O'NEILL v WORKCOVER CORPORATION No. SCCIV-00-803 [2001] SASC 218 (29 June 2001)

APPEAL AGAINST CONVICTIONS AND SENTENCE - MAGISTRATE'S APPEAL - SYSTEMATIC FRAUD Offences against Workers Rehabilitation and Compensation Act 1986 (SA) - appellant allegedly suffered injury at work - appellant made materially misleading statements about his compensation claim to medical practitioners and Corporation officers - certificates of unfitness for work provided when they would otherwise not have been - appellant misled medical practitioners and the Corporation about his level of incapacity - appellant failed to disclose that he was undertaking work whilst alleging incapacity and receiving compensation - statutory schemes of WorkCover Corporation Act 1994 (SA) and Workers Rehabilitation and Compensation Act 1986 (SA) - whether it was appropriate that all offences were charged on one complaint - whether challenge could be made to the classification of offences (`summary' or `minor indictable' or `major indictable') - whether magistrate's reasons were adequate - the obligation to give reasons - whether magistrate's findings on credit were open and supported by the evidence - whether Corporation could be estopped from pursuing criminal proceedings against the appellant - whether there had been an abuse of process due to prosecution's conduct - whether permanent stay should have been ordered. Statutory schemes pertaining to reparation orders - appropriateness of reparation order - whether magistrate erred by imposing some form of double penalty - review of sentence - whether penalty imposed was manifestly excessive - whether sentence was appropriate - whether sentence should be suspended - personal circumstances of the appellant - appeal allowed for the purpose of setting aside the convictions on counts 5-13 but otherwise the appeal is dismissed - appeal against sentence dismissed.

• Workers Rehabilitation and Compensation Act 1986 (SA) 120(1)(a), 120(1)(b), 120(1)(c), 58(A), 120(3);
• WorkCover Corporation Act 1994 (SA) ss 2, 12, 13, 122;
• Summary Procedure Act 1921 (SA) ss 5, 51;
• Student Assistance Act 1973 (Cth);
• Crimes Act 1914 (Cth) s 21B;
• Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 53;
• Magistrates Court Rules 1992 Rule 11.01, referred to.
• Sherriff v WorkCover [1999] SASC 517;
• Lovegrove v Sundstrom [2001] SASC 122;
• Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
• Papps v Police [2000] SASC 183; (2000) 77 SASR 210;
• Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306;
• Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251;

Counsel: MR G MANCINI - Solicitors: GEORGE MANCINI & CO

Counsel: MR R SCHROEDER - Solicitors: KNOX & HARGRAVE

Judgment No. [2001] SASC 218

[2001] SASC 218

Gray J This is an appeal against convictions and sentence.

The appellant, Joseph O'Neill[1] was charged with offences against the Workers Rehabilitation and Compensation Act 1986 SA ("the Act"). In all 120 counts were laid on the one complaint.

Four counts alleged offences against s 120(1)(c) of the Act. That section provides:

(c) dishonestly makes a statement about a claim under this Act knowing the statement is false or misleading

The prescribed maximum penalty is a term of imprisonment for one year and a fine of $50,000.00.

It was alleged that during February and March 1995, the appellant dishonestly made statements in relation to a claim under the Act, knowing that those statements were false and misleading. It was said that he also provided false and misleading information to medical practitioners with a view to having them certify that he was unfit for work.

The appellant pleaded not guilty in the Magistrates Court. He was convicted on all four counts.

Eleven counts alleged offences against s 120(1)(b) of the Act. That section provides:

(b) dishonestly claims to be entitled to a payment or other benefit under this Act

The prescribed maximum penalty is a term of imprisonment of one year and a fine of $50,000.00. The appellant pleaded guilty to two counts. Those counts alleged that the appellant dishonestly claimed incidental expenses. Convictions were recorded on the remaining counts.

On appeal counsel for the prosecution conceded that the remaining nine counts were duplicitous.[2] It was accepted that the appeal in relation to those counts should succeed.

Four counts alleged offences against s 58(A) of the Act. That section provides:

(2) Where a worker who has been receiving weekly payments for total incapacity returns to work with an employer other than the employer from whose employment the disability arose, the worker must notify that previous employer of the return to work.

(a) must be given within 14 days of the occurrence of the notifiable event or such longer period as the regulations may allow; and

(b) must include full particulars of the notifiable event.

(4) A person who without reasonable excuse fails to comply with this section is guilty of an offence.

These counts were withdrawn at the commencement of the trial.

The remaining 101 counts alleged offences against s 120(1)(a) of the Act. That section provides:

(a) obtains by dishonest means a payment or other benefit under this Act

The prescribed maximum penalty is a term of imprisonment of one year and a fine of $50,000.00.

Each count alleged that on a specified date and at a particular place, the appellant obtained by dishonest means a payment under the Act by receiving a numbered cheque for a particular amount. The appellant pleaded guilty to ten counts. A further ten counts were dismissed. The appellant was found guilty of the remaining 81 counts.

