WorkCover Corporation v Camarinha No. Scgrg-99-813 Judgment No. S390

WORKCOVER CORPORATION v CAMARINHA
[1999] SASC 390

Magistrates Appeal: Criminal

MULLIGHAN J The respondent was charged on the complaint of the appellant with 58 offences of dishonesty against s120 of the Workers Rehabilitation and Compensation Act 1986. He had been receiving benefits under the Act and it was alleged that he made false and misleading statements when making claims under the Act, had dishonestly claimed to be entitled to payments or other benefits under the Act and had dishonestly obtained payments or benefits under the Act. The offences were alleged to have occurred during the period from 28th August 1997 until about May or June 1998. He pleaded not guilty to all charges and the complaint came to trial before a learned Magistrate on 10th June 1999.
An issue at the trial was that the respondent had behaved dishonestly because of an apparent difference between his presentation in clinical circumstances to medical practitioners and rehabilitation officers assessing him for purposes relating to his claim for benefits under the Act and his physical capacities said to be depicted in video tapes.
The prosecution case was that the respondent sustained a work-related injury to his back in 1991 which was aggravated in 1996. He claimed to be incapacitated for work and made representations to that effect to medical practitioners and in claims to WorkCover Corporation.
The prosecution arose in consequence of the activities of a Mr Domingues. At relevant times he was also receiving benefits under the Act. He wanted to erect a shed on his property at Ottoway. He discussed this project with the respondent and two other friends, Mr Ferreira and Mr De Silva, who were also receiving benefits under the Act or other legislation. The respondent, Ferreira and De Silva agreed to help Domingues erect the shed. They were not to receive any payment. The work commenced in 1997 and the respondent participated with Ferreira and De Silva and others.
Shortly after the work commenced, Domingues hired a video camera, from a retailer at Prospect. He used the camera to film the activities of the men, including the respondent, as they worked in the erection of his shed on 8th September 1997. The camera was unsatisfactory so he purchased a video camera for the same purpose. The video camera was equipped with a device which would record the date upon which the film was taken. Domingues and his wife used the video camera to record the men working on the shed over a period of days commencing on 9th September 1997. The dates shown on the video tapes are not correct because of a rewinding process undertaken by Domingues. He recorded the man working on the shed on seven days in September 1997 having set up the video camera in his kitchen directed out through the back door towards the shed. Those days were 8th, 9th, 10th, 11th, 17th, 25th and 26th September 1997. He conducted this activity without the knowledge of the men. In order to avoid arousing their suspicion, his procedure was to film the men for a short time, stop the video camera, go outside and check the work and return inside and start the camera again. He used four tapes. It is not entirely clear if the recording on each of those days is on a separate tape. There may be some overlapping, particularly with respect to the first two days but that is a matter of little consequence. Domingues kept each of the four tapes and made notes with respect to each tape. The evidence is a little confusing but it seems that at various times after using the video camera, he viewed the particular tape and then copied on to a larger tape what he considered to be relevant matters. It appears that before doing so he edited each of the tapes to exclude what he said was irrelevant. It is not clear from the evidence when he carried out the editing but it seems that he may have done so during the course of video taping on each day. In all, there are the original four tapes and the larger tape. He kept all of them in the ceiling of his home.
Domingues was in contact with Mr Basey who is an investigator employed by WorkCover Corporation in its fraud investigation unit. In February 1998, a video tape on to which the extracts of the other video tape of the men which Domingues regarded as relevant had been copied was handed by him to his brother-in-law who, in turn, passed it on to an officer of WorkCover Corporation in unusual circumstances. Domingues hid in the house and observed the passing over of the video tape without the officer being aware of his presence. He secretly filmed this incident on video tape.
Domingues spoke to Basey about the men on 12th February 1998. He told him that he would go to court to give evidence for $50,000. He also asked Basey to assist him to sell the tapes to other organisations involved with the worker’s compensation payments to the other men. There is no evidence to suggest that Basey, or anyone else at WorkCover Corporation, agreed to make any payments to Domingues.
