Health Insurance Act 1973 (Cth)

Matters remitted to Court of Petty Sessions to be dealt with according to law

Respondent : Commonwealth Director of Public Prosecutions

Collis & Collis v The Queen (1989) 43 A Crim R 371

Haysdale Nominees Pty Ltd v Shepherd (1988) A Crim R 435

Hinton v O'Dea (1977) 16 SASR 234

House v The King (1936) 66 CLR 499

Lars & De Fatima De Silva (1984) 73 A Crim R 91

Nevermann (1989) 43 A Crim R 347

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 The Queen (1999) 21 WAR 377

Williams v Beverley (1998) 103 A Crim R 326

Wroblewski v Starling [1987] WAR 233

1 WALLWORK J, EINFELD AJ: The appellant appeals by leave from a decision of a Judge of this Court dismissing her appeal against convictions on 70 counts of making false statements, contrary to s 128A of the Health Insurance Act 1973 (Cth). The original complaints were in common form, except to the extent that they identified separate patients. The charges arose out of claims made by the appellant under bulk billing arrangements utilised in the course of a medical practice. The claims were 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."

If either of those conditions does not apply, then a normal scheduled item should be claimed in respect of the service. A normal consultation attracted a fee of $24.70, whereas an Item 2 claim during the relevant period attracted a payment of $39.30.

2 The complaints came on for hearing in the Court of Petty Sessions on 19 May 1999. The appellant pleaded guilty before the Magistrate. Counsel for the appellant said:

"The facts are admitted and we don't quarrel with the amount of costs sought. 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."

3 In fact, s 128A(5) of the Act relevantly provides:

"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."

4 It can be seen that counsel's statement that the relevant offences involved criminality "in making a false statement irrespective of knowledge or whether those statements are false" was incorrect.

"Here there's no allegation of knowledge, just an allegation of falsity. In that regard what the defendant says is that she misinterpreted the applicable Medicare benefit schedule item and perhaps, I could hand up to you Sir a copy - a copy of the page of the applicable item. Perhaps I could take you to the definition of after hours towards the bottom, A(9)(3) says:

'An after hours consultation or visit is a reference to an attendance on a public holiday, on a Sunday before 8.00 am, or after 1.00 pm on a Saturday, or any time other than between 8.00 am and 8.00 pm on a week day, not being a public holiday.'

... To give some content to when you should then claim .02, rather than the ordinary item number for a standard visit, which is Item 23, you then need to go back into A(9)(1), and that if you like, provides further conditions which have to be satisfied before an after hours visit becomes an emergency after hours visit, which would attract 02, rather than 23. ... And what she says, is look, English is not her first language, although she's obviously very competent in it. She had considered the Medicare schedule benefits book in some detail but she just misinterpreted what was required. The defendant has for many years conducted a medical practice in Warnbro, a sole medical practice. She's one of those old-fashioned practitioners insofar as she actually lives on the premises. Her premises are open very early and very late. Fortunately for her she in fact makes a note of the time each consultation is made with her in terms of her seeing the patient."

6 On the appeal before the learned Judge from whom this appeal is taken, his Honour said, at [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. ... 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."

His Honour came to the conclusion that any mistake which the appellant had made was in his opinion a mistake of law and not one of fact, so that s 128A(5) would not assist her.

7 The learned Judge had before him an affidavit in support of the application for leave to appeal in which the appellant had deposed:

"11. I was advised by my solicitors to retain counsel, Mr Pratt, in respect of 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 6th May 1999 I met Mr Pratt and gave him a letter dated 6th 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 19th May 1999.

12. I have now taken senior counsel's advice and for the first time my attention has been brought to s 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 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 s 128A(5) of the Act, I would have entered a plea of not guilty to the charges."

8 It can be seen that, before the learned Judge, the appellant was saying that at all times she had made an honest mistake and that she had been advised by her counsel that the offences were in effect absolute offences; further, that counsel had not handed her letter to the Magistrate before whom the pleas were taken and, finally, that she did not know that the statements attributed to her were false and that she could not reasonably have known that they were false.

