Workers' Compensation Regulator v Maxwell
[2025] QDC 150
•23 October 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Workers’ Compensation Regulator v Maxwell [2025] QDC 150
PARTIES:
WORKERS’ COMPENSATION REGULATOR
(appellant)
v
MAXWELL
(respondent)
FILE NO:
BD 795/25
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates court
DELIVERED ON:
23 October 2025
DELIVERED AT:
Brisbane
HEARING DATE:
29 July 2025
JUDGE:
Grigg DCJ
ORDER:
1. The decision of the learned Magistrate is set aside.
2. Parties will be heard on whether the Fraud Charge and Attempted Fraud Charge should proceed to be determined on the amended complaints and proposed orders.
3. Parties will be heard on orders as to costs.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – NATURE OF APPEAL – where the appeal is brought under section 222(1) of the Justices Act 1886 (Qld) and section 579(5) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)
WORKERS’ COMPENSATION – OFFENCES – where numerous charges laid against the respondent concern a statutory workers' compensation claim – where the charges against the respondent concern fraud, attempted fraud and providing false and misleading information under the Workers’ Compensation and Rehabilitation Act 2003 (Qld)
MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICLARS AND CONTENT OF INITIATING PROCESS – GENERAL PRINCIPLES ––where the charges comprise of three separate complaints – where the learned Magistrate at first instance found that the fraud charges were not recurrent and bad for latent duplicity – where the learned Magistrate at first instance found that the charge of attempted fraud was bad for latent duplicity – whether the Magistrate made a legal error in the findings relating to duplicity
LEGISLATION:
Acts Interpretation Act 1954 (Qld)
Criminal Code 1899 (Qld)
Justices Act 1886 (Qld)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
WorkCover Queensland Act 1996 (Qld) (repealed)Workers’ Compensation Act 1990 (Qld) (repealed)
CASES:
Biddle v Dimmock [1992] QCA 265
Coco v the Queen [1994] HCA 15; (1999) 179 CLR 427
Cohen v Macefield Pty Ltd [2010] QCA 95
Director of Public Prosecutions v Merriman [1973] AC 584
Fahey v Keating [2002] QIC 61; (2003) 172 QGIG 78
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 165 A Crim R 151
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Jones v WorkCover Queensland [1999] QIC 63; (1999) 162 QGIG 333
McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130
McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612
Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220
PPP v The Queen [2010] VSCA 110; (2010) 27 VR 68
R v BDJ [2020] QCA 27
R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
R v Garget-Bennett [2010] QCA 231; [2013] 1 Qd R 547
R v Hamzy (1994) 74 A Crim R 341
R v Jayaweera [2022] QCA 103; (2022) 307 A Crim R 296
R v Leivers and Ballinger [1998] QCA 99; [1999] 1 Qd R 649
R v Morrow and Flynn [1991] 2 Qd R 309
Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77Weinel v Fedcheshen [1995] SASC 5216; 65 SASR 156
SECONDARY SOURCES:
Mark Lucraft (ed), Archbold 2025 (Thomson Reuters, 2025)
Ross on Crime, (9th ed, 2022, Thomson Reuters)
COUNSEL:
Appellant: E Cooper and C O’Neil
Respondent: D V Nguyen and L R Newton
SOLICITORS:
Appellant: Worker’s Compensation Regulators Prosecution Services
Respondent: Lewis Law Group
Introduction
This matter is an appeal from a decision of a learned Magistrate to strike out charges of fraud and attempted fraud laid against the respondent on the grounds that:
(a)the learned Magistrate made a legal error in determining that the charge of fraud was not recurrent in the terms of section 533(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) and was bad for latent duplicity; and
(b)the learned Magistrate made a legal error in determining that the charge of attempted fraud was bad for latent duplicity.
The numerous charges laid against the respondent concern a statutory workers' compensation claim made by the respondent under the WCR Act for an injury allegedly sustained at work.
As a result of her compensation claim, the respondent received $74,648.84 in compensation, comprised of medical expenses, rehabilitation and weekly benefits (Statutory Compensation Claim). The Statutory Compensation Claim is relevant to the struck-out fraud charge. The respondent also claimed common law damages totalling $420,179.00 (Damages Claim). The Damages Claim was not paid to the respondent and is relevant to the struck-out attempted fraud charge.
The appellant claims that the respondent did not sustain an injury at work and, therefore, her compensation claim was made based on false and misleading information and was fraudulent.
The Charges[1]
[1] At first instance, after finding the charges should be struck out, the Magistrate permitted the charges to be amended and then reconsidered. The amended charges were again struck out.
There are three separate complaints made by the appellant against the respondent:
(a)Complaint and Summons filed on 28 March 2024 in the Industrial Magistrates Court at Brisbane (Brisbane Complaint).
(b)Complaint and Summons filed on 2 April 2024 in the Industrial Magistrates Court at Holland Park (Holland Park Complaint).
(c)Complaint and Summons filed on 2 April 2024 in the Industrial Magistrates Court at Caboolture (Caboolture Complaint).
The charges which are the subject of this appeal are:
Charge one on the Holland Park Complaint (Fraud Charge):
Between 06/10/2020 and 14/01/2022 at Moorooka or elsewhere in the Holland Park Division of the Magistrates Court District in the State of Queensland, Lorraine Maxwell, defrauded an insurer, namely WorkCover Queensland, in contravention of section 533 of the WCR Act.
Charge four on the Caboolture Complaint (Attempted Fraud Charge):
Between 06/03/2022 and 26/03/2024 at Caboolture or elsewhere in the Caboolture Magistrates Court District in the State of Queensland, Lorraine Maxwell attempted to defraud an insurer, namely WorkCover Queensland in contravention of section 533 of the WCR Act.
(collectively, the ‘Fraud Charges’).
The particulars of the Fraud Charges are set out in the Annexure 1 to this decision.
In addition to the Fraud Charges, the respondent is also charged with other offences of providing false and misleading statements, which relate to alleged representations made by the respondent to medical practitioners and the appellant in the course of making her compensation claims.
In the proceedings below, the respondent submitted that the:
(a)Fraud Charge was duplicitous with charges 1, 2, 4 and 5 of the Holland Park Complaint, charges 1 and 2 of the Brisbane complaint and charges 1 and 2 of the Caboolture complaint; and
(b)The Attempted Fraud Charge was duplicitous with charge 4 of the Brisbane Complaint and charges 5, 7 and 8 of the Caboolture Complaint.
The particulars of the Fraud Charge (considered by the learned Magistrate) were that the respondent had been dishonest to the insurer and various registered persons in completing the WorkCover claim, reporting the incident, and telling various medical/allied health professionals she had injured herself at work.
The respondent points out there was no reference to the obtaining of any benefit (an element of fraud) in the particulars before the learned Magistrate. There was no reference to the respondent providing the insurer with certifications from a particular medical practitioner that she was totally unfit for any type of work, which caused her to continue receiving payments (i.e. benefits).
The particulars of the Attempted Fraud Charge (considered by the learned Magistrate) were that the respondent had been dishonest when providing information to the insurer or registered person by telling various medical professionals she had injured herself at work and signing a statement to that effect.
The respondent submitted that the particulars before the learned Magistrate did not make clear that the respondent’s acts were complete upon receipt of the benefit. The appellant failed to precisely connect any of the respondent’s alleged acts to the receipt of the actual benefit or particularise the benefit obtained.
It was conceded by the appellant that the particulars could have been better, and a further amended complaint was prepared and provided as part of its outline of submissions. The appellant seeks orders setting aside the decision of the Magistrate and orders that the Fraud Charges and Attempted Fraud Charges proceed to be determined on the further amended complaints which now articulate the benefit obtained.
The issue here is whether the particulars of the Fraud Charges (as they were before the learned Magistrate) disclose more than one offence, although only one offence is charged?[2] If yes, are the charges bad for latent duplicity?
[2] R v Garget-Bennett [2010] QCA 231; [2013] 1 Qd R 547.
The Decision Below
The learned Magistrate found that in relation to the Fraud Charge, the particulars underpinning it “clearly involved acts that were one-off acts and could not be described in terms of those particular acts as recurrent”. Following this finding, the prosecution made an application, unopposed, to amend the particulars. Leave was granted to amend the particulars and the matter came back on after the exchange of further written submissions.
The learned Magistrate held that the Fraud Charges should be struck out for latent duplicity. The learned Magistrate accepted the respondent’s contention that the Fraud Charges should be struck out on the basis that the respondent was being charged with two offences for the same conduct, particularised for the false and misleading statement charges.
