Zanker v Kupsch
[2014] SASCFC 13
•6 March 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ZANKER v KUPSCH
[2014] SASCFC 13
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Anderson)
6 March 2014
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - STRONG REASONS FOR INTERFERENCE - GENERALLY
WORKERS' COMPENSATION - OFFENCES
The respondent Mr Kupsch, was changed with 24 counts of obtaining by dishonest means a payment under the Workers Rehabilitation and Compensation Act 1986 (SA), contrary to s 120(1)(a). Mr Kupsch dishonestly concealed from his rehabilitation providers the bakery work he had performed whilst in receipt of the payment. Following a trial in the Magistrates Court, Mr Kupsch was convicted on all counts. Mr Kupsch appealed to a single Judge of this Court. The appeal was allowed, the convictions set aside and the matter remitted for retrial.
The appellant appeals against the orders made by a Judge of this Court.
Held (Kourakis CJ and Anderson J agreeing):
(1) The Magistrate’s questioning was more extensive that it ought to have been but there were no grounds upon which bias could be apprehended, the questioning did not compromise the proper presentation of Mr Kupsch’s evidence and was not “so gross or so persistent” as to compromise the Magistrate’s capacity to independently evaluate the evidence (Kourakis CJ at [83]). Accordingly, no miscarriage of justice was occasioned (Kourakis CJ at [4]).
(2) The Magistrate did not misunderstand the evidence of Dr McCulloch. The Judge was wrong to attribute error to the Magistrate’s treatment of Dr McCulloch (Kourakis CJ at [97]).
(3) The Magistrate did not proceed on a mistaken view of the covert surveillance evidence in that he correctly stated the full effect of the evidence in that part of his reasons in which he considered its probative weight in more detail (Kourakis CJ at [5] and [85]).
(4) Appeal allowed and the convictions recorded in the Magistrates Court restored. The order of the Judge of this Court allowing the appeal against convictions entered in the Magistrates Court set aside. The respondent’s appeal to this Court against the convictions dismissed (Kourakis CJ at [101]).
Held (Sulan J):
(1) A miscarriage will result where the intervention of a judicial officer has made the trial unfair. The ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice. Where it is complained on appeal that a trial has been unfair as a consequence of excessive or undue judicial intervention, a court is not limited to considering aspects of unfairness and impartiality in isolation (Sulan J at [120]).
(2) The Magistrate’s intervention was not directed at providing the respondent with the opportunity to respond to preliminary views formed by the Magistrate, nor was it seeking to clarify an answer given by the respondent. A number of questions posed by the Magistrate were inherently unfair and went beyond that which would have been permissible for counsel to put to a witness in cross-examination (Sulan J at [139]-[140]).
(3) There was a risk that the Magistrate’s view was clouded by the dust of the conflict and that he unconsciously deprived himself of the advantage of calm and dispassionate observation. It created a tangible risk that the Magistrate may have been seen to have sided with the prosecution, and to have lost the appearance of impartiality which was expected. Accordingly, the trial miscarried and the convictions should be set aside (Sulan J at [142]).
Workers Rehabilitation and Compensation Act 1986 (SA) s 35, s 36, s 120, referred to.
R v T, WA [2014] SASCFC 3; R v MacBeth [2008] SASC 71, applied.
Police v Kupsch Magistrates Court of South Australia (Magistrate Snopek) AMC-09-3535; Kupsch v Zanker [2013] SASC 60; Vakauta v Kelly (1989) 167 CLR 568; Ebner v Official Trustee (2000) 205 CLR 337; Galea v Galea (1990) 19 NSWLR 263; R v Esposito (1998) 45 NSWLR 442; Michel v The Queen [2009] UKPC 41; Antoun v The Queen (2006) 159 A Crim R 513, discussed.
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"excessive judicial intervention"
ZANKER v KUPSCH
[2014] SASCFC 13Full Court: Kourakis CJ, Sulan and Anderson JJ
KOURAKIS CJ: The respondent, Mr Kupsch, is a police officer. On 12 September 2005, whilst assigned to the Transit Services Branch (Transit Services) of South Australia Police (SAPOL), he was travelling in a police vehicle in the Adelaide city centre when it was involved in an accident. He suffered a whiplash type injury. He made his first claim for compensation on 20 September 2005 which, in due course, was accepted.[1] Thereafter he received compensation for income maintenance and for the payment of medical expenses.
[1] Mr Kupsch lodged a number of other claims for reasons which are not clear on the material before this Court. They may well have related to different kinds of compensation. In a claim made on 20 September 2005 the injury was described as “neck injury, lower back injury” and in a claim made on 20 January 2006 as “whiplash/lower & mid back”. On 27 January 2006 a further claim was made for “whiplash, cervical, thoracic, lumber, PTSD”. In a claim made on 20 December 2006 the injury was described as “neck/back – narrowing C2, C3, C4, anxiety and depression, post traumatic stress disorder, whiplash”.
By 2006 Mr Kupsch had returned to work on alternative light duties, which were regulated by successive return to work plans, but remained in receipt of income maintenance compensation. In late 2007 and the first half of 2008, Mr Kupsch worked in the property section of Transit Services, initially for three days a week, and later, in 2008, for four days a week. Over the same period of time, Mr Kupsch worked from time to time in a bakery owned by his family company, Ilavo Pty Ltd (Ilavo), but did not disclose that work to the medical and rehabilitation practitioners (collectively referred to in this judgment as his “rehabilitation providers”) who were managing his return to work.
In 2009, Mr Kupsch was charged with 24 counts of having obtained fortnightly income maintenance compensation between 16 January 2008 and 3 December 2008 by dishonestly concealing the bakery work he had performed from his rehabilitation providers. The Magistrate convicted Mr Kupsch on all 24 counts. On an appeal to a single Judge of this Court (the Judge) the convictions were set aside, and the matter remitted for retrial, on the grounds that:
(a)the convictions were a miscarriage of justice because of the excessive questioning of Mr Kupsch by the Magistrate;
(b)the Magistrate had both misunderstood the evidence of the witness Dr McCulloch, a neurosurgeon, about Mr Kupsch’s range of neck movement and had failed to give Dr McCulloch’s opinion that Mr Kupsch presented for examination in a genuine fashion sufficient weight; and
(c)the Magistrate had mistaken the extent to which the covert surveillance evidence of Mr Kupsch showed him performing work in the bakery.
I would allow the appeal and restore the convictions recorded in the Magistrates Court. I accept that the Magistrate’s questioning was more extensive than it ought to have been but no miscarriage of justice was occasioned thereby because the questioning:
·did not indicate actual bias, nor would a reasonable bystander have apprehended bias;
·did not compromise the proper presentation of Mr Kupsch’s evidence; and
·considered in its proper context, was not such an egregious intervention in the course of proceedings as to compromise the Magistrate’s capacity to independently evaluate the evidence.
As to the other grounds, I am satisfied that the Magistrate did not misunderstand the evidence of Dr McCulloch. The Magistrate expressly, and correctly, recorded in his reasons Dr McCulloch’s observations of the range of Mr Kupsch’s neck movement. Nor do I apprehend any error in the Magistrate’s treatment of Dr McCulloch’s assessment of Mr Kupsch’s manner of presentation. Dr McCulloch’s opinion that Mr Kupsch presented genuinely in his examinations of him had marginal, if any, probative weight on the issue of the honesty or dishonesty of Mr Kupsch’s failure to disclose his work at the bakery. With respect to the covert surveillance ground, I accept that the Magistrate overstated the extent of the work disclosed by the covert surveillance in two loosely expressed paragraphs in which that evidence was summarised. However, the Magistrate correctly stated the full effect of that evidence in that part of his reasons in which he considered its probative weight in more detail. I am satisfied that the Magistrate did not proceed on a mistaken view of that evidence.
I elaborate on my reasons for so holding below.
The Prosecution Case
The Magistrate recorded that the prosecution case on the 24 charges was:[2]
... that the defendant did not disclose the performance of [the bakery] work and his capacity to do this work to SA Police ... or to his medical practitioners or rehabilitation officer. Additionally, the prosecution alleged the defendant made a number of misrepresentations to doctors and other medical professionals in order to facilitate the ongoing receipt of compensation payments. The prosecution alleges that the defendant’s dishonesty in not disclosing his work and ability to work in the bakery, is highlighted by the fact he performed bakery functions on scheduled recuperation days, and on one occasion on a case conference date with his general practitioner and SAPOL to discuss his rehabilitation. This dishonesty is alleged given that the defendant was aware he was receiving payments because he was allegedly medically unfit to perform his normal duties.
[2] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [8].
It was not contended in this Court, nor before the Judge, that the Magistrate’s summary did not fairly represent the prosecution case. Leaving aside some specific miscellaneous misrepresentations to doctors, the gravamen of the prosecution case was Mr Kupsch’s dishonest failure to disclose to SAPOL and his rehabilitation providers the performance of work at the bakery.
Following the accident Mr Kupsch consulted a general practitioner, Dr O’Toole. Dr O’Toole testified that he treated Mr Kupsch by organising medical referrals for assessment and treatment. Dr O’Toole also organised meetings with rehabilitation providers and representatives of SAPOL (case conferences) to co-ordinate his treatment and rehabilitation and to facilitate Mr Kupsch’s eventual return to work. Dr O’Toole testified that he held case conferences on 11 October 2007, 28 November 2007 and 22 January 2008.
On 28 March 2007 Mr Kupsch was examined by Dr McCulloch at the request of SAPOL. Dr McCulloch observed in a report sent to SAPOL that Mr Kupsch presented “in a genuine and straightforward manner”. He noted that his cervical spine rotation was 30 degrees.
On 10 September 2007 Mr Kupsch was seen by the psychiatrist, Dr Clarke. Dr Clarke noted that Mr Kupsch was in a state of crisis following the recent breakdown of his marriage and was using alcohol to excess. Dr Clarke diagnosed Mr Kupsch as suffering an adjustment disorder with depressed mood.
On 26 September 2007 Mr Kupsch was again examined by Dr McCulloch. Mr Kupsch complained of neck soreness and tightness, particularly on the right‑hand side. He reported that his neck symptoms were made worse “with any sort of physical activity” including “forward flexion movement of his neck and looking down”. Mr Kupsch told Dr McCulloch that he continued to work three days per week, seven hours per day, doing administrative work. Dr McCulloch noted that his cervical spine rotation was 60 degrees on both sides and that flexion and extension was to about three-quarters of the normal range. Flexion of his lumbar spine was also limited. In his report dated 27 September 2007 Dr McCulloch recorded that Mr Kupsch presented “in a genuine and straightforward manner”.
