largest volume of criminal cases of any single court in this State. Unmeritorious attempts to secure a delay simply to put off the evil day must be met with firm, practical and common sense responses.
37. But here the Magistrate was informed that the appeal against the refusal of legal aid was due to be heard in three days time. Whether or not that was so could have been made the subject of a telephone inquiry by the Magistrate's staff. The multiplicity of offences and the amount of money involved, given the maximum penalty as the legislation stood at that time on any one count of a fine of $10,000 or imprisonment for one year, and given the nature of the case against the defendant, details of which the Magistrate was either aware or could easily have been made aware, indicated that there was a real risk of a substantial penalty, involving a term of imprisonment, if the defendant was to be convicted.
38. While the attitude of the complainant was not conclusive, the fact that the complainant did not oppose an adjournment was a matter to be taken into account.
39. In those circumstances, given that no adjournment was granted, the question for me on appeal is to determine whether the resulting trial was not a fair one.
40. As to that, the case differs from many in that the defendant did secure representation by counsel soon after the close of the prosecution case. This being a trial by a Magistrate alone, there is no reason to suppose that he could not put out of his mind, as he indicated that he would, the short amount of evidence which had been given by the defendant when he was unrepresented.
41. Following his appointment, counsel for the defendant was given an unrestricted opportunity to have recalled all or any of the witnesses for the complainant. He was given a lengthy adjournment which afforded ample opportunity to consider the transcript and avail himself of that offer. All of the witnesses whose recall he sought were returned to the witness box and cross-examined by him. The defendant then gave his evidence with the assistance of counsel. The Magistrate had the benefit of concluding addresses from both counsel.
42. Against that background I invited counsel for the defendant, when arguing this ground of appeal, to identify the "irreparable prejudice" referred to in the notice of appeal as having been suffered by the defendant by reason of his inability to secure legal representation earlier than he did.
43. In response, Mr Dixon of counsel for the defendant emphasised that the trial had been virtually completed before counsel was appointed. Given that the prosecution case had by then been closed, the defendant had no opportunity, so the argument went, during the course of the prosecution case to object to evidence which may have been inadmissible or irrelevant.
44. When I invited Mr Dixon to point to evidence falling within that category, with respect to him, there seemed to be nothing that he could point to which was inadmissible.
45. He referred, for example, to some evidence of the purchase of a vehicle and an advertisement in the newspaper for its subsequent re-sale, all of which occurred before the commencement of the period over which the subject charges were said to have occurred.
46. But the complainant's case was based substantially upon evidence of a course of conduct on the part of the defendant extending over a long period of time and involving the systematic defrauding of GMH with respect to the compensation payments. Evidence of earlier incidents pre-dating the period in question was relevant to proving the course of conduct. There is nothing to suggest that the learned Special Magistrate misused any such evidence.
47. Mr Dixon also drew attention to certain medical certificates tendered through Dr Nitchingham and Dr Karunaratna, being certificates of unfitness for work on certain days to which the charges related. The particular certificates in question were certificates of a locum to each of the two doctors. Mr Dixon made the point that the documents "may technically be admissible as business records but are not evidence of the contents".
48. The submission is misconceived in that if a document is admitted as a business record under s45a of the Evidence Act 1929 it is evidence of "any fact stated in the record" (see s45a(1)(b)) or of any fact which may be inferred from the record. Certainly there is a discretion as to whether or not documents may be admitted as a business record under s45a. But putting that aside, there is nowadays the power to dispense with formal proof under s59j of the Evidence Act as to matters which are not genuinely in dispute or as to which compliance with the rules of evidence might involve unreasonable expense or delay.
49. But what must be kept in mind is that the certificates were in fact not put forward as evidence of the truth of their contents in the sense that the complainant relied on the truth of the opinions expressed in them. The reverse is true. The certificates were only tendered to prove that the defendant attended the locum on the days in question, obtained the certificate, and subsequently presented it to GMH, matters which the defendant at no stage has challenged.
50. Of course, from the point of view of the defendant, he was denied an opportunity to cross-examine the locum practitioners so as to elicit details of their examination of him with a view to proving that he was genuinely incapacitated on the days in question. Even although that is not the way in which Mr Dixon has argued this point on the appeal, if the conviction could only be sustained by reference to the evidence as to the defendant's condition on those days, there might be some cause for concern. But as will be seen, in proving the fraudulent course of conduct upon which the complainant relied, it was not necessary for him to establish that the defendant was fit for work on every day upon which a certificate was issued. Only five certificates are in this category and the answer to the question of the propriety of their receipt in evidence could not have affected the outcome of the trial and cannot affect the outcome of the appeal.
51. In any event, the defendant's counsel, after his appointment, could have requested that the locum practitioners be called. As to this, I permitted counsel for the defendant to tender before me an affidavit of Mr Gabrynowicz. He deposed to the fact that between the adjournment granted on 15 July 1994 and the resumption of hearing on 26 October 1994 he had an opportunity to peruse the transcript of evidence which had been given before he was appointed. He said:
"I did consider that evidence had been admitted already with
respect to which I would have taken objection if I had been
counsel at the time. As that evidence has not been admitted
de bene esse, I did not raise any formal objection to the
presiding Magistrate."
52. While every allowance must be made for the difficulties facing counsel briefed in mid-stream, I do not regard that part of Mr Gabrynowicz's affidavit as indicating a satisfactory explanation as to why objection was not taken to evidence which he might have thought had been wrongly admitted, including the locum certificates. At all events, the affidavit does not identify just what evidence might have been successfully objected to.
53. Apart from the matters to which I have so far in this regard made reference, Mr Dixon referred to the action of the learned Special Magistrate in permitting the witness Mr Martin, who was a neighbour of the defendant and who had made certain observations, to refresh his memory of certain incidents which had occurred from a letter which he wrote to his local council urging that action should be taken against the defendant for breach of by-laws relating to the use of the defendant's land.
54. There was no reason why the witness should not have been permitted to refresh his memory from the letter. Although it was not put that way by Mr Dixon, on the other hand, questions might have arisen as to the admissibility of the letter and some other letters passing between Mr Martin and the council which were tendered. But there was nothing to suggest that the learned Special Magistrate permitted the letters to go in as evidence of the truth of the assertions made by Mr Martin. There were permissible uses to which the letters could be put, amongst them to explain the later intervention and investigations conducted by the council officers. There is no reason to think that the Magistrate made an impermissible as opposed to a legitimate use of the letters.
55. I have carefully considered Mr Dixon's submissions on this topic, but he has not identified any evidence which might have been the subject of a soundly based objection by the defendant. In any event, as I have indicated, Mr Gabrynowicz had every opportunity to ask that any offending passages of evidence be struck out.
56. Mr Dixon made the further point that there was prejudice to the defendant in that by conducting his own defence he was exposed to more personal scrutiny by the learned Special Magistrate than would have been the case had he been represented.
57. It is true that the learned Special Magistrate indicated in his reasons for judgment that he took a poor view of the defendant. But most of the remarks which he made as to that appear to have been based upon the defendant's performance in the witness box after he was represented by counsel.
58. For example, the learned Special Magistrate commented
"Under cross-examination the defendant became belligerent
and cocky. He resorted to derogatory remarks about
witnesses whose evidence conflicted with his. When pressed
on matters of detail and for explanations of the
contradictions on precise topics, he became evasive. He
repeatedly refused to answer questions and challenged the
prosecution to prove matters. He repeatedly made remarks
which indicated that he did not take the proceedings
seriously and that he regarded the trial as a joke."
59. Later the learned Special Magistrate said (reasons 25):
"In his evidence the defendant displayed an attitude of
being self-centred and of taking what he wanted from the
community. When pressed in cross-examination he became
antagonistic and evasive. He showed contempt for the
proceedings. He lied about the extent of his activities and
did so deliberately out of a consciousness of guilt."
