BHAGWANANI v MARTIN No. SCGRG-99-420 Judgment No. S406 [1999] SASC 406

(1) The defendant was deregistered as an occupational therapist by the Occupational Therapists Registration Board of South Australia on 28 May 1990 and has not held registration since that date.

(2) By a job application in writing dated 18 December 1997, the defendant informed the North-Western Adelaide Health Service that he was a qualified occupational therapist and expressed his interest in a position vacant for an occupational therapist with the said service.

The second count alleged a breach of the same section on 12 March 1998. The first particular repeated the allegation of deregistration. The second particular was:

2. On 12 March 1998 the defendant informed an officer of WorkCover Corporation that he was an occupational therapist working with "International Home and Work Health Care Products and Rehabilitation Services", and indicated that he was a registered occupational therapist.

Count 1 on the complaint arose out of a response by the appellant to an advertisement placed in "The Advertiser" newspaper for an occupational therapist by North-Western Adelaide Health Service Therapy Solutions. In response to this advertisement, the appellant submitted an application for a position of occupational therapist and a resume. In this application he stated that he was "a qualified occupational therapist" and possessed "eligibility for membership with (Australian Occupational Therapists Association) and registration boards in Australia". He claimed to have worked "as an (sic) sole/In-charge Occupational Therapist in various organisations in Australia since 1976". Upon receiving the appellant's application the manager of North-Western Adelaide Health Service Therapy Solutions contacted the Occupational Therapists Registration Board to inquire whether the applicant was registered. The Board confirmed that he was not.

The second count involved a telephone call by the appellant to the Program Manager, a Ms Townsend, at WorkCover Corporation. The Magistrate found that in this phone call the appellant inquired about work and declared that he was an occupational therapist and that he was registered with the Board.

The appellant had been deregistered by the Occupational Therapists Board on 28 May 1990 on the grounds of "inadequacies as an occupational therapist" in certain placements which amounted to unprofessional conduct. An appeal against that determination to this Court was dismissed by consent on 31 March 1991.

The appellant was unrepresented at the trial of this complaint. After the close of the prosecution case there were several adjournments to enable the appellant to obtain legal representation. Finally, after a number of further adjournments following the close of the prosecution case, his application for a further adjournment was refused. The appellant declined to give evidence without legal representation. The Magistrate accepted the evidence of the prosecution witnesses and found the appellant guilty of both counts. He imposed a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, namely a fine of $3000. The maximum penalty for an offence against s 20 of the Act is $5000. Court fees, Criminal Injuries Compensation levy and prosecution fee ($1430) amounted to a further $1588. The Magistrate allowed the appellant 12 months to pay.

The appellant now appeals against both the conviction and the penalty.

"20(1) ...a person, who is not for the time being a registered occupational therapist, shall not - (a) assume, either alone or in combination with any other words or letters, the name or title of "occupational therapist"; or (b) use any name, title or description likely to cause any person reasonably to believe that he is registered under this Act."

Counsel for the appellant argued that this offence was not one of strict liability and that the necessary intention had not been proved. I reject the argument.

There is no doubt that there is a presumption that mens rea is an essential element in a statutory offence unless it is excluded expressly or by necessary implication: He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; Police v Pfeifer [1997] SASC 6172; (1997) 68 SASR 285. However, in my opinion this case is indistinguishable from Clough v Rosevear [1997] SASC 6216; (1997) 69 SASR 67. In that case a nurse failed to pay the prescribed fee and her name was removed from the register. She continued to practise while unregistered as she was unaware of the fact that she was unregistered. The relevant section of the Nurses Act 1984 reads:

"22(1) No person shall hold himself out or permit another person to hold him out as a general nurse... unless he is registered on the nurses register... Penalty: $5000 or imprisonment for six months."

Duggan J found that the offence was one of strict liability. The appellant argued that the word "assume... the title of" in the Act differed from the phrase "holding... out as" in the Nurses Act, such that the presumption in favour of proof of intention had not been rebutted in s 20 of the Act.

The purpose of the Act is to regulate the profession of occupational therapy. It is to ensure that appropriate standards are maintained in the field and that those practising have the appropriate skills and other qualifications evidenced by professional registration. This is also the purpose of the Nurses Act with respect to the nursing profession. In my opinion there is no sufficient difference in substance between the two phrases, at least for the purposes of determining that the phrase "assume... the title of" implies the need for proof of intention, whereas the phrase "holding... out as" rebuts the presumption.