9 If in fact counsel did advise the appellant that the offences "were in effect absolute offences", that was wrong advice.

10 The respondent did not seek to have the appellant cross-examined on her abovementioned affidavit. In that regard it is relevant to note to the words of Kennedy J, with whom the other two members of the court agreed, in Mullally v The Queen [2001] WASCA 258, delivered 28 August 2001, where the court was dealing with the question of whether a notice of abandonment of an appeal should be allowed to be withdrawn. In par 13 of his reasons, Kennedy J said:

"Notwithstanding the foregoing, the fact remains that the Crown did not elect to cross-examine the applicant on his affidavits, and the court is left with uncontradicted evidence from the applicant that his mind did not go with his actions, which evidence is not, in my view, so inherently improbable as to warrant its rejection. On this basis, the notice of abandonment should be treated as a nullity and leave granted to the applicant for him to withdraw it. The effect of the withdrawal will be that the appeal is reinstated and the initial notice of appeal will stand as the notice of appeal despite the applicant's delay."

11 In our view, it should be accepted that in this case the respondent did not dispute what the appellant had said in her affidavit. That is not surprising in view of the letter which the appellant said she had asked her counsel to hand to the Magistrate hearing her case. In that letter the appellant had stated:

"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 of any moneys. I made a simple and maybe stupid error. I marked the wrong item number. This is what I will openly admit to. I am not a thief or defrauder and this is what bothers me the most. I cannot in good conscience sign or agree to sign something that implies that I ... deliberately and with premeditation chose to defraud the Health Insurance Commission for that would not be true. I can admit to making a mistake and offer (as I have from the beginning) to make restitution in a financial way for that mistake. ... I have at all times provided the medical services stated by me to my patients and if I have made a mistake in marking the wrong item number down then I am guilty of being an overworked and caring practitioner. ...."

12 It is our view that upon hearing counsel state that the relevant offences involved:

"criminality in making a false statement irrespective of knowledge or whether those statements are false. ... Here there's no allegation of knowledge, just an allegation of falsity. In that regard what the defendant says is that she misinterpreted the applicable Medicare benefit schedule ... and what she says is look, English is not her first language although she's obviously very competent in it. She had considered the Medicare schedule benefits book in some detail but she just misinterpreted what was required."

the learned Magistrate should have queried whether he could accept the pleas of guilty on that basis.

13 In any event, once the learned Judge from whom this appeal is taken had seen the affidavit which is referred to above, and from which it is clear that the appellant was saying she had made an honest mistake and she had been advised by her counsel that the offences were in effect absolute offences, he should have raised the question whether the pleas of guilty should stand.

14 In R v Murphy [1965] VicRp 26; [1965] VR 187, an appeal against conviction based on a plea of guilty, Sholl J at 190 said:

"In the present instance, the applicant's case is that she pleaded guilty because of considerations irrelevant to the actual question of her guilt or innocence and that she is in fact not guilty. Mr Neesham, in his admirable address on her behalf, put it that it would be sufficient if the question of her guilt or innocence was an issuable matter. I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, for example, a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial."

15 In Liberti (1991) 55 A Crim R 120, Kirby P, with whose reasons for judgment the other two members of the court agreed, when dealing with an appeal concerned with whether or not a plea of guilty had been misconceived, said at 121:

"Mr Liberti first pleaded guilty before Mr D J Pearce, Magistrate, on 12 July 1990. He was legally represented on that occasion."

"This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VicRp 16; [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears:

(a) that the appellant did not appreciate the nature of the charges or ...

(b) ...

For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection."

"Ultimately, the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts. ... She deposed to the fact that at the time of the pleas of guilty before Judge Ford, she was unaware of the then unreported decision in Carey ... Beyond the duty of the accused's lawyers, there is a duty in the court receiving the proceedings pursuant to s 51A of the Justices Act 1902 (New South Wales) to ensure that the accused may properly be convicted on the facts in respect of which the accused is charged. ... This duty fell upon Judge Ford. It is a duty which must be taken seriously, as the Parliament intended. Ultimately its application must be assured by this Court."