60. In the first place, I doubt whether the mere fact that because he or she is not represented by counsel, with the result that a more active participation in a trial exposes a defendant to greater scrutiny by the Judge or Magistrate, could be regarded as a matter upon which it would be right to conclude that the lack of representation resulted in some prejudice going to the fairness of the proceedings. In any event, the learned Special Magistrate's comments about his impression of the defendant are focussed on the defendant's conduct when represented. Would his conduct have been any different if he had been represented throughout? There are many trials where relevant observations may be made by the presiding Judge or Magistrate in such circumstances. I am quite unable to perceive in this case that the circumstances in which any opinion of the defendant was reached by the learned Special Magistrate could possibly lead to a conclusion that the trial was in some way unfair.
61. Standing back from the matter and considering the whole of the course of the trial, at the end of the day I remain quite unpersuaded that there was any real prejudice to the defendant by reason of his lack of representation for a substantial part of the trial, or anything else which occurred which would justify the conclusion that by reason of that lack of representation there was in some way a miscarriage of justice.
62. This ground of appeal fails.
DUPLICITY
63. I have already referred to the fact that the complaint alleged sixty counts. The conviction which the learned trial Magistrate imposed related to the first count only. That count was in the following terms:
"COUNT 1 STATEMENT OF OFFENCE
(The defendant) obtained by dishonest means payments or
benefits under the Workers Rehabilitation and Compensation
Act 1986 (section 120(1)(a) of the said Act).
Particulars of offence:
Darko Fedcheshen between the 1st day of November 1991 and
the 3rd day of September 1992 did obtain by dishonest means
from General Motors-Holden's Automotive Limited (hereinafter
referred to as the "employer") payments or benefits being:
(i) weekly payments of income maintenance amounting to
$6,094.43
and
(ii) payment of medical, rehabilitation and like expenses
amounting to $5,613.00
and
(iii) payment of travelling expenses amounting to $328.32
by dishonestly pretending that by reason of the effects of
alleged injuries to the neck, back, arm and shoulder
allegedly suffered by him in the course of his employment on
the 12 day of February 1990 (hereinafter referred to as the
"alleged work injuries") he required and thereby incurred
medical and ancillary expenses and was incapacitated for the
work available to him with the employer, whereas he was
capable of carrying out the said work."
64. S120 of the Act relevantly provided at the time (the penalty has since been increased):-
"120(1) A person who-
(a) obtains by dishonest means a payment or other benefit
under this Act or
(b) ...
is guilty of an offence.
Penalty: $10,000 or imprisonment for one year."
65. Count 1 was described by the complainant as a "compendious charge". That description was used both before the learned Special Magistrate and before me by reason of the fact that the first count alleged a course of conduct which embraced each of the individual occasions identified in the subsequent 59 counts. Those counts were said to have been laid in the alternative to count 1.
66. Counts 2 to 60 identify different occasions by date and amounts involved. For example, count 2 is as follows:
"Count 2
On or about the 18th day of November 1991 obtained by
dishonest means a payment under the Workers Rehabilitation
and Compensation Act (Section 120(1)(a) of the said Act).
Particulars of Offence
Darko Fedcheshen obtained from the employer on the 18th day
of November 1991 a payment of weekly payments of
compensation for the 14th day of November 1991 in the sum of
$86.69 by dishonestly pretending that by reason of the
effects of the alleged work injuries he was incapacitated
for the work available to him with the employer, whereas he
was capable of carrying out the said work."
67. Count 3 is in similar terms, but refers to an amount of $173.38 said to have been obtained on 21 November 1991, being payments for 7 and 8 November 1991.
68. The amounts referred to in count 1 by reference to weekly payments, medical rehabilitation and the like expenses and the payment of travelling expenses represent the totals said to have been paid out with respect to each of the payments coming within those descriptions identified in counts 2 to 60. The overall total of those amounts of $12,022.88 (there is a small discrepancy in addition reflected in that figure which I do not pause to explain) which the learned Magistrate ordered to be repaid pursuant to s120(3) of the Act.
69. The period asserted in count 1, namely, 1 November 1991 to 3 September 1992, encompasses the period during which the individual counts which follow are said to have occurred.
70. The defendant contends that count 1 is bad for duplicity.
71. It is true that, generally speaking, no one count in an information or complaint may charge a defendant with having committed two or more distinct offences. In Molloy (1921) 2 KB 364 it was held that an indictment which charged the accused in one count that he "stole or with intent to steal ripped and severed or broke" certain fixtures was bad: see per Avery J at 366-367:
"The indictment charges the appellant that he either stole
the things or with intent to steal, that he ripped and
severed them. Those two offences are not necessarily
committed by one and the same act: in other words, the act
done may constitute one of the offences but may not
constitute the other ... That being so, it is obvious that
this indictment charges the appellant with two felonies in
the alternative ... Upon the authorities such an indictment
is clearly bad in law ... where two offences are charged on
the same count, the indictment is bad for duplicity."
72. In Ballysingh (1953) 37 Cr App R 28, a shoplifter went from one department to another in a large store, picking up different articles as he went along. The indictment was held bad because it included all of the articles in one count. In the course of his judgment Goddard LCJ said (29):
"It was not a case of a man going to one place and selecting
four or five different articles and then walking out, as the
appellant went from place to place."
73. Despite the decisions in those two cases, on other occasions the courts have recognised that circumstances may exist where it is permissible to allow what, on the face of it, is a joinder of two offences in the one count. In Wilson (1979) 69 Cr App R 83, although there were different counts alleging theft, individual counts related to goods taken from different departments of a department store. In the course of delivering the judgment of the court, Browne LJ observed (85):
"The word duplicity is used in a rather ambiguous sense, it
seems to us, in the authorities and textbooks. First there
is a case where it appears on the face of the indictment, or
particulars of the indictment, that a count is charging more
than one offence. ... That has been referred to in the
course of the argument as true duplicity. Secondly, there
is a case where, although the indictment is good on its
face, it appears at the close of the prosecution case that
the evidence establishes that more than one offence was
committed on the occasion to which a particular count
relates. Perhaps that is best described as divergence or
departure, but it often seems to be called duplicity."
74. After noting that the case at bar was one falling within the second category, in that the evidence established that more than one offence had been committed on the occasions referred to in certain counts, and after referring to Jemmison v Priddle (1972) 1 QB 489 and other authorities, including Ballysingh (supra), the court held that the indictment was not bad for duplicity in that it was legitimate to charge "one activity, even though that activity may involve more than one act" (87).
75. Jemmison v Priddle (supra) involved a challenge to an information alleging unlawful killing of "certain game, to wit, two red deer". Lord Widgery CJ, after referring to critically to Ballysingh, held that the information was not bad for duplicity. In reaching that conclusion he said
(495):
"It was the activity of shooting red deer without a game
licence, and although as a nice debating point it might well
be contended that each shot was a separate act, indeed each
killing was a separate offence, I find that all these
matter, occurring as they must have done within a very few
seconds of time and all in the same geographical location,
are fairly to be described as components of a single
activity, and that made it proper for the prosecution in
this instance to join them in a single charge."
76. In Merriman (1973) AC 584, Lord Morris, having given examples such as a multiple stabbing or a multiple theft within the same dwelling, after posing the rhetorical question as to what the offence might be in such cases, went on to say (593):
"In many different situations comparable questions could be
asked. In my view, such questions when they arise are best
answered by applying common sense and by deciding what is
fair in the circumstances. No precise formula can usefully
be laid down ..."
77. After going on to refer to Lord Widgery CJ's judgment in Jemmison v Priddle, Lord Morris observed:
"I agree respectfully with Lord Widgery CJ that it will
often be legitimate to bring a single charge in respect of
what might be called one activity even though that activity
may involve more than one act. It must, of course, depend
upon the circumstances."
78. In the same case, Lord Diplock said (607):
"The rule, against duplicity, viz that only one offence
should be charged in any count of an indictment ... has
always been applied in a practical, rather than in a
strictly analytical, way for the purpose of determining what
constituted one offence. Where a number of acts of a
similar nature committed by one or more defendants were
connected with one another, in the time and place of their
commission or by their common purpose, in such a way that
they could fairly be regarded as forming part of the same
transaction or criminal enterprise, it was the practice, as
early as the eighteenth century, to charge them in a single
count of an indictment."
79. The passages to which I have just referred extracted from the judgments of Lord Morris and Lord Diplock in Merriman were cited with approval by King CJ (with whom Jacobs and Millhouse JJ agreed) in Traino (1987) 45 SASR 473 (see at 475).