In November 2007, SAPOL notified Mr Kupsch that it intended to assign him to the Employment Management Register (EMR) so that his position in Transit Service could be backfilled by a fully fit officer. An assignment to the EMR would have resulted in Mr Kupsch’s deployment to a position in any of SAPOL’s branches where an officer with his disabilities could be accommodated. Mr Kupsch and his wife were concerned that he was being pressured out of the position in the property section of the Transit Services Branch in which he was comfortable.
In the case conference held on 28 November 2007, the SAPOL representative, Senior Sergeant Parry-Jones, agreed to allow Mr Kupsch to stay in Transit Services but not as an operational police officer. At that meeting, Senior Sergeant Parry-Jones expressed concern that Mr Kupsch often took sick days on his rostered work days under the return to work plan. In a subsequent interview of Senior Sergeant Parry-Jones, taken in the course of an investigation of Mr Kupsch’s claim, and which was received into evidence, Senior Sergeant Parry-Jones also said that Mr Kupsch often arrived up to 10 minutes late for his work at Transit Services, especially when he was rostered for a 7.00 am start. According to Senior Sergeant Parry-Jones, the unreliability of Mr Kupsch’s attendance made it difficult for SAPOL to organise work around him.
Mr Vernon, a rehabilitation consultant, also attended the 28 November 2007 case conference. Mr Vernon testified that in that conference Senior Sergeant Parry-Jones asked Mr Kupsch if he could work three days in a row. According to Mr Vernon, Mr Kupsch responded that he needed to get “three alternate days right” and that “if he could do three alternate days and do that right, then he might be able to do three days in a row”.
Dr O’Toole gave evidence that after the 28 November 2007 case conference he provided a medical certificate to the effect that Mr Kupsch could work on Monday, Wednesday and Friday of each week. Dr O’Toole testified that it was his plan to allow Mr Kupsch to recover on Tuesdays and Thursdays. The medical certificate completed by Dr O’Toole on that occasion recorded that Mr Kupsch was suffering from “headaches”. There was no reference to his cervical, thoracic or lumbar spine injuries. The medical certificate cleared Mr Kupsch to return to modified duties for the two month period commencing 1 December 2007 and ending 31 January 2008. The restrictions specified on the medical certificate included working alternate days on Monday, Wednesday and Friday for a maximum of seven hours per day. The certificate also specified that Mr Kupsch was not to wear the standard police belt, was to avoid offender contact and prolonged periods of sitting and to be given only limited lifting. Dr O’Toole explained the reasons for imposing those restrictions in these terms:
A.I think the main concern would be that, at that point, he was suffering from headaches and also had been suffering from neck and back pain. There’s an increased chance, if he was still suffering from any of those conditions, that lifting might injure a part of the musculature in the lower back for upper back or neck which would then exacerbate his medical symptoms.
Q.Just taking a step by step process through that, am I correct in understanding from your answer that you were concerned about him suffering further physical injuries?
A.That’s correct. Also exacerbating the headaches, yes.
Q.And are you able to explain what the relationship was between the physical injury and the headaches?
A.Yes, I can certainly try. That’s a difficult scenario. I think, that there’s often the case that with a neck injury and neck pain patients can often suffer from chronic headaches secondary to this neck injury. The exact cause isn’t always known but that’s certainly a recognised condition and a common occurrence.
It is plain from that evidence that in Dr O’Toole’s opinion Mr Kupsch’s headaches were related to his neck condition and were not a manifestation of some independent pathology.
In December 2007, Mr Kupsch was referred to an occupational therapist, Ms Rankine, for a functional capacity assessment. On 15 January 2008, Ms Rankine reported that it was her opinion that Mr Kupsch had greater capacity than he had demonstrated in the functional capacity evaluation.
On 28 December 2007, Dr O’Toole provided a further medical certificate certifying that Mr Kupsch was totally unfit for work on that day.
A case conference was held again on 22 January 2008 at 9.30 am. At that conference Mr Kupsch complained that the functional capacity evaluation undertaken by Ms Rankine in December 2007 had caused him pain and soreness over the succeeding days. When Ms Rankine, who was present, reiterated her previously reported opinion about Mr Kupsch’s capacity he became defensive. Dr O’Toole asked Mr Kupsch whether, in light of the functional evaluation assessment, he was prepared to increase his hours. Mr Kupsch responded that he “could do four days but shorter hours”. Mr Kupsch also suggested that he might work Monday through to Thursday. Despite that request, Dr O’Toole provided Mr Kupsch with a medical certificate allowing a return to work for four days per week Monday, Tuesday, Thursday and Friday. The working hours remained as they had been. The restrictions on Mr Kupsch’s employment duties also remained the same as the certificate given on 28 November 2007. Dr O’Toole testified that he certified Mr Kupsch fit for an additional working day “probably, because, he was doing very well”. Dr O’Toole explained that the Wednesday was rostered off as a day for recovery.
Covert surveillance of Mr Kupsch on the very day of that case conference revealed he had worked in the bakery from 4.21 am to 6.14 am. Even though he had finished his work at the bakery just three hours before the start of the case conference at 9.30am, Mr Kupsch did not disclose the work he had performed in the early hours of that morning to anyone at the conference. Nor did Mr Kupsch disclose work he had performed in the bakery on 15, 18 and 22 December 2007 and on 12 and 17 January 2008.
The Magistrate set out the surveillance evidence of Mr Kupsch’s attendances at the bakery before the case conference on 22 January 2008 in that part of his reasons in which he made intermediate findings of fact as follows:[3]
I am also satisfied beyond reasonable doubt based on the contents of P10, that there were seven days of surveillance between Friday 11 January, 2008 and Tuesday 22 January, 2008. I am satisfied beyond reasonable doubt that Mr Kupsch was at the bakery as follows:
(1)On Saturday 12 January, 2008 he was seen at the bakery from 3.50am to 8.54am and was seen using a bread knife to cut items, icing buns, lifting a saucepan and stirring a mixture, lifting a bread rack onto the bench and loading baked items onto it and purchasing and carrying a bag of groceries.
(2)On Tuesday 15 January, 2008 observations were made between 12.30pm and 3pm at the bakery and the defendant is not sighted.
(3)On Wednesday 16 January, 2008 observations at the bakery between 5am to 7am do not disclose Mr Kupsch at the bakery.
(4)On Wednesday 17 January, 2008 Mr Kupsch is seen at 5.45am working at the bakery and carrying items and at 8.33am unloading the 20 kilogram sacks of flour.
(5)Observations between 3am and 5.30am on Saturday 19 January, 2008 indicate Mr Kupsch is not at the bakery.
(6)Observations on Tuesday 22 January, 2008 show the defendant arriving at the bakery with the apprentice and the blinds are left down. A walk by shows the defendant icing items at 4.35am. The defendant remains until 6.14am.
[3] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [344].
The Magistrate then set out the observations made of Mr Kupsch’s residence and the bakery after the case conference on 22 January 2008:[4]
[4] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [345]-[346].
I am satisfied beyond reasonable doubt that the next surveillance after 22 January, 2008 was not until Tuesday 4 March, 2008, and there was surveillance as follows:
(1)Tuesday 4 March, 2008 the defendant arrived with the apprentice at 4.36am and is seen working from 4.46am and icing buns at 5.45am together with lifting trays and placing them into the display case. He works to 6.58am and leaves the bakery.
I pause here to note that as at 1 February, 2008 the defendant was working four days a week, seven hours a day with Wednesday off to recuperate under Work Cover repayments.
(2)On Wednesday 5 March, 2008 observations between 4.30pm and 6pm do not show the defendant at the bakery.
(3)Thursday 6 March, 2008, observations between 4.18am and 7am do not disclose defendant present. Observations terminated at 7am as Mr Kupsch’s police shift commenced at 7am at Transit.
(4)Friday 7 March, 2008 between 8.30am and 8.30pm show the other baker and apprentice present, but not the claimant. Observations terminated.
(5)Saturday 8 March, 2008 the defendant arrived at 4.47am, dons an apron and sets up display cases, lifts bread racks and ices buns. At 8.30am the defendant was continuing to work rolling sausage rolls and was still working at 9.45am.
(6)Tuesday 11 March, 2008 the defendant was seen leaving his Flagstaff Hill address at 1.12pm and parking in Crozier Street, Oaklands Park. At 1.30pm the defendant catches the train and is unable to be followed. The medical certificate marked ‘Y’ in exhibit P5 Tab 43 indicated that for the period 14 February 2007 to 15 March, 2007 the defendant was attending the COPER clinic for three weeks.
(7)On Wednesday 12 March, 2008 at 7.18pm observations disclosed the older baker, baking alone, and Mr Kupsch was not present.
(8)On Thursday 13 March, 2008, bakery opened by older baker at 4.36am and the defendant is not sighted when observations cease at 7am.
(9)Saturday 15 March, 2008 the defendant arrives at the bakery at 4.31am and is seen working continuously from 4.39am to 8.30am doing duties such as icing doughnuts, sweeping, filling cakes with an icing bag, packing trays of pies. At 10.11am a walk by showed the defendant still present, and observations ceased at 10.30am.
(10)On Tuesday 18 March, 2008 observations at 4.30am to 6.30am do not show the defendant at the bakery. His shuttle van is seen leaving his home address at 9.50am, but the van is lost sight of at 10am.
I am satisfied beyond reasonable doubt that whilst the defendant was attending full-time at the COPER clinic he attended at the bakery three times and performed bakery functions.
It will be observed from the last cited paragraph that Mr Kupsch was seen working at the bakery on three days, in the period between 4 March 2008 to 15 March 2008.[5]
[5] I note that the Magistrate referred to Mr Kupsch’s attendance at the COPER clinic between 14 February 2007 to 15 March 2007. That attendance was in the previous year. It is not clear why the Magistrate has referred to it but nothing turns on his observation.
The Magistrate then detailed the results of the surveillance conducted between 28 May 2008 and 25 June 2008 during which time Mr Kupsch was not observed to perform any work at the bakery before making the following further findings:[6]
[6] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [347]-[348].
I am also satisfied beyond reasonable doubt that surveillance did not recommence from 18 March, 2008 until Wednesday 28 May, 2008 and went four days to Saturday 31 May, 2008. The defendant was not sighted at the bakery on Wednesday 28 May, Thursday 29 May, Friday 30 May, and was observed arriving at 7.30am on Saturday 31 May, 2008. He was only seen to look at paperwork and observations were ceased at 8am.