Having concluded that there was a rebuttable presumption, Duggan J in Clough v Rosevear, at 70, continued:

"The task of deciding whether the presumption of guilty intent is rebutted in a particular case is one of construction. It becomes necessary to have regard to 'the terms of the statute, the subject matter dealt with, the consequences of adopting alternative views and the purpose that Parliament might have had in taking the latter approach': Police v Pfeifer [1997] SASC 6172; (1997) 68 SASR 285. I should also mention that I adopt the approach taken by Doyle CJ in the following passage in his judgment in Police v Pfeifer: 'I express the matter in terms of the rebutting of a presumption, even though the issue in this case is whether what must be proved is intent or knowledge on the one hand or absence of an honest and reasonable belief on the other hand. I do so because it may be that the presumption is in favour of intent or knowledge in particular, as distinct from some state of mind such as absence of honest reasonable belief. In that respect, what their Honours said in He Kaw Teh v The Queen is not decisive: cf Gibbs CJ (at 528 - 529 and 534), Brennan J (at 565 - 567 and 576), Dawson J (at 590 - 593). It is clear that whether one is concerned with admitting a presumption or simply identifying the relevant state of mind, the matters to be considered are the same: Brennan J (at 576). Because the position is unclear, I proceed on the basis that the rebuttal of a presumption in favour of intent or knowledge as elements of the offence is in issue.'"

I turn to consider the matters, which as a matter of construction of the Act, lead to the conclusion that the presumption is rebutted.

As is the case with the Nurses Act, the Act is a regulatory Act. Its long title is "an Act to provide for the registration of occupational therapists, and for other purposes". It provides a scheme for registration, the hearing of complaints and for disciplinary measures for proved unprofessional conduct. I note what Dawson J said in He Kaw Teh (at 595):

"Conduct prohibited by legislation which is of a regulatory nature is sometimes said not to be criminal in any real sense, the prohibition being imposed in the public interest rather than as a condemnation of individual behaviour. On the other hand, if a prohibition is directed at a grave social evil, the absolute nature of the offence may more readily be seen, particularly if proof of intent would be difficult and would represent a real impediment to the successful prosecution of offenders."

The purpose of legislation such as this is to ensure that persons practising in this profession are of a particular standard. This is in the public interest to ensure the safety of the general public who might engage, or who might otherwise be exposed to, the services of such a professional.

As was the case in the section considered by Duggan J in Clough v Rosevear words such as "wilfully" and "knowingly" are not used in s 20 of the Act. However, by contrast the word "wilfully" is used in s 16(2)(c), the relevant portion of which creates an offence where a person "wilfully insults the board or any member thereof". Although not conclusive, the Parliament has indicated one section where a degree of wilfulness is required. The omission of such a reference in s 20 tends to indicate that the Parliament did not intend an offence against that section to require proof of mens rea.

Finally the question of penalty is a relevant consideration. As I have already mentioned, the maximum penalty for a breach of the section is a fine of $5000. Unlike the Nurses Act, there is not the possibility of imprisonment. This is further indication that Parliament intended that the offence should be one of strict liability.

In my opinion, all these factors, as they did in Clough v Rosevear, require a conclusion that the presumption that proof of intention or knowledge is required is rebutted in this case, and the offence is one of strict liability.

The appellant did not give evidence. There was nothing else in the evidence to raise the defence of honest and reasonable belief: cf Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. It is therefore not necessary to pursue the question whether the evidence showed that the appellant in fact held such a belief.

Procedural fairness - failure to warn of possible defence

However, the appellant submitted that, if the offence was one of strict liability, the Magistrate should have alerted the appellant to that fact. He did not, and the appellant was thereby denied the opportunity of even raising a Proudman v Dayman defence. He argued that the Magistrate should have explained to the appellant that a Proudman v Dayman defence was a possible defence to such a charge, and that if the appellant had an honest and reasonable belief in a fact or facts which would have made his actions innocent, then he would not be guilty of the offence. It was submitted that, as the appellant was unrepresented, the Magistrate should have explained that, although he was not required to give evidence, the evidence as it stood supported the conclusion that an offence had been committed. He should have warned the appellant that once it had been established that the acts had taken place, the only defence was a Proudman v Dayman type of defence. The submission even went as far as to suggest that the Magistrate should have explained the rule in Browne v Dunne (1893) 6 R 67, and that the failure to do so caused an unfairness to the appellant. As I understand the submission, the obligation arose to warn the appellant about putting his case to the prosecution witnesses in case he decided to give evidence himself.