18 In that case, the appeal was allowed, the convictions were quashed and a retrial was ordered.

19 In our opinion, and in accord with the authorities cited above, there has been a miscarriage of justice in this case. Prima facie, the appellant's affidavit should be accepted as she was not cross-examined on it and it is not inherently improbable or unlikely to be true. Whether or not the appellant's defence under s 128A(5) of the Act should be sustained will depend on the view which the Court which hears the charges takes of all the evidence presented at the trial.

20 We would allow the appeal, set aside the convictions and remit the matters to a Court of Petty Sessions for retrial.

21 On 19 May 1999 the appellant, a medical practitioner, pleaded guilty to 70 complaints alleging breaches of the Health Insurance Act 1973 (Cth) s 128A. Proceedings were then adjourned to 2 June 1999.

22 In brief, it was alleged that she had claimed schedule benefits for emergency or out of hours consultations rather than schedule benefits for ordinary hours consultations. It was not disputed that she had provided medical services.

23 After the hearing, on 2 June 1999, the appellant was fined the sum of $15,000 as a global penalty. Subsequently, she appealed against both the judgment of conviction and the amount of the fine. Each appeal was dismissed by Scott J.

24 By leave granted on 24 August 2000, she now appeals to the Full Court against the decisions of Scott J.

The provisions of the Health Insurance Act 1973

25 Section 128A relevantly provides:

"(1) A person shall not make, or authorise the making of, a statement (whether oral or in writing) that is:

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

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

Penalty $2,000.

...

(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.

(6) In this section, a reference to making a statement includes a reference to issuing or presenting a document, and a reference to a statement shall be construed accordingly."

26 The Health Insurance Act 1973 s 128A was considered by the Full Court of the Federal Court in Minister for Human Services and Health v Haddad (1996) 137 ALR 391 where at 398 the Full Court said:

"The relevant offence in the present case is that under s 128A. That offence is made out upon proof that a person has made or authorised a statement that is false or misleading in a material particular and is capable of being used in connection with a claim for a benefit or payment under the Act. Knowledge is not a constituent element of the offence. However, by subs (5) it is a defence if a person charged did not know, and could not reasonably be expected to have known, that the statement was false or misleading in a material particular or that it was capable of being used in connection with a claim for a benefit or payment under the Act.

Under s 128B, on the other hand, the prohibition is on a person making or authorising the making of a statement if the person knows that the statement is false or misleading in a material particular and is capable of being used in connection with a claim for a benefit under the Act.

... There is nothing in the terms of s 128A to indicate that knowledge is not a relevant matter to take into account. By subs (5), the absence of knowledge, either actual or constructive, is a defence. On a literal reading, knowledge of falsity of a statement in the present case, is a 'circumstance' in which the offence was committed, in the sense that it is part of the factual context."

28 The appellant was at all times represented by counsel.

29 On 19 May 1999 when the appellant appeared, there was some initial discussion about reparation and her desire to make reparation before sentence.

"HIS WORSHIP: Okay, that will take us to the 2nd I think, of June. Yeah. Yes, stand up please, Mrs Lim. You - - do we want to read out all of these 70 charges, or will she take them all as - -

MR PRATT: Sir, the situation is that - -

HIS WORSHIP: - - they've been explained to her?

MR PRATT: the defendant's obviously a medical practitioner. She's - - she's had all of them faxed to her, she's checked her records. In fact it was she who identified the problem with the charge one. She knows the charges and knows their content.

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

MRS LIM: I plead guilty."

31 The proceedings were then adjourned to 2 June 1999. When the matter was called on the Magistrate confirmed that she had pleaded guilty to all the charges.