The respondent was questioned by Basey on 31st March 1998. In March 1999 he obtained the four original tapes from Domingues. The respondent was charged on 31st August 1998.
When the trial commenced Ms Fuller, who appeared for the respondent at the trial and on the hearing of this appeal, objected to any of the video tapes being admitted into evidence on the ground that the “provenance” of the tapes had not been established or, in the alternative, that the prejudicial effect of this evidence far outweighed its probative value. The learned Magistrate permitted a hearing on the voir dire on this matter. The only witness called on the voir dire was Domingues. The learned Magistrate excluded all of the video tapes from the evidence to be given at the trial. He was informed that without their evidence, the charges could not be proved against the respondent. The learned Magistrate proceeded to dismiss all of the charges and made an order that the appellant pay the costs of the respondent.
Before the learned Magistrate dismissed the charges, the prosecutor applied for an adjournment. He wanted to call Basey to give evidence about his custody of the video tapes upon receiving them from Domingues. The application was opposed on the grounds that the complainant was aware of the issue about the admissibility of the video tapes well before the trial and had not supplied a copy of any statement of Basey to the defence. There was no evidence which could have been admitted in documentary form. The prosecutor also proposed to lead from Basey the evidence of his questioning of the respondent during the interview, presumably to give some authenticity to the video tapes from alleged admissions made by the respondent. The learned Magistrate refused the application.
The learned Magistrate found that Domingues was not a witness of truth and that he had told lies to WorkCover Corporation and to the Court. He said that his evidence was “riddled with inconsistencies” and that he was “the most unimpressive witness” he had ever encountered. In consequence he could not accept his evidence as to what he described as the provenance of the video tapes. The learned Magistrate concluded that the complainant could not prove the provenance of the video tapes in the relevant sense and, consequently, they could not be admitted into evidence.
The sole ground of appeal is that the learned Magistrate erred in excluding the evidence of the four video tapes taken in September 1997 and that he should have granted an adjournment upon the application of the prosecutor to enable him to call further evidence on the voir dire, including evidence from Mr Basey.
In reaching his decision about the provenance of the video tapes, the learned Magistrate relied upon the decisions of Shaw J in R v Robson; R v Harris [1972] 2 All ER 699 and Judge Bishop of the District Court in R v Briers & Ors (17th April 1996, Jd No D3417). In Robson the Court was concerned with the admissibility of audio tape recordings. Shaw J concluded that upon a challenge of evidence of this nature the “judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in court” and that the degree of proof was on the balance of probability: see p701. It was accepted in that case, and before the learned Magistrate in the present case, that the onus of proof rests upon the prosecution. Proof of provenance of a tape recording was acknowledged to be essential: Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 at p186. In Briers, Judge Bishop followed the approach in Robson. He was concerned with the admissibility of video and photographic material. He said at pp12-13:
“Although the word ‘provenance’ generally refers to ‘the source or place of origin’ of something, reference to legal authorities would seem to indicate that, in this context, the word also connotes the ‘authenticity’, accuracy and integrity’ of origin.”
In expressing this view, His Honour was adopting various expressions of Shaw J in Robson and his process of reasoning. However, I do not think it is necessary to give an extended meaning to “provenance”. According to the Shorter English Oxford Dictionary, it means, “The fact of coming from some particular source or quarter: derivation”. As Shaw J observed in Robson, the issue is originality, involving provenance and the history of the tapes.
In the present case, the focus upon provenance of the tapes is unhelpful. Their originality, reliability and history are more significant matters.
As has been seen, the learned Magistrate rejected the evidence of the maker of the video tapes. He found him to be totally untrustworthy and a liar.
Domingues edited each tape in the sense of decided what was to be recorded on it. He decided what was relevant. The learned Magistrate made this further observation about him:
“Mr Domingues came across as argumentative, opinionated and evasive. He had some fixed and preconceived ideas about what he considered to be relevant evidence to build a case against the defendant. There is an abundance of evidence to show that his motive was certainly not one of a civic minded person. It is abundantly clear from the evidence that Mr Domingues went to considerable expense and effort to obtain video evidence of this defendant and his other two friends for monetary gain. Even though he tried to explain that away in court by saying that the demand for money was made only in jest, I am satisfied from the evidence that his motive was purely mercenary, however that somehow became unstuck. He made it clear that he still intends to follow up the question of compensation after this trial is over.”
The learned Magistrate correctly concluded that the prosecution had to rely upon the evidence of Domingues to establish the originality and history of the video tapes. He said:
“The prosecution’s attempt to prove the provenance of the tapes therefore stands or falls on the evidence of Mr Domingues. I do not accept him as a witness of truth, in fact, he must be the most unimpressive witness that I have ever come across. He lied to WorkCover officers and he has continued to lie in court. His evidence is riddled with inconsistencies.
In the circumstances, I am not satisfied that the tapes in question have been ‘in safe and secure custody without opportunity of fabrication or tampering of any kind’. The potential and opportunity for Mr Domingues to edit or tamper with the tapes in some way to present the defendant in the worse possible light in order to enhance his mercenary prospects is far too great to be ignored. As far as the copy tape, there is no satisfactory evidence before me of the copying process and in any case, there is direct evidence that he only reproduced part of the original tapes.
In my opinion, the videotapes VDP4, VDP5, VDP6 to VDP7 and the copy should be entirely excluded from evidence.”
Using the expression provenance in that composite way, the learned Magistrate was correct in his conclusion. Without question, the video recordings were incomplete with regard to any incident filmed. Furthermore, they were edited to exclude all images which such a biased and totally discredited witness considered to be irrelevant. It is not merely a matter of what is shown on the tapes which is relevant but what is not shown. A worker with a bad back may undertake some work of a physical nature and give the appearance of no incapacity, only to show symptoms and indications of pain and restriction soon after. In a case of this nature, the video film had to show the whole context and the activity over the total relevant period to be of assistance in proving the facts in issue, namely that the respondent was capable of performing inconsistently with his presentation to medical practitioners as alleged by the prosecution. Given the selection of what is depicted on the tape and the subsequent editing, the tapes could not assist in the resolution of this issue. The originality of the original tapes was severely compromised. It is a mistake to treat the edited tapes as the original tapes. What the prosecution was seeking to have admitted into evidence were essentially different tapes which had been altered and edited by an untrustworthy person with a motive to present the most damaging depiction of the respondent as possible.
Mr Moffa, for the appellant, contended that the images on the tapes speak for themselves. They show the respondent in various situations and undertaking physical activities. Unlike audio tapes, they cannot be distorted or tampered with to give a false impression. They should have been admitted for what they could show. For the reasons already given, I reject that contention. If the total incident was filmed, a very different impression could be given.
I now turn to the refusal to grant the adjournment as requested by the prosecution. Basey could have given evidence as to the security of the tapes after they came into his possession. That evidence could not have assisted the prosecution to overcome the issue about originality. Basey could have given evidence of what the respondent said when he was questioned on 31st March 1998. During the course of that interview, the respondent said that he did do some work on the shed. He said he was testing himself. He described the work that he had performed. He was shown the composite video. When his attention was drawn to some of the work depicted in the video, he said that he had not felt well and he went home and had to lie down. Again he said that he had been testing himself. He said his back was aching and that having undertaken the work his condition became worse. He denied that the work had no effect upon him.
In my view, the proof of the interview would not have assisted the prosecution with regard to the admissibility of the video tapes. It could establish that the respondent was depicted in the tape and that he undertook some work but nothing which the respondent said in the interview was relevant to the originality of the tapes. Consequently, it is unnecessary to consider the circumstances in which evidence may be led by the prosecution without first providing a statement of the witness or the circumstances in which an adjournment may be granted in the context of caseflow management principles.
I dismiss the appeal.

[1999] SASC 390

16 September 1999