80. Traino involved a charge of perjury. In that case, the information contained only one count, although it was particularised by reference to a number of different statements on oath. Although under the particular circumstances of that case the information was held to be bad, King CJ observed (476):
"I see no reason why such a compendious false statement
should not be charged as a single assignment of perjury and
a single count of an information. Whether that course is
proper in a particular case must depend upon the
circumstances.
If a single compendious false statement consisting of the
cumulative effect of several individual statements is
charged as one offence, a conviction on that charge offence
depends upon proof of the perjury charged. There is a
single assignment of perjury. It is not necessary to prove
the deliberate falsity of each individual statement provided
that the cumulative effect of what is proved amounts to the
false statement charged."
81. There is sometimes a question whether the very nature of the offence itself connotes a course of conduct. Daly v Medwell (1986) 40 SASR 281 concerned a charge of harassment contrary to the Telecommunications Regulations 1975 (Cwth). The case involved a number of telephone calls to the alleged victim, made over a period of time. The complaint alleged a single count consisting of the continuing course of conduct during the period alleged in the complaint. White J held that the complaint was not bad for duplicity. His decision was upheld by the Full Court.
82. It was observed in that case that the conclusion that the charge could be framed as a single count alleging a course of conduct was nonetheless consistent with the fact that an individual telephone call could, standing alone, likewise have been characterised as harassment, depending on the circumstances (see White J at 284). In the same case, King CJ observed
(296):
"... as the learned Judge on appeal recognised, it is not
difficult to imagine a situation in which a single call by
reason of its nature might be characterised without more as
use of the telephone service for the purpose of harassment.
But, even where that is the case, it does not follow that
subsequent telephone calls may not be so linked with the
initial telephone call as to form part of the same use of
the telephone service. The concept of harassment itself
contains within it some element of continuity, or at least
the capacity for some element of continuity."
83. Likewise, the concept of "trafficking" may involve an element of continuity, although not necessarily so.
84. In Giretti (1986) 24 A Crim R 112, the appellant was convicted of trafficking in heroin contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Although the definition of the expression of the expression "traffick" (sic) in the Act referred only to single acts, it was held to be an inclusive definition insofar as the word "traffick" connoted a continuing activity. A single count of trafficking could be proved by proof of a course of conduct. The trial Judge's ruling that the information was not bad in law as duplex was upheld by the Victoria Court of Criminal Appeal. Crockett J observed (118):
"... a proscribed act ordinarily finite in its commission,
for example, theft, may be committed so frequently pursuant
to a regular course of conduct that a series of them becomes
the one 'continuous offence' which can be pleaded and proved
as such."
85. It is true, as was observed in Giretti (see Ormiston J at 135), that a difficulty can arise where a jury is invited to reach its verdict by reference to a number of transactions carried on over a period without being asked to draw "any conclusion as to the overall nature of their activity during those periods". In such a case, it is the "overall nature" which must be proved. A conclusion as to the "overall nature" may be reached, even although different members of the jury may find different acts proved beyond reasonable doubt. "It has never been the law that, before convicting, the jury must all be satisfied of guilt in the one way.": R v Clarke and Anor (1956) VR 643 per Crockett, McGarvie and Southwell JJ at 661. Of course, no difficulty in that respect arises in the case of a summary hearing conducted by a Magistrate, or for that matter, on an appeal from a conviction entered after such a hearing.
86. I refer also to the decision of the Court of Criminal Appeal of New South Wales in Locchi (1991) 22 NSWLR 309, which concerned a course of conduct said to amount to "supply" within the meaning of the Drug Misuse and TraffickingAct 1985 (NSW). In that case, Samuels JA (with whom Enderby and Loveday JJ agreed) observed (312):
"In principle, it is, it seems to me, legitimate to charge,
in a single count, one activity, even though that activity
may involve more than one act, each of which may amount to
an offence."
87. See also Goodfellow (1994) 120 ALR 657 per Hunt CJ at 661.
88. Most of the authorities to which I have referred are cited in a helpful passage in Commonwealth Criminal Law (Sweeney and Williams), Federation Press
(1990) at 79-83 under the heading "Continuing Offences":
"3.47 "Rolled-up" charges, or an allegation that between two
dates a person committed a continuous offence, are sometimes
used as an alternative to 'representative' charges of single
acts. They are more commonly used in the fraud context,
although they could be equally apposite to other activity
such as importing or possessing narcotic goods or stealing.
The essence of the allegation is that, while the conduct may
have consisted of more than one single act, the acts were so
related as to form a single continuous course of conduct.
Objection is sometimes taken to the form of such charges on
the basis of duplicity. An examination of the authorities
suggests that such an objection may not have merit where the
circumstances do show a course of conduct.
3.62 The factors which can be distilled from the cases which
indicate a course of conduct rather than separate single
acts appear to be: continuity of time over which the
incidents occur, similarity of the acts committed, closeness
in time, place or circumstance, and that the acts cannot
properly be regarded as separate or independent acts. It
will usually be a matter of judging the circumstances of
each particular case as to whether several acts are
individual transactions or constitute a continuous activity
or course of conduct. It may depend also on the intention
of the offender at the beginning of the conduct. An analogy
can be drawn between the intention for a continuous course
of conduct and conspiracy, in which an agreement is made, to
achieve a certain purpose by performing certain acts, at the
time of or before initiating the conduct which gives effect
to the conspiracy."
89. See also Archbold, Criminal Pleadings, Evidence and Practice (1995) paras 1-148 to 1-154, and Lunn, Criminal Law South Australia, para 6395.7 and the cases there cited.
90. The defendant contended that the terms in which s120 is couched preclude the laying of a compendious count. I reject that submission. There are many examples where an offence is defined in similar terms but a compendious count has been permitted. The cases in which the relevant principles have been discussed invariably cover statutory provisions pursuant to which single counts relating to individual acts might equally well be drawn up. That does not preclude a compendious count where the circumstances warrant that course.
91. In this case the prosecution was based from start to finish upon an alleged course of conduct on the part of the defendant. The case was built up by reference to evidence of extended periods in which his activities were placed under close observation, together with other items of an ongoing nature such as the large number of advertisements placed by him in the newspapers advertising vehicles for sale, evidence of his attendance at auctions and so on. Indeed, it is difficult to see how the prosecution could have been sustained other than by reference to the circumstantial case which resulted from the mass of evidence of that kind, coupled with the remarkable coincidence between a large number of days off and the timing of the advertisements, which I come to in due course.
92. True it is that the so-called compendious count was itself not particularised so as to indicate the individual occasions upon which the prosecution sought to prove the course of conduct, but those individual instances were all particularised in the remaining 59 counts in the complaint.
93. There was, therefore, no reason to suppose that in answering to the compendious count, the defendant did not know perfectly well what he was being charged with. He was being charged with dishonestly obtaining over the period asserted in count 1 the amounts therein referred to, that charge being said to be made out by reason of the course of conduct of which the individual acts particularised in the subsequent counts were indicative. The concern expressed by Toohey J in S v The Queen (1989) 168 CLR 266 when he said (281), "The objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet" does not, therefore, arise here.
94. Furthermore, I reject the argument by the defendant that the learned Special Magistrate could not enter a conviction on count 1 without finding every one of the individual counts proved: see Traino (supra) where King CJ observed:
"It is not necessary to prove the deliberate falsity of each
individual statement provided that the cumulative effect of
what is proved amounts to the false statement charged."
95. Although the learned Special Magistrate did by implication find all of the counts alleged proved, it was not necessary for him to do so in order to found a conviction on count 1. All that was necessary to found a conviction on count 1 was that the Magistrate satisfied himself that there was a course of conduct involving an obtaining by dishonest means contrary to the section, the course of conduct being of such a continuous and ongoing nature that the defendant must be taken to have been implementing a scheme or system of dishonest dealing of which each of the individual counts as to which the Magistrate was satisfied, was part.