The learned Magistrate found the Fraud Charges did not comply with section 533(2) of the WCR Act because they included acts which were not recurrent.
In relation to the Attempted Fraud Charge, the prosecution conceded that the amendment to charge 4 still failed to particularise the element of dishonesty and therefore offended section 533(2) due to latent duplicity.
The learned Magistrate permitted amendment to the particulars before the matter resumed.
In relation to the Fraud Charge, as amended, the learned Magistrate said:
“[it] may satisfy the authorities relied upon to sustain a single charge against the charge of duplicity, to take the words of President Hall, it is of no avail here, and that is because of section 533, subsection (2) and the very narrow interpretation given to that subsection by the Industrial Court in the cases of Jones and Fahey. When I apply that and consider the amendments, it is my view it still suffers from latent duplicity, and that charge is struck out.”
In coming to the decision, the learned Magistrate relied on the decisions in Jones v WorkCover Queensland [1999] QIC 63; (1999) 162 QGIG 333 (Jones) and Fahey v Keating [2002] QIC 61; (2003) 172 QGIG 78 (Fahey).
Appeal Ground
The appellant appeals the decision of the learned Magistrate on the grounds that the Magistrate erred at law in determining:
(a)the application of section 533(2) of the WCR Act to this case; and
(b)the Fraud Charge and Attempted Fraud Charge were latently duplicitous.
The appellant seeks orders setting aside the decision of the Magistrate and orders that the Fraud Charges proceed to be determined on the amended complaints.
Contentions - Summary
The appellant submits:
(a)the learned Magistrate was wrong to rely on section 43 of the Justices Act 1896 (Qld) (Justices Act) on the ground that it was not relevant;
(b)in relation to section 533 of the WCR Act:
(i)the Fraud Charges are recurrent, and duplications of the other charges laid which relate to complaints of making false and misleading statements. That is, the Fraud Charges that were struck out are different offences made up of different elements;
(ii)the word “conduct” in section 533(2) should be interpreted as conduct which constitutes all elements that go to constituting an offence.
(c)the learned Magistrate’s reliance on the decisions of Jones and Fahey was wrong. The appellant submits:
(i)those cases are distinguishable because the charges under consideration in those decisions were fraud as a “return to calling” offence and providing dishonest information; and
(ii)those cases are not determinative of any point of law that is relevant to the current charges.
(d)the learned Magistrate did not refer to Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 (Walsh v Tattersall).
The respondent submits that the Fraud Charges were impermissibly charged because:
(a)it is not permissible to do so pursuant to section 43 of the Justices Act;
(b)the charges did not comply with section 533(2) of the WCR Act;
(c)they fell afoul of the principles in Walsh v Tattersall;
(d)the facts of the false and misleading offences were relied upon as particulars of the fraud offence, and hence were duplicitous;
(e)they failed to properly particularise the offence of fraud under section 533;
(f)they did not make clear that the respondent’s acts as particularised were complete upon receipt of the benefit; and
(g)they did not precisely connect any of the respondent’s alleged acts to the receipt of the actual benefit.
The respondent acknowledged that the further revised Fraud Charges now particularise the benefit obtained, but these were not the versions before the learned Magistrate.
Appeal Process
The appeal is brought under s 222(1) of the Justices Act and section 579(5) of the WRC Act, which provides that a person aggrieved by a decision upon summary hearing of a charge may appeal against the decision to a District Court Judge under the Justices Act.
The powers of a judge on the hearing of such an appeal are set out in section 225 of the Justices Act as follows:
225 Powers of judge on hearing appeal
(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
(3) For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
(4) An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.
On appeal, the onus is on the appellant to demonstrate that there has been some legal, factual, or discretionary error made by the court below.[3]
[3] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612, at 627 [47].
It must be shown that there has been some error either in acting upon irrelevant matters or failing to take into account a material consideration.
Relevant Legal Provisions
WCR Act
The WCR Act establishes a statutory workers' compensation scheme for persons who suffer injuries in the course of their employment in Queensland.
The general principle is that a worker is entitled to compensation for an “injury”. “Injury” is defined in section 32 of the WCR Act to mean:[4]
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury
[4] Examples and exceptions to the definition of injury are provided for in section 32(2)-(5).
When an employee sustains an eligible injury, the WRC Act provides for compensation, damages and other benefits that may be claimed.
The WRC Act provides for a number of offences. The offence involving fraud is provided for in section 533 and offences for false and misleading information or documents is provided for in section 534.
Section 533 is pivotal to this matter. It provides as follows:
533 Offences involving fraud
(1) A person must not in any way defraud or attempt to defraud an insurer.
Maximum penalty—500 penalty units or 5 years imprisonment.
(2) If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of the conduct would constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute but 1 offence committed over a period specified in the complaint laid in relation to the conduct, and may be charged and be dealt with on 1 complaint.
[emphasis added]
Subsection (2) concerns continuing repetition of the same conduct making up the offence of fraud. Rather than bringing separate complaints in relation to each time the conduct has occurred, the person may instead be dealt with on one complaint. This section is procedural or administrative in nature.
There are very few cases that have specifically analysed section 533 of the WCR Act.
Section 534 provides:
534 False or misleading information or documents
(1) This section applies to a statement made or document given—
(a)to the Regulator or WorkCover for the purpose of its functions under this Act; or
(b) to an entity or person as a self-insurer; or
(c)to a registered person for the purpose of an application for compensation or a claim for damages.
(2) A person must not state anything to the Regulator, WorkCover, a self-insurer or a registered person the person knows is false or misleading in a material particular.
Maximum penalty—150 penalty units or 1 year’s imprisonment.
(3) A person must not give the Regulator, WorkCover, a self-insurer or a registered person a document containing information the person knows is false or misleading in a material particular.
Maximum penalty—150 penalty units or 1 year’s imprisonment.
(4) Subsection (3) does not apply to a person who, when giving the document—
(a)informs the Regulator, WorkCover, the self-insurer or the registered person, to the best of the person’s ability, how it is false or misleading; and
(b)gives the correct information to the Regulator, WorkCover, the self-insurer or the registered person, if the person has, or can reasonably obtain, the correct information.
(5) It is enough for a complaint against a person for an offence against subsection (2) or (3) to state the information or document was false or misleading to the person’s knowledge, without specifying which.
If a person is convicted under s 533 in relation to a claim for compensation or damages, any entitlement to compensation or damages ends, and the person may be required to repay all amounts claimed.[5]
[5] Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) s 537.
Justices Act
Section 43 of the Justices Act provides as follows:
43 Matter of complaint
(1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
(a)in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
(b)in cases other than cases of indictable offences—if the matters of complaint—
(i)are alleged to be constituted by the same act or omission on the part of the defendant; or
(ii)are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
(iii) are founded on substantially the same facts; or
(iv)are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
(c) when otherwise expressly provided.
(2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.
(3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section—
(a)if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or
(b)if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.
(4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant’s defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately.
What is the rule against duplicity and how is it assessed at common law
The principle is that a person cannot allege more than one offence in a single charge on an indictment. Latent duplicity refers to uncertainty or ambiguity in the charge such that the defendant does not know what is alleged.[6] The principle developed at common law is essentially one of providing procedural fairness.[7]
[43]Walsh v Tattersall is the leading High Court authority for the proposition cited from Archbold, Pleading, Evidence and Practice in Criminal Cases,[8] that "no one count of the indictment should charge the defendant with having committed two or more separate offences". In Walsh v Tattersall, an employee was charged with obtaining by dishonest means payments or benefits under the South Australian workers compensation legislation. While there was only one charge, he had obtained benefits on several occasions in a 12 month period. On appeal, it was contended that the complaint and count 1 was bad for duplicity in that a number of alleged offences were contained in the overall charge. The Full Court held otherwise. It described the prosecution’s case as one of “a course of conduct which amounted to one compendious false pretence of incapacity for work”. The hospital in that case continued to make the payments on the basis of continuing representations of incapacity as conveyed by medical psychiatric and psychological reports together with medical certificates. The case was not that he obtained benefits from separate dishonest acts but rather from a “continuing false pretence” that he was incapacitated for work. The appellant contended the matter was duplicitous because there were many acts of obtaining a benefit, each of which would individually constitute an offence. The legislation under consideration in Walsh v Tattersall did not contain a provision equivalent to section 533(2) of the WCR Act.
[6] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; PPP v The Queen (2010) 27 VR 68, 81 [43]; Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, per Kirby J.
