Health Insurance Act 1973 (Cth), s 128A

Respondent : Commonwealth Director of Public Prosecutions

Collis (1989) 43 A Crim R 371

Hinton v O'Dea (1977) 16 SASR 234

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lars, Da Silva and Kalanderian (1984) 73 A Crim R 91

Minister for Human Services and Health v Haddad (1995) 38 ALD 204

R v Armstrong [1983] 35 SASR 356

R v Forde [1923] 2 KB 400

R v Murphy [1965] VicRp 26; [1965] VR 187

Sagiv (1986) 22 A Crim R 73

Tihanyi v R [1999] WASCA 226

1 SCOTT J: The appellant was granted leave to appeal by McKechnie J on 30 July 1999.

2 On 19 May 1999 the appellant was convicted of 70 counts of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth) ("the Health Insurance Act"). The complaints were in common form except to the extent that they identified individual patients. The charges arose out of claims made by the appellant under bulk-billing arrangements utilised in the course of her medical practice. The 70 charges arose out of claims made as "item 2 consultations" as described in the Medicare Benefit Schedule. There are two conditions that apply for item 2 claims, namely:

"1 that the consultation must take place during an after hours unbroken period; and

2 the patient's medical condition must be such as to require immediate treatment."

3 If either of those conditions do not apply, then a normal scheduled item should be claimed in respect of the service.

4 A normal consultation attracted a fee of $24.70, whereas an item 2 claim during the relevant period attracted a payment of $39.30 (later amended to $46).

5 By way of example, the first complaint as amended alleged:

"On or about the 7th day of February 1997 at Rockingham in the State of Western Australia made a statement in Medicare 'Claim for Assigned Benefits for Services Rendered to Non Hospital Patients' DB1 form relating to professional services provided to URSULA GODFREY on 7th February 1997 in namely she stated that 'to the best of my knowledge and belief all information contained in this claim is true' which statement was false in a material particular namely in each case a claim was made for the provision of an (sic) Medicare Benefits Schedule Item 2 service which service was not in fact rendered, and which statement was capable of being used in connection with a claim for a payment under the Health Insurance Act 1973 contrary to Section 128A of that Act."

6 As can be seen from the wording of the complaint, the allegation was that the appellant had made a false claim for a benefit under the Health Insurance Act.

7 The appeal book indicates that the matter came on for hearing in the Court of Petty Sessions on 19 May 1999. Counsel for the appellant explained to the court on that day that some discussions were on-going between himself and counsel for the respondent as to the basis upon which reparation was to be made and that it was intended to defer sentencing until that matter was resolved. It was, however, agreed that a plea would be taken on that day.

8 After a date for resumption of the hearing was resolved, his Worship said to the appellant:

"HIS WORSHIP: Okay, so - - so Mrs Lim, you know the 70 charges and you understand them? And, how do you plead to those?

HIS WORSHIP: Plead guilty to all of those, thank you. Well, be adjourned for sentence, 2.6.99 and I'll put any magistrate can do that."

9 The matter resumed on 2 June 1999 and the transcript reveals the following exchange:

"HIS WORSHIP: Pleaded guilty to all of these charges?

10 Counsel for the (complainant) outlined the facts to the court and amongst those facts indicated to his Worship:

"In January of 1998, the Health Insurance Commission examined the patterns of services, provided by the defendant, for a period during 1997. It was established as a result of that inquiry, that the defendant was the highest provider of Medicare schedule item two services in Western Australia. She operated a general practice and the next highest provider of that item number had claimed for approximately only one third of the services for the consultations that were claimed for by the defendant. ...

Because of the highest statistical profile of the defendant claiming the item two scheduled matters, further inquiries were conducted by the Health Insurance Commission. A total of 17 patients were contacted, and claims made in the names of those patients are the subject of the charges before the court. In each case, and in respect to each individual service being the subject of the charges, the patients have stated to the Health Insurance Commission, that the defendant did provide them with a medical service, however, that medical service did not fall within the criteria of an item two consultation as described in the Medicare benefit schedule."

11 Counsel went on to explain that in respect of each of the patients concerned, the breach arose because the consultations took place during normal surgery hours. Counsel for the complainant also made it clear to the court that the appellant's consultation book confirmed that the consultations took place during normal surgery hours.