96. Whereas in Giretti the prosecution relied on a number of individual instances of the sale of heroin, each of which could have constituted "trafficking", in that case the Crown based its case on a single count of trafficking embracing a number of different transactions. Again, it was not necessary for the jury to be satisfied as to every one of them before the count was made out: see per Ormiston J (with whom Gray J agreed) at 24 A Crim R 129:
"Nor is it of consequence that the continuing offence may in
fact consist of a series of activities or transactions which
can each be described in themselves as acts of trafficking,
so long as the jury is properly directed as to the
significance of the individual transactions alleged to
evidence the continuing offence."
97. When a continuing offence is alleged in one count, a conviction based upon it cannot be regarded as a conviction relating necessarily to each of the individual acts said to constitute the course of conduct. The relevance of those individual acts is that a conviction may be entered if they, or a sufficient number of them are proved to satisfy the jury, or in this case the magistrate, that there is a continuing course of conduct of the kind asserted in the compendious count: see Giretti (supra) per Ormiston J at 131:
".... the prosecution can properly only allege the
continuing offence of conducting a trade or business and
cannot rely merely upon proof of single instances of
trafficking of the kind described in Holman's case except
for the purpose of asking the jury to draw an inference as
to the nature of the accused's activities during the
relevant period."
98. As Ormiston J pointed out in that case, this may give rise to a problem when the relevant penalty may turn upon the quantity of the drug the subject of the trafficking: see at 131-132. A not dissimilar problem arises in this case which I come to deal with when I deal with the question of the appeal against penalty.
99. As I have said, it appears that the learned Special Magistrate considered all of the individual acts to have been proved. But for the reasons which I have given, it was obviously not essential for him to go so far as that before convicting. It was nothing to the point that if individual counts were not to be made out, the totals of the various payments or benefits particularised in count 1 may not have been proved. The amount involved is not an essential particular in a charge of this kind: see Archbold (op cit) at 1-129, where the learned author states:
"It is not necessary for the jury to be satisfied as to each
and every item alleged, or as to the whole of the amount
charged, in a count before they are entitled to convict on
that count."
100. In my opinion, count 1 was not bad for duplicity, and subject to dealing with the arguments advanced as to the other grounds of the appeal against conviction, the learned Special Magistrate was entitled to enter a conviction on that count.
APPLICATION OF R V GHOSH
101. The defendant complains (ground 5.1(c):
"That the learned Magistrate erred at law in the manner in
which he applied R v Ghosh (1982) QB 1053."
102. That case is authority for the proposition that where the defendant is charged with obtaining by false pretences, the element of dishonesty which must be proved against him is to be determined by a two-stage process. The jury must first be satisfied that the defendant acted dishonestly by reference to the general standards of the community. If so, the jury must then consider whether it has been proved that the defendant realised that his or her actions were, according to those standards, dishonest.
103. The test of dishonesty propounded in that case has been widely applied in cases other than obtaining by false pretences.
104. It is unnecessary to determine whether the two-stage test is necessarily of application to proof of an offence against s120(1) of the Act. By applying the two-stage test, the learned Special Magistrate erred in favour of the defendant, who can have no cause for complaint on that score.
105. Furthermore, the learned Special Magistrate's application of the test to the circumstances of the case lends no support for the contention that he misapplied it in some way. He said:
"The final issue is whether the defendant behaved
dishonestly in obtaining the benefits under the WRCA.
Dishonesty is to be determined according to common everyday
standards. The test to be applied is laid down by the
English Court of Appeal in the case of R v Ghosh (1982) QB
1053. As the fact finding tribunal, I must first consider
whether the conduct of the defendant was dishonest according
to community standards. If the conduct of the defendant was
not dishonest according to those standards that is the end
of the matter and the prosecution fails. If the conduct was
dishonest according to those standards I must decide whether
the defendant must have known or realised that his behaviour
was dishonest according to those standards.
I reject the submission by Mr Gabrynowicz that the test in R
v Ghosh is no longer the appropriate test to be applied in
South Australia. Ghosh was applied in the recent case of
Weinel v Rojas, a decision of Olsson J delivered on 10 June
1994 and which in turn has been applied in Queen v Turner by
Olsson J in judgment delivered on 28 February 1995."
106. On appeal, the defendant contended that:
"... the learned Magistrate has referred to a number of
instances and factors which he says show a dishonest intent
on behalf of the defendant for those particular occasions
and concluded that therefore there must have been a
dishonest intent on each and every occasion".
107. Without setting out at length the passages in the reasons of the learned Special Magistrate to which that criticism is directed, in my opinion, the criticism is misconceived. The passages identify the process by which the learned Special Magistrate, having regard to the circumstantial evidence, regarded the test as satisfied. In doing so, his process of reasoning was in accordance with the authorities, such as Shepherd (1990) 170 CLR 573, as to the evaluation of circumstantial evidence. In this case, as will be seen, that evidence was overwhelming.
108. This ground of the appeal fails.
PAYMENTS NOT A "BENEFIT" 109. Mr Dixon contended that the payment of the medical accounts was not within s120(1)(a). On the assumption that it was not an obtaining of a "payment" by the defendant but that, if anything, it was the obtaining of a "benefit", he argued that the payment was not, or more accurately, each payment was not, a "benefit". In doing so, he relied on s32(5) and (6) of the Act. Those sub-sections are in the following terms:
"32(5) Where-
(a) services of a kind to which this section applies were
provided to a worker in relation to a compensable
disability; and
(b) the Corporation considers that the services were, in the
circumstances of the case, inappropriate or unnecessary,
the Corporation may disallow charges for the services.
(6) Where the Corporation disallows or reduces a charge
under this section-
(a) it must give to the provider of the service a notice
setting out-
(i) the basis of the Corporation's decision to disallow or
reduce the charge; and
(ii) where the charge has been disallowed under subsection
(5) the provider's right to have the decision reviewed
under this Act; and
(b) the worker is not liable to the provider for the
disallowed charge, or for more than the reduced charge, (as
the case requires) and, if the worker has in fact paid an
amount for which he or she is not liable, the Corporation
will reimburse the worker for that amount and may recover it
from the provider as the debt."
110. For the purposes of the subsections, GMH is to be treated as the Corporation (vide s63(1)(a) of the Act).
111. There is nothing in the point. Whatever may be the position where the services are disallowed pursuant to s32, there was no disallowance here. True it is that the learned Special Magistrate ordered the defendant to make good GMH's loss pursuant to s120(3), but that is not tantamount to a disallowance.
112. This ground of appeal fails.
APPEAL AGAINST FACTUAL FINDINGS
113. Notice of appeal ground 5.1(g) complains that "various of the factual findings made were contrary to the evidence or against the weight of the evidence". It then particularises some sixteen specific factual findings. Ground 5.1(h) complains that "no consideration or inadequate consideration was given to ...." some eight stated aspects of the matter. Ground 5.1(i) complains that the learned Magistrate "placed undue weight upon" evidence as to five discrete aspects of the evidence led by the complainant.
114. It is convenient to deal with those grounds together. Before doing so I will say a little more as to the manner in which the complainant's case was presented.
115. The case presented by the complainant was essentially circumstantial, based on a body of evidence drawn from different sources, all pointing towards a level of physical capability on the part of the defendant which was inconsistent with the manner in which he presented to the doctors responsible for issuing the certificates upon the basis of which he secured ongoing payments of compensation.
116. In almost all instances the payments of income maintenance were for periods of either one or two days only. The defendant would attend at his general practitioner who gave him a medical certificate relating to the day upon which he presented himself, certifying that on that day he had examined the defendant and in the opinion of the doctor he was suffering from a stated condition, almost invariably "neck and shoulder injury". On some occasions the certification was in terms of "neck and back pain" or "back and neck pain". The certificate would go on to certify that the defendant was unfit for work on the stated date. In most instances the certificate certified that he would be fit to resume work the next day.
117. Most of the certificates were issued by Dr Karunaratna, a general practitioner then practising at a surgery in Salisbury. Others were furnished by Dr Nitchingham, a general practitioner then practising from a surgery at Salisbury North. To the extent that the defendant alternated between the two doctors, it is not without significance that he did not say or do anything which put either of them on notice that the other was from, time to time, treating him.
118. Following the issue of the certificate, it was the usual practice of the defendant when he next attended at his employment to hand it over at the counter at the department of GMH responsible for dealing with worker's compensation claims.