The appellant has appealed against the convictions recorded on each count.

The appellant was born on 18 January 1966[3]. He was a maintenance fitter, mechanical fitter, painter and welder. He sustained an injury to his right knee in a motor vehicle accident on 27 December 1989. The injury required surgical treatment.

By 1994 the appellant had recovered from his injury to the point where he was able to play competitive sport and return to work. At that time, he was employed by Rexco Corporation Pty Ltd, a labour hire organization.

On 23 October 1994 whilst working as a maintenance fitter at BHP at Whyalla, the appellant slipped. He fell heavily on his right knee. He sought immediate treatment and submitted a notice of disability to Rexco and BHP. He later consulted Dr Rogers a general practitioner and obtained certificates of unfitness for work. He was later certified as being fit for modified duties excluding kneeling and lifting heavy weights.

The appellant also consulted a specialist, Mr Keen who performed an arthroscopy in April 1995. He certified that the appellant was unfit for all duties following the arthroscopy. Mr Keen later certified the appellant fit for modified duties from 15 June 1995. Certificates continued to be provided until 7 January 1996.

Throughout the period, WorkCover Corporation of South Australia ("the Corporation") made weekly compensation payments to the appellant. It also made payments in respect of his medical and travelling expenses.

The appellant worked during the time he was alleging incapacity without informing the medical practitioners and the Corporation. He also misled them as to the level of activity he was capable of performing. They became aware of his activities until August 1995.

The prosecution case was that the appellant made materially misleading statements, including the non disclosure of his employment and the extent of his working capacity. He was observed by employers to be performing work without difficulty in an unrestricted manner. The appellant's deception led to medical practitioners providing certificates of unfitness for work for many months. These certificates would not have been provided had the practitioners known the appellant's true circumstances.

As the appellant had a measure of disability at least at some time in his right knee the prosecution submitted that he was and remains able to present a legitimate claim for payments or benefits under the Act. However it was submitted that the appellant was not entitled to make dishonest statements or present dishonestly obtained material to obtain payments or benefits under the Act.

The Corporation's officers gave evidence that they were unaware of the appellant's true position and his capacity for work. It was said that such knowledge would have been a "very significant factor" in the Corporation's approach to the appellant's claim. The Corporation claimed that it was deprived of "an opportunity to achieve an early rehabilitation and an early cessation of payments."

The magistrate found that the prosecution case had been established beyond reasonable doubt. She found that the appellant had perpetrated a systematic fraud over a lengthy period. The appellant, by that fraud, had induced the Corporation to make payments. The magistrate rejected the appellant's evidence and accepted the evidence of the prosecution witnesses.

A number of witnesses, medical practitioners, Corporation staff and previous employers of the appellant were called to give evidence. There was a considerable body of evidence supportive of the prosecution case.

The WorkCover Corporation Act 1994 (SA) provides for the reconstitution of the Workers Rehabilitation and Compensation Corporation and its continuation under the name 'WorkCover Corporation of South Australia'. The WorkCover Corporation Act sets out the functions and powers of the Corporation. It deals with such matters as the formal constitution of the board of management, the procedures and powers that govern membership and staff, the accounting, auditing and reporting obligations of the Corporation and other miscellaneous matters.

Section 12 sets out the Corporation's primary objectives:

"- to reduce, as far as practicable, the incidence and the severity of work-related injuries; and

- ensure, as far as practicable, the prompt and effective rehabilitation of workers who suffer work-related injuries; and

- provide fair compensation for work-related injuries; and

- keep employers' costs to the minimum that is consistent with the attainment of the objects mentioned above."

Section 13 details the functions of the Corporation. These include the administration of the Workers Rehabilitation and Compensation Act 1986 (SA).

The Workers Rehabilitation and Compensation Act provides for the rehabilitation and compensation of workers with respect to disabilities arising from their employment.

Section 2 lists the objects of the Act as follows:

(a) to establish a workers rehabilitation and compensation scheme -

(i) that achieves a reasonable balance between the interests of employers and the interests of workers; and

(ii) that provides for the effective rehabilitation of disabled workers and their early return to work; and

(iii) that provides fair compensation for employment-related disabilities; and

(iv) that reduces the overall social and economic costs to the community of employment-related disabilities; and

(v) that ensures employers' costs are contained within reasonable limits so that the impact of employment-related disabilities on South Australian business is minimised; and

(b) to provide for the efficient and effective administration of the scheme; and

(c) to establish incentives to encourage efficiency and discourage abuses; and

(d) to ensure that the scheme is fully funded on a fair basis;

(e) to reduce the incidence of employment-related accidents and disabilities; and

(f) to reduce litigation and adversarial contests to the greatest possible extent."