12 Counsel for the appellant in the plea in mitigation indicated to the court that the facts outlined by the prosecution were accepted and said that as the offences were alleged under s 128A of the Health Insurance Act, there was no allegation of knowledge, just an allegation of falsity. Counsel went on to say that the appellant had "misinterpreted" the applicable Medicare Benefit Schedule item and accordingly had made an inappropriate claim. Counsel also said:

"She had considered the Medicare Schedule Benefits book in some detail, but she just misinterpreted what was required."

13 Counsel for the appellant in addition outlined the appellant's background, her other community roles and emphasised the fact that these claims arose out of the appellant's mistake in completing the wrong item on the claim form. In addition, it was made clear that the appellant intended to reimburse the total amount overpaid.

14 Counsel for the respondent, in his submissions to the learned Magistrate made it clear that the onus was on the appellant to ensure that claims made under the fund were made accurately.

15 Counsel for the appellant submitted that the appellant had excellent antecedents, worked long hours and was highly respected in her community and by her patients. He emphasised that she had made an error in the completion of the form, but that was the extent of her wrongdoing.

"Well in this case Dr Esmeralda Santilis Lim, has pleaded guilty to 70 charges under the Health Insurance Act 1973, in which she has made claims that could not be substantiated and which she could not substantiate. And she has made in effect, fraudulent claims, 70 fraudulent claims."

17 His Worship went on to refer to the appellant's income and to the fact that the appellant worked long hours and said:

"Doctors are in a privileged position and they better not abuse it, because if they come before the courts and they do abuse it, they they'll surely wish they hadn't. Now I'm not going to drag the thing out. Doctor Lim has pleaded guilty at the first opportunity, she has co-operated and she needs some discount for that. But I consider, that when somebody commits 70 offences, and is dong it against the public purse, a message needs to be sent, not only to them, but to the public in general and by that I mean, professional people in - - of a particular profession need to know generally, that if they commit offences of this kind, they will learn that perhaps they shouldn't."

18 In the end result his Worship fined the appellant a total of $15,000 as a global penalty for all complaints and ordered her to pay costs of $122.30 and reparation of $4,211.50.

19 The appellant appeals against that decision on the following grounds:

(a) "The convictions are unsafe and unsatisfactory due to the failure of the Applicant's legal advisers to properly advise the Applicant as to the availability of a defence under Section 128A(5) of the Health Insurance Act;

(b) (i) The penalty imposed by the Learned Magistrate was excessive in all the circumstances of the case and in particular in light of the Applicant's antecedents;

(ii) The Learned Magistrate erred in assessing penalty in that he incorrectly:

(a) dealt with the charges as being charges involving an element of fraud;

(b) misunderstood or incorrectly interpreted the thrust of the plea in mitigation in that the Applicant did not blame her language nor was it said on her behalf that she had problems; and

(c) saw the offences as warranting a deterrent penalty."

20 As the submissions on behalf of the appellant were developed by senior counsel, it became clear that the thrust of the challenge was that the appellant was given inappropriate legal advice, and as a consequence, pleaded guilty to the charges. Had she been properly advised of the appropriate law she would have pleaded not guilty, and defended the charges.

21 In developing that argument, senior counsel for the appellant referred to the appellant's affidavit in support of the application for leave to appeal. In that affidavit the appellant said in par 11, par 12 and par 13:

"11 I was advised by my solicitors to retain Counsel, Mr Pratt, in respect to the charges. My instructions to him at all times were that I had made an honest mistake. 'It was simply an honest mistake'. On or about 6 May 1999 I met Mr Pratt and gave him a letter dated 6 May 1999 and my CV to hand to the Magistrate hearing my case. Now shown to me and marked "EL4" is a copy of my said letter and CV. I was advised by Mr Pratt that the offences were in effect an absolute offence. Mr Pratt did not hand the letter or CV to either of the Magistrates who heard my case, despite me handing him further copies at Court on 19 May 1999.

12 I have now taken Senior Counsel's advice and for the first time my attention has been brought to Section 128A(5) of the Health Insurance Act. Prior to this it was not explained to me that a defence was available to the Charges.