Whilst the Court must take all reasonable steps to inform an unrepresented litigant of his or her rights and to explain relevant procedures, it is not for the Court to give such party legal advice or to conduct the defendant's case for him: Moore-McQuillan v Police (1998) 196 LSJS 488. Even the principles stated by Wells J in Cooling v Steel (1971) 2 SASR 249, which have not commanded universal acceptance in this Court (cf Ivanoff v Linnane (1979) 20 SASR 279) go no further than requiring explanation, where appropriate, of the nature and seriousness of a charge and of fundamental procedural steps required to be followed by the Court.

It was not for the Court in this case to advise the appellant on possible defences to a breach of a statute or on intricate questions of strict liability, of the rebuttable presumption in favour of proof of the requisite mental state, or of the possibility of a Proudman v Dayman defence. It was not for the Magistrate to speculate on or suggest possible lines of defence. If it had been apparent from the cross-examination of the prosecution witnesses that a defence based on the appellant's belief in a set of circumstances was being pursued, and the appellant indicated that at the close of the prosecution case that he did not intend to give evidence, it may be appropriate for the Magistrate to point out to him the difficulties of succeeding with the foreshadowed defence if he does not give evidence. However, no suggestion of any such defence had been raised in the course of the prosecution case before the Magistrate. In fact it was evident from the appellant's cross-examination of the witnesses that he was trying to establish that he had been applying for entry into training programmes and not for employment as an occupational therapist. There was nothing remotely resembling a possible Proudman v Dayman defence. There was certainly no situation which gave rise to any need to refer to the rule in Browne v Dunne which, on the case as then understood by the Magistrate, was being properly observed.

There was no breach of procedural fairness by the Magistrate on this ground.

Procedural fairness - inability to obtain legal advice; conditional adjournment

The appellant claimed that the Magistrate erred by not affording the appellant a reasonable opportunity to obtain legal advice. He further claimed that when the Magistrate did adjourn the case at the close of the prosecution case he erred by placing a condition on that adjournment.

There had been a number of adjournments granted in order for the appellant to try and obtain legal representation. It is evident that the matter had come before the Magistrates' Court and had been adjourned on the following occasions: 1 July 1998, 16 September 1998, 30 September 1998, 14 October 1998 and 21 October 1998, before the trial commenced and the prosecution case was completed on 23 November 1998. At some of those hearings the appellant was represented or assisted by a social worker. By 21 October 1998 it was clear that his application for legal assistance to the Legal Services Commission had been rejected.

At the close of the prosecution case, when asked by the Magistrate whether he wished to give evidence and call witnesses, the appellant sought a further adjournment to obtain legal advice. The application was opposed. The Magistrate decided in the interests of justice to give the appellant one further opportunity of securing legal advice, but on a limited basis. That was that the "prosecution would not be required to reopen its case". He said that the prosecution would proceed on the evidence as it then stood, and that there would be no application for the recalling of any of the prosecution witnesses.

It is difficult to see how that could be made a condition of the adjournment, given that circumstances might well arise in future which would have to be considered by the Court which might justify the recalling of a prosecution witness. However, given the number of adjournments which had by then already been granted and the indulgences given to the appellant to enable him to obtain legal assistance, it was not unreasonable for the Magistrate to foreshadow the difficulty facing any application requiring the recalling of prosecution witnesses.

Thereafter there were further adjournments on 22 December 1998, 27 January 1999 and 5 February 1999 before the Magistrate refused to adjourn the matter further. He refused a further application for adjournment on 26 March 1999 when he handed down his decision. At a number of these later hearings the appellant was represented by a legal practitioner for the purposes of securing the adjournment, but it appears that any attempt to retain the services of those practitioners came to nought.

The appellant argued that the "condition" imposed by the Magistrate on the adjournment on 23 November 1998 was too restrictive, as it restricted any potential legal representative to leading evidence from the appellant only and any other witnesses he might choose to call, and prevented him from cross-examining prosecution witnesses. Although, no doubt, an application to recall witnesses could have been put and argued on proper grounds, it was submitted that the ruling would have coloured the ability of the appellant to seek proper legal advice, and may have discouraged legal practitioners from taking the case. This submission was mere speculation, as there was no evidence to suggest that any of the practitioners concerned had refused to act for that reason.