[7] S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 284-285.
[8] Mark Lucraft (ed), Archbold 2025 (Thomson Reuters, 2025) ch 1, part V, section 1-235.
The High Court set aside the decision of the Full Court.
Kirby J held:[9]
“The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charge. This was apparently the original intention of the police and perhaps of the prosecutor. Unwisely, and in my view unlawfully, it was departed from. That departure resulted in a count which manifested the defect of latent duplicity.”
[9] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 112.
Kirby J discussed the common law exceptions, or qualifications, to the rule against duplicity in considerable depth. Kirby J acknowledged the difficulty of formulating a test for whether the criminal acts are sufficiently close in time and space as to “fairly and properly be identified as part of the same criminal enterprise or the one criminal activity”.[10]
[10] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 108; citing R v Hamzy (1994) 74 A Crim R 341 at 348.
In McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130 (McDonald), Edelman J (as his Honour then was) noted the application of the duplicity principle can involve fine questions of fact and degree.[11] In McDonald the activity comprised a continuous trespass from entry into the place without consent, being in the place without consent and remaining in the place without consent after having been asked to leave by a person in authority. An issue was whether it was permissible for the prosecution not to cause multiple charges to be issued from this trespass. At first instance, the Magistrate did not dismiss the charge for duplicity. On appeal, Mr McDonald argued that the prosecution notice, on its face, charged two different offences of trespass (patent duplicity) or, alternatively, that the evidence led by the prosecution potentially disclosed more than one act of criminal trespass (latent duplicity) and that it was therefore uncertain. Mr McDonald's submission was that latent duplicity arose because the prosecution, by its particulars, proceeded on the basis that it could prove either of the definitions of trespass as alternatives.
[11] McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130, [79].
Edelman J held that:[12]
“Mr McDonald did not commit a series of separate trespasses. The prosecution was correct to charge him with a single offence of trespass on the basis that the facts disclosed a composite activity or “part of the same transaction or criminal enterprise”.”
[12] McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130, [70].
Edelman J explained the concepts of patent and latent duplicity as follows:
“[24] There is sometimes confusion between the different concepts of patent duplicity, latent duplicity, ambiguity and uncertainty. Historically the labels have been used in different senses from those in which they are commonly used today.
[25] Duplicity arises on the face of the indictment or prosecution notice if more than one offence is contained, either conjunctively or disjunctively, in the indictment or prosecution notice. Such cases are now commonly now described as one of patent duplicity, although historically the term 'uncertainty' was used to describe formal errors in an information which joined more than one offence disjunctively.
[26] Alternatively, 'duplicity' might emerge from the facts at trial, in the sense that the way that the prosecution case is to be, or has been, conducted gives rise to the possibility of the accused person being convicted of one of a number of distinct offences. In that case, the prosecution notice or indictment is sometimes now described as giving rise to 'latent duplicity'. Historically, the notice or indictment would have been described as being bad for 'ambiguity'.
[31] […] [T]here will be no latent duplicity if the case falls into the well established exception that applies to cases where multiple acts can properly be treated as a single offence.
[55] […] [L]atent duplicity can arise if there is only one charge on the indictment but two or more separate acts are relied on by the prosecution, each of which is itself capable of constituting the offence.”
Exceptions or Qualifications to the Rule Against Duplicity
There are exceptions to the rule, such as the continuing offence exception. An example of a continuing offence is where a person fails to do something by a certain time in accordance with a statutory obligation or court order, such as lodge an income tax return. The ongoing failure to comply is continual but involves only one offence.
In Walsh v Tattersall, Kirby J suggested that whether a count is duplicitous is a matter of fact and degree.[13]
[13] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 108.
Kirby J identified that conduct constituted by activities over time could quite properly be charged in a single count in some circumstances.[14] His Honour referred to the example of charges of harassment or drug trafficking which have been upheld as exceptions or qualifications to the duplicity rule. His Honour then set out various indicia which may assist in the assessment (although the matter is always one of fact and degree in the particular circumstances). Those indicia include:[15]
(a)the connection of the events in point of time;
(b)the similarity of the acts;
(c)the physical proximity of the place where the events happened; and
(d)the intention of the accused throughout the conduct.
[14] Ibid, 107.
[15] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 108; also see Edelman J’s summary of matters relevant to an assessment in McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130, at [65].
Kirby J notes that the exception to the rule has been allowed:[16]
(a)where the multiple acts relied on are so close in time and place that they can be viewed as one composite activity; and
(b)where the offence is one that can be classified as continuing in nature.
[16] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 112.
His Honour held a strict approach to duplicity should be maintained.
Exceptions to the rule against duplicity also exist under statute. This is relevant here in the context of section 533(2) of the WCR Act.
In Ross on Crime, the learned author says:[17]
“A statute may proscribe various acts. When those acts are included in one charge, the construction of the statute determines whether there is duplicity.”
[17] Mirko Bagaric, Ross on Crime (Thomson Reuters, 9th ed 2022) p 673 [4.5720].
For example, section 568(3) of the Criminal Code 1899 (Qld) (Criminal Code) permits a possible exception for an indictment for one charge of fraud even where:
(a)any number of specific frauds of the same type has been committed, whether or not each specific act of fraud can be identified; or
(b)the frauds have extended over any space of time; or
(c)property applied belongs to different persons, and has come into the possession or control of the accused person at different times and subject to different trusts, directions, conditions, or duties to account; or
(d)the property, benefit, detriment or inducement belongs to or is caused to different persons.
Section 568(3) of the Criminal Code reflects situations where there is an overall scheme. However, the Court of Appeal in R v Jayaweera [2022] QCA 103; (2022) 307 A Crim R 296 made it clear that this section does not override “the reasons which underpin the basic requirement in a given case that each offence should be charged in a separate count”[18] concerning certainty and fairness.
[18] R v Jayaweera [2022] QCA 103; (2022) 307 A Crim R 296, at [118]. See Criminal Code 1899 (Qld) s 567.
In Cohen v Macefield Pty Ltd [2010] QCA 95 (Cohen), Holmes JA (as her Honour then was) explained the answer to duplicity can be found by a determination of whether the relevant statute which creates the offence/s under consideration, creates a single offence or not. Holmes JA referred to Bray CJ in Romeyko v Samuels (1972) 19 FLR 322; 2 SASR 529, at 552, as offering the following guide:[19]
“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.”
(citations omitted)
[19] Cohen v Macefield Pty Ltd [2010] QCA 95, [24].
An example often referred to in relation to a prohibited act with more than one prescribed quality is that of Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220.[20] That case concerned the issue of a company prospectus which contained a number of untrue or misleading statements. Although each misleading statement would have been sufficient to constitute the offence, the prohibited act was the issue of a prospectus containing an untrue statement. The High Court decided there was only one offence committed, the issuing the prospectus, and that the reference to all of the misleading statements within the prospectus was not bad for duplicity.
[20] See Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006)165 A Crim R 151.
In Walsh v Tattersall, the majority, Gaudron and Gummow JJ ordered that the conviction be quashed because the South Australian legislation created a distinct offence upon the receipt of any one payment or benefit, whereas the charge spoke of multiple payments or benefits. As a result, the charge did not correspond with the statutory offence.
An exception to the rule against duplicity is provided for in section 533(2) of the WCR Act where there are multiple instances of the same conduct or a recurrent offence.[21]
[21] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77.
The WCR Act creates two distinct offences: the first involving fraud, and the second attempted fraud.[22] The statute makes it an offence to defraud or attempt to defraud as separate acts, which, would result in separate independent offences as has occurred here.
[22] WCR Act s 533(1).
The WCR Act also creates the offence of knowingly stating anything false or misleading in a material particular.[23]
[23] WCR Act s 534.
The Fraud Charges here concern “alternative legal formulations of liability based on the same or substantially the same facts” not “alternative factual bases of liability”.[24]
[24] R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198, [65].
In R v Morrow and Flynn [1991] 2 Qd R 309, the evidence established at least seven separate incidents which could have been the subject of the one count of unlawful assault causing bodily harm in the indictment. The Court of Appeal held that the indictment was latently defective because four of the possible offences could not be said to be the same offence. Connolly J referred to the decision of Lord Morris in Director of Public Prosecutions v Merriman [1973] AC 584; [1972] 3 WLR 545; 56 Cr App R 766; [1972] 3 All ER 42 (Merriman). Connolly J had no objection to charging the incident as one offence, provided that it is always clear what the offender is charged with.