Finally in relation to surveillance records, I am satisfied beyond reasonable doubt that there was surveillance conducted on the defendant on seven occasions in June, 2008 from Tuesday 3 June, 2008 to Wednesday 25 June, 2008 with the following results:
(1)Tuesday 3 June, 2008 the defendant did not attend the bakery.
(2)Wednesday 4 June, 2008 no observations of the defendant at the bakery. He is observed at 10.25am, leaving in the Holden Silver Shuttle and parking in Crozier Terrace, Oaklands Park. He is seen walking towards the station, and the surveillance operative proceeded to North Terrace to await the defendant. He never attended his hearing that day.
(3)The defendant is seen at the bakery at 7am on Saturday 7 June, 2008, but not working. The defendant left the bakery at 11.25am and returned home. At 12.49pm the defendant, his wife and child leave the home and go to Parafield Airport, where the defendant has a joy flight.
(4)On Sunday 8 June, 2008 the defendant was not at the bakery when observations started at 8.06am. At 8.52am, Mr Arbon went to the defendant’s home address and the defendant is seen vacuuming and cleaning which involved leaning forward and squatting between 1.46pm and 1.56pm.
(5)On Wednesday 11 June, 2008 the defendant was at home and not observed working.
(6)On Monday 23 June, 2008 the surveillance started at 11.30 am at the bakery and no-one was observed. The defendant however was at home at 12.30pm this day. Observations were ceased at 1.06pm.
(7)On Wednesday 25 June, 2008 the defendant was sighted in the bakery when observations commenced at 3pm. He was seen with a bag over his shoulder at 3.11pm, and departing the bakery at 3.44pm.
After the 28 January 2008 case conference, Dr O’Toole wrote further medical certificates as follows:
15 February 2008
- totally unfit for 15 February 2008
25 February 2008
- totally unfit for 25 February 2008
3 March 2008
- fit for modified duties, Monday, Tuesday, Thursday, Friday, from 29 February 2008 to 31 March 2008, 7 hours per day
31 March 2008
- fit for modified duties Monday, Tuesday, Thursday, Friday, 7 hours per day, from 1 April 2008 to 31 May 2008
8 May 2008
- totally unfit 8 May 2008
22 May 2008
- totally unfit 22 May 2008
30 May 2008
- modified duties four days per week Monday, Tuesday, Thursday, Friday, 8 hours per day, from 1 June 2008 to 31 July 2008
16 June 2008
- totally unfit 16 June 2008
Mr Kupsch did not disclose to Dr O’Toole the fact that he had worked at the bakery on any of those consultations.
The debilitating condition specified on those certificates was headaches. In re-examination, Dr O’Toole was asked whether there was any significance in the change in the condition specified in the medical certificates from neck and back pain to headaches. Dr O’Toole answered:
No, I would assume that I was recording the particular problem at that time that was either preventing the day’s work or preventing full return to work.
Mr Kupsch saw a rehabilitation physician, Dr Green, on 9 July 2008. His neck rotation was found to be about 70 degrees on both sides. Mr Kupsch told Dr Green that his neck pain was aggravated by sustained flexion rotation and extension and that he suffered headaches emanating from his mid cervical segment to the bitemporoparietal region. Mr Kupsch told Dr Green that he was performing alternative duties at Transit Services. Mr Kupsch also informed Dr Green that he performed domestic duties but that his capacity to perform external home maintenance was restricted. He did not disclose to Dr Green that he had performed work at the bakery.
The prosecution adduced evidence that even though SAPOL was aware that Mr Kupsch had an interest in a bakery it did not know that Mr Kupsch personally performed any work in it. A statement of Chief Inspector McDonald to that effect was received by consent. That statement revealed that in early 2007, Chief Inspector McDonald became aware of Mr Kupsch’s involvement in a bakery because he brought a tray of bakery items into work. According to Chief Inspector McDonald, Mr Kupsch told him that he was a non-paid director of a family company which operated the bakery. Importantly, Chief Inspector McDonald’s statement records that Mr Kupsch assured him that “he had no involvement in the decision making of the company or physically working in the bakery”. As a result of his conversation with Chief Inspector McDonald, Mr Kupsch sought permission in writing to engage in “secondary employment with family who are the owners/operators of the company trading as Ilavo Pty Ltd”. In that request, Mr Kupsch informed SAPOL that he did “not intend to undertake paid duties with Ilavo Pty Ltd” and that it would not interfere with his primary employment as a police officer. Chief Inspector McDonald recommended that Mr Kupsch be given permission to perform secondary employment “as a non-paid director” of Ilavo. In accordance with that recommendation, an Assistant Commissioner approved Mr Kupsch’s application for a trial period until 30 December 2007.
Mr Kupsch’s directorship of Ilavo was also proved by extracts from the companies register, which showed that Ilavo was constituted as Mr Kupsch’s family company in October 2006. Mr Kupsch ceased being a director and shareholder of Ilavo in October 2007.
The prosecution also put in evidence a written notification SAPOL received from Mr Kupsch on 19 November 2007, that he did not require an extension of his approval because he was no longer a director of Ilavo.
When Mr Kupsch gave evidence in the defence case he conceded that he had never informed SAPOL of the work which he had performed in the bakery.
On 26 June 2008, Mr Kupsch was suspended from his employment with pay. Mr Kupsch was informed that he was suspended whilst investigations were conducted into his work in the bakery when he was receiving worker’s compensation payments.
On 14 October 2008, SAPOL served on Mr Kupsch a notice of its intention to discontinue his weekly payments within 28 days on the grounds that he had misled SAPOL and his medical practitioners about the extent of his work capacity.
The defence case
As I earlier mentioned, Mr Kupsch testified in his defence. He gave evidence that, as of 2005, he was a general duties member of Transit Services. His duties included riding on and patrolling public transport vehicles.
Mr Kupsch testified that before joining the police force he had trained as a pastry cook. In 2006 he and his wife purchased a bakery at Henley Beach with the intention that Mrs Kupsch would operate it from home whilst their children were small. Mr Kupsch testified that he later made an application to SAPOL for secondary employment in a position as a “non-paid director” of Ilavo. Mr Kupsch agreed that he started doing some work in the bakery like icing buns, taking bread out of racks, and putting rolls in ovens from 2006 or 2007.
Mr Kupsch was then asked about the circumstances in which he came to request permission to act as a director of the company from SAPOL and about his written request in particular. He answered:
A.When I wrote this I didn’t have any involvement at all as far as working in – and doing any duties that were baking. I was involved obviously with the setup of it. At a later date, and I can’t tell you when, you know, I would do things, I would do duties, as a baker would, when my father was there.
Q.I want to suggest to you that you’ve just told this court when I asked you specifically about the work you were doing in 2006 and 2007 that you said that you were performing physical work in the bakery.
A.I just said I did things in the bakery. I don’t understand.
It appears from that exchange that Mr Kupsch had on his own admission misled SAPOL when he applied for permission to hold office as a director of Ilavo about the extent of his work and then responded evasively when confronted with that evidence.
In his evidence Mr Kupsch confirmed the accuracy of the companies extracts which showed that he had ceased to be a director and shareholder of Ilavo in October 2007. Mr Kupsch gave evidence that his resignation was a strategy to avoid paying maintenance for a child of a previous relationship. Mr Kupsch explained that he and his wife experienced marital difficulties in 2007 because he had become “hard to live with”. As a result the bakery was placed on the market.
Mr Kupsch testified that after his vehicle accident he spoke to a number of senior police officers in the hope that he might be placed back on full time patrol duties, but that did not eventuate. He went on to describe his exercise rehabilitation programs. He testified that he stopped taking pain killing medication in 2008 because he was concerned that he might become dependent on it.
Mr Kupsch gave evidence that during 2007 he was assigned to the property management section of Transit Services and to the monitoring of CCTV screens. He explained that his work in the property section involved lifting and reaching, and carrying bags of spray cans and other graffiti paraphernalia. Mr Kupsch asserted that that work, which involved similar movements to the work he was seen performing at the bakery, did not cause him any difficulty. However, he claimed that watching the CCTV screens, which required him to extend his neck, did cause him pain and chronic headaches. Mr Kupsch asserted that from late 2007 into early 2008, he wanted to go back to work as a transit police officer and made that clear to Dr O’Toole. According to Mr Kupsch, both Dr O’Toole and Senior Sergeant Parry Jones did not think he could do that work.
In the course of his evidence-in-chief, Mr Kupsch’s attention was drawn to the video footage which showed that he was “on occasions” at the bakery. He was asked to explain how that came about. Mr Kupsch answered:
There’s a couple of reasons, the weekends that I was there, it was identified that I was – well they served it through the door the bakers that were there were serving through the side door and there was money going missing that my wife identified and it being a weekend and it being Henley Square, it’s quite violent and we discussed it at home as you would, husband and wife, and I said that I would go down there and be there to identify if money was being taken and by whom.
When he was asked what he did at the bakery when he was there Mr Kupsch answered:
Yes, I am a pastry cook by trade and it’s an interest of mine, I’ve grown up in a bakery, my father has a bakery and my brother’s a baker – that’s in the country and it’s always been an interest of mine. So yeah, therefore when I was there I did do a few things.
Mr Kupsch insisted that he never replaced a paid employee and that he did very little work. Mr Kupsch claimed that he did not receive any money or wages for his work. He conceded that the work he performed included sweeping the bakery, rearranging bread in bread racks and obtaining supplies for the bakery. He testified that he was able to, and did, carry sacks of flour which weighed 20kgs. He agreed that he placed trays in an oven and removed them. All of that work had been detected by the surveillance operatives. Mr Kupsch attempted to explain the difference in the biomechanics of the movements involved in his work in the bakery and the external house maintenance which he had told Dr Green he could not perform.
Mr Kupsch was asked about the length of the shifts he worked at the bakery. He answered:
It ranged from very short periods of time up to three to four hours, just depending on – especially on a weekend when the boys were there and they were serving the customers through a period of probably five to six hours, I would be there.