In my opinion the Court had shown extreme patience with the appellant at all stages of its process. It was not unreasonable to foreshadow that if an application were made to recall prosecution witnesses it would not be favourably considered. That did not prevent such an application from being made if it were appropriate to do so. There has been no suggestion made on the hearing of the appeal that the process miscarried because the appellant was not permitted to recall prosecution witnesses. On the final occasion on 26 March 1999 when the appellant again asked for an adjournment in order to obtain legal assistance, the Magistrate refused the application but gave him an opportunity to seek advice from an adviser he had in Court. It was only after that opportunity had been taken that the appellant then indicated that he refused to give evidence without legal representation. The Magistrate had even considered treating the appellant's application as a stay based on the principles in Dietrich v R (1992) 172 CLR 292, but in my opinion had rightly concluded that it was not a case which attracted those principles. It will be very rare indeed that an offence of strict liability is an offence of such seriousness as to attract the application of a Dietrich principle. Not only was this an inappropriate case for the application of the principle, but there was no financial information presented on which any determination under that principle could have been made.

In my opinion there is no substance in the appellant's argument on these grounds.

Ms Townsend was called by the prosecution to give evidence in relation to the second count. It was she who took the telephone call from the appellant in which it was alleged that the appellant had claimed that he was an occupational therapist. She gave evidence that she made some handwritten notes at the time of the conversation which she subsequently transcribed to typewritten form. She then destroyed the original handwritten notes. She was asked some introductory questions about the making of the notes by counsel for the prosecution, and was then asked a number of questions by the prosecution in which it was established that she could not accurately recall the conversation without reference to the notes; that the transcribed notes were written on the same day and from the handwritten notes; that they were made by herself; and that the purpose of the transcription was to join words together so that the notes would make sense. The transcript records that the appellant objected to the notes being used in evidence but permission was nevertheless granted to the witness to refer to them for the purpose of refreshing her memory.

In his written outline of argument, counsel for the appellant argued that the evidence based on the notes was inadmissible. It is clear, however, that a court has a discretion to allow a witness to refresh memory from a copy of notes, the originals of which have been destroyed: R v Shea (1978) 18 SASR 591 at 597. The discretion must be exercised with caution, but in this case there was an explanation given for the absence of the original notes and sworn evidence given as to their accuracy and transcription from the original. It was within the Magistrate's discretion to allow the use of the notes, and the evidence was admissible.

At the hearing of the appeal, however, the argument went further. It was said that this was another instance of a lack of procedural fairness, and the Magistrate should have informed the appellant that he had a right to cross-examine the witness further on the voire dire before the ruling as to the use of the notes was made.

Some explanation by the Magistrate as to the appellant's rights in relation to the use by the witness of notes might well have been helpful. However, in my opinion the failure to explain, if indeed that occurred, did not cause a miscarriage of justice. As I have already said, it is not the role of a Magistrate to provide legal advice to an unrepresented party. As it was, the Magistrate, no doubt conscious of the fact that the appellant was unrepresented, asked a number of questions of the witness himself as to the preparation and accuracy of the notes. After that the transcript records that the defendant objected to the notes being used in evidence. It did not record the argument, however, and there was no evidence placed before me as to the nature of the objection. I therefore cannot say that the nature of the objection was such that further questions of the witness were necessary or that some further explanation of the appellant's procedural rights was called for. In my opinion it has not been shown that there was any miscarriage of justice arising out of the use by the witness of the notes in question.

The appellant submitted that the sentence was manifestly excessive.

The offences did not result in anyone being misled into believing that the appellant was in fact a registered occupational therapist such that they were misled in acting to their detriment on the representations made. The appellant was not employed, nor did he actually practise, as an occupational therapist, and no member of the public was treated by him. No-one was defrauded by the representations. It might be said that both offences were at the lower end of the scale of seriousness.

However, these were not the appellant's first offences of this nature. On 8 October 1992 he was convicted of two other breaches of s 20(1) of the Act, those offences having occurred on 30 August 1991 and 1 October 1991. In respect of each of those occasions he was fined the sum of $1000. It was clear to the appellant that he had been deregistered by the Board in 1990. He must have been aware of his unregistered status both at the time of the offences in 1991 and at the time of these offences. That makes these offences all the more serious.

It must be remembered that the fine of $3000 was a single penalty in respect of both offences imposed under s 18A of the Criminal Law (Sentencing) Act. The penalty was clearly within the reasonable sentencing range of the Magistrate's discretion, and it cannot be described as being manifestly excessive. The appeal against sentence is dismissed.

The appellant's appeals against his convictions and sentence are both dismissed. I will hear the parties as to any consequential orders that may follow.