The Act also provides for the establishment of an advisory committee to assist in the formulation and implementation of policies. Other divisions establish rehabilitation programmes for injured workers, define compensable injury and provide for other types of compensation, deal with issues relating to the regulation, liability and obligations of employers, provide for the continuation of the Worker's Compensation Tribunal, establish dispute resolution mechanisms, govern the reception of evidence, appeals, the enforcement of judgments, costs and other matters.

Section 122 of the Act establishes offences and penalties for contraventions of the Act. That section provides:

"(1) A person who contravenes or fails to comply with a provision of this Act is guilty of an offence.

(3) Proceedings for an offence against this Act shall be disposed of summarily."

All of the offences were charged on one complaint. All were statutory offences under the Act. All came within the definition of 'summary offence' as provided by section 5 of the Summary Procedure Act 1921 (SA). It was appropriate that all offences were charged on the one complaint. Section 51 of the Summary Procedure Act provides that multiple charges can be joined:

"(1) A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.

(a) charges contained in a single complaint be dealt with in separate proceedings; or

(b) charges contained in separate complaints be dealt with together in the same proceedings.

Section 5(8) of the Summary Procedure Act provides for challenges to the classification of offences:

"A defendant may, in accordance with the rules challenge the classification of an offence in the complaint or information charging the offence and for the purposes of such a challenge the above presumptions do not apply".

Magistrates Court Rule[4] 11.01 also provides:

"A challenge pursuant to section 5(8) of the Act must be made and determined before the matter is given a trial date".

Counsel for the appellant made general assertions of error on the part of the magistrate. These assertions were not supported by any analysis of the evidence. Counsel did no more than advance broad, unsubstantiated allegations. No specific attack was made on the magistrate's findings as to credit. It was not suggested that any evidence had been overlooked or improperly weighed or considered. The submissions were developed only to the point of asserting that the magistrate should have accepted the evidence of the appellant rather than that of the prosecution witnesses.

Counsel for the appellant challenged the classification of the offences as summary offences. It was contended that they should have been charged as major indictable offences.[5] It was said that the appellant was entitled to a trial by jury and that he was denied this fundamental right. It was also said that it followed that the magistrates court proceedings were incompetent. The appellant's counsel described the proceedings as a "jurisdictional nullity".

The classification of offences is addressed by the Summary Procedure Act. Section 5 provides:

"(1) Offences are divided into the following classes:

(b) indictable offences-comprising minor indictable offences and major indictable offences.

(a) an offence that is not punishable by imprisonment;

(b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed;

(c) a schedule 3 offence involving $2 000 or less not being-

(ii) an offence that is one of a series of offences of the same or a similar character involving more than $2 000 in aggregate,

but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence.

(3) All offences apart from summary offences are indictable and of these -

(i) those not punishable by imprisonment but for which a maximum fine exceeding twice a Division 1 fine is prescribed;

(ii) those for which the maximum term of imprisonment does not exceed 5 years;

(iii) those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories:

- a schedule 3 or schedule 4 offence (not being an offence of violence) involving $25 000 or less;

- an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $25 000;

- an offence against section 23 (malicious wounding) or 40 (assault occasioning actual bodily harm) of the Criminal Law Consolidation Act 1935;

- an offence against section 56 of the Criminal Law Consolidation Act 1935 (indecent assault);

- an offence against section 169(1) or 170(1) of the Criminal Law Consolidation Act 1935 (serious criminal trespass, etc.) where the intended offence is an offence of dishonesty (not being an offence of violence) involving $25 000 or less or an offence of interference with, damage to or destruction of property involving $25 000 or less;

- an offence against section 171 of the Criminal Law Consolidation Act 1935 (nocturnal offences) where-

. the intended offence is an offence of dishonesty (not being an offence of violence) involving $25 000 or less or an offence of interference with, damage to or destruction of property involving $25 000 or less; and

. the defendant is not alleged to have been armed with an offensive weapon or in company with a person so armed; and

(b) all other indictable offences are major indictable offences.

(4) For the purposes of the above classifications, an offence will be taken to involve a particular sum of money if that sum represents-

(a) the amount or value of the benefit that the offender would have gained through commission of the offence; or

(b) the amount of the loss that would have resulted from commission of the offence,

assuming that the offence had been successfully completed and the offender had escaped detection.

(5) If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules.

(6) Where an offence may be either a summary offence or an indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is designated as a summary offence in the complaint charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a summary offence.

(7) Where an offence may be either a minor indictable offence or a major indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is classified as a minor indictable offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a minor indictable offence.

(8) A defendant may, in accordance with the rules, challenge the classification of an offence in the complaint or information charging the offence and for the purposes of such a challenge the above presumptions do not apply.

(9) Where a summary offence is erroneously dealt with as an indictable offence or a minor indictable offence is erroneously dealt with as a major indictable offence, the proceedings are not invalid but any penalties imposed should conform with what would be appropriate if the offence had been correctly classified at the inception of the proceedings.