Importance of Particulars
The charged offences must be properly particularised. Redlich JA in PPP v The Queen [2010] VSCA 110; (2010) 27 VR 68, explained the reasons for why proper particularisation of an offence is required:[25]
(1) to enable the accused to exercise the right to object to evidence on the ground of relevance;
(2) to permit the accused to know how the charge might be answered;
(3) to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4) to enable the trial judge to instruct the jury properly as to the law to be applied;
(5) to ensure that there is an unanimity of view by the jury as to a specific act by the accused;
(6) in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;
(7) to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
[25]PPP v The Queen [2010] VSCA 110 (2010) 27 VR 68, 80–81 [42] (Redlich and Neave JA agreeing at 70–71 [1]–[2]).
In R v BDJ [2020] QCA 27 Boddice J explained the importance of particulars as follows:
“[98] Particularity of criminal conduct is essential to eliminate the risk of duplicity and to give an accused person sufficient indication of the allegations. A minimum requirement is that there be sufficient particularity in the allegations to demonstrate one identifiable transaction meeting the description of the charged offence, which is distinguishable from any other similar incidents contained in the evidence.”
Recurrent Offences
Recurrent offences are repeated offences. Each repeated act could give rise to a separate offence being charged. This involves multiple acts being bundled into one charge. An example of a recurrent offence would be the repeated sale of illicit tobacco over a period.[26]
[26] See Tobacco and Other Smoking Products Act 1998 (Qld) s 161.
In Merriman, a publican was stabbed in the back by A and then immediately seven or more times by both A and B. A and B were indicted in the one count for wounding with intent to do grievous bodily harm. The following judgment of Lord Morris of Borth-y-Gest provides some examples of where disputes may arise:[27]
“If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? 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. … I agree respectfully with Lord Widgery CJ [in Jemmison v Priddle [1972] 1 QB 489] 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.”
[emphasis added] (citations omitted)
Consideration
[27] Director of Public Prosecutions v Merriman [1973] AC 584, 593; cited in Biddle v Dimmock [1992] QCA 265.
Section 43, Justices Act
The appellant submits section 43 of the Justices Act is not relevant here because section 43 concerns multiple charges included on one complaint, but it does not concern when multiple charges may be incorporated into one charge.
Section 43 prescribes what may be contained in a complaint and also deals with joinder of charges in a complaint.
The intention of section 43 is to avoid duplicity and uncertainty of charges.
In Cohen, Holmes JA explained:
“[22] […] sub-sections 43(1)(b)(ii) and (iv) […] do not authorise the charging of a series of acts done in the prosecution of a single purpose, or a series of offences of the same or a similar character, in a single count; they merely permit joinder of such matters in a single complaint. Where such joinder is permitted, s 43(2) requires that each be the subject of a separate paragraph or count.”
It is only where the series of acts relied on cannot be properly charged as a single activity and as a single matter of complaint, section 43(2) requires each act to be charged in a separate count.
Before the learned Magistrate, the defendant sought to rely on Jones where his Honour, Moynihan J (acting President of the Industrial Court of Queensland, as his Honour then was), considered that the then equivalent of section 533(2) of the WCR Act had to be looked at in the context of what was provided for by section 43 of the Justices Act.
The default position in section 43(1) only applies except “when otherwise expressly provided”.[28]
[28] Justices Act 1886 (Qld) s 43(1)(c).
Here, section 533 provides an exception to the default position articulated in section 43 of the Justices Act.
I find that section 43 is not relevant, or more accurately, not determinative of the issue. The respondent did not press this point on appeal.
Application of section 533, WCR Act
Appellant’s submissions re application of s 533
The appellant submits that:
(a)the learned Magistrate erred in:
(i)her consideration of the meaning of “conduct” for the application of section 533(2) in that she proceeded on an erroneous basis that the conduct referred to in the provision was a dishonest representation and that that conduct was what had to be recurrent;
(ii)considering that if that conduct was by way of something being said over a telephone call or by completing a form that it was conduct of a different nature and therefore was not “recurrent”;
(iii)the reference to “conduct” in s 533(2) relates to all elements of the offence being completed;
(b)on each occasion a benefit has been obtained as a result of dishonest conduct that is recurrent conduct.
The appellant identified that if each separate offence was charged, this would amount to 248 separate offences to be charged as the defendant obtained a benefit on 248 separate occasions as a consequence of her application being approved where she claimed that her back injury was caused at work. It is submitted that to insist on separate charges in this manner would be contrary to the statutory intent.
The appellant submits the word recurrent should be interpreted in accordance with its plain meaning. The recurrent conduct relied upon is the repeated obtainment of the benefit.
The appellant contends that section 533(2) is not permissive or restrictive in its terms but rather is prescriptive in that it provides that where conduct is recurrent it is to be taken to constitute one offence.
Respondent’s submissions re application of s 533
Following the decision in Fahey, the respondent submitted that section 533(2) must be interpreted narrowly to limit the circumstances that would allow for a number of separate offences to be bundled together to support one charge of fraud.
Consideration
The determination of this matter turns on the construction and application of section 533 of the WCR Act.
The rules of statutory construction are well known.
Section 14A(1) of the Acts Interpretation Act 1954 (Qld) (“AIA”) requires a provision of an Act to be interpreted in a way which best achieves the Act’s purpose.
The ordinary meaning of a word must be taken to mean its ordinary meaning within the context of the legislative scheme in which it is found. This is set out in section 14B(2)(a) of the AIA which provides relevantly that:
(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to –
(a)the desirability of a provision being interpreted as having its ordinary meaning;
[emphasis added]
The WRC Act replaced the WorkCover Queensland Act 1996 (Qld) (repealed) (WQ Act). The predecessor to section 533 was found in section 482 of the WQ Act. The Explanatory Notes to the Workcover Queensland Bill explains the creation of the fraud offences and the statutory purpose as follows:[29]
“This part creates offences for fraudulent and misleading conduct with respect to the workers' compensation scheme. Fraud is regarded as a very serious offence, in view of the financial impost it places on the scheme and consequently all Queensland employers. The part contains penalties for persons convicted of fraud, to reflect the seriousness of the offence and to act as a deterrent to those considering fraudulent activity.
[…]
The clause [s 482] also reflects section 194(5) of the Workers’ Compensation Act 1990 which outlines the provision for dealing with recurrent offences in a complaint.”
[29] Explanatory Note, Workcover Queensland Bill 1996 p 170.
The same words in section 533(2) can be found in section 194(5) of the of the Workers’ Compensation Act 1990 (Qld) (repealed).
Section 533(2) can be broken down into the following elements:
· conduct that constitutes an offence defined in subsection (1);
· the conduct must be recurrent – i.e. each instance of the conduct would constitute a separate offence;
· two or more instances of the conduct are to be taken to constitute but one offence committed over a period specified in the complaint laid in relation to the conduct; and
· the conduct may be charged and be dealt with on one complaint.
Conduct that Constitutes an Offence
Conduct that constitutes an offence defined in subsection (1), on a plain ordinary reading, must mean the conduct relied upon to establish (or constitute) the offence of fraud. Once that conduct has been identified, the question is whether it is “recurrent”.
It is uncontroversial that:
(a)the elements for the fraud offence are:
(i)the defendant did an act or omission (the conduct);
(ii)the conduct was dishonest; and
(iii)the defendant obtained a benefit as a result of the conduct.
(b)the elements for the attempted fraud offence are:
(i)the defendant did an act or omission (the conduct);
(ii)the conduct was dishonest; and
(iii)the defendant attempted to obtain a benefit as a result of the conduct.
The Macquarie Dictionary (9th ed, 2023) (Macquarie Dictionary) defines “constitute” as:
verb (t)(constituted, constituting)
1. (of elements, etc.) to compose; form.2. to appoint to an office or function; make or create.
3. to set up or found (an institution, etc.).
4. to give legal form to (an assembly, court, etc.).
5. Obsolete to set up or establish (laws, etc.).
6. Obsolete to set or place.
The Macquarie Dictionary defines “conduct” as:
noun
1. personal behaviour; way of acting; deportment: good conduct.
2. direction or management; execution: the conduct of a business.
3. the act of conducting; guidance; escort.
A plain reading of section 533(2) establishes that it is only when conduct which meets the requirements of a fraud offence are present will it apply.
Here the conduct stated to constitute the elements of fraud are:
(a)the claim for compensation;
(b)the claim was dishonest;
(c)the dishonesty continued throughout the entire period;
(d)the dishonesty was maintained throughout the period – by maintaining the injury and its cause; and
(e)the respondent obtained a benefit from that dishonesty.