13 I say I have a defence to the Charges as I did not know the statements attributed to me were false. Further I could not reasonably have known that they were false. In the event that I was aware of and understood the provisions of Section 128A(5) of the Act, I would have entered a plea of not guilty to the Charges."

22 The document which the appellant provided to her counsel for presentation to the learned Magistrate (but which was not handed to him) dated 6 May 1999, included the following statements:

"Making reference to the _Health Insurance Act 1973-_SECT128A (find copy attached). To the letter of this ACT a false and misleading statement might have been made. False as in 'wrong or incorrect' Yes! Misleading 'imprecise, confusing' yes. To these statements and by these definitions I agree, I have said repeatedly and would like to reiterate I have made a mistake. I wish it known for all to read I did not with forethought or malice try to defraud or deprive the HIC out (sic of) any monies. I made a simple and maybe stupid error; I marked the wrong Item number. ... and if I have made a mistake in marking the wrong Item number down then I am guilty of being an overworked and caring Medical Practitioner. ... Putting down the wrong item number is completely different situation than claiming money for seeing a patient and not actually seeing that patient."

23 It is therefore apparent that whilst the appellant agrees that she made an error in respect of completing the wrong item on the Medicare claim form in respect of each individual matter, she denied at all times having done so fraudulently in an attempt to obtain more moneys than she was entitled to. Her instructions in that letter which were provided to her counsel at all times made it clear that she made an error in completing the wrong item number in each of the respective claims.

24 In the course of the hearing of this appeal, senior counsel for the appellant was pressed as to the basis of the mistake that it was said that the appellant made. Counsel said that the error made by the appellant was in ticking the wrong box and claiming the wrong amount.

25 In looking at the basis upon which it is said that the appellant had a defence to each of the charges, it is important to return to what counsel for the appellant said in mitigation before the Magistrate at trial. In his plea in mitigation, counsel said:

"The first thing to note is of course, the offences are under s 128(A) which involve criminality in making a false statement irrespective of knowledge or whether those statements are false. ... Here there is no allegation of knowledge, just an allegation of falsity. In that regard the defendant says, is that she misinterpreted the applicable Medicare Benefit Schedule item. ... She had considered the Medicare Schedule Benefits book in some detail, but she just misinterpreted what was required."

26 As I understand that submission, what counsel for the appellant at trial was saying to the learned Magistrate was that the appellant had mistakenly thought that the higher schedule fee applied in respect to each of the consultations, the subject of the charges. If that is right, the appellant had misunderstood the criteria to be met for an item 2 claim to apply. There was no suggestion made either before the Magistrate or at the hearing of this appeal that the appellant had any misunderstanding as to the date, time, or circumstances in which the particular patients were seen. The mistake identified was that she had misunderstood the requirements under the Medicare Benefit Schedule of the Health Insurance Act. If that proposition is right, in my view the appellant has made an error of law and not an error of fact, so that no defence would be available to her under the provisions of the relevant mistake of fact provisions, either at common law or under s 24 of the Criminal Code of Western Australia.

27 The next matter that falls for consideration is the contention advanced on behalf of the appellant that she would have had a defence under s 128A(5) of the Act. That section relevantly provides:

"(5) It is a defence if a person charged with an offence under this section in relation to a statement made by the person did not know, and could not reasonably be expected to have known, that the statement was:

(a) false or misleading in a material particular; or

(b) capable of being used in connection with a claim for a benefit or payment under this Act."

28 The appellant seeks to argue that in relation to each of these claims she did not know and could not reasonably have been expected to know that the statement was false or misleading in a material particular.

29 When that argument is analysed, in my view it amounts to exactly the same proposition as the one with which I have already dealt. The appellant was seeking to say that she did not know and could not reasonably be expected to have known that each of the statements in the Medicare claim form was false or misleading in a material particular. In the context of this case, what the appellant was seeking to demonstrate was not any error of fact, but rather, an error of law in that she misunderstood the relevant criteria for making the item 2 claim in each case.

30 In my opinion, therefore, the appellant's contention that she made a relevant mistake must be rejected. Any mistake, which the appellant made, in my opinion, was a mistake of law and not one of fact, so that s 128A(5) would not assist her.