(10) If the Act under which an offence is created classifies an offence in a manner inconsistent with this section, that classification prevails."

The appellant's counsel submitted that the cumulative total of the maximum terms of imprisonment for each count exposed the appellant to a potential maximum term of imprisonment of 115 years. It was contended that the offences should therefore have been classified as major indictable offences, or at the very least, minor indictable offences.

No authority was cited in support of this contention.

In Lovegrove v Sundstrom[6] Lander J considered a similar submission with respect to alleged offences against the Student Assistance Act 1973 (Cth). His Honour made the following observations at [91]:

"... It is the offence which is punishable by imprisonment for more than a year or otherwise which determines whether the offence is indictable or otherwise. [Referring to Commonwealth Law]. It is not the number of counts of that offence which determines the character of that offence."

The nature of each offence or the penalty applicable to each offence does not change because a number of different offences are charged. The offences remained separate and distinct. Each offence was a summary offence[7]. I reject this submission.

The same contention was advanced with respect to the appellant's exposure to monetary penalty. I reject this submission for the same reasons.

The magistrate's reasons summarised the case for the prosecution and the defence. The prosecution witnesses were accepted. Their evidence was found to be credible and reliable. The appellant's testimony was rejected. Reasons were provided. The findings on credibility and the findings of fact were interwoven and adequately explained.

The magistrate's critical reasoning is short, but to the point. The credibility of witnesses was a central issue in the case. The magistrate made the following observations:

"Throughout the evidence the various witnesses for the prosecution struck me as being credible and reliable witnesses who were doing the best to recall matters relating to sometime ago. The defendant on the other hand presented as evasive, with an extremely selective memory, and on occasions simply untruthful. I cannot accept his evidence either as to the facts in issue in the matter or as to his state of mind in regards to the necessity to disclose employment and income.

On the whole of the evidence before the court, on the prosecution case, it is quite evident that the defendant's demeanour and attitude to those who in any way questioned his claims as to his symptoms or degree of disability was aggressive. For example when Dr Rodgers ceased to be satisfied that his symptoms were excessive or related to the injury of the 23rd of October 94 he allegedly threatened to report her to the Medical Board. He cast aspersions on Dr Lavender and her notetaking procedures because her notes were not consistent with his evidence. He repeatedly let down Miss Solomon, the rehabilitation consultant's arrangements for him with a view to returning to work with Rexco in accordance with the then medical opinion. He seems not to have enjoyed a good relationship with at least one of his fellow workers, terminating his employment with some offensive language. Mr Mancini in his belated and unsuccessful submissions in relation to the conduct of this trial made much of the defendant's dissatisfaction with his previous counsel who had the conduct of the trial, however from my observations of the defendant over a prolonged period of time and under searching cross-examination it is my view that no counsel could have saved the defendant from himself; being a person lacking in credibility and manipulating other peoples' evidence to complement his own."

Following the acceptance of the prosecution evidence and the rejection of the appellant's evidence, relatively straightforward issues remained for determination. The magistrate found that the appellant made dishonest statements to medical practitioners and Corporation officers. These statements concerned the appellant's work and his capacity for work. The magistrate concluded:

"It will be seen therefore that at the same time as he was consulting his treating doctors and complaining of extreme pain and incapacity, the defendant was in fact working between December 94 and March 95. He did not inform any of the doctors of the fact of that work, nature of it, nor the movement required for him to perform it. The witnesses called from the 4 places at which he worked were able to say that the defendant appeared to have no disability in carrying out his duties at the work site, showed no evidence of any disability although the defendant contended that on the work sites he essentially relied on other people to do any significant manual work on his behalf and otherwise coped only by the ingestion of powerful pain killers and anti inflammatories. One of the fellow employees did recall the defendant being apparently effected [sic] by something, possibly drugs."

The magistrate's findings about the misleading of Workcover officers were as follows:

"As far as the staff at Workcover were concerned Paul Arbery never knew that the defendant was working or had worked. Paul Mills of MMI who took over the file from Paul Arbery on 1st August 1995 did not become aware of the work until late September 1995. Miss Elaine Solomon who, the book of documents shows, committed an immense amount of effort into trying to organize steps for the defendant's rehabilitation and re-employment (frustrated by the defendant on occasions) was likewise kept completely in the dark about his activities. These people all gave evidence that had they been aware of the defendant's work and capacity to work it would have been a very significant factor in the conduct of the defendant's claim."

In Soulemezis v Dudley (Holdings) Pty Ltd[8] a detailed review of the history and rationale of the scope of the judicial duty to give reasons was undertaken. Kirby P dealt with the duty as follows at (257-258):

"The duty of judicial officers to record the reasons for their decisions has been developed in recent decades in this, as in other jurisdictions of the common law as an attribute of the judicial process and an incident to the necessities of appellate review. Jordan CJ, in Carlson v King (1947) 64 WN (NSW) 65 at 66, stated the principle:

'... It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon magistrates, Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 4-5; 63 WN 34 at 36 and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council: Ex parte Reid; Re Lynch [1943] NSWStRp 14; (1943) 43 SR (NSW) 207 at 212; 60 WN 148 at 150.'