Mr Kupsch said that he was at the bakery overnight and in the early hours of the morning on weekends to serve people coming out of the hotels. In cross-examination Mr Kupsch accepted that his night shifts at the bakery would sometimes start at 11 o’clock at night or shortly after midnight. The night shift would finish at different times between 3.00 am to 10.00 am. During the weekdays he was at the bakery early in the mornings. It will be remembered that Senior Sergeant Parry Jones had expressed concern about Mr Kupsch often being late when rostered for the 7.00 am shift at Transit Services. Mr Kupsch was asked whether he was at the bakery every week or not and answered:
No, look – no I didn’t. I was identified by the surveillance as being there 12 times over a period of seven months, so it was very irregular that I would attend. But if I needed an escape and that’s what it became. Became an escape for me. To go there I felt that I was accepted and I could just be there and that’s what it became for me.
The prosecution had put into evidence a roster for the workers in the bakery in which Mr Kupsch had been assigned regular shifts. The Magistrate summarised the roster and Mr Kupsch’s explanation for the shifts assigned to him as follows:[7]
Mr Kupsch agreed that from 1 February, 2008 he was to work Monday, Tuesday, Thursday and Friday each week with Wednesday off to recuperate. He also agreed that P9 shows he had the word ‘Police’ under his hours on Monday, Tuesday, Thursday and Friday, and therefore the roster P9 accurately recorded his police shifts. Mr Kupsch said he worked Saturday at the bakery and would come and go as he chose. Mr Kupsch maintained that he did not fill in for anyone when he did attend and that there was always two others there performing baking duties. This was not correct as on occasions it was only he and the apprentice. Mr Kupsch disputed that the roster was accurate, as sometimes he was there as indicated on the roster and other time he was not. Mr Kupsch said sometimes he would attend at times other than the roster times. The defendant agreed P9 shows that he was to work between 4 – 7 am and then would do his police shift at 9 am, but he was not always there. This roster was prepared to demonstrate to a prospective buyer who had another job, how he could combine that job with working at the bakery as a second job. This was prepared to show how Mr Kupsch combined his primary work as a police officer with bakery duties.
[7] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [293].
The Magistrate rejected Mr Kupsch’s explanation for the following reasons:[8]
I pause here to note that I do not understand this explanation by Mr Kupsch. If a prospective buyer had other employment, then it would be dependent on those hours of employment if he could work a second job and what hours he could work. I do not accept this explanation, even as a reasonable possibility to explain Mr Kupsch being on the roster, P9. Mr Kupsch said some of the roster, P9 is accurate, other parts are not. Mr Kupsch said he worked some of those dates and times, on other occasions he did not. He agreed the police are not mentioned on Wednesday on P9, as he did not work that day. However, he also said he was not there every Wednesday, nor did he work from 4 am to 7 am. Similarly he did not work every Thursday between 1 – 6 am, but he did work some Thursdays. Mr Kupsch said he would often go to the business premises to collect money.
Mr Kupsch agreed initially he did not know he was under surveillance, then thought he was under surveillance every day. Mr Kupsch thinks the only days he worked over the seven months were the 12 days there is surveillance of him.
Turning to Friday, the roster shows Mr Kupsch is to work 1 – 6 am at the bakery. Mr Kupsch said sometimes he worked, sometimes he did not. Mr Kupsch said the roster P9 is inaccurate when it shows Marty, the baker is rostered off from 8 am on a Wednesday to 9 pm on a Friday. Mr Kupsch maintained Marty worked seven days a week. I do not accept this, as surveillance on occasions only showed Mr Kupsch and one other doing baking duties.
[8] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [294]-[296].
On the other hand, the Magistrate was not satisfied that Mr Kupsch had in fact worked at the bakery on every shift for which he was rostered:[9]
However, … I am not satisfied beyond reasonable doubt that P9 is an accurate roster of the defendant’s duties from 10 April, 2008 for a number of reasons. If P9 was an accurate roster effective from 10 April, 2008, there was no surveillance from that date to Wednesday 28 May, 2008. Therefore, whilst I agree with the prosecution submission that it accurately shows his police days on the bakery roster, it would be speculation if the defendant worked those days as rostered between 10 April and 28 May, 2008. This is also partially supported by what surveillance was done from Wednesday 28 May, 2008 to Wednesday 25 June, 2008. The roster shows Mr Kupsch working in the bakery on Tuesday and Wednesday 4am to 7am, Thursday and Friday 1am to 6am and on Saturday 3am onwards. However, as Mr Caldicott pointed out, surveillance was conducted at the bakery from Wednesday 28 May to Saturday 31 May, 2008 inclusive, commencing at 4am and concluding at 7am for all days except Saturday. The defendant was not seen at the bakery at all. On Saturday 31 May, 2008 the defendant arrived at 7.30am and appeared to conduct a site inspection and look at paperwork. Similarly, on Wednesday 4 June, 2008 observations commenced at 4am and the defendant was not there when they ceased at 7am, contrary to the roster P9. On Tuesday 3 June, 2008, observations between 4.54 am and 7am do not show the defendant at the bakery as rostered on P9. The defendant however, was shown leaving home at 9.34am on Tuesday 3 June, 2008. Observations were commenced at the bakery at 7am on Saturday 7 June, 2008 and the defendant was not sighted until about 7.30am casually dressed and on the phone. I am unable to conclude what if anything the defendant did before 7am nor how long he was there for. He departed on Saturday 7 June, 2008 at 11.25am, but was not see to do any work as indicated on P9. Mr Kupsch was not rostered on in the bakery on Sunday 8 June, 2008 and was not seen there. However, he was sighted home doing cleaning. Wednesday 11 June, there are no observations of the defendant at the bakery, nor on Monday 23 June, 2008 when observations commenced at 11.30am. On Wednesday 25 June, 2008 observations were done at the bakery at 3pm and the defendant was there for a short time. However, no observations between 4am and 7am, the rostered time on P9. Whilst, I agree with Mr Caldicott, that the evidence as it is, does not satisfy me beyond reasonable doubt that I should accept P9 as showing when Mr Kupsch worked at the bakery between 10 April and 25 June, 2008. However, whilst I may not accept the prosecution submission regarding P9, that is if the defendant was working to the roster, he would have been seen there. It is only one plank to the Crown case.
[9] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [351].
It will have been observed from that passage that the Magistrate paid close attention to the days on which the surveillance did not place Mr Kupsch at the bakery. That attention to detail has an important bearing on the challenge to the finding of the Judge, that the Magistrate misapprehended the effect of the surveillance evidence. I deal with that ground of appeal in [84]-[85] below.
Even though the Magistrate was not satisfied that Mr Kupsch worked every shift assigned to him in the roster, nor did the Magistrate accept Mr Kupsch’s claim that he had worked at the bakery only on the occasions he was found to be there by the surveillance operatives. The Magistrate found:[10]
The prosecution submission was that Mr Kupsch was not aware that he was under surveillance. In cross-examination he initially agreed with Mr Jacobi that he did not know he was under surveillance, then later said he thought he was under surveillance each day. Mr Kupsch also said that he thinks the only days he worked in the seven month period from December, 2007 to June 2008 were the 12 days that the surveillance shows him working. I do not accept the defendant’s evidence on these topics. I have no doubt the defendant was never aware he was under surveillance until he received the notice of suspension from Deputy Commissioner Burns dated 26 June, 2008 in P4 Tab 52, which states he was under investigation for work done in a bakery business while employed by SAPOL. I found the defendant to be an unreliable and untruthful witness on a number of topics, and his evidence had a feeling of confabulation as he went along. I will deal with that later in these reasons in more detail.
I also found that there was a sense of incredulity about some aspects of his evidence, especially given his non-disclosure of secondary employment to his line managers, Ms Vernon, Dr O’Toole and other medical examiners such as Ms Rankine. I agree with Mr Jacobi that it would be absurd on the surveillance evidence to accept as reasonably possible that the only occasions Mr Kupsch worked are on the days caught on the video surveillance. In that six month period, surveillance was only conducted on 39 days out of a possible approximate of 200 days. I do not accept the days referred to in the surveillance were the only days Mr Kupsch worked at the bakery, and am satisfied that he worked on a number of other indeterminate days.
Those findings are strongly supported by the evidence. It would, as the trial prosecutor submitted, be an extraordinary coincidence if the surveillance had managed to discover the only occasions on which Mr Kupsch had worked at the bakery. Of equal significance is the fact that the very reasons Mr Kupsch gave for being at the bakery are likely to have called him there much more regularly than he admitted. He was a trained baker. It was very likely that he would spend as much time at his family’s bakery business as he could and that he would contribute to its profitable operation as much as he could whether by his own labour or by supervising the work of others. The inference arising from those considerations is reinforced by Mr Kupsch’s frequent late arrivals for work and the shifts assigned to him in the roster. The tenor of Mr Kupsch’s answer in cross-examination, about the lengths of his shifts, also suggests that he worked more frequent night shifts than the surveillance revealed.
[10] Police v Kupsch, Magistrates Court of South Australia (Magistrate Snopek), AMC-09-3535, [349]-[350].
The Magistrate’s interventions
Mr Kupsch was not asked in evidence-in-chief whether he had disclosed his work at the bakery to any of the medical practitioners or rehabilitation officers, and if he had not, why he had failed to do so. That omission is more than a little surprising given the way the prosecution had put its case. That forensic position, whether it reflects a considered defence strategy or an inadvertent omission, is an important element of the trial context in which the Magistrate’s interventions fall to be evaluated. It created a situation in which Mr Kupsch had not been given an opportunity to answer the prosecution case before the commencement of cross-examination.
Not surprisingly, in cross-examination, Mr Kupsch was asked about the return to work plans which had been drawn up for his rehabilitation. He accepted that he understood that it was his obligation to participate actively in those plans and not to do anything that might frustrate them. Mr Kupsch accepted that he understood at the time that his employer “had great interest in the activities that you were performing outside work that might have a potential to frustrate your return to work”. He agreed that anything he did which had the potential to worsen his injury was something that his employer would want to know about. Mr Kupsch agreed that the days on which he was not rostered to work at SAPOL were to be days for rest and recuperation.
When Mr Kupsch was shown the videotape footage which recorded him working on his rostered day off, 18 December 2007, he was then again asked whether he understood that his rostered days off were for rest and recuperation. Mr Kupsch modified his earlier answer, responding:
Rehabilitation. Rest, recuperation, rehabilitation, that was my impression.
When asked directly why he did not tell his employer that he was working in the bakery, Mr Kupsch answered:
My employer was well aware of the bakery. I had made them aware. My doctor was aware, Eris Vernin was aware; I had never hidden it from them.
Several questions later Mr Kupsch agreed that he did not tell any of those persons that he was in fact working in the bakery in mid-December 2007. He accepted that they knew no more than his family company operated a bakery.