In relation to the attempted fraud, no benefit is obtained. The attempted fraud related to the claim for damages for which nothing was received. The dishonesty in relation to that claim was repeated. The appellant submits there was only one benefit in relation to the attempted fraud. A notice of claim was completed, the claim was dishonest, and the dishonesty was maintained over the course of that claim. Therefore, it does not need to comply with section 533(2) as it is not bad for duplicity.
The benefit can include a financial benefit (i.e. wages) and non-financial benefit (i.e. treatment and rehabilitation costs).
What is recurrent conduct?
“Recurrent” is not defined in the WCR Act and therefore takes its ordinary meaning within the context of the legislative scheme in which it is found.
The Macquarie Dictionary defines “recurrent” as:
adjective
1.that recurs; occurring or appearing again, especially repeatedly or periodically
For conduct to be recurrent it must be repeated and not a one off. Only repeated conduct will be caught by section 533(2).
In my view, the section should be read as follows: if the repeated conduct would constitute a separate offence of fraud repeatedly, that repeated conduct is to be treated as the commission of one offence over a specified period of time. In that instance, a person may be charged and dealt with on one complaint.
All of the elements of the fraud or attempted fraud must be present and then repeated for section 533(2) to have application.
Here, the facts said to prove the various offences were part of an ongoing continuous offence. An injury was reported to Workcover, which the respondent alleged was sustained at work, for which compensation was claimed. Workcover alleges this was not how the injury was sustained, and this is when the dishonesty arose.
The appellant submitted the key indicia here is the intention of the accused throughout the period. The accused repeats the same lie over and over again with the intention to gain compensation. It does not matter whether that lie is told to different people; it is a singular dishonest intention. The revenant parties are the same, the injury is the same.
There is no express language in s 533 to indicate that s 533(2) was intended to oust the common law exceptions to the rule against duplicity. If that is what was intended, Parliament could have expressly provided as much. Section 533(2) modifies the rule for providing for a specific exception under that Act, but it is not clear that other exceptions or principles relating to the rule against duplicity have no relevance or role to play. The High Court made it clear in Coco v the Queen [1994] HCA 15; (1994) 179 CLR 427 that any statutory intention to override common law rights must be express and unambiguous.[30]
[30] For example, see the Civil Liability Act 2003 (Qld): “An Act to reform the law of civil liability for negligent acts, and for other purposes”.
As a matter of general principle this may be accepted. But each matter must be considered based on its own particulars.
Section 533(2) is a machinery provision which permits reference to more than one contravention within a single charge.
In my respectful view, the Magistrate erred in relying only on some of the elements of the offence (namely the dishonest act/omission) in determining whether the conduct was recurrent. The dishonesty is only one element of the offence of fraud. The remaining element, namely the benefit, is also part of the relevant conduct for the purpose of section 533. Having considered whether that conduct is present, the next question is whether it is recurrent.
In my view, the Fraud Charges fall within the well-established exception that applies to cases where multiple acts can properly be treated as a single offence. Here:
(a)the intention is the same – namely to obtain compensation for an alleged work injury;
(b)the acts are similar – they involved attendances on medical practitioners for the purpose of obtaining medical reports to support the compensation claim, and filing compensation claim forms, all related to the same alleged work injury; and
(c)the respondent continued to receive compensation as a consequence of those actions through the period alleged on the charge.
In my view the offences can be described as continuing in nature. Lord Diplock in Merriman explained that the rule against duplicity should be applied practically, rather than in an overly strict and technical way. He explained as follows:[31]
“The rule against duplicity [...] has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. 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.”
[emphasis added]
[31] Director of Public Prosecutions v Merriman [1973] AC 584, 607.
The acts relied upon are part of a common intention and enterprise. They are not distinct in the circumstances.
In my view, the learned Magistrate erred in finding the Fraud Charge was not recurrent in terms of section 533(2) of the WCR Act.
In relation to the Attempted Fraud Charge, I agree with the appellant that “the means adopted to that end was to lie about the cause of her back injury to various people and on various forms. But it was a singular aim.” The Attempted Fraud Charge is, therefore, not duplicitous and does not fall afoul of the principles.
I also accept the appellant’s submissions that the Fraud Charges are not duplicitous with the offences of false or misleading information as those other offences were referred to within the original complaints only to provide the defendant with information about how the prosecution was intending to prove that the defendant acted dishonestly.
In relation to the submission that the Fraud Charge contains insufficient particulars, the appellant accepts that the particulars on the complaint could have been clearer about the basis upon which it was referring to the conduct relating to the charges of false and misleading particulars. The difficulty for the prosecution is that no mention of the benefit element is present in the amended particulars before the learned Magistrate. However, the particulars have now been amended again and cure this issue and sufficiently assist the respondent to know the particulars relied upon with respect to each charge.
As already noted, for the purposes of the appeal, the appellant provided a further amended complaint.
The appellant seeks orders setting aside the decision of the Magistrate and orders that the charges of fraud and attempted fraud proceed to be determined on the amended complaints. Subject to any further submissions, I agree this is the appropriate path.
Jones and Fahey
The matter of Jones concerned a return to calling fraud charge under section 482 of the WQ Act (the predecessor to section 533). Acting President Moynihan stated the complaint referred to a number of instances of conduct, each instance of which would constitute a separate offence notwithstanding that they are described as particulars. For example, there was a reference to a number of medical certificates provided to Workcover which stated Mr Jones was totally incapacitated for work, as particulars of the fraud. It became known that Mr Jones had in fact returned to work during that relevant period. Acting President Moynihan said, “each such occasion is at least arguably an instance of conduct constituting a separate offence which is recurrent in terms of s. 482(2).”
In Fahey the complaint concerned the making of a false statement to Workcover, and fraud. It was contended that the charge of making of a false statement was duplicitous in that two falsehoods were alleged this was rejected on the grounds that it was a compendious lie. President Hall said:
“[…] there is no obstacle to the complainant wrapping the statements into a compendious lie and alleging a single offence, R v. Bartlett, op. cit., at 343 per Campbell J and R v. Traino (1987) 45 SASR 473 (Court of Appeal).”
President Hall went on to say:
“The purpose of the subsection is to expressly limit the circumstances in which a series of actions each of which might itself be made the subject of a charge may be bundled together in a compendious way to support one charge of fraud.”
Appellants submissions
The appellant submitted the decisions of Jones and Fahey:
(a)are distinguishable; and
(b)not determinative of any point of law relevant to the current charges.
In relation to Jones, the appellant submitted it is distinguishable from the present case because:
(a)the comments of Acting President Moynihan were obiter;
(b)it concerned a different offence, namely a “return to calling” offence;
(c)the concern his Honour noted in Jones was that within the particulars, it was alleged that the worker engaged in a calling and separately alleged within the same charge that the worker had made dishonest representations that they were totally incapacitated for work while obtaining benefits. Acting President Moynihan considered that while the second of those particulars (dishonest receipt of benefits) could itself have involved recurrent conduct in the terms of the provision, it was problematic when combined within a single charge that also alleged particulars around the return to a calling allegation; and
(d)the matter was determined on the basis that the Magistrate did not consider each particular element separately, not on the ground of duplicity.
The appellant submits:
(a)for the above reasons, that Jones is not authority for the proposition relied upon by the respondent and that the acts were not recurrent under section 533(2) because they were different types of acts; and
(b)the comments made by Acting President Moynihan about recurrent acts must be understood in that context, and do not apply where the conduct alleged involves a single type of dishonest behaviour, as in the current charges.
In relation to Fahey, the appellant submits it involved a different offence and merely followed Jones; therefore, the same arguments apply.
For the above reason the appellant contends the learned Magistrate was wrong to consider that the decisions of Jones and Fahey constrained her in considering whether the charges were bad for latent duplicity.
Respondent’s submissions
To the contrary, the respondent submitted that the learned Magistrate was correct in following Fahey because:
(a)the authorities of Jones and Fahey are directly on point;
(b)the decisions make it clear section 533(2) must be interpreted narrowly to limit the circumstances that would allow for several separate offences to be bundled together to support one charge of fraud; and
(c)the proposition in Jones and Fahey should be followed here, where there is no appellate authority to the contrary.
The respondent accepts what Acting President Moynihan said in Jones was obiter dicta.