In the context of the obligation of District Court judges, the principle was restated and explained by this Court in Pettitt v Dunkley [1971] 1 NSWLR 376. Asprey JA (at 382), after citing Carlson, expressed the judicial obligation in these terms:

'...where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon as a judicial person to exercise and such a decision on his part constitutes an error of law.' "

Kirby P considered the extent of the reasons required at (259):

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct. To adapt the words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630 at 634 the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only 'disappointed' but 'disturbed'. Such a result would be unacceptable precisely because of the statutory limitation on appeals to this Court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Court's strict approach is the obligation of the judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amounts to a proper application of the statute. That was not done here."

I have not encountered any difficulty understanding the magistrate's reasons. All her conclusions were supported by the available evidence.

Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[9] said at (479):

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbably'."

These principles were approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[10]. Kirby J said at (323):

"Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have."

Kirby J acknowledged the many advances, both technological and social, that have increased an appellate court's ability to assess witness credibility. At (330) he stated:

"None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing."

Having regard to the magistrate's conclusions in [42] above, I am satisfied that adequate reasons have been provided for the magistrate's critical findings on credibility.

The magistrate found that the statements, the subject of the offences against s 120(1)(c), were made dishonestly and with the knowledge that they were false and misleading. A review of the evidence shows that the findings were open to the magistrate. Adequate reasons were provided.

The other convictions subject to appeal were offences against s 120(1)(a). Given the findings as to credit and in particular the finding that the appellant acted dishonestly, the only issue remaining was whether the appellant on the 90 counts the subject of the appeal, had obtained by dishonest means payments under the Act.

The evidence established the making of payments by cheque. Workcover sent regular payments to the appellant at his nominated address. All cheques were presented and cleared. This ground of appeal is discussed in more detail later. For present purposes it is sufficient to observe that unchallenged evidence supported the magistrate's findings. I have reviewed each count separately and I am satisfied that the magistrate's findings and conclusions are correct. The magistrate concluded as follows:

"I do not propose, nor do I see the need, to take each of the counts individually and analyse the evidence relating thereto. Suffice it to say that I adopt the evidence of the prosecution case, which proves those counts which the defendant has not admitted save and except those payments made during the period that the defendant was recovering from Dr Keene's arthroscopy. Dr Keene's evidence was that he considered the arthroscopy was warranted and therefore in my view those payments made relating strictly thereto should be dismissed as opposed to the otherwise improperly obtained payments; that is, obtained by false and misleading statements, dishonest claims, obtaining payments by dishonest means, obtaining payments of benefits by dishonest means and of course the admitted dishonest claims relating to travelling expenses."[11]

The appellant has not demonstrated that the magistrate failed to use or palpably misused her advantage. The appellant also failed to demonstrate that the magistrate acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable.

On appeal reference was made to periods during which the appellant was in receipt of both wages from an employer and weekly payments from the Corporation. Counsel for the appellant accepted that when the appellant was "double dipping", no issue of a possible estoppel could arise. However it was submitted that the Corporation should otherwise be estopped from pursuing criminal proceedings against the appellant. It was submitted that as weekly payments had been made and as the appellant had an entitlement to payment, criminal proceedings could not be brought with respect to those payments.

Counsel for the appellant did not provide any clear basis for his estoppel argument. He was content to submit that as payments had been made, it would be inconsistent for the prosecution to be pursued. When pressed he submitted that the relevant conduct of the Corporation was the continued payments coupled with ongoing silence.

I reject this submission. The prosecution case was that the appellant had obtained payments as a result of dishonesty. It was submitted that as he had no entitlement to payments, an estoppel could not arise. Although it was later conceded that the appellant may have an entitlement, it was said that in this case, no such entitlement arose due to his dishonesty.

In Rogers v The Queen[12] the majority (Mason CJ and Deane and Gaudron JJ), concluded that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. However their Honours took the view that in appropriate circumstances, although estoppel was not available, the court retained the power to deal with any relevant conduct as an abuse of process. In my view, the circumstances of this case do not give rise to such an abuse.

This submission overlooked the appellant's dishonest conduct and the difficulties the Corporation faced in detecting that dishonesty. The Corporation's silence and inactivity does not give rise to an abuse of process.

Counsel for the appellant complained that the prosecution's conduct was oppressive and unfair. It was said that a permanent stay of proceedings should have been ordered. It was also submitted that the prosecution had a duty to present evidence to assist the court in determining whether the appellant had any entitlement to compensation. It was submitted that the prosecution engaged in an abuse of process by not presenting such evidence.

In Williams v Spautz[13] Mason CJ, Dawson, Toohey and McHugh JJ said at (520):

"[E]very court is 'in duty bound to protect itself' against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account ... The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."