Mr Kupsch was next taken to the videotape footage of 17 January 2008. Mr Kupsch agreed that on that day he drove the bakery’s van to a commercial flour manufacturer and distributer, Western Milling, in Port Adelaide to collect flour for the bakery. Mr Kupsch admitted that he carried the sacks of flour from the van into the bakery at Henley Beach. Mr Kupsch was then cross-examined as follows:
Q.You agreed with me earlier that Tuesdays and Thursdays were days that you understood that were to be set aside for rehabilitation or rest between your SAPOL shifts.
A.Yes.
Q.You understood and you knew didn’t you that you were receiving workers compensation payments for eight hours on that particular Thursday, 17 January 2008.
A.Yes.
Q.Why didn’t you tell your employer that you were able to carry large sacks of flour into a bakery on the very day that you were effectively receiving workers compensation payments.
A.I think the fact that I was lifting heavier weight at the police force than what I was doing in the baker signified that I could do that.
I pause here to observe that Mr Kupsch’s answer was not fully responsive to the question. The question was directed not only at the nature of the activity, carrying sacks of flour, but also at the fact that the work was performed on a day on which Mr Kupsch was not required to work at Transit Services because of his claimed incapacity to work a full week. It will be remembered that in the discussion about increasing his work hours at the case conference a few days later, Mr Kupsch did not reveal his work at the bakery on the “rest” days.
There then followed the first of the prolonged interventions by the Magistrate, which the Judge held demonstrated that the Magistrate had “descended into the arena and was taking on the role of the prosecutor”.[11] I set out the passage in full, emboldening the particular questions which the Judge emphasised in his reasons and numbering the questions for ease of later reference:
[11] Kupsch v Zanker [2013] SASC 60, [30].
HIS HONOUR:
Q1.Sorry I don’t understand that.
A.I was – in the property room I was lifting lots of heavy things and Keith Perry-Jones Senior Sergeant knew that I could do those duties. So therefore the contrast in what I was doing in the bakery I didn’t think to be a lot different.
Q2.Were some of the objects 20 kg.
A.Yes.
Q3.Like what.
A.Boxes of spray cans, there was a lot of graffiti. Transit are attached to graffiti section so there’s boxes of spray cans and things like that and they’d be quite large boxes. My job was to … the things because it became quite unorganised, was dispose and get it organised and I did so.
Q4.The point was you were supposed to be resting; instead you were working in a bakery.
A. Yes.
Q5.I have heard you say many times you weren’t getting paid. Obviously whoever owned the bakery, by your assistance, was getting some financial advantage. They must of otherwise why bother to do the work at all.
A. It was running at a loss and it still does.
Q6.I know but the fact is it was generating work that – or product that would generate income for the bakery.
A. Yes.
Q7. You were on workers compensation.
A. Yes.
Q8.Didn’t you think because you were getting paid that your employer might not want to subsidise a bakery that you had an interest in.
A. It’s possible, yes.
Q9.You knew quite well that if your employer knew that you were doing work that was generating income for your business that they wouldn’t want to be paying you for that particular day wouldn’t you.
A. Yes.
Q10.So that is what [counsel for the prosecution] is asking, why didn’t you tell your employer ‘Yesterday I was able to work in my wife’s bakery’.
A. I don’t know why I didn’t tell them.
Q11.You see the thing that I have great difficulty with, going back to the series of questions [counsel for the prosecution] asked, you put in a form asking for approval to be a director for the company as a second job, is that right.
A. Yes.
Q12. The police department approved that.
A. Yes.
Q13. They didn’t know that you were actually doing any work at the bakery did they.
A. No.
Q14. You then didn’t renew the application to be the director.
A. That’s correct, yes.
Q15. But you were actually doing work at the bakery.
A.Yes, I withdrew the application because of personal reasons that I had daughter to a previous relationship and they were coming after my superannuation, my current wife wanted – that’s why it happened.
Q16.That might be so but you did not disclose to your employer at any stage that you were icing buns at the bakery, did you.
A No.
Q17. That you were turning out racks of bread did you.
A. No.
Q18. That you were putting trays into the oven.
A. No.
Q19.All the things that you were doing there at the bakery why didn’t you disclose that first of all to your employer.
A.I didn’t disclose it to the employer because it was irregular – I suppose it was the thing that I had that was mine and at the time I – psychological – you know, I was suicidal and I was – it was the only thing I had that was mine I suppose in my mind. That I couldn’t express very well to them. I felt that they had taken away a lot from me.
Q20. You were on workers compensation and getting compensated for it.
A. Yes.
Q21. For your injury.
A. Yes.
Q22.Even I, and I have never been on workers compensation, would know that if I was doing other work but getting paid because I was unfit for my duties that my employer would want to know about that, you’d agree with that.
A. Yes.
Q23.Why didn’t you tell your employer that you were capable of doing these things at the bakery.
A. Because they never asked. They never asked me –
Q24.It was your obligation to tell them that you were capable of doing these things and were doing these things and were doing these things [sic] outside your duties as a police officer, is that correct.
A. Yeah well I should have told them.
Q25. Is that correct.
A. Yes, yes.
Q26.And you knowing that you had an obligation if you were doing any type of work outside your duties as a police officer, first of all if you actually – let’s leave aside workers compensation, you knew that you would have to tell your employer and get permission for that.
A. Yes.
Q27.Certainly when you were on workers compensation, being paid because you were unfit for duties, you would be aware if you were doing work outside your police duties you had the obligation to tell your employer that.
A. Yes.
Q28.My question to you, because I am trying to understand what you are saying, why didn’t you then, in accordance with what you knew the position to be, tell your employer that you were doing this work in a bakery.
A. I don’t know why I didn’t tell them to be honest. I just don’t know.
I pause here to draw attention to three matters arising out of that passage of evidence. First, not a single question of the kind asked in the 4th, 8th, 9th, 10th, 19th, 23rd and 28th questions were asked of Mr Kupsch in evidence-in-chief. As a result, the burden of the prosecution case had been left unanswered. The concern of the Magistrate to identify the defence response to that case is understandable, even though the questioning was more extensive than it need have been, and the form of the tone of the 22nd and 24th questions was, in my view, unnecessary. Secondly, question 10 is an open ended question drawing Mr Kupsch’s attention to that aspect of the cross-examiner’s questioning which I set out in paragraphs [57]-[58] above which had not been fully answered; questions 19 and 28 were asked in the same way and for the same reason. Thirdly, I see no reason not to take at face value the Magistrate’s statement that he was asking the questions 1 to 28 to better understand Mr Kupsch’s position.
The prosecutor then asked Mr Kupsch a series of questions about the functional capacity assessment made by Ms Rankin on 12 December 2007. Mr Kupsch agreed that he attended on that day and that he was, at the time, working on alternative duties in the property section. Mr Kupsch agreed that that position allowed him to stand up and walk around as he wished. He agreed that he told Ms Rankin that he worked Monday, Wednesday and Friday and that on Tuesdays and Thursdays, the days he was rostered off, he did lightweight exercises and walks. The cross-examination then continued:
AYes.
QWell wasn’t it the case that you were working the bakery on Tuesdays and Thursdays.
AYes.
QWhy didn’t you tell Ms Rankin that.
ABecause I was under the impression she was asking me what I was doing to rehabilitate myself and I answered her question. I said ‘Light weights and walking’. That’s what I was doing, I told her about the police, what I was doing at the police and the duties that I was undertaking there and I was always rehabilitating myself, to get myself right psychologically and physically to get back to the Police Force.
QBut wouldn’t it have been clear to you that she would have been very interested. This was an assessment to figure out what you were capable of doing and you agree with that don’t you.
AIn hindsight, I possibly should have informed her of it.
QWhat I want to suggest is you deliberately misled her by not telling her about the fact that you were performing the work in the bakery on those days.
AIs that a question?
QYes.
AI don’t agree, no.
QWhat I want to suggest is that you misled her by suggesting that you really were spending your Tuesdays and Thursdays doing light weights and walking, when in fact, you were in fact performing work in the bakery.
AYes, rehabilitating myself, light weights and I was walking. I was getting myself right to get back in the Police Force. To sit around and be sedentary wouldn’t help. I was extremely depressed.
QWhat I want to suggest is that really it’s the case that you were given an open ended opportunity to explain what it was you were doing at that time. That’s right isn’t it, with Ms Rankin that morning.
AThe question was open ended, yes.
QNo, but you had the opportunity to explain what it was you were doing.
AI had the opportunity, yes.
QBut you didn’t think it was significant to disclose that you were working in a bakery.
ANo, it was irregular which I was at the bakery, it was absolutely irregular and she asked me about my regular activities.
Counsel appearing for the complainant then questioned Mr Kupsch about his application for approval of his position as a director of Ilavo. Mr Kupsch agreed that he was working in the bakery undertaking such tasks as icing buns in 2006-2007. He was then taken to his application of March 2007 in which he sought permission for his involvement as a Director of Ilavo even though he was not performing paid duties. The cross-examination continued:
Q.You must have understood, mustn’t you, at the time that you wrote this letter that you weren’t undertaking paid duties but you still needed to disclose the fact that you were undertaking work with Ilavo.
A.I don’t understand what you’re saying.
Q.What was your understanding at the time that you wrote this letter about what it was that you needed to disclose to SAPOL.
A.That I had an interest in this business, in this company and I was seeking approval from them.
Q.But your letter says, doesn’t it, that you wouldn’t be undertaking paid duties with them.
A.I did not intend to undertake paid duties, that’s correct.
Q.Doesn’t the letter reflect your understanding that you knew that even if you weren’t undertaking paid duties you needed to disclose to SAPOL – that if you were performing work for Ilavo that you needed to tell SAPOL about that matter.
A.No.
Q.Why not.
A.I don’t know – I sat down with him and wrote this together with him and that was something that he told me to write. I don’t understand what you’re getting at.
Q.Chief Inspector McDonald has provided a statement to this court. I’ll just read part of it to you – it’s behind tab 16 in Exhibit P2. Chief Inspector McDonald says this: ‘I had a conversation with him’ – this is you, ‘– about his involvement in the bakery and he assured me that he was a non-paid director of the family company’.
A.That’s correct.
Q.You accept that.
A.I never received any payment.
Q.He then goes on to say ‘He had no involvement in the decision-making of the company or physically working in the bakery’.
A.At that time I may not have but I did make decisions, I mean like a husband and wife would. She would ask me, I’d give my advice.