32 Following the prosecution recitation of the facts, and in the presence of the appellant, her counsel commenced his address, saying:

"MR PRATT: ... The facts are admitted and we don't quarrel with the amount of costs sought. The first thing to note is of course, the offences are under section 128A, which involve criminality in making a false statement, irrespective of knowledge or whether those statements are false. 128(B), is the following subsection obviously, that's what's commonly known as Medicare fraud and it obviously carries much heavier penalties. Here there's no allegation of knowledge, just an allegation of falsity. In that regard what the defendant says, is that she misinterpreted the applicable Medicare benefit schedule item and perhaps, I could hand up to you, sir, a copy - - a copy of the page of the applicable item.

Perhaps, I could take you to the definition of after hours towards the bottom, A(9)(3) says,

'An after hours consultation or visit is a reference to an attendance on a public holiday, on a Sunday before 8.00 am, or after 1.00 pm on a Saturday, or any time other than between 8.00 am and 8.00 pm on a weekday, not being a public holiday.'

(9)(4)'s not relevant. To give some content to when you should then claim 02, rather than the ordinary item number for a standard visit, which is item 23. You then need to go back into (A)(9).1. And that if you like, provides further conditions which have to be satisfied before an after hours visit becomes an emergency after hours visit, which would attract 02, rather than 23.

HIS WORSHIP: Yes.

MR PRATT: And what she says, is look, english is not her first language, although she's obviously very competent in it. She had considered the Medicare schedule benefits book in some detail, but she just misinterpreted what was required. The defendant has for many years, conducted a medical practice in Warnbro, a sole medical practice, she's one of those old fashioned practitioners in so far as she actually lives on the premises. Her premises are open very early and very late. Fortunately, for her, she in fact makes a note of the time each consultation is made with her, in terms of her seeing the patient. That may have saved her from prosecution under 128(B), in this particular case, because each and every one of those notations as far as I have been able to ascertain discloses that the people, the subject of these complaints and charges, were seen after hours for the purposes of (A)(9)(3), but they didn't comply with the further provisos in (A)(9).1." (My emphasis)

33 The ultimate submission of counsel on her behalf was that the Magistrate might dismiss the charges on the basis of undertaking reparation and being of good behaviour pursuant to the Crimes Act s 19B. Following submissions, the Magistrate then proceeded to sentence the appellant.

34 In the course of his sentencing remarks he said:

"And she has made in effect, fraudulent claims, 70 fraudulent claims."

35 The appellant then sought leave to appeal and in support of the application for leave to appeal against conviction swore an affidavit on 27 July 1999. In the course of that affidavit she swore:

"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."

36 In the letter referred to in par 11 of the affidavit, the appellant gave instructions to her counsel as follows:

"... 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) any monies. I made a simple and maybe stupid error; I marked the wrong Item number. This is what I will openly admit to. ... I can admit to making a mistake and offer (as I have from the beginning) to make restitution in a financial way for that mistake. ... I have at all times provided the Medical Services stated by me to my patients 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 ..."

37 The evidence before Scott J was, with respect, unsatisfactory to some degree. There was, for example, no evidence from counsel that he had overlooked the provision of s 128(A)(5) and it is not easy to see how counsel could have overlooked such a provision. It is also to be noted that the conduct occurred on 70 occasions, not just one or two.

38 Nevertheless, at the hearing of the appeal, there was no application to put an affidavit by counsel before the Court or to cross-examine the appellant on her affidavit. Having regard to her repeated statements that her conduct was a mistake, her evidence, as I have quoted, is not so inherently improbable as to warrant its rejection. The Court is therefore obliged to take into account this uncontroverted evidence: Mullally v The Queen [2001] WASCA 258 per Kennedy J at par 14, Owen J at par 24.

Permission to change a plea of guilty: relevant principles

39 A plea of guilty is an admission of all the facts which are necessary ingredients of the offence charged. In Maxwell v The Queen (1995) 184 CLR 501, Dawson and McHugh JJ said at 511:

"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."