The ability of the court to protect itself from an abuse of process is not limited to specific categories. The remedy may be granted where "the prosecutor can be said to have manipulated or misused the rules of procedure"[14].

The remedy in circumstances where an abuse of process is made out may include the grant of a permanent stay. As was said in Jago v The District Court of New South Wales[15]:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v R [1980] HCA 48; (1980) 147 CLR 75 at p. 111, per Wilson J."

I reject counsel's submission. It has no substance. The prosecution was obliged to present evidence to prove its case beyond reasonable doubt. If it failed to do, so the appellant was entitled to an acquittal. The prosecution case was that the appellant had no entitlement pursuant to dishonest claims. Any possible entitlement could only be advanced by an honest and legitimate claim. The appellant is able to pursue any such claim at his convenience. I do not consider that any abuse of process has occurred.

Counsel for the appellant submitted that the evidence that the appellant had not received all of the cheques should have been accepted instead of the evidence of the prosecution witnesses.

As earlier observed, the appellant was convicted of a number of counts of obtaining by dishonest means payments contrary to s 120(1)(a) of the Act. Each count particularised the date on which the appellant obtained the payment, the value of the payment and the cheque details.

The prosecution tendered without objection a schedule of cheques paid to the appellant during the period 21 November 1994 to 9 April 1996. This was the period during which the counts were said to have been committed. A senior Corporation investigator gave unchallenged evidence that the schedule was accurate.

The Corporation's case manager also gave unchallenged evidence about the cheques. He explained the Corporation's system of making and recording payments. The substance of his evidence was that the cheques had been sent by the Corporation to the appellant at his nominated home address. All cheques had been presented. Payment was made on all cheques.

I reject counsel for the appellant's complaint. The prosecution presented evidence proving that the appellant had obtained benefits. No objection was taken to this evidence. It remained unchallenged. The evidence established that the appellant received each cheque. Counsel's failure to challenge or test the prosecution evidence is significant. The magistrate was entitled to rely on the evidence presented and reject the appellant's testimony about his non receipt of the payments.

In her reasons for penalty the magistrate said:

"The defendant is required to make good to Workcover the sum of $33,000 obtained from offending over roughly sixteen months.

I therefore deal with the matter in the following manner. As to counts 1-36 and 47-116 inclusive, pursuant to Section 18a, one penalty. The defendant is convicted and sentenced to two years imprisonment forthwith. I set a non-parole period of seven months commencing forthwith.

I order that the defendant pay to the Registrar, Holden Hill Court $33,059.95 reparation for transmission to Workcover Corporation, Waymouth Street, Adelaide."

Counsel for the appellant conceded that there was an approximate three month period in which the appellant had "double-dipped". To this extent it was conceded that the Corporation had suffered a loss.

However it was submitted that for the balance of the period, no loss to the Corporation had been established. Counsel drew attention to the following remarks in the magistrate's reasons:

"As far as the staff at Workcover were concerned Paul Arbery never knew that the defendant was working or had worked. Paul Mills of MMI who took over the file from Paul Arbery on 1st August 1995 did not become aware of the work until late September 1995. Miss Elaine Solomon who, the book of documents shows, committed an immense amount of effort into trying to organize steps for the defendant's rehabilitation and re-employment (frustrated by the defendant on occasions) was likewise kept completely in the dark about his activities. These people all gave evidence that had they been aware of the defendant's work and capacity to work it would have been a very significant factor in the conduct of the defendant's claim.

As a result of all this the prosecution case is that the defendant by making misleading statements including exaggerating his symptoms, in particular to his doctors, and omitting to advise of his employment, prevented the medical practitioners and hence Workcover Corporation and Miss Solomon the Rehabilitation Worker from being able to appropriately deal with the matter and therefore deprived Workcover of an opportunity to achieve an early rehabilitation and an early cessation of payments."

Counsel for the prosecution submitted that the appellant's dishonesty was the cause of the compensatory payments. It followed that the Corporation had suffered a loss within the meaning of section 120(3) of the Act.

"Where a court convicts a person of an offence against this section, or finds a person guilty of such an offence without recording a conviction, the court must, on application by the Corporation or an exempt employer, order the person who committed the offence -

(a) to make good any loss to the applicant resulting from the commission of the offence; and

(b) to reimburse costs incurred by the applicant in investigating and prosecuting the offence."

Section 120(3) was introduced by way of amendment in 1991. The form of the section before the 1991 amendment was as follows:

"Where a person is convicted of an offence against this section and it appears to the court by which the person is convicted that the person has received a benefit as a result of the commission of the offence, the court may order the convicted person to make restitution to the person from whom the benefit was received."

The amendment introduced important modifications to the legislative scheme. The sub-sections removed the discretion previously given to the court and made it mandatory when certain pre-conditions were established for a reparation order to be made. The amendment also provided that a reparation order lies with respect to any "loss" to the Corporation in lieu of reparation for a "benefit" received by the offender.