119. The complainant tendered 75 certificates (see the Schedule P34) which were dated between 7 November 1991 and 1 September 1992. They covered instances of alleged incapacity for work throughout that period, being the instances of alleged incapacity particularised in the individual counts 2 to 60. Although the opening date of the period referred to in count 1 is 1 November 1991, the first receipt of compensation as a result of the presentation of the certificates in question was 18 November 1991. The closing date of the period referred to in count 1, namely, 3 September 1992, coincides with evidence of the receipt of compensation on that date.
120. What the complainant set out to prove was that on each occasion upon which the defendant presented a medical certificate to GMH, the presentation of the certificate amounted to a dishonest pretence by the defendant that by reason of the condition described in the certificate he was at the time therein referred to unfit for work.
121. Of course, an inference that there was a dishonest pretence on each occasion of presenting the certificate could not properly be drawn unless there was a dishonest pretence to the certifying doctor resulting in the issue of the certificate. The case was not argued, however, either before the learned Special Magistrate or before me, by calling into question the legitimacy of the reasoning that if there had been a dishonest pretence to the doctor leading to the issue of the certificate, it was proper to infer a dishonest pretence to the employer when the certificate was presented. I think it was, but I do not pause to consider that aspect of the matter further in view of the manner in which the trial and the appeal have been conducted.
122. It was the complainant's case that throughout the whole of the period in question, the defendant was conducting a business of buying second-hand motor vehicles, renovating them in his back yard, including a shed in his back yard which was fitted up as a workshop, and then selling them. Further, the complainant set out to prove that the nature and extent of the activities conducted by the defendant in the course of that business was such as to lead to the conclusion beyond reasonable doubt that, speaking in general terms, he must be taken to have been fit to perform the duties demanded of him in the course of his work with GMH during that period.
123. The nature of the defendant's work at GMH was described in evidence by the production supervisor, Mr Trenbirth. He gave evidence that the work involved the fitting of "drip gutters" to the left hand side of vehicles, and also the fitting of a window on the same side. A video (P39) was taken in the workplace illustrating the performance of similar work by another person.
124. I have seen the video, and the work involved could not in any sense be described as "heavy". Furthermore, it involved a range of movements and activity nothing like so extensive as appeared from the video of the defendant while working in his back yard.
125. In proving the scope and nature of the activities involved in what the complainant alleged was the carrying on of the defendant's business from home, the complainant provided a body of evidence drawn from a number of sources.
126. In the first place, the complainant called a next door neighbour, a Mr Martin, who had moved into his house in December 1989. The defendant moved into his house next door six to nine months afterwards, that is, some time towards the latter half of 1990. Mr Martin vacated his house in September 1993 when he moved to Canberra.
127. His evidence was that during the "whole of the period" in question the defendant was "working continually on cars". He said, "He would have numbers ranging from one to two cars and he would work on them openly in the back yard". He said that during this period the defendant acquired what was described as an "A frame" which was a mechanism involving a block and tackle and chain which was used to pull motors out or do other heavy lifting. He said that the work performed by the defendant included grinding, cutting down, sanding, bogging (filling depressions with putty) and panel beating.
128. The defendant's back yard work was noisy. The continual noise irritated Mr Martin to the extent that in December 1991 he approached the Council of the City of Salisbury complaining that the defendant was in breach of planning laws and was conducting a business in a residential area. Mr Martin began to keep a note of details of some of the activities, and eventually allowed the roof of his house to be used as a vantage point from which inquiry agents began surveillance and filming. Mr Martin also asked the defendant to stop the activity, but to no avail. His evidence was that on some occasions the defendant would only work for five to ten minutes but on other occasions he would work "all day".
129. The surveillance from Mr Martin's premises of the activities of the defendant was conducted by four investigators who were all called to give evidence and who authenticated a six and a half hour long video depicting some of the activities which they observed. These activities included the pushing of a van up on to a trailer, the lifting of motor vehicle parts with the block and tackle, removing parts from vehicles, attaching components, and dealing with people apparently involved in negotiations to buy vehicles. Their observations also included sightings of the defendant attending motor vehicle auction yards and car wreckers, where he was seen to purchase parts. His attendance at auctions was often followed by the delivery of vehicles to his home when he would set to work restoring them.
130. Two auctioneers were called who had come to know the defendant as a regular attendee at auctions conducted by them and as a purchaser of vehicles. A car wrecker with whom the defendant had dealt was also called.
131. Three witnesses were called who were said to have participated in a particular exercise of swapping the engines of two cars at a date which seems likely to have been early in 1992. Those witnesses were Brian Pierce, Darren Gliscinski and Paul Swan. They gave evidence that the defendant, with their assistance, removed the engine from one car and fitted it into another, and that separately the transmission was then removed from the engine which had been installed in the car and replaced with another. Their evidence painted a graphic picture of the engine being removed with a block and tackle and then, free of the block and tackle, being carried by the four of them a distance as to which estimates varied but which was apparently between six to ten feet. The motor, which was from a Ford Falcon motor car, was described as very heavy. Once the change over of the motor was effected, a considerable amount of further work in connecting the other component parts to it was undertaken by the defendant. In the course of that activity the defendant was observed by the three witnesses, or some of them, in various positions, including lying under the car and bending over the bonnet, and undertaking a wide range of tasks. They were unanimous in their evidence that in all this he showed no sign of physical discomfort at all.
132. Their evidence went further than a description of the physical activities associated with the engine swap. Mr Pierce said (T108):
"... Dave said that he was on WorkCover for a bad back which
he hasn't got. He then said that he was, there's nothing
wrong with his back and he was only in it for the money side
of it to pay his house off."
133. Later when recalled for cross-examination by Mr Gabrynowicz for the defendant, he said (T453):
"Q. Mr Fedcheshen told you that he had a Worker's
Compensation claim against his employer.
A. He said that he was on Workcover for a bad back which he
didn't have.
Q. How did that arise.
A. I don't know. He just came out and told me. ... He said
to me that there was nothing wrong with his back, that he
was only in it to pay his house off, the Workcover."
134. Mr Gliscinski gave similar evidence (T128):
"He just said that he was on worker's compensation from
General Motors-Holden and that he was supposed to have a bad
back."
135. Later he said (T129):
"He just said he's paying his house off with the
compensation money that he was receiving."
136. When recalled for cross-examination by Mr Gabrynowicz, he said that the defendant had told him that he was supposed to have a bad back but that he (Mr Gliscinski) had seen no evidence to support it.
137. The evidence of Mr Swan was (T525):
"David Fedcheshen said that he was on Worker's Compensation
to pay off his house."
138. Mr Pierce and Mr Gliscinski also gave evidence of approaches made to them by the defendant after he had been served with the proceedings in question.
139. Mr Pierce's evidence was that the defendant had rung him and asked him whether he would "go to court and be a character witness". He continued (T10):
"A. He rang me, asked for me and I picked the phone up and
said, 'It's me speaking' .... He some how got around to
saying that if he has to go to court will I go as a
character witness for him.
Q. Yes.
A. And I said, 'If I go to court I'm going to tell the
truth, exactly what happened. I'm not going to perjure
myself'.
Q. Did he say what he meant by character witness.
A. No, because as soon as I said that he hung up the phone.
Q. Did he say anything about what he wanted you to say.
That's what I mean.
A. No, not at all. As soon as I said that I was going to
court to tell the truth and not to perjure myself he hung
up. ....".
140. Mr Gliscinski's evidence as to that aspect of the matter was that he had phoned the defendant as he (Gliscinski) was interested in selling him a car. His evidence was (T133):
"A. He wasn't interested in buying my car and he asked me if
I would go to court with him if worse came to worse.
Q. Would you tell us exactly what he said.
A. He just said, 'If worse came to worse would you go to
court with me?'
Q. Did he say or explain what he wanted you to go to court
for.
A. Yes, to say that we did the work and that he wasn't doing
anything."
141. As to proof of the defendant's carrying on a business, some five purchasers were called to give evidence of having purchased vehicles from him during the relevant period.
142. Three medical practitioners were called by the complainant. The defendant did not call any expert medical testimony.