40 At 522, Toohey J gathered together all the relevant authorities:

"The court has the power to allow a plea of guilty to be withdrawn at any time before sentence (R v Plummer [1902] 2 KB 339; Ex parte Stanton (1928) 28 SR (NSW) 516; R v Foley [1963] NSWR 1270. Whether on a trial by indictment or in summary proceedings: S v Recorder of Manchester [1971] AC 481. Followed in De Kruiff v Smith [1971] VicRp 94; [1971] VR 761 at 765; Frodsham v O'Gorman [1979] 1 NSWLR 683 at 688, per Hope JA (Moffitt P agreeing); at 690, per Mahoney JA; Daire v Lauss (1984) 35 SASR 508; Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54; R v Miller [1990] 2 Qd R 566; cf R v Roberts-Smith (1977) 16 SASR 147; R v Freer (1979) 26 ACTR 26.) This is so even where the jury has formally returned a guilty verdict by direction following a change of plea by the accused (R v Drew [1985] 1 WLR 914; [1985] 2 All ER 1061). A defective plea of guilty may be withdrawn and a conviction set aside (R v Phillips and Lawrence [1967] Qd R 237 at 288-289, per Hart J; Frodsham v O'Gorman [1979] 1 NSWLR 683 at 690, per Mahoney JA) on various grounds (grounds include: the accused did not understand the charge or did not intend to admit guilt or on the facts admitted on the plea he could not in law have been guilty of the offence: R v Forde [1923] 2 KB 400 at 403; R v Murphy [1965] VicRp 26; [1965] VR 187 at 188; R v Chiron [1980] 1 NSWLR 218 at 235; R v Clayton (1984) 35 SASR 232; R v Liberti (1991) 55 A Crim R 120 at 121-122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232-233; R v Lars, Da Silva & Kalanderian (1994) 73 A Crim R 91. Or that the plea was induced by intimidation, improper inducement or fraud: Pilkington v The Queen [1955] Tas SR 144; R v Murphy [1965] VicRp 26; [1965] VR 187 at 190; R v Barnes (1970) 55 Cr App R 100 at 106; R v Inns (1974) 60 Cr App R 231 at 233; R v Chiron [1980] 1 NSWLR 218 at 235). This is part of the inherent jurisdiction of courts to see that justice is done (R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291 at 298) and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other vitiating factor. To this end the court may refuse to accept a guilty plea (Marlow v The Queen [1990] TASSC 7; [1990] Tas R 1) or direct that a not guilty plea be entered (R v Jerome and McMahon [1964] Qd R 595)."

41 The circumstances where a court will exercise a discretion to allow a change of plea cannot be regarded as subject to categories which are closed. In the normal course, where a person is represented by counsel, the court is generally entitled to rely upon counsel having explained to a defendant the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty. Absent a statutory provision such as the Aboriginal Affairs Planning Authority Act s 49, a court is not obliged to separately explore the nature of a plea of guilty with the defendant unless, in the course of the plea in mitigation, something arises which might indicate that the plea is less than equivocal. In those circumstances, the court then has the duty, referred to by Dawson and McHugh JJ in Maxwell (supra), to obtain an unequivocal plea of guilty or enter a plea of not guilty.

42 For obvious reasons a court approaches an application for a change of plea with caution.

43 In Liberti (1991) 55 A Crim R 120, Kirby P, Grove and Newman JJ concurring, said at 122:

"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to 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 an admission by that person of the necessary legal ingredients of the offence:"

Application of the principles to the present case

44 At the hearing of the appeal, Scott J focused on the precise nature of the mistake said to have been made by the appellant. He was of the view that the appellant had made an error of law, not an error of fact, so no defence would be available under the mistake of facts provisions either at common law or under the Criminal Code s 24. This latter provision is irrelevant to present considerations as this was an offence against Commonwealth law and the provisions of the Criminal Code were inapplicable.

45 In [1999] WASCA 305 he then considered s 128A(5) and continued:

"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."

46 With great respect, I consider that the Judge erred by focusing on the nature of the mistake. The correct question should focus on whether there is a relevant lack of knowledge of the falsity or misleading nature of the statement.