Dishonesty in the circumstances of this case was not just theft. The appellant engaged in deliberate acts designed to deprive the Corporation of property when there was no basis for such payments to be made. Parliament intended the victims of the dishonesty, in this case the Corporation, to be in a position to obtain reparation in an expedient and cost effective manner. It is against this background that the legislation has made it mandatory for reparation to be ordered when the necessary pre-conditions are established.

As earlier observed, the Act provides a comprehensive scheme for the rehabilitation and compensation of workers. It is important social legislation. It regulates the workplace, giving particular emphasis to rehabilitation.

The legislation is directed towards facilitating the early rehabilitation of workers. This is in recognition of their interests and the interests of the community. The community has a legitimate interest in maintaining a healthy work force and in minimising the number of employees receiving compensation.

The object of the Act's penal provisions is to make the legislation as effective as possible. By way of practical necessity, the Corporation must rely upon information supplied by workers. Detection of fraud is never easy. In the area of disability support, it is particularly difficult. The penal and mandatory reparation provisions recognise the serious nature of systematic offending of this type.

Section 120(3) of the Act provides for a reparation scheme. Once a finding of guilt has been made, the court is obliged to make a reparation order if the necessary preconditions are established.

The s 120(3) scheme is to be distinguished from the reparation scheme under s 53 of the Criminal Law (Sentencing) Act 1988 (SA). That scheme empowers the court as a matter of discretion to award compensation for any injury loss or damage resulting from an offence.

The reparation scheme provided by s 120(3) is to be distinguished from the reparation scheme provided by the Crimes Act 1914 (Cth). The Crimes Act scheme provides the court with discretionary powers to make reparation orders. Section 21B provides as follows:

(a) a person is convicted of an offence against a law of the Commonwealth;

the court may, in addition to the penalty, if any, imposed upon the person, order the offender:

(c) to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence."[16]

In Hookham v The Queen[17] the High Court considered the interpretation of s 21B of the Crimes Act 1914 (Cth).

On the issue of the meaning of loss, Deane, Dawson and Gaudron JJ said at (459):

"The appellant also submits that the Commonwealth has not suffered a loss by reason of the offences committed by him. That submission is again based upon the misconception that the offences committed by the appellant were a fiction, being only 'deemed' to have occurred. But, as we have endeavoured to explain, the offences were actual offences to which the appellant was deemed to be a party. There is, therefore, no basis upon which to draw a distinction between the offences committed by the appellant and the offences committed by the corporation. The appellant goes on to submit that there was no loss suffered by the Commonwealth by reason of those offences because the Commonwealth was not deprived of anything in the nature of property. But a loss need not involve the transfer from the Commonwealth to someone else of a proprietary interest. The Commonwealth suffered a loss by being deprived of money which it would have been paid had it not been for the commission of the offences in question. There is no reason why that should not be regarded as being a reparable loss."

This reasoning is also applicable to the WorkCover legislation.

It was common ground that with respect to those periods during which the appellant was receiving both undisclosed wages and weekly payments, reparation should be ordered.

It was also accepted that where the appellant had made dishonest claims of travel expenses, reparation should be ordered.

However counsel for the appellant submitted that the other weekly payments should not be the subject of reparation. It was said that on the magistrate's findings, the Corporation's loss was the loss of a chance to effect an earlier rehabilitation and to cease weekly payments sooner.

I reject this submission. The appellant made dishonest claims for weekly payments and expenses. He engaged in a deliberate and systematic fraud. The payments were made by the Corporation following receipt of dishonest claims. Each claim involved the presentation of deliberately deceptive or dishonest material. This was done either directly by the appellant or indirectly by third parties whom he had in turn deceived.

The payments made by the Corporation to the appellant should have not been made. The Corporation was not unauthorised to make payments based on fraudulent information. The payments represented a loss to the Corporation. That loss was the amount paid to the appellant.

The order made by the magistrate was appropriate.

The magistrate invoked s 18A of the Criminal Law (Sentencing) Act and imposed one penalty. The applicant was imprisoned for two years. A non parole period of seven months was set.

It will be recalled that the prosecution accepted that nine of the convictions should be set aside as duplicitous. The prosecution submitted that this did not call for a reconsideration of the sentence imposed. It was said that because the magistrate had invoked s 18A and as the same conduct gave rise to the separate offences, no separate or further punishment had been imposed. I do not accept this submission. It is not possible to discern from the magistrate's remarks as to penalty whether this is correct. It is possible that some form of double penalty was imposed. It follows that I must reconsider the sentence afresh. It does not follow that any lesser penalty should be imposed.

The appellant complained that the penalty imposed was manifestly excessive.