Consideration
Jones was an appeal from a conviction for having defrauded WorkCover Queensland. The complaint was laid in reliance on section 482 of the WQ Act (the equivalent to s 533). Jones was concerned with the offence under section 535 of the WCR Act. Section 535 provides:
535 Particular acts taken to be fraud
(1) This section applies if a person—
(a) lodges an application for compensation with an insurer; and
(b) engages in a calling; and
(c)without reasonable excuse, does not inform the insurer, in the way stated under section 136, of the person’s engagement in the calling.
(2) If compensation is paid by the insurer under the application to the person or anyone else—
(a) after the start of the engagement in the calling; and
(b)before the insurer is informed in the way stated under section 136 of the engagement in the calling;
the person is taken to have defrauded the insurer of the payments under section 533.
(3) If payments to which subsection (2) applies are not made, the person is taken to have attempted to defraud the insurer under section 533.
Section 535 is concerned with “return to call” fraud. “Return to call” fraud is where someone returns to work[32] during the course of a claim while in receipt of compensation and does not inform Workcover. Under section 136 of the WRC Act, an employee is under a strict obligation to notify the insurer of their return to work. If a compensated employee fails to comply with the obligation under section 136 without a reasonable excuse, they are taken to have defrauded the insurer of the payments under section 533. The reasonable excuse element in section 535 is different from a charge of fraud under s 533.
[32] See WCR Act s 136.
Several sets of facts (i.e. particulars) were identified, and each set amounted to the commission of the fraud offence. Acting President Moynihan found that it was for the prosecution to specify which set, of several possible sets, sets out the subject matter of the charge. Acting President Moynihan found there was an issue with the complaint in terms of section 43 of the Justices Act because each instance of conduct would constitute a separate offence.
Acting President Moynihan noted that section 482 of the WQ Act falls within the category of “otherwise expressly provides” in section 43 of the Justices Act. That is, section 43 only applies unless expressly provided for elsewhere. I agree with Acting President Moynihan that section 43 is subject to section 482 (i.e. the equivalent section 533). Section 533 (and its earlier equivalent) creates an exception to the default procedural rule in section 43 and permits the grouping of multiple acts into a single charge as opposed to insisting on a separate complaint for each charge.
The particulars of the offence in Jones were:
1. You are a person who made application for worker's compensation benefits and after commencing to be in receipt of such benefits you did engage in a calling as a baker without advising WorkCover Queensland of your return to work.
2. You did cause Medical Certificates to be received by WorkCover Queensland stating that you were totally incapacitated for work between the abovementioned dates when such was not the case.
3. You did complete a statement dated 27/5/97 and in that statement you did state '1 have not been engaged in any employment of any kind during the paid period'. Such statement was false and misleading contrary to the Acts in such case made and provided.
In Acting President Moynihan’s opinion (at 334):
“On the face of it the complaint in the present case complains of a number of instances of conduct each instance of which would constitute a separate offence notwithstanding that they are described as particulars. What is described as particular 2 itself involves a number of distinct offences constituted by the activities complained of with respect to each of a number of certificates. Each such occasion is at least arguably an instance of conduct constituting a separate offence which is recurrent in terms of s. 482(2). The same cannot however be said of the offences constituted by the conduct complained of by particulars 1, 2 and 3 as compared one to the other.”
The respondent submitted that Jones and Fahey are directly on point and should be followed, and that the learned Magistrate was correct to rely on these decisions.
I agree with Acting President Moynihan’s opinion with respect to the interplay between section 43 of the Justices Act and section 533 of the WCR Act. I also agree with his expression of a possible argument about the particulars in that matter. However, no final decision on these matters was required. No point was taken about these considerations before the Industrial Magistrate or before Acting President Moynihan.
Aside from that, there is nothing in particular that is binding or otherwise assists me to determine whether in this particular circumstance there is latent duplicity.
As referred to, Jones was concerned with section 535, not section 533. Consideration of the particulars and duplicity need to be considered in the specific statutory context.
In Fahey, President Hall adopted what was said in Jones. Fahey was an appeal from three counts of fraud. This was another return to calling matter. The offender claimed compensation when his employment ceased but then recommenced part-time work which he engaged in on two separate occasions. The complaint was:
“[…] on and from the 17th day of March 2001 up to and including 1st day of October 2001 at Rockhampton in the Magistrates Court District of Rockhampton in the State of Queensland Francis Michael FAHEY did make a false statement to WorkCover, that he knew was false or misleading in a material particular.”
The particulars of offence 1 were:
1. The statement was contained in a document, namely an ‘Application for Compensation’ which was dated 01.02.01 and received by the Rockhampton Office of WorkCover on the 14.02.01
2. The statement which Fahey knew to be false or misleading consisted of an answer to questions contained in such application, namely
(a)the answer ‘Yes’ to question ‘Did you stop work because of this injury?’
(b) the answer ‘No’ to the question ‘Have you returned to work?’
3. Fahey knew the statement to be false or misleading as he
(a) did not stop work because of any injury,
(b)continued to work, and was then working for remuneration in the capacity of a ‘Specialist in First Response and Emergency Procedure Training’.
It was contended that the charge was duplicitous in that two falsehoods were alleged, viz (1) stopping work because of the injury and (2) not returning to work.
The President decided that the criticism was unfounded and said:
“He who drew the particulars was careful to allege but one falsehood, viz the appellant stopped work on 19 December 2000 because of the injury and has not done any work since. Whilst it is true that the lie arises out of two statements – made by way of ticking circles in answer to two questions – each of which could conceivably have been pleaded as a breach of s. 482, there is no obstacle to the complainant wrapping the statements into a compendious lie and alleging a single offence, R v. Bartlett, op. cit., at 343 per Campbell J and R v. Traino (1987) 45 SASR 473 (Court of Appeal). Of course, having pleaded a compendious lie, the complainant must prove.”
The second charge was:
“That on and from the 14th February 2001 up to and including the 1st day of October 2001 at Rockhampton in the Magistrates Court District of Rockhampton in the state of Queensland Francis Michael Fahey did defraud WorkCover.”
The particulars of offence 2 were:
1. Fahey obtained and supplied to WorkCover medical certificates alleging he was totally incapacitated for work.
2. Fahey knew such allegations to be untrue as he was not totally incapacitated for work or at all. During the period alleged Fahey worked for remuneration in the capacity of a specialist “in First Response and Emergency Procedure Training” and was not incapacitated for work as he alleged.
3. The complainant repeats and relies on the particulars set out in charge 1 and says such statements was (sic) made by Fahey for the purpose of misleading WorkCover to its detriment by causing WorkCover to pay to and on behalf of him compensation/benefits in the sum of $4,055.35 to which he knew he was not entitled.
4. Fahey knowingly misleads a general practitioner to believe he was incapacitated for work when he knew such was not the case.
5. Fahey knew he was not incapacitated for work and not entitled to compensation/benefits totalling $80,991.13.
6. By failing to notify WorkCover of the remuneration Fahey was receiving as a specialist “in First Response and Emergency Procedure Training” he knowingly mislead WorkCover to believe he was totally incapacitated for work.
This charge was also attacked as duplicitous. The President said:
“The principles governing duplicity in criminal counts are reviewed scholarly by Kirby J in Walsh v. Tattersall (1996) 188 CLR 77 at 104 to 112. The indicia and authorities commonly relied upon to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences are critically reviewed. None of that avails here. The difficulty is s. 482(2). The difficulty is well captured in the passage from the decision of Moynihan P in Jones v. WorkCover (1999) 162 QGIG 333 at 334 to 335.”
The President then cited the passage from Jones and said:
“It has to follow that each of the matters particularised should have been made the subject of a separate charge. (Arguably, the conduct at particular 1 and the conduct at particular 4 is recurrent within the meaning of s. 482(2)). The decision in Jones v. WorkCover, ibid, is but three years old. In my view it should not be overturned because of some change in the composition of the Court. In my view it should be overruled only if it be shown to be contrary to a subsequent line of authority in superior Courts, given per incuriam, or it be shown that some important principle was not adverted to, compare Queensland v. The Commonwealth (1977) 139 CLR 585 at 599 to 600 per Gibbs J. Here the case sought to be made is that the decision was given per incuriam. Strictly, His Honour did not overlook any decision on s. 482. The point seems to be that His Honour did not notice that only one offence was alleged. Reliance is placed on the decision in Walsh v. Tattersall (1996) 188 CLR 77 and R v. Jacobs [1998] 1 QdR 96. Without seeking to be impertinent, Walsh v. Tattersall, op. cit., seems to me to be a case without a ratio decidendi. R v. Jacobs, op. cit., involved a charge of “carrying on the business of unlawfully trafficking in … dangerous drugs”. It is in the nature of proving that a defendant has “carried on the business of unlawfully trafficking in […] dangerous drugs” that repetitious transactions over a period of time each of which may constitute the offence of trafficking in a dangerous drug will be proved. Particulars of the case which the Crown seeks to make may be given, though each transaction identified might have been made the subject of a separate prosecution. It is implicit in the offence created that such particulars may be given without attracting the criticism that the charge is duplicitous. Here, the indication at s. 482(2) is exactly the other way. The purpose of the subsection is expressly to limit the circumstances in which a series of actions each of which might itself be made the subject of a charge may be bundled together in a compendious way to support one charge of fraud. His Honour did not fail to notice that acts which may be offences may be used to sustain a single count. His Honour held that s. 482(2) ousted that rule.”