47 A person who makes a mistake, whether a mistake of fact or a mistake of law, may lack knowledge that the statement was false. If, for whatever reason, a person truly believes that a statement is correct, then it would follow that they do not know it is in fact false.

48 In the passage from counsel's plea in mitigation, I have previously outlined, the learned Magistrate was clearly informed of the mistaken belief under which the appellant is said to have laboured. Counsel's plea raised as an issue whether the provisions of s 128A(5) came into play. Whilst I have every sympathy for a busy Magistrate, nevertheless, I consider that on the principles outlined in Maxwell (supra) once counsel had drawn attention to the possibility of a lack of knowledge in the appellant, occasioned by a mistaken belief, the Magistrate's duty to further enquire as to unequivocal nature of the plea was triggered.

49 Had such an enquiry been made, on the basis of the material disclosed in the letter of 6 May 1999, and the appellant's state of mind and belief evidenced in the subsequent affidavit, it would have become apparent that the appellant was asserting that she did not know the statement she was making was false thereby raising a possible defence under s 128A(5). Failure to so enquire has led to a miscarriage of justice.

50 The consequence is that the appeal should be allowed and the appellant permitted to alter her plea of "guilty" to one of "not guilty" and the case be remitted to the Court of Petty Sessions for determination.

51 I have refrained from making any finding or suggestion as to whether the defence will in fact be made out at trial. That will be a matter for the Magistrate who hears the action in due course. My reasons are confined to the question whether the appellant had established sufficient grounds to alter her plea of guilty to one of not guilty and do not extend into the factual circumstances of the offence or defence.

52 In consequence of the view I have reached in respect of conviction, it is inappropriate to make any comments as to the possible sentence if, in due course, the appellant is convicted of some or all of the offences with which she is charged. However, there has been an appeal against sentence which should be resolved.

53 The global penalty was very slightly less than 10 per cent of the possible global penalty available. The amount of the overpayment was not large. The appellant had made reparation of all of the amounts wrongly claimed, namely $4221.50.

54 The Magistrate clearly had in mind a deterrent sentence when he said:

"... But I consider, that when somebody commits 70 offences, it and is doing it against the public purse, a message needs to be sent, not only to them, but 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.

If they do, they might regret them very sincerely. I think a fine of $15,000 with costs of $122.30 and reparation for the amount of $4,211.50 will get the message home and is, I consider lenient in the circumstances ..."

55 In respect of the penalty, Justice Scott concluded in [2000] WASCA 77:

"20 Having carefully examined his Worship's sentencing remarks, whilst it is fair to say that he should not have referred to the claims as being 'in effect fraudulent', I am unable to conclude that his Worship made any error in selecting a global fine as the appropriate penalty. In particular, these were commercial offences with a commercial advantage to the appellant. Whilst it is true that the whole of the amount claimed has been refunded, the offences themselves served to produce a commercial advantage to the appellant. This is not a case where there had been one or two inadvertent slips by a medical practitioner completing claim forms. The fact that there were 70 false claims, in my view, was sufficient to justify the penalty which the learned Magistrate selected.

21 I am not persuaded that the global penalty imposed was either inappropriate or excessive. The appeal in relation to penalty will also be dismissed."

56 I am not persuaded that Justice Scott was wrong in his conclusion.

57 However, if it becomes necessary for a Magistrate in due course to sentence the appellant again, the Magistrate will take into account afresh all matters which are considered relevant and which might lead to a higher, lower, or the same penalty being imposed.

58 I would allow the appeal, set aside the order of conviction and penalty and in lieu thereof, order:

1. Perth Court of Petty Sessions complaints Nos 17790 to 17859 of 1999 against Esmeralda Sentiles Lim be remitted to the Court of Petty Sessions to be further dealt with according to law; and

2. The appellant Esmeralda Sentiles Lim be permitted to withdraw her plea of guilty entered on 19 May 1999.