143. Dr Karunaratna's evidence was that he had seen the defendant on and off since about 1981. From that time he spoke of the defendant giving a history of neck and shoulder pain. At times he thought that this was associated with limitation of movement but not always. It was the left shoulder which was involved. He thought that between 1985 and 1991 there was some degenerative disease of the neck and some narrowing of discs of the spine apparent in x-rays.
144. The defendant did not consult a doctor with respect to the injury alleged to have been suffered on 12 February 1990 before 21 February 1990 when he saw Dr Karunaratna (T437). He gave a history consistent with the description of the alleged incident which he had given to the employer when making the claim for compensation. Dr Karunaratna's evidence (T441) was that he was of the opinion that there was sufficient injury to the cervical and lumbar spine to cause pain in both of those areas.
145. Notwithstanding that, having had part of the video film of observations of the defendant displayed to him in December 1992, his evidence was (T88):
"Q. If it is the case that the evidence demonstrates that he
was doing those things (that is, the things displayed on the
video) at about the time that he was consulting you, and had
you known about it at the time of the consultations, would
you have so certified him.
A. I wouldn't have given him the medical certificates, no."
146. He gave similar evidence later in answer to the learned Special Magistrate (T90). His evidence was to the same effect when he was re-examined after being recalled for cross-examination by Mr Gabrynowicz (T446-447).
147. Evidence from Dr Nitchingham was that although he had seen the defendant with respect to an alleged injury to the neck and shoulder in 1989, he specifically complained of the incident in question when he consulted Dr Nitchingham in December 1991. Dr Nitchingham was unable to find any physical signs consistent with the disability of which he complained, but he was given a certificate for two days off work. He, too, was shown the video film, or part of it, and his evidence was that the activities on it were inconsistent with the defendant's presentation to him (T73). His further evidence was:
"Q. At the time that Mr Fedcheshen consulted you, if it be
the evidence that he was doing that sort of work - would you
find that inconsistent with his presentation to you.
A. Yes.
Q. If His Honour at the end of the day accepts that around
about the time you were certifying him unfit for work he was
doing that style of work, if you had known that, would you
have so certified him on the occasions you did.
A. No."
148. Mr Harold Schaeffer, the neuro-surgeon, gave evidence of having seen the defendant on two occasions, one in August 1987 and the other in March 1992.
149. He gave evidence that on the latter occasion the defendant presented with what he described as diffuse symptomology, and that he could find no abnormality on clinical examination. In particular there was no loss of mobility of the shoulder joints. He found no pathology in x-rays. He thought the presentation unrealistic (T240) and that there was no evidence to support the defendant's allegations of injury. He did not consider him to be incapacitated for work.
150. After seeing the whole of the video films, he reached the view that they disclosed no evidence of disability and that they were indicative of strenuous movements. When confronted with evidence of the nature of the impact alleged to have been suffered in the incident which occurred on 12 February 1990, his evidence was that at most this could have given rise to some soft tissue injury which he might have expected the defendant, in the ordinary course, to have got over within a matter of weeks. He thought that it was not feasible that the defendant could experience long term problems without some evidence of a physical nature which was not apparent on his examination, or in the x-rays.
151. The only other aspect of the complainant's case to which it is necessary to refer is the body of evidence of the extensive advertising in the press which the defendant arranged, that is, advertising of vehicles or spare parts. Advertising was conducted in the Adelaide Trading Post, the Advertiser, the Sunday Mail and the News. On some occasions more than one advertisement was placed in a particular edition of one of those newspapers, and on other occasions more than one of the newspapers published on the same day carried an advertisement from the defendant. The complainant tendered no less than 210 separate advertisements.
152. The learned Special Magistrate found, and the finding was not challenged on appeal, that between 1 November 1991 and 3 September 1992 the defendant was off work and was paid income maintenance for a total of 89 days. He further held that on 38 of the 89 days off work, advertisements placed by the defendant appeared in one or more of the newspapers to which I have referred, and that on 15 other occasions, advertisements placed by the defendant appeared in one or more of the newspapers on the day immediately preceding the day on which the defendant was off work.
153. This means that out of a total of 89 days with respect to which he gave to GMH a medical certificate certifying his unfitness for work, either on the same day or the preceding day on no less than 53 occasions, he had advertised vehicles or parts for sale.
154. In the case of the Trading Post it was necessary for the advertisement to be placed by 4.00 pm on the preceding Tuesday. The paper is a weekly paper which is published on Thursday of each week. Clearly, the advertisements in the other papers would necessarily have had to have been inserted before the day upon which the advertisement appeared.
155. The defendant lived alone. If the particular advertisements were to be efficacious it was necessary for him be home to receive telephone calls.
156. It must be accepted that all of the findings of fact made by a learned Special Magistrate must be reviewed when the conviction is challenged. It is never enough to say simply that there was material upon which the learned Special Magistrate could come to the conclusion which he or she reaches. The nature of the re- hearing involved in an appeal of this kind is to impose upon the Judge hearing the appeal the obligation to re-assess the evidence and to make up his or her own mind-
"... not disregarding the judgment appealed from but
carefully weighing and considering it, and not shrinking
from overruling it if, on full consideration, the court
comes to the conclusion that the judgment is wrong".
Coghlan v Cumberland (1989) 1 Ch 704, cited in Taylor v
Hayes (1990) 53 SASR 282 at 290.
157. Of course, in performing that process, the court does not have the undoubted benefit of the Magistrate in seeing and hearing the witnesses give their evidence, and generally speaking, the appellate court must be "guided by the impression made on the Judge who saw the witnesses" (ibid) 704.
158. As I observed in Taylor v Hayes (supra) at 291:
"Grounds of appeal under the Justices Act when the appeal
relates to disputed matters of fact should embody a
recognition of the fact that the task of this Court on such
an appeal is to reach its own view of the case by making an
independent review of the evidence. An appeal may be
allowed even if there is evidence to support the
Magistrate's findings. While it must give due weight to the
advantage held by the Magistrate in seeing and hearing the
witnesses, if this Court reaches a different view on the
evidence, it must give effect to that by substituting its
view for that reached by the Magistrate ....."
159. In performing that task in this case, I have re-read the evidence and also viewed the video films.
160. The learned Special Magistrate formed a favourable view of the credit of the witnesses called by the complainant.
161. However, he concluded that the defendant was "not a credible witness". He observed (16):
"Under cross-examination the defendant became belligerent
and cocky. He resorted to derogatory remarks about
witnesses whose evidence conflicted with his. When pressed
on matters of detail and for explanations of the
contradictions on precise topics, he became evasive. He
repeatedly refused to answer questions and challenged the
prosecution to prove matters. He repeatedly made remarks
which indicated that he did not take the proceedings
seriously and that he regarded the trial as a joke."
162. As to the only witness called by the defendant, Mr Pinnuck, the learned Special Magistrate found that he was inclined to exaggerate and appeared to be "trying to protect his friend, the defendant". He considered that his evidence was not consistent with the activity shown on the video film.
163. The defendant complains that the video film does not support the learned Special Magistrate's finding that "there are many sequences which depict the defendant performing quite heavy work". The defendant also complains that the learned Special Magistrate made too much of the evidence of Mr Martin, and that when viewed critically, the evidence did not go so far as to support the conclusion that Mr Martin saw anything which could be described as "heavy" work except on an isolated two or three occasions.
164. The evidence of the three witnesses, Messrs Pierce, Gliscinski and Swan, as to the engine swapping incident is, according to the defendant, to be discounted by reference to conflicts between matters of detail in their testimony.
165. But in my opinion, the evidence of activities portrayed in the video displays a freedom of movement and a range of movement quite inconsistent with any suggestion that on the occasions he was filmed the defendant was labouring under any significant neck, shoulder or back condition.
166. In presenting the case for the defendant on appeal, I think that his counsel fell into the error of inferring that heavy work necessarily meant lifting heavy objects. While lifting heavy objects is one class of heavy work, it is by no means the only class of it. There was sequence after sequence in the video of the defendant being depicted in awkward positions while working on the cars which he was renovating, and there was evidence of his use of tools while in awkward positions, all of which, on any view of the matter, must be regarded as heavy work.
167. There is nothing in the minor discrepancies which might appear on a close analysis of the evidence of Messrs. Pierce, Gliscinski and Swan to suggest that their account of the activity of the defendant in association with the work involved in swapping the engines between vehicles is other than entirely reliable. The learned Special Magistrate regarded them as reliable and I accept his assessment of them.