Q.I want to suggest to you that you told Chief Inspector McDonald that you had no involvement in the decision-making of the company or physically working in the bakery.
A.That would be – I dispute that. As a husband and wife she would ask me things, I would give advice.
Q.I just asked you in cross-examination whether in 2006 and 2007 you were performing work in the bakery.
A.I was in and about the bakery yes, but –
Q.No, I asked you specifically about what physical work you were performing in the bakery and I asked you specifically the nature of the tasks that you were performing at that time.
A.I wasn’t –
Q.This is contrary to what you told Chief Inspector McDonald, isn’t it.
OBJECTION: MR CALDICOTT OBJECTS
A.When I wrote this I didn’t have any involvement at all as far as working in – and doing any duties that were baking. I was involved obviously with the setup of it. At a later date, and I can’t tell you when, you know, I would do things, I would do duties, as a baker would, when my father was there.
Q.I want to suggest to you that you’ve just told this court when I asked you specifically about the work you were doing in 2006 and 2007 that you said that you were performing physical work in the bakery.
A.I just said I did things in the bakery. I don’t understand.
The Magistrate then embarked upon a protracted series of questions which the Judge described as pressing, excessive and unfair. I set out the passage in full emboldening the particular questions emphasised by the Judge in reaching his conclusion and again numbering the questions for ease of later reference:
HIS HONOUR
Q29. What’s being put to you – have you got McDonald’s statement in front of you.
A. No.
Q30. Looking at Exhibit P2, tab 16, now go to p. 3.
A. I have it in front of me.
Q31.Go to the paragraph that starts ‘In relation to his application for secondary employment –’, do you see that.
A. Yes.
Q32.It says ‘In relation to his application for secondary employment I became aware that he delivered to the meal room a tray of items from a bakery. I had a conversation with him about his involvement in the bakery and he assured me he was a non-paid director of a family company’. Did you tell McDonald that.
A. Yeah, I was a non-paid director, yes.
Q33. Did you tell McDonald that.
A. Yes.
Q34.McDonald goes on to say ‘He had no involvement in the decision-making of the company or physically working in the bakery’.
A. I didn’t tell him that.
Q35.So are you disputing that you told McDonald ‘I had no involvement in decision-making’.
A.I can’t remember saying that to him – it’s something I wouldn’t say because I did have decision-making because my wife would ask me.
Q36. Did you say to him that you didn’t physically work in the bakery.
A. I can’t remember, I’m sorry.
Q37.You see because that wasn’t right, that you weren’t physically working in the bakery when you made the application, was it. That could not be right, that you had not worked physically in the bakery, because you’ve told [counsel for the prosecution] that on occasions you’d ice buns and things like that.
A. Yes.
Q38. So that would be doing physical work in the bakery, wouldn’t it.
A. Yes.
Q39.So at the time you made the application, whilst it might not have been paid work, you were doing physical work in the bakery.
A. Yes.
Q40.Now what [counsel for the prosecution] is asking you, given – and let’s leave aside for the moment whether that’s accurate or not about the decision-making or whether you told McDonald that you did not work physically in the bakery – when you put in that letter dated 20 March 2007 requesting approval to undertake secondary employment, that was because you were a director of the company, is that correct.
A. That’s correct.
Q41.You say in that letter you did not intend to undertake paid duties. You said that in the letter.
A. Yeah, I had no intention, yeah.
Q42. That’s [sic] what you said in the letter.
A. Yes.
Q43.However, even though you were not going to be paid, you say, you still put in the letter requesting approval for secondary employment. Is that correct.
A. Yes.
Q44.So what [counsel for the prosecution] was putting to you, given that you’d said in this letter dated 20 March 2007 that you weren’t going to be paid but were still seeking permission for secondary employment, you knew that the issue of whether you were being paid or not did not affect the fact that you needed to get approval for secondary employment. In other words, putting in an application for secondary employment is not conditional upon whether the work you’re doing outside the police force is paid or not. Do you understand that.
A. Yes.
Q45.Because of what [counsel for the prosecution] is saying is you must have known that that was so, otherwise why did you both to put in the application if you were a non-paid director and think you needed to. Do you understand that.
A.Yeah, I think I do. I’m a little bit confused, sorry.
Q46.Let me put it again really simply. I’m not sure what’s confusing about this. You put that application in dated 20 March 2007.
A. Right.
Q47. That you were a non-paid director of Ilavo Pty Ltd.
A. Yes.
Q48. Is that correct.
A. Yes.
Q49. Clear in your mind.
A. Absolutely clear.
Q50. In it you said that you weren’t going to be paid.
A. That’s correct.
Q51. Clear in your mind.
A. Yes.
Q52.Why then do you think, if you weren’t being paid, that you had to put in and ask for approval for secondary employment.
A. If I wasn’t being paid? Because that’s what the general orders say.
Q53.And that’s what [counsel for the prosecution’s] been putting to you – you know that it didn’t matter whether you were paid or not if –
A. Yes.
Q54.- you were doing work in a business it still amounted to secondary employment about which you needed to get approval for.
A. Yes.
Q55. It was as simple as that.
A. Right.
Q56. The question that you were being asked.
A. Okay.
[Emphasis added.]
Q57.And so your answer to that must be, from what you’ve just told me, is yes, you knew when you sought approval to be the director of Ilavo Pty Ltd that you needed police approval whether you were paid or not.
A. That’s correct.
[Emphasis added.]
Q58.The other questions that have come up are a secondary issue. In relation to McDonald, if you told him that you were not physically working in the bakery in that conversation, as he says in his statement, that wouldn’t have been correct would it.
A. No.
Q59.Because this isn’t about whether you’re getting paid or not. Icing buns even for free would be working in the bakery wouldn’t it.
A. Yes.
Q60.Serving customers, even if you weren’t getting paid for it at the bakery, would be working in the bakery.
A. Yes.
Q61.So if you had told McDonald that you weren’t physically working in the bakery when you spoke to him, that was not accurate.
A. Yeah. I had no intention of doing it, of working in the bakery, at that early stage.
Q62.That’s not the question though. The question I’m asking you is you said to [counsel for the prosecution] that you iced some buns up, after the business opened and when you dad was there.
A. That’s correct.
Q63. And I think you also said that you put some bread on the trays.
A. Yes, I –
Q64. Did you tell that to [counsel for the prosecution].
A. No, I didn’t say that.
Q65.I can’t remember that one myself, but the point is – let’s stick with the icing of the buns. You did that before you got the approval for the secondary employment.
A. Yes.
Q66.So what was being put to you is if you had – because you had iced buns, that amounts to doing physical work at the bakery doesn’t it.
A. Yes.
Q67.So if you had said to McDonald when he was speaking to you about the secondary employment issue –
A. Yes.
Q68.– that you had no involvement or didn’t physically work in the bakery, that would not be accurate would it.
A. That’s correct.
Q69. Because at the very least you were icing the buns.
A. That’s correct.
Q70.That was what [counsel for the prosecution] was putting to you. First of all, it’s as simple as that, was your understanding that you needed approval for secondary employment, unpaid, even if it was unpaid.
A. Yes.
Q71. And isn’t that implicit in the fact that you sought it, and the answer to that is yes.
A. Yes.
Q72.What he is putting to you is – the second thing that he put to you is if you told McDonald that you hadn’t – weren’t physically working in the bakery, as he said, given that you’d already told us that you iced buns before you got this approval, that wouldn’t be true.
A. That’s correct.
There are several observations I would make about the emboldened questions. First, the initial purpose of the questioning was to draw Mr Kupsch’s attention to the prior inconsistent statement on which the prosecutor was cross‑examining. It is not uncommon for witnesses to have difficulty in appreciating the distinction between questioning as to the making of the statement and the facts asserted in it. The questioning was first directed at whether Mr Kupsch agreed that he had made the statements of which Chief Inspector McDonald had testified. Secondly, the matter of Mr Kupsch’s application for permission to engage in secondary employment was largely a collateral issue and it was unnecessary for the Magistrate to question him so closely and extensively on it. However, I again see no reason not to take the Magistrate’s remarks about Mr Kupsch’s apparent confusion and his professed intention to put the questions simply at face value as manifesting a genuine attempt to obtain responsive answers. Finally, I observe that much of the questioning was ultimately a matter of common ground, namely that permission was required whether or not Mr Kupsch was to receive remuneration.
The Magistrate’s Reasons
The Magistrate found beyond reasonable doubt that Mr Kupsch did not mention his bakery duties to SAPOL because he knew that it would show that he was capable of working full time at SAPOL and he did not want to do that. In the case conference held on 22 January 2008, Mr Kupsch had dishonestly claimed that he had performed as well as he could at the functional capacity assessment conducted by Ms Rankin. Mr Kupsch had deliberately misrepresented his actual capacity knowing that he was capable of performing baking functions so that he could dishonestly continue to receive workers compensation payments. The Magistrate also found that Mr Kupsch:
·requested Fridays off as part of the four day week return to work plan for 22 January 2008, instead of Wednesday as suggested by Dr O’Toole, because he had in mind his work at the bakery on weekends; and
·had not disclosed to Dr O’Toole that he was performing physical work in the bakery because he knew it would affect his payments.
The Magistrate concluded that Mr Kupsch had deliberately omitted to disclose to SAPOL, Ms Vernon, Dr O’Toole, Ms Rankin, and Dr Green that he had been performing physical work in a bakery from 15 December 2007 because he believed that to do so would impact upon his workers compensation payments and that it might lead to a requirement that he return to full time operational duties, or at least full time alternative duties.
Judicial Interventions
I recently reviewed the principles on which judgments may be set aside for excessive judicial intervention in my judgment in R v T, WA,[12] with which Vanstone and Anderson JJ agreed. My reasons in this matter should be read together with the discussion of general principle in [37] to [52] of my reasons in R v T, WA. It is nonetheless convenient to set out the grounds on which a trial Judge’s interventions might vitiate a conviction which I identified in R v T, WA:[13]
(i)the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);
(ii) the questioning gives an appearance of bias (the bias ground); and
(iii)the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
[12] [2014] SASCFC 3.
[13] [2014] SASCFC 3, [38].
It is also necessary in this matter to make some brief additional observations on the apprehension of bias issue.
In Vakauta v Kelly,[14] Dawson J distilled the following statement of principle for disqualification for apprehension of bias from the decisions in R v Watson; Ex parte Armstrong[15] and Livesey v New South Wales Bar Association[16]:[17]
A judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
[14] (1989) 167 CLR 568.