With respect, it is not clear what the reference is to “overturning” Jones or what the relevance is of this decision to the matter before me. Again, Fahey concerned a different charge and unique particulars. I note that in Fahey, the President distinguished that case from other cases concerning different charges.
There is no controversy, as far as I can ascertain, that each separate claim “could” constitute a separate fraud charge. The issue is whether, because of s 533 or any exception to the rule against duplicity, those acts can be grouped into one charge. In my view Fahey and Jones both acknowledged that is exactly what s 533 permits, provided the conduct relied upon is recurrent. Section 533 permits what would otherwise be duplicity.
With respect to principles of statutory interpretation, I note the words of Kirby J in Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520 who cautioned against focussing on judicial exposition in the task of statutory interpretation. He said:
“[63] […] it is important when a task of statutory interpretation is presented, to recognise the primacy of the duty of the decision-maker to give effect to the language of legislature that has enacted the provision in question, so as to carry into effect the purpose of the lawmakers, as such purpose emerges from the provisions enacted. There is a modern tendency to concentrate on judicial exposition of legal concepts in preference to analysis of statutory provisions that contain the applicable law. This tendency should be resisted.”
[emphasis added]
I accept that in Fahey the learned President may have felt bound by Jones, but the District Court is not so bound, although it may find decisions persuasive.
Here, the respondent states, in line with the reasoning of President Hall, the acts particularised are duplicitous and are not of a continuing nature. The respondent submitted the amended particulars in particular 4 of the Fraud Charge before the learned Magistrate were duplicitous because they are distinct acts, not acts of a continuing nature:
(a)paragraph (a) – concerns completing the Workcover claim;
(b)paragraph (b) – concerns a telephone conversation between the accused and a representative of the respondent; and
(c)paragraphs (c) – (i) – are particulars of the accused attendance on different medical practitioners.
The respondent contends they are separate and distinct acts and not recurrent.
I disagree that the acts particularised have to be the same. What they need to be are acts:[33]
(a)of a similar nature;
(b)connected to each by their common purpose; and
(c)that may be regarded as forming part of the same continual criminal enterprise.
[33] Director of Public Prosecutions v Merriman [1973] AC 584, 607; which was followed in R v Traino(1987) 45 SASR 473 at 475-476 and referred to in Fahey.
There is no doubt that all the particularised acts were required to be performed in order to obtain benefits or in an attempt to obtain the benefit. They are inextricably linked together by that common goal. Further, while the word “benefit” was not used, there is clear reference to the respondent obtaining compensation as a result of those acts.
The allegation is that the respondent has engaged in continuous course of conduct. The particularised conduct is all linked to the same claim for compensation, said to arise out of the same incident. It is a continuing course of conduct over a period.
In Jones there was a single count of fraud but in that case a return to calling fraud and a false and misleading statement about employment. That is, the elements under consideration in Jones were different, and duplicity was not argued. Further, the particulars combined allegations of both a return to calling fraud and dishonestly obtaining a benefit within a single charge.
In Fahey, President Hall considered that Jones was authority in relation to whether a complaint was latently duplicitous and followed it accordingly. This matter was also a return to calling and therefore different element and particulars which should have been separated. There was limited analysis in Fahey.
I agree with the appellant that Jones and Fahey are distinguishable and not determinative.
Relevance of Walsh v Tattersall
There was no consideration of the indicia referred to by Kirby J in Walsh v Tattersall by the learned Magistrate. Here, the relevant indicia is the intention of the accused throughout the conduct.
Walsh v Tattersall is regularly cited as an authority for the proposition that the rule against duplicity precludes the prosecution alleging two or more offences in a single charge on an indictment. As referred to above, Kirby J outlined the principles governing duplicity in criminal counts. His Honour noted that where the rule against duplicitous charges has been breached, it does not oblige the court, coming to that conclusion, to dismiss the charge. Rather, the proper course, where the defect is latent and the particulars do not remove it, may be for the court to permit an amendment.[34]
[34] Citing Johnson v Miller (1937) 59 CLR 467 at 490, per Dixon J, discussed in Stanton v Abernathy (1990) 19 NSWLR 656 at 670. See also R v Hamzy (1994) 74 A Crim R 341.
The injury was reported to the insurer by the respondent. The respondent reported that the injury was sustained at work. The prosecution alleges that this was the beginning of the dishonest conduct. As a result of this conduct the defendant obtained compensation to which she was not entitled.
The respondent submitted that the authorities of Jones and Fahey are directly relevant and should be followed. I have already addressed this above.
The prosecution submits the offence is not bad for duplicity because it relies on a continued course of conduct.
Consideration
This matter has some similarities to that in Walsh v Tattersall and Weinel v Fedcheshen [1995] SASC 5216; (1995) 65 SASR 156 (Weinel) (referred to in Walsh v Tattersall) in that the prosecution relies on “a course of conduct constituting a false pretence of incapacity, as a result of which the appellant received a number of payments under the Act.”[35] In Weinel, the course of conduct involved allegations of 59 specific instances of presentation of medical certificates for the purpose of obtaining benefits under the Workers Rehabilitation and Compensation Act 1986 (SA) which could each have been separately charged.
[35] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 86.
It is important to note here that the legislation under consideration in Walsh v Tattersall did not contain an equivalent provision to section 533(2) of the WCR Act.
In contrast to the legislation under consideration in Walsh v Tattersall, section 533 is a broader statement of fraud. It is not limited to a singular act. In Walsh v Tattersall the relevant section provided:
A person who —
(a) obtains by dishonest means any payment or other benefit under this Act;
(b) dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c) dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading, is guilty of an offence.
Penalty: $10,000 or imprisonment for one year.
Section 533(2) of the WCR Act also provides for where the conduct constituting the offence of fraud is recurrent. This section was not present in Walsh v Tattersall.
Section 533(2) provides a specific exception to the general rule in the circumstances prescribed therein.
For these reasons, Walsh v Tattersall is distinguishable on its facts, although it is leading authority on the principle of duplicity and its application generally.
Were the charges latently duplicitous because they rely on the same facts particularised in relating to the false and misleading information charges?
Appellants Submissions
The appellant submits:
(a)It is entitled on the offences of fraud and attempted fraud to lead evidence that the defendant repeated the lie about the cause of her injury on multiple occasions as evidence that her dishonest intention did not change over the course of the statutory and common law claims.
(b)The offences charged contain different elements. Once factual findings are made, if those facts establish guilt under more than one of the charges, consideration would then be given as to whether any additional punishment ought to be given in relation to the offences of providing false and misleading information. The appellant says this is analogous to offences of drug trafficking or torture or stalking.
(c)The offences of fraud and attempted fraud in this case are not duplicitous with the offences of false or misleading information as those other offences were referred to within the original complaints only to provide the defendant with information about how the prosecution was intending to prove that the defendant acted dishonestly.
Respondent’s Submissions
In relation to count 1 of the Holland Park Complaint, the appellant particularised the respondent’s acts as follows:
(a)Filling out a written claim which contained false or misleading information.
(b)Making false and misleading statements to Kim Jamieson (WorkCover Claims Representative), Dr Alvin Lim (General Practitioner), Matthew Watkinson (Chiropractor), Dr Ian Cheung (Orthopaedic Surgeon), Dr Nick Chiang (Rehabilitation and Pain Medicine Specialist), Daniel O’Connor (Physiotherapist), Tabitha Sluce (Chiropractor) and Dr Leo Zeller (Orthopaedic Surgeon).
(c)Filling out intake paperwork for Dr Zeller which contained false and misleading information.
As originally drafted, count 1 was comprised of separate and distinct acts that themselves constituted contraventions of section 534 of the WCR Act for providing “false or misleading information or documents.” Accordingly, the appellant charged the respondent with contraventions of section 534 for these acts of proving false and misleading information or documents. The amended charge 1 did nothing to change this.