168. Likewise their evidence as to the damning statements made by the defendant to the effect that he did not really have a bad back, and that he was claiming compensation only to assist in paying off his house, is both convincing and telling against the defendant.
169. True it is, as the defendant pointed out on appeal, the defendant received income maintenance at a somewhat lower level of remuneration than his ordinary rate of pay which he would have received if he had attended at work. But his statements to the witnesses who spoke of his admission that he was paying his house off while on compensation are explicable by reference to the fact that many of the days off freed the defendant to engage in activities which enabled him to pursue his business activities which in turn generated profits. The defendant's suggestion that his activity in repairing cars was simply a hobby or pastime which did not produce a profit, is so implausible as to be totally unworthy of belief.
170. The defendant's attempt to suborn Mr Pierce and Mr Gliscinski into giving false evidence in his favour, extinguishes any vestige of credit which the defendant might otherwise have retained.
171. The evidence as to the 53 occasions upon which advertisements were placed, either on the day or on the preceding day, before he took a day off work, coupled with the necessity for the defendant to have placed the advertisements with the newspapers concerned ahead of the day upon which they appeared, quite apart from any other evidence in the case, serves to shatter the credibility of any evidence which might otherwise have given rise to the possibility that he might have been unfit to work on those days. Given the number of occasions upon which that sequence occurred, the only sensible conclusion to be drawn is that the defendant was deliberately fabricating an excuse to have a day off and to be compensated for it while he went about disposing of the vehicles or vehicle parts. That evidence, viewed in the context of the evidence as a whole, puts the defendant in the position where any innocent explanation for that sequence of events defies belief.
172. The only unease I have is with respect to the learned Special Magistrate's findings of facts is as to the medical evidence. He found that the evidence of Mr Schaeffer, Dr Karunaratna and Dr Nitchingham "stands unchallenged" (21). That conclusion was, no doubt, true in the sense that although they were cross- examined, no medical evidence was called by the defendant.
173. The learned Special Magistrate was correct in finding that the evidence of Mr Schaeffer is "damning to the defendant". Furthermore, I think that his finding that "the medical history showed that a superficial injury only resulted from the accident at work on 12 February 1990" was fully sustained on the evidence, and is not one with which I would interfere.
174. I am not so sure, however, that it is right to say, as he did, that "Doctors Karunaratna and Nitchingham support the evidence of Mr Schaeffer". There were some differences, particularly between Dr Karunaratna and Mr Schaeffer in that in the case of the former he was prepared to accept that there might have been some ongoing disability and limitation of movement, although he was adamant that if activity of the kind depicted in the videos was occurring at or about the time at which he was issuing the certificates, he would not have issued them. Mr Schaeffer, on the other hand, excluded any possibility that throughout the relevant period the defendant would have been suffering from any disability at all.
175. After reviewing the medical evidence, the learned Special Magistrate made the following findings (reasons 22):
"I am satisfied and I find beyond reasonable doubt that
there is no medical basis for the symptoms of which the
defendant complained when he was examined by Mr Schaeffer.
I am satisfied and I find beyond reasonable doubt that there
was no medical basis for each of the medical certificates
obtained from Dr Karunaratna and Dr Nitchingham by the
defendant.
I am satisfied and I find beyond reasonable doubt that the
defendant falsely stated that he had back problems
preventing him from carrying out his work.
I find that he was fit to do the work allocated to him by
the employer.
I am satisfied that on each occasion on which he presented a
medical certificate to the employer the defendant thereby
made a pretence that he was unfit for work and that each
such pretence was false.
I so find beyond reasonable doubt."
176. Notwithstanding the evidence of Doctors Karunaratna and Nitchingham as to the fact that they would not have issued the certificates in question if at or about the time of their issue there was video film depicting activity of the kind shown in the films in question, not all of the sequences of video film coincide or are close to occasions upon which medical certificates were issued. While the body of evidence in this case would unquestionably have put the defendant out of court in any civil claim, it must be borne constantly in mind that this case involves the criminal onus as to each and every presentation of a certificate.
177. Notwithstanding the nature of the medical evidence, and notwithstanding the various admissions made by the defendant and the depth of the evidence that over the relevant period he was fit for work, it is important not to allow that evidence to be taken too far. This is particularly so with respect to occasions upon which there was no sighting of him recorded in the video filming, and no coincidence with advertisements to do with his back yard business. I think it would be difficult in the circumstances of the case, notwithstanding the weight of the evidence for the complainant, to exclude a possibility that he might not have been fit for work on some occasions when he presented a certificate.
178. That possibility does not deflect me from confirming the conviction on the compendious count. As I have attempted to make clear, proof of that count does not depend upon proof of every single activity said to be comprehended by it.
179. I should say, though, that while there was overwhelming evidence which quite properly led to a conviction on the compendious count, I would sustain the conviction on the basis that on a substantial number of occasions, indeed, on most of the occasions upon which a certificate of unfitness for work was presented during the period in question, the certificate was part of a dishonest pretence that the defendant was unfit for work.
180. However, the fact that it is possible that the complainant has not proved beyond reasonable doubt that the defendant was unfit for work on a few occasions when a certificate was presented, makes it necessary to review in due course the order for repayment of the total amount involved.
181. I deal with that matter in dealing with the appeal against penalty.
182. I do not pause to deal expressly with every one of the defendant's contentions with respect to the factual findings. I have carefully considered all of Mr Dixon's arguments, but in my opinion, none of the attacks upon the learned Special Magistrate's findings of fact can be sustained. On my own review of the evidence, in my opinion, the learned Special Magistrate's findings in that respect were fully justified. They are findings to which I would come without hesitation on my own view of the evidence, assisted by the learned Special Magistrate's findings as to credit.
183. A ground of appeal based upon the assertion of a "claim of right" was not pursued before me.
184. The appeal against conviction must be dismissed.
APPEAL AGAINST PENALTY
185. The complainant's appeal against penalty is limited to the contention that the learned Special Magistrate erred in exercising his discretion to suspend the term of imprisonment of eleven months which he imposed.
186. That discretion arises having regard to the terms of s38 of the CriminalLaw (Sentencing) Act 1988. Relevantly, that section provides:
"38(1) Where a court has imposed a sentence of imprisonment
upon a defendant, the court may, if it thinks a good reason
exists for doing so, suspend the sentence on condition that
the defendant enter into a bond -
(a) to be of good behaviour: and
(b) to comply with the other conditions (if any) of the
bond.
(2) ..."
187. In support of his appeal against penalty, the complainant asserts that there was no "good reason" for suspension of the sentence within the meaning of those words in s38(1).
188. In dealing with this aspect of the matter it is first necessary to have regard to what the conviction as upheld by me, represents.
189. I have been at pains to point out that a conviction upon a compendious count is not to be taken to be in some way the aggregation of a conviction on the individual instances said to go to proof of the course of conduct relied upon. There is only conviction for one offence, namely, in this case an ongoing course of conduct amounting to a dishonest pretence between the dates alleged by reason of which the defendant obtained the various payments and benefits asserted.
190. For the reasons which I have already given, I perceive a difficulty in upholding the conviction on the footing that every one of the individual instances of dishonest obtaining which find expression in the 59 counts following count 1 of the complaint are to be regarded as having been made out.
191. When it comes to penalty, it is necessary to have regard to what conduct must be taken to have been proved beyond reasonable doubt. Here, for the reasons I have indicated, I am satisfied that the overwhelming majority of instances of dishonest obtaining particularised in the various counts was proved beyond reasonable doubt. But it would not be right to exclude the possibility of a failure to prove a few instances beyond reasonable doubt, particularly in those instances not coupled with advertisements.
192. So that for the purposes of penalty, the course of conduct proved must be taken to embody proof of the rump of the individual fraudulent acts asserted against the defendant, but not every individual instance of alleged dishonest obtaining.