31 I would add that the appellant now seeks to set aside her plea of guilty. In that respect it is important to note that the appellant was represented both when the matter first came before a Magistrate on 19 May 1999 and again when the matter came before a Magistrate on 2 June 1999. On each of those occasions and in the presence of counsel, the appellant made it clear that she was pleading guilty to each of the charges concerned. Admittedly, his Worship did not read each individual charge but her plea of guilty made quite apparent that she understood each of the charges. The transcript of the pleas in the court below is set out earlier in these reasons.

32 The appellant therefore faces the difficulty of overcoming a plea of guilty made with legal advice in a Court of Petty Sessions. In looking at that proposition it should be borne in mind that counsel for the appellant in the court below sought to have the Magistrate place the appellant on a good behaviour bond and not to proceed to conviction. In the alternative, it was submitted that a global financial penalty should be imposed.

33 The difficulty that therefore arises in a case such as this is that there is at least the possibility that the appellant sought to have the matter dealt with in the Court of Petty Sessions on the basis that she would not have a resulting criminal conviction recorded against her. In that respect, counsel for the appellant said to his Worship:

"In all those circumstances, my submission is that this Court ought not to have Dr Lim leaving with a criminal conviction registered against her name."

34 The difficulty that arises is that the appellant took her chances in the Court of Petty Sessions of having the matter dealt with on the basis that she would not have a criminal conviction recorded. That having failed, on appeal she now seeks to have the conviction set aside and a plea of not guilty entered so that these matters can be contested at trial.

35 In Tihanyh v R [1999] WASCA 226, the Full Court had occasion to consider a similar situation on appeal from the District Court. Whilst different considerations necessarily apply to appeals from the District Court, the general principles surrounding a change of plea on appeal are dealt with in the judgment of Murray J (with whom Malcolm CJ and Parker J agreed) at par 41 where his Honour accepted that there was a discretionary power in the appellate court to permit a change of plea to not guilty, even although the accused may have pleaded guilty below and repeated that plea before a superior court. Murray J cited with approval R v Popovic [1964] Qd R 561 where Lucas J said at 567:

"I see no reason why in circumstances such as these the Court should not in a proper case, and as a matter of discretion, direct the entry of a plea of not guilty notwithstanding that an accused person has pleaded before a Magistrate, has been committed for sentence, and has again pleaded guilty before the Court to which he has been committed."

36 Murray J went on to consider the conflict between R v Arlotta [1979] WAR 84 and Margetson v R [1980] WAR 135 and confirmed the inherent jurisdiction of the court to permit a change of plea in appropriate circumstances.

37 The question that arises in this case is to what are appropriate circumstances to allow the change of plea. In Maxwell v R (1996) 184 CLR 501, Dawson and McHugh JJ said at 510 - 511:

"An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial Judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial Judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin (1904) 21 WN (NSW) 233 where the trial Judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the Judgement of the Court was delivered by Owen J who said at 235:

'It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance'."

38 In this case there is no suggestion that the plea before the learned Magistrate was in any way equivocal. The appellant was represented by counsel and there was nothing to suggest that the appellant lacked the necessary understanding of the charges to enable an informed plea to be entered. There is nothing about this case which suggests that by acceptance of the plea there has been a miscarriage of justice, particularly when the matter is looked at in the light of the way in which counsel for the appellant at this appeal sought to formulate the mistake which it was said the appellant made.

39 Where, as here, the appellant was represented and the plea of guilty was entered in circumstances where the appellant sought to obtain a forensic advantage from that early plea of guilty, the appellant must demonstrate some exceptional circumstances disclosing a miscarriage of justice before the plea of guilty can be set aside.

40 As Kirby P said in Liberti v R (1991) 55 A Crim R 120 at 122:

"For good reasons, courts approach attempts at trial or on a appeal in effect to change a plea of guilty or assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; and Savig (1986) 22 A Crim R 73 at 81.

See also Williams v Beverley (1998) 103 A Crim R 332.

41 As can be seen from the grounds of appeal the appellant also seeks to appeal against the sentence imposed. That issue was adjourned so that the primary issue (the question as to whether or not the plea of guilty should be set aside) could be resolved. I have concluded that the appeal in that respect should fail. The appeal should be re-listed so that the appeal against sentence can be heard.