[15] (1976) 136 CLR 248, 258-263.
[16] (1983) 151 CLR 288, 293-294.
[17] Vakauta v Kelly (1989) 167 CLR 568, 575.
In Vakauta, Dawson J also explained (again in a statement of principle which is not in doubt), even though he dissented in the result in Vakauta, that a party may waive the right to object on the ground of bias but that a less strict view of waiver is taken in prosecutions for criminal offences.[18] In Vakauta, Toohey J, with whom Brennan, Deane and Gaudron JJ agreed, in addressing the timing of an application that a Judge recuse himself or herself, drew a distinction between a suspicion of bias based on matters existing independently of the hearing and comments made during the hearing. In doing so, Toohey J set out the following approach to the question of waiver of the right to object to a Judge presiding over a trial on the ground of apparent bias:[19]
For counsel to invite the judge to withdraw from the case may be quite premature, particularly if the judge acknowledges the apparent bias in what has been said and thereafter takes steps to dispel that apprehension. But, as Dawson J. noted in Re J.R.L.; Ex parte C.J.L., suspicion of bias based on preconceptions existing independently of the case “may well be ineradicable”. In that situation there will be no option but to ask the judge to disqualify himself. In any event objection must be taken: see Re McCrory; Ex parte Rivett. It was not taken in the present case.
[18] Vakauta v Kelly (1989) 167 CLR 568, 578-579.
[19] Vakuata v Kelly (1989) 167 CLR 568, 587.
Vakauta was a case in which the Judge presiding over a personal injuries trial made adverse remarks during its course which strongly indicated that he did not have confidence in the professional opinions expressed by the doctors called by the defendant insurer. The failure to object to the Judge continuing to hear to the matter was held by the whole of the High Court to be a waiver of the right to complain of the bias apparently arising out of his remarks. It was only because the appearance of bias against the defendant’s experts surfaced again in the judgment that the High Court held that the judgment should be set aside on the grounds of apprehended bias.
Reasoning of the Judge on appeal
The Judge concluded that the Magistrate’s interventions had resulted in a miscarriage of justice for the following reasons:[20]
The Magistrate engaged in extensive questioning of the defendant that, in my view, can be fairly described as cross-examination that was pressing, excessive and unfair. The Magistrate had taken on the role of the prosecutor and had entered “into the perils of self persuasion”.[21] As Lord Greene put it in Yuill v Yuill, the Magistrate “[u]nconsciously … deprive[d] himself of the advantage of calm and dispassionate observation”.[22] Further, as Lord Greene pointed out in his earlier extracted remarks, the demeanour of a witness is apt to be very different when he is being questioned by a judicial officer to what it is when he is being questioned by counsel.[23] It is to be observed that this is particularly so when the Magistrate’s examination, which may properly be described as cross-examination, is prolonged and covers a number of crucial matters in issue.
As earlier observed, in my view, the questioning by the Magistrate was unfair. I refer in particular to the emboldened texts of the extracted transcript. I consider the point of unfairness was reached and surpassed. The manner of the questioning would also appear, at times, to involve sarcasm, condescension and an overbearing manner. The questioning was also unfair when the Magistrate made his earlier discussed comments as part of his questioning concerning suggested confusion on the part of the defendant in circumstances where it was being inferred by the Magistrate that he did not consider that there was any basis for the asserted confusion. I recognise that it is difficult to come to a final conclusion on these topics without being able to observe and hear the events.
The Judge then concluded that:[24]
The Magistrate’s involvement in the cross-examination has led me to conclude that a fair minded lay observer would consider that the Magistrate engaged in what was properly the role of the Prosecutor. The Magistrate’s conduct gave rise, at the very least, to an appearance of bias.
[20] Kupsch v Zanker [2013] SASC 60, [36]-[37].
[21] See, Sir Robert Megarry, ‘Temptations of the Bench’ (1978) 16 Alta L Rev 406, 409 as cited in R v Esposito (1998) 45 NSWLR 442, 471.
[22] Yuill v Yuill [1945] 1 P 15, 20.
[23] Yuill v Yuill [1945] 1 P 15, 20.
[24] Kupsch v Zanker [2013] SASC 60, [38].
I make two immediate comments about those findings. First, insofar as the phrase “at the very least” alludes to the possibility of actual bias, it is as well to record that no such submission was put to this Court and there is no evidence which would support that conclusion. Secondly, the reference to the “role of the prosecutor” even though often referred to in the authorities, poses a test which is both unclear and circular. Plainly it cannot mean that whenever a judicial officer asks a defence witness questions which takes the form of cross-examination the fair minded lay observer will apprehend bias. Accepting that that is so, the point at which a judicial officer is seen to be assuming the role of the prosecutor is the same as when the lay observer apprehends bias. I therefore doubt that there is much to be gained by asking whether the reasonable bystander would consider that a judicial officer has engaged in the role of the prosecutor; the fundamental question is always whether intervention reasonably gives the appearance of bias.
Plainly enough, viewed in the large, the case was prosecuted in the ordinary way by counsel for the complainant. The Magistrate’s questioning in the course of the prosecutor’s cross-examination was certainly extensive and more lengthy that it should have been. The Magistrate should not have persisted in his attempts to elicit an explanation from Mr Kupsch for his failure to disclose his work at the bakery. However, viewing the cross-examination as a whole it was conducted by the counsel for the complainant and not the Magistrate. The Magistrate’s frustration at the failure of the defence case to come to grips with the burden of the prosecution case is evident on the face of his questions. However, I respectfully disagree with the Judge that the questioning was sarcastic or condescending. Even though the questioning was, at times, persistent, it does not appear to me to have been overbearing.
I now turn to evaluate the Magistrate’s questions against the three ways in which a miscarriage of justice may result from excessive judicial intervention which I earlier identified.
I commence with the bias grounds. It should be noted that the Magistrate’s intervention occurred late in trial and could not reasonably be considered as indicating a closed mind. In my view the reasonable observer would appreciate that the Magistrate’s enquiries were directed toward ascertaining Mr Kupsch’s answer to the complainant’s case. The reasonable observer would understand that at that late stage of the trial, after the completion of Mr Kupsch’s evidence-in-chief, the defence had yet to proffer an explanation for Mr Kupsch’s failure which might provide a defence in law. The reasonable observer would also apprehend from the Magistrate’s questioning that his Honour was finding it difficult to identify an explanation which gave a defence in law. However, there were no valid grounds on which the reasonable observer would think that the Magistrate would not continue to give that matter consideration and keep an open mind until after the close of submissions.
The failure of defence counsel to make any complaint about the Magistrate’s intervention is significant. This is not a case in which the grounds on which bias is apprehended surfaced for the first time, or resurfaced, in the reasons. The claim of bias is grounded in the Magistrate’s interventions. Plainly they ended with the conclusion of Mr Kupsch’s cross‑examination. Mr Kupsch’s counsel did not protest at the questioning and did not ask the Magistrate to recuse himself. The mere fact that the Magistrate referred to some evidence given in answer to his questions in his careful and considered judgment is not a reason to apprehend bias. Nor are the adverse conclusions, which are in any event solidly based on the evidence, a reason to apprehend bias. The High Court explained in Ebner v Official Trustee[25] that the test for apprehended bias does not involve an investigation of the factors which actually influenced the outcome.Apparent bias cannot be shown by an adverse conclusion in itself. It must appear from a matter external to the trial, or an indication of prejudgment, that is a judgment formed on something other than the totality of the evidence given in the case.
[25] (2000) 205 CLR 337 at 345 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
In Michel v The Queen,[44] the Privy Council recently considered the circumstances in which excessive questioning by a judicial officer may cause a trial to miscarry. That case involved an appeal from the Inferior Number of the Royal Court of Jersey where the defendant was convicted on nine counts of money laundering following a 30-day trial. It was presided over by a Commissioner sitting with two Jurats. Lord Brown, delivering the judgement on behalf of the Court, observed:[45]
To that admirable analysis the Board would add that not merely is the accused in such a case deprived of "the opportunity of having his evidence considered by the jury in the way that he was entitled". He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials….
…
Naturally, in Jersey, where the facts are decided by the Jurats (the Commissioner retiring with the Jurats but not joining in the fact-finding unless the Jurats disagree), the facts are not summed up so that the Nelson approach is not available to the Commissioner. But that cannot begin to justify the Commissioner seeking to give the Jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. Indeed, it does not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial. Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.[Emphasis is mine.]
[44] [2009] UKPC 41.
[45] Michel v The Queen [2009] UKPC 41, [31]&[34].
It is beyond controversy that in determining the question of apprehended bias, the two-stage enquiry enunciated by the majority of the High Court in Ebner v Official Trustee[46] must be considered. It is to be observed, however, that Ebner was a case in which the Judge was a director of the trustee of a family trust which owned shares in a bank and was a contingent beneficiary of the trust. The bank was not a party to the proceeding but had a pecuniary interest in the outcome. Ebner was not a case in which it was alleged that undue intervention by the Judge caused the trial to miscarry. I do not consider that the test stated in Ebner is the standard to be applied in all cases where excessive judicial intervention is said to have caused unfairness. In my view, the authorities to which I have referred establish that a criminal trial will be unfair in circumstances where a judicial officer enters the arena of the controversy and assumes the role of the advocate. The observations in MacBeth represent that which, in my view, is the appropriate inquiry to be undertaken. Doyle CJ, with whom Bleby and Gray JJ agreed, remarked: [47]
In short, the complaint about the judge's questions has to be considered in the context of the role of counsel and of a judge in a jury trial, and paying appropriate regard to principles of the kind outlined in Esposito. At the same time, one must recognise that consistently with those principles there is scope for variation of approach, from judge to judge and from case to case. The principles are important, but in the end the ultimate question is whether the conduct of the judge has, in a manner that can be identified or explained in words, made the trial unfair, thus giving rise to a miscarriage of justice.
[Emphasis is mine.]
[46] (2000) 205 CLR 337, [6] – [8].
[47] R v MacBeth [2008] SASC 71, [74].
Further, I am of the view that where it is complained on appeal that a trial has been unfair as a consequence of excessive or undue judicial intervention, a court is not limited to considering aspects of unfairness and impartiality in isolation, particularly where the conduct of the judicial officer encroaches upon both principles. Whilst it is attractive to compartmentalise particular conduct into easily-definable categories, viewing the principles in isolation distracts consideration from the effect of the intervention as a whole.