193. During the course of his remarks on penalty, the learned Special Magistrate said:
"You obtained those benefits by fraudulent means. It was in
my view a deliberate and calculated course of fraud. Due to
those factors I think the offending must be regarded as one
of the more serious examples under the WorkCover
legislation. You have materially little to show for the
amount you have obtained. Your financial position obviously
is still very modest. Although you live in your own house
it is mortgaged to the hilt. I am told that the situation
has deteriorated because you had to take a second mortgage
in order to underwrite the cost of some other legal
proceedings, unrelated to these. There is, in your present
circumstances of unemployment and modest overall financial
position, a poor prospect of recovery. In fact
Mr Gabrynowicz has pointed out that as a consequence of the
orders I will have to make today there is a very real
probability you will have no choice but to go bankrupt."
194. He went on to say that the offending was rightly categorised as being more in the nature of "greed than need". However, he then distinguished a line of authority to which he had been referred, concerning the punishment of social security offenders. As to that, he said:
"They provide some guidance but I think that the
distinguishing factor between social security offending and
offending under legislation such as WorkCover is that social
security offending involves the cheating of a government
agency. Courts always seem to take a very severe view of
that."
195. He went on to refer to what he described as "changed circumstances" since the offences were committed. He drew attention to the facts that the defendant had married, had responsibility for a five year old son of his wife through another relationship and that his wife was pregnant with another child to be born in a matter of weeks.
196. He referred also to the fact that the defendant had been unable to return to the work force regularly since his dismissal by GMH, and had undertaken a TAFE course which was likely to lead to a certificate in "quality assurance". He went on to say:
"I am told by your counsel that your social outlook has
changed to a more positive one. I think that there are some
prospects for you leading a more useful life. After giving
careful consideration to all the matters which have been put
to me today I conclude that there are good reasons to
suspend a sentence of imprisonment. I should add I have of
course taken into account the absence of any offending of
any significance during your adult life."
197. In my opinion, and with respect to the learned Special Magistrate, those remarks are in part erroneous.
198. In the first place, I think that it is right to draw an analogy between this type of offending and social security cases.
199. In an unreported decision involving WorkCover fraud, namely, WorkCover Corporation v Jelfs, 8.5.95, judgment 5088 (available on SCALE), Cox J thought the two to be comparable: see at page 3:
"I was taken to the recent decisions in this Court which
emphasize that deterrence is the paramount consideration for
social services frauds, and I accept Mr Rice's argument that
a worker's compensation fraud of the present type, that is,
for weekly payments to a worker or for income maintenance
reimbursements to an employer, is not distinguishable in
type from a social services fraud.
The cases upon which Mr Rice relied particularly were R v
Cameron and Simounds (1993) 171 LSJS 305, The Commonwealth v
Hammond (1993) 178 LSJS 92 and R v Loveridge (1994) 178 LSJS
234. Those cases were of systematic frauds, in at least two
of those cases by the use of fictitious claimants, made
under the social services legislation over a lengthy period
of time and the Supreme Court put great emphasis upon the
obligation on sentencing courts to impose penalties that
would deter potential wrongdoers from engaging in that kind
of persistent public fraud. It did not avail the
respondents in those cases that they had no previous
convictions. As I have said, the paramount factor which a
sentencing court is obliged to take into account in these
cases is deterrence, deterrence of the particular offender
from further wrongdoing but deterrence, especially, of
others who might be minded to take the same dishonest path."
200. With respect to Cox J, I agree with those observations.
201. The cases establish that the imposition of a penalty other than an immediate custodial term where there is a deliberate, systemic defrauding over a period of time, is exceptional. Furthermore, insofar as an even more serious view is to be taken where the victim is a government agency, I cannot see that there is any difference between WorkCover Corporation and a government agency, or between an exempt employer and WorkCover. It would be a strange result if there was one tariff for Workcover fraud and another when the employer is exempt. What is important is that the effective operation of the scheme of compensation for employees who suffer work related injuries, which finds expression in the Act, and which is for the benefit of the community at large, is placed at risk when a worker cheats the system deliberately by embarking on a course of blatant fraud and deception in an endeavour to obtain payments and benefits when the worker knows that no proper basis for the asserted claim exists.
202. Such offences are difficult to detect, and when uncovered, deterrence must be at the forefront of the sentencing process.
203. In my opinion, none of the personal circumstances of the defendant amounted to good reason in this case to suspend the sentence of imprisonment, given the seriousness of the offending and the need for deterrence. The suspension of the term of imprisonment imposed indicates a failure by the learned Special Magistrate to recognise the seriousness of the offending and the need for deterrence, and gives rise to appealable error.
204. This was, on any view of the matter, a serious case. The attempt by the defendant to suborn witnesses, his lies when in the witness box and the attitude displayed by him in the conduct of his defence, as noted by the learned Special Magistrate, were unquestionable circumstances of aggravation.
205. I remind myself of the traditional reluctance of the appellate courts to entertain appeals by the prosecution against penalty. Most of the authorities, such as the recent decision of the High Court in Everett v R (1994) 68 ALJR
875 concern cases where it is necessary for the prosecution to obtain leave to appeal. Here, there is an appeal as of right. But there is still an element of double jeopardy, and the allowing of appeals against sentence by the prosecution or the complainant in summary matters must be confined to clear and exceptional cases.
206. In my opinion, this is one such case.
207. During the course of argument on the appeal as to penalty, reference was made to the order made under s120(3) of the Act that the defendant "make good" the loss suffered by GMH. As I have indicated, the amount ordered to be paid to the Registrar for transmission to GMH was $12,022.88.
208. I would construe the section to mean that any order for reimbursement should be confined to a "loss" which has been proved beyond reasonable doubt.
209. At one stage I invited counsel to supply to me a list of the payments made which were associated with days off which coincided with or immediately followed the placing of advertisements by the defendant. That list indicates that a total sum of $2,253.28 being payments or benefits, is associated with those occasions. But on reflection, I consider that proof beyond reasonable doubt extends beyond that amount, and for the reasons which I have given, extends to the rump of the payments and benefits in question.
210. The law is not so helpless as to be unable in that situation to adopt a practical and commonsense approach. In my opinion, in a case such as this, it is open for the Court to order reimbursement of an amount in a round figure which represents what may safely be regarded as the total of benefits and payments which have been proved to have been obtained dishonestly, having regard to the appropriate standard of proof.
211. Adopting that approach, I would vary the amount of the loss to be reimbursed to $10,000. I add that although there is no appeal by the defendant as to that, pursuant to s42(5)(a) of the Magistrates Court Act 1991, it is open to me to "confirm, vary or quash the judgment the subject of the appeal and if the court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings".
212. During the hearing before me, reference was also made to the substantial costs, $48,000, which the defendant was ordered to pay.
213. Whether, as was suggested to the learned Special Magistrate, and repeated before me, the defendant can obtain relief in bankruptcy is open to question. "Penalties or fines" imposed by a court in respect of an offence against the law are not provable in bankruptcy (Bankruptcy Act 1966 (Commonwealth) s82). If not provable, their enforcement otherwise would, presumably, not be affected by bankruptcy.
214. The enforcement provisions of Part IX, Division III of the Criminal Law(Sentencing) Act 1988 apply to orders for the payment of "pecuniary sums" (which presumably are "penalties or fines" within the meaning of s82 of the Bankruptcy Act). Furthermore, in the Criminal Law (Sentencing) Act, the expression "pecuniary sums" includes "compensation" and "costs" (see s3(1)).
215. But whatever may be the position in that regard, and whether or not the defendant can seek relief in bankruptcy, or by the exercise of the ameliorative procedures to be found in Part IX, Division III of the CriminalLaw (Sentencing) Act (see, for example, ss65 and 67), those considerations do not deflect me from the view that in this case the term of imprisonment should not have been suspended.
216. I allow the appeal against sentence to the extent that the order suspending the sentence should be quashed and in lieu thereof there be substituted an order that the term of eleven months imprisonment take effect as a custodial term of imprisonment. The defendant is to surrender himself to the Adelaide Magistrates Court for the purpose of carrying into effect that order, within seven days of today. Having regard to the time taken with the appeal process, I vary the order for time to pay the amounts which are now $10,000 under s120(3) of the Act and $48,000 by way of costs from three to six months commencing from 31 May 1995, being the date upon which the defendant was sentenced. The other orders made by the learned Special Magistrate are confirmed.
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