Accordingly, the acts particularised under count 1 of fraud are not recurrent and bad for latently duplicity.
In relation to count 4 of the Caboolture Complaint, the appellant particularises the respondent’s act as follows:
(a)Making false and misleading statements to Dr Don Todman (Neurologist) and Dr Trevor Lotz (Consultant Psychiatrist).
(b)Giving a written statement on 29 June 2022 and statutory declaration on 28 August 2023.
As for count 1 of the Holland Park Complaint, the acts above are separate and distinct acts that themselves constitute a separate offence of contravening section 534 of the WCR Act.
Accordingly, count 4 of attempted fraud is bad for latent duplicity.
Consideration
Here the argument seems to be that because the factual particulars relied upon to establish the elements of the Fraud Charges are the same as those for the false and misleading charges, that it involves duplicity.
However, substantially similar facts can be relied upon to found alternative legal liability.[36]
[36] R v Leivers and Ballinger [1998] QCA 99; [1999] 1 Qd R 649.
The dishonesty is maintained over the period and although the particulars may change, the lie (that she is injured and it occurred in the workplace) is the same, albeit told to different people (i.e. doctors and the appellant).
Even if the conduct was not recurrent (as required by section 533(2) of the WCR Act) because the acts were strictly (and narrowly) considered distinct and separate, in my view, it is not duplicitous.
Here, it would be artificial, in my view, to treat each independent visit to a medical practitioner as a separate offence. The offence of fraud can only arise when the benefit is received. All of the visits are particularised as resulting in the benefit obtained. It demonstrates an ongoing course of conduct.
The rule against duplicity should not be used in a way which results in the frustration of the due administration of justice. In Rixon v Thompson [2008] VSC 232; (2008) 185 A Crim R 517, Harper J warned:[37]
“Despite the many good reasons for the existence of the rule against duplicity, it must not be allowed to frustrate the due administration of justice. Technical objections to the way in which a charge has been formulated may, depending on the circumstances, have merit; or they may not. The touchstone against which technical objections are to be assessed is that of fairness, and – to the extent that fairness is not impaired – of efficiency.”
[37] Rixon v Thompson [2008] VSC 232; (2008) 185 A Crim R 517, [14].
Conclusion
Did the learned Magistrate err in determining the charge of fraud was not recurrent in the terms of section 533 and therefore was bad for latent duplicity? Yes.
Did the learned Magistrate err in determining the charge of attempted fraud was bad for latent duplicity? Yes.
Kirby J made it clear in Walsh v Tattersall that strict adherence to the rule against duplicity should continue “save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges” [emphasis added].[38]
[38] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 112.
In my view, this matter falls within those articulated exceptions. First, there is the statutory warrant provided for in s 533(2) of the WCR Act, and second, or further, the facts and particulars are so closely related, they amount to the one activity.
The decision of the learned Magistrate should be set aside. I will hear the parties as to whether the Fraud Charge and Attempted Fraud Charge should proceed to be determined on the amended complaints and the proposed orders.
Costs
The appellant further seeks costs pursuant to section 226 of the Justices Act.
I will hear the parties further as to costs.
Annexure 1
Fraud Charges - Particulars
Charge one on the Holland Park Complaint (Fraud Charge):
Between 06/10/2020 and 14/01/2022 at Moorooka or elsewhere in the Holland Park Division of the Magistrates Court District in the State of Queensland, Lorraine Maxwell, defrauded an insurer, namely WorkCover Queensland, in contravention of section 533 of Workers’ Compensation and Rehabilitation Act 2003.
Particulars
1)On or about 6 October 2020, the defendant made a claim for workers’ compensation under the WCRA to WorkCover Queensland (the insurer) for a back injury she claimed was caused by lifting heavy boxes and fans at work on 2 October 2020.
2)On 8 October 2020, the defendant’s claim for compensation was accepted and the insurer commenced paying her compensation, backdated to 6 October 2020, which continued until 14 January 2022.
3)The defendant was not entitled to workers’ compensation because the injury to her back did not occur at work.
a) On 6 October 2020, the defendant filled out a written claim form stating words to the effect that she had injured her back lifting heavy boxes, lifting and pulling heavy fans, and lifting and pulling boxes onto pallets;
and/or
b) On 8 October 2020, the defendant had a telephone conversation with WorkCover Claims Representative Kim Jamieson and told Ms Jamieson words to the effect that:
i.On 2 October 2020 the defendant hurt her back at work working in different sections drilling, lifting and pulling boxes that were too heavy for her, hammering stainless steel drums and other tasks;
ii. The boxes of fans were about 20-30 kilograms;
i
ii. The defendant had no pre-existing injuryand/or
c) On 6 October 2020, the defendant attended on general practitioner Dr Alvin Lim and told him words to the effect that she had strained her back from heavy and repeated lifting of boxes from different tables at work;
and/or
d) On 5 November 2020, the defendant attended on chiropractor Matthew Watkinson and told him words to the effect that she had hurt her herself after lifting and dragging heavy boxes at work;
and/or
e) On 1 April 2021, the defendant attended on orthopaedic surgeon Dr Ian Cheung and told him words to the effect that she sustained a workplace injury on 2 October 2020 pulling an industrial fan from under a shelf and lifting a lot of things;
and/or
f) On or about 29 July 2021, the defendant attended on rehabilitation and pain medicine specialist Dr Nick Chiang and told him words to the effect that she injured her back on 2 October 2020 attempting to lift and drag a heavy fan underneath a shelf at work;
and/or
g) On 8 September 2021, the defendant attended on physiotherapist Daniel O’Connor and told him words to the effect that she sustained a lifting injury at work on 2 October 2020, lifting a boxed fan which weighed approximately 20 kilograms;
and/or
h) On 20 September 2021, the defendant attended on chiropractor Tabitha. Sluce and told her words to the effect that she had hurt her back at work in the lumbar region lifting a heavy fan which caused a prolapsed disc and pulled muscles;
and/or
i) On 9 December 2021, the defendant attended on orthopaedic surgeon Dr Leo Zeller and told him words to the effect that:
i. She had no prior problems with her back;—ii.She injured her back moving fans onto pallets which were 15-20 kilograms;
8)The defendant’s dishonesty deprived the insurer of the opportunity to properly assess and manage her claim, including determining whether to accept liability, pay compensation, and/or fund treatment.
9)As a result of her dishonesty, the defendant received compensation from the insurer to which she was not entitled.
Charge four on the Caboolture Complaint (Attempted Fraud Charge):
Between 06/03/2022 and 26/03/2024 at Caboolture or elsewhere in the Caboolture Magistrates Court District in the State of Queensland, Lorraine Maxwell attempted to defraud an insurer, namely WorkCover Queensland in contravention of section 533 of the Workers’ Compensation and Rehabilitation Act 2003.
Particulars
1)On or about 6 October 2020, the defendant made a claim for workers’ compensation under the WCRA to WorkCover Queensland (the insurer) for a back injury she claimed was caused by lifting heavy boxes and fans at work on 2 October 2020.
2)On 8 October 2020, the defendant’s claim for compensation was accepted and the insurer commenced paying her compensation, backdated to 6 October 2020, which continued until 14 January 2022.
3)On 7 March 2022 the defendant signed a Notice of Claim for damages (NOC) to commence a common law claim for damages in relation to her alleged work-related injury.
4) The NOC was served on the insurer on 10 March 2022.
5)In the NOC, the defendant claimed damages for an injury to her back that did not occur at work.
a) On 9 December 2021, the defendant attended a consultation with Dr Don Todman, neurologist, and told him words to the effect that:
i.She was involved in a work accident on 2 October 2020 involving moving industrial fans from under a shelf;
ii. The fans weighed between 15 and 20 kg.
b) On 29 March 2022, the defendant attended a consultation with Dr Trevor Lotz and told him words to the effect that she had hurt her back at work moving heavy industrial fans from under a shelf onto pallets;
c) On 29 June 2022, the defendant signed a written statement to the effect that:
i.She had reviewed CCTV footage of the day she alleged the injury occurred and she had been taken to a back area away from her normal work area to empty shelves of exhaust fans onto pallets which weighed 18.5-20 kilograms;
ii. It was moving the heavy fans which caused her back injury.
d) On 28 August 2023, the defendant signed a statutory declaration including that her workplace injury did not occur in view of the closed-circuit television cameras in the workplace.
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