There are examples of so-called “conflation” of the principles of fairness and impartiality by the High Court in similar contexts. In Antoun v The Queen,[48] the applicants were convicted of demanding money with menaces following trial before a judge alone. On their appeal to the High Court they submitted that the trial Judge’s conduct prompted an apprehension of bias. The apprehension arose, in part, from the manner in which the Judge dealt with a submission of no case to answer. The trial Judge announced his decision that that application would not succeed as soon as he was informed that an application would be made and, on the following day, he repeated that decision before hearing any argument. He then heard submission and repeated his decision that there was a case to answer. Although the ruling was undoubtedly correct and the submission was without merit, that did not remove the impression created by the course that was followed. Gleeson CJ observed:[49]
It appears from the remarks on sentence that the first appellant has a serious criminal record for offences including armed robbery. It further appears from comments made by the judge that he found the demeanour of the first appellant during the trial to be menacing. The judge regarded this as a strong case of extortion. He formed the view, with good reason, that the no case to answer submission was likely to be implausible. Yet he should not have decided to reject it without giving counsel an opportunity to put the argument. In the circumstances, that would not have required much time. The way in which the judge dealt with the no case argument, and later with the question of bail, gave rise to an appearance of lack of impartiality. Strong as the case against the appellants appeared to be, they were entitled to a fair hearing.
[Emphasis is mine.]
[48] (2006) 159 A Crim R 513.
[49] Antoun v The Queen (2006) 159 A Crim R 513, [23].
The failure by the judge to give counsel the opportunity to be heard before rejecting the submission evinced a pre-determination of the issue and it prevented counsel from putting their case forward.
It is in accordance with this approach that I turn to consider the present case.
The Magistrate’s intervention
It is not in dispute that a modern trial Judge is entitled to question witnesses to clear up matters that are unclear or to satisfy the Judge on a matter that concerns the Judge. In this respect the following observations of Kirby A-CJ in Galea v Galea,[50] are pertinent:
The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid.
[50] (1990) 19 NSWLR 263, 282.
In my view, the questioning of the defendant by the Magistrate in the present case was not directed at providing the defendant with the opportunity to respond to preliminary views formed by the Magistrate, nor was it seeking to clarify an answer given by the defendant.
The first of the passages of intervention by the Magistrate focuses on why the defendant did not tell his employer he was performing duties at the bakery on the days that he was not scheduled to work as part of his return to work plan. No evidence on this topic had been led by the defendant in examination-in-chief. Prior to the first extract, the prosecutor developed his line of questioning in the following manner. First, the concession was obtained that the defendant’s employer, SAPOL, had an interest in the activities that the defendant was performing on the days that he was not scheduled to work. It proceeded as follows:
QNow you understood didn’t you that the objective of those days off, that is previously the Tuesdays and Thursdays and subsequently the Wednesday was to be a day in which you could rest, or recuperate.
AYes,
QThe idea being that your work week would be effectively broken up so you would do a day’s work and you could then have a day off.
AYes
QSubsequently in February of 2008 that you would do two days of work, then have a day off and then do two more days of work and then have the weekend off.
AThat’s correct.
QYou understood didn’t you that your employer had great interest in the activities that you were performing outside of work that might have potential to frustrate your return to work.
AYes.
QSo anything that you did as a matter of - that might be very physical or had a potential to worsen your injury, your employer would want to know about that.
AYes.
The prosecutor then turned to the topic of the surveillance footage of the defendant at the bakery. The defendant accepted that he was depicted in still photographs of the surveillance footage lifting a 20 kilogram bag of flour, loading racks of buns into an oven, serving customers, icing buns and sweeping the floor.
The prosecutor then questioned the defendant as to why he did not inform his employer about undertaking these duties. The following exchange occurred:
QNow I ask you to accept that. You would agree wouldn’t you that Tuesday was a day as your schedule then stood which was on of these days you had off between your policing days.
AYes.
QYour requirement was to work Monday, Wednesday and Friday.
AYes.
QAgree with that.
AYes.
QAnd that Tuesdays and Thursdays were the days that you could have off.
AYes.
QAnd you agreed before that they were for rest and recuperation weren’t they.
ARehabilitation. Rest, recuperation, rehabilitation, that was my impression.
QYou also knew that you were being paid WorkCover for those days.
AYes, yes.
QCan I ask you to explain to the court why you didn’t tell your employer that you were working in the bakery on the very day for which you were receiving WorkCover payment, being 18 December 2007.
AMy employer was well aware of the bakery. I had made them aware. My doctor was aware, Derris Veron was aware; I had never hidden it from them.
The cross-examination continued and culminated in the following question by the prosecutor:
QWhy didn’t you tell your employer that you were able to carry large sacks of flour into a bakery on the very day that you were effectively receiving workers compensation payments.
AI think the fact that I was lifting heavier weight at the police force that what I was doing in the bakery signified that I could do that.
The prosecutor’s line of questioning that preceded the second impugned extract commenced with the defendant being questioned about the company that was set-up to purchase and run the bakery, Ilavo Pty Ltd, and his involvement in the decision-making of the company. The defendant accepted that in 2006 and 2007 he would do “odd things” at the bakery such as icing buns. The cross-examination then turned to the topic of when, in March 2007, a police officer, Inspector McDonald, raised with the defendant the need to put in an application for secondary employment on the basis that he was a director of the company Ilavo. On 20 March 2007, the defendant requested approval for secondary employment, stating that he did not intend to undertake paid duties within the company. The defendant was asked by the prosecutor:
QIt’s the case that that reflected your understanding at that time that even if you weren’t undertaking paid duties with Ilavo but if you were working for them that you needed to inform SAPOL of that matter.
ASorry, the question again please?
QThe question I’ve asked is that reflects your understanding at the time, doesn’t it, that even if you weren’t undertaking paid duties, that is receiving a salary, you still needed to disclose that you were undertaking that work with that other company.
ANo, at that stage I thought it was only paid duties that I needed to disclose…
The defendant said that the reason he needed to disclose the matter was that he had an interest in the business. He was then taken to the statement of Chief Inspector McDonald. In the statement, McDonald states that the defendant had told him he had no involvement in the decision-making of the company or in physically working in the bakery. The prosecutor then asked a question, which was interrupted by an objection, but which appears to have been in relation to the contradiction between the defendant’s evidence as to doing “odd things” and the statement of McDonald. The defendant responded:
AWhen I wrote this I didn’t have any involvement at all as far as working in – and doing any duties that were baking. I was involved obviously with the setup of it. At a later date, and I can’t tell you when, you know I would do things, I would do duties, as a baker would, when my father was there.
QI want to suggest to you that you’ve just told this court when I asked you specifically about the work you were doing in 2006 and 2007 and you said that you were performing physical work in the bakery.
AI just said I did things in the bakery. I don’t understand.
The second of the above extracted exchanges between the Magistrate and the defendant then occurred.
The topics on which the Magistrate questioned the defendant were areas that had already been explored by the prosecutor. There was no lacuna in the evidence that the Magistrate was attempting to fill. Even if there had been, it would nonetheless not have been appropriate for the Magistrate to have engaged in extensive questioning of the defendant in a manner which could only properly be described as cross-examination. An appropriate course in such a case would be for the judge to raise his or her concerns with counsel and provide the parties with the opportunity to further question a witness. There may be a myriad of reason why counsel do not pursue a particular line of questioning with a witness and the judge does not know counsel’s brief. If counsel do not accept the judge’s invitation to further question a witness on a particular topic, then that is a matter that ordinarily goes to whether or not the burden of proof has been met.
I am further of the view that the form of a number of questions posed by the Magistrate were inherently unfair. They were designed to invoke certain responses by the defendant. The following are stark examples of such questioning:
QEven I, and I have never been on workers compensation, would know that if I was doing other work but getting paid because I was unfit for my duties that my employer would want to know about that, you’d agree with that.
…
QIt was your obligation to tell them that you were capable of doing these things and were doing these things and were doing these things [sic] outside your duties as a police officer, is that correct.
…
QYou knew quite well that if your employer knew that you were doing work that was generating income for your business that they wouldn’t want to be paying you for that particular day wouldn’t you.
The questions effectively allowed only for one response. Some of the questions went beyond that which would have been permissible for counsel to put to a witness in cross-examination. The first two of the above questions in particular were important in the context of the ultimate issue regarding the defendant’s alleged dishonest conduct.
The conduct of the Magistrate in the present case is apposite to that described in Esposito where Wood CJ at CL observed:[51]
The present is not a case that was conducted in any atmosphere of acrimony or hostility from the Bench, nor is it one where his Honour intruded into its running to any obvious degree, save in so far as he participated in questioning the appellant at some length in the presence of the jury. It is not a case where it has been suggested that by his questioning, his Honour interrupted counsel or interfered with the development of any line of examination. It is, however, one where it is submitted that his Honour adopted the robe of an advocate and did so in a way that would have conveyed to the jury his disbelief of the appellant on critical issues.
[51] R v Esposito (1998) 45 NSWLR 442, 467.
In my view, where a judicial officer adopts the robe of an advocate and embarks on an extensive line of questioning of a witness in a manner designed to elicit certain responses, it is equally, if not more, relevant that the judge is sitting without a jury, as it is if one were present. The Magistrate stated in his reasons that he relied on the responses he obtained when he “pressed” the defendant. There was a risk that the Magistrate’s view was clouded by the dust of the conflict in which he had assumed a role. He descended into the dispute and, by doing so, ran the risk of unconsciously depriving himself of the advantage of calm and dispassionate observation. It created a tangible risk that the Magistrate may have been seen to have sided with the prosecution, and to have lost the appearance of impartiality which was expected. Accordingly, I am of the view that the trial miscarried and that the convictions should be set aside.
Cross appeal
By notice of cross appeal provided at the commencement of the hearing, the defendant appeals against the Judge’s order that the matter be remitted for rehearing. The defendant submits that the matter should not have been sent back for a retrial as, at the time the Judge delivered judgment, the defendant had already served three-quarters of the suspended sentence bond imposed by the Magistrate. Alternatively, it is submitted that if the matter is remitted, it should be heard by a different Magistrate.
In my view, this is not an appropriate case in which the matter should not be remitted for rehearing. Even accepting that the remaining grounds of appeal were allowed by this Court, I see no basis upon which the matter should not be properly determined by a court of summary jurisdiction.
Conclusion
I would dismiss the appeal and remit the matter for rehearing before a different magistrate.
ANDERSON J: I agree that the appeal should be allowed. I agree with the orders proposed by Kourakis CJ and I agree with his reasons.
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