The appellant was born in Adelaide on 18 January 1966. At the time of sentencing he was aged 34 years. He was raised in the Salisbury area and attended Salisbury East High School. He left school after year 11 to undertake an apprenticeship as a mechanical fitter. He later completed a certificate in Diesel Mechanics and Rural Mechanics maintenance at TAFE. The appellant worked as a casual contract maintenance fitter. He has not had the benefits of a stable full time job.

The appellant had an unremarkable childhood. However, his stepsister now aged 41 has a history of heroin addiction.

The appellant left home at age 15 to live with his girlfriend Joanne also aged 15. He lived in a defacto relationship for four years. The relationship produced a now teenage son. Joanne was addicted to heroin.

At the age of 28, the appellant commenced a defacto relationship with Michelle, then aged 32. That relationship ended after four and a half years and produced a son, now aged 4. Both the appellant and Michelle were released from prison at approximately the same time and developed their relationship soon after. Michelle had a history of committing armed robberies and breaks and poly substance abuse.

The appellant maintains some contact with his elder son but sees the younger son more frequently.

The appellant has a lengthy history of drug abuse. He commenced using marijuana as a teenager, using it on a daily basis until age 30. He also used amphetamines and rohypnol. He discontinued the use of these substances when he began using heroin. The appellant was introduced to heroin by his stepsister. He experimented intravenously at age 15. By the age of 20 he had become addicted.

The appellant claims that his drug use was partly a response to the pain he suffered from the injuries he sustained in several motor vehicle collisions. The most significant occurring in 1989. The appellant collided with a truck. He received crush injuries to his legs, broken limbs and a cracked pelvis. He also suffered a "brain injury" that affected the functioning of his pituitary gland. He has consequently required testosterone injections for the last seven years.

The appellant contracted Hepatitis C at the age of 20, allegedly after sharing needles in prison. The appellant claims to have been free from illicit drug use for the last three years.

The appellant first experimented with alcohol at age 14. He reportedly consumes alcohol every day, however he claims no longer to have a pattern of infrequent binges and he is not alcohol dependent.

The appellant also claims to have suffered injury in an industrial accident whilst working in Whyalla in 1994 (the subject of the current offences). He claims that this injury aggravated the pre-existing injury sustained in the motor vehicle collision. The appellant has attended the Flinders Medical Centre Pain Clinic with respect to problems with his knee and his lower back. He is awaiting surgery. He has been in receipt of methadone as a form of pain relief. The appellant first used methadone to alleviate his addiction in 1994 but had difficulties continuing its use whilst incarcerated. He recommenced methadone treatment in 2000.

The appellant has a lengthy criminal history dating from 1985, primarily generated by his heroin addiction. The appellant first came into conflict with the law for receiving stolen property when aged 17. His next offence was committed at age 21. He stole a handbag from a supermarket trolley. He has since been convicted of 49 further dishonesty offences including break and enter, unlawful possession, receiving, larceny and illegal use. In addition he has public order, driving and drug related offences. He does not have a history of violence.

Since the age of 21 the appellant has spent some nine years in custody. The last four of those were served in protective custody. He needed to maintain access to the methadone program.

Counsel for the appellant submitted to the magistrate that the appellant had been a "model prisoner". He had done all he could to effect his successful rehabilitation. He had participated in a number of rehabilitative programs and study courses. He had embraced a number of work opportunities; metal fabrication, engineering and a brick yard. Most recently he had worked as a cylindrical grinder as part of the Adelaide pre-release centre's program.

Various reports, including pre-sentence and psychological reports, were before the magistrate. Numerous references detailing the activities undertaken by the appellant whilst in prison were also before the magistrate. These programs included:

The appellant attended education classes whilst in prison. From the age of 24 to 28 he completed certificates in building practice, welding, metal thermology and basic first aid. From the age of 30 to 34 he studied and completed a three year Associate Diploma in Engineering through a distance open learning scheme (Brisbane TAFE). He also completed a Small Business Management course and studied computing and physical fitness.

The appellant is not suffering from any major psychiatric disorders but he claims to suffer from a post traumatic stress disorder. It is said to originate from the industrial accident in 1994 and to have been exacerbated by a siege at Yatala Prison during 1996. However there is no demonstrable link between this alleged disorder and the offences for which the appellant was sentenced by the magistrate.

A report from the Parole Board dated 1 May 2000 was before the magistrate. That report provided:

"The appellant was on parole when each of these current offences were committed. On 3 February 1996 he was taken into custody on a parole board warrant. He was then released on parole on 18 September 1994 and that parole was due to expire on 12 August 1999. The unexpired balance of parole remaining at 31 January 1995 was 4 years, 7 months and 12 days (being the approximate date of the first offence). ... His parole was cancelled on 12 March 1996 pursuant to s. 73 of the Correctional Services Act for breaching a designated condition of his parole in June 1995. He was required to serve 4 years and 25 days in prison, being the unexpired balance of his sentence... On 26 July 1996 the appellant was further sentenced to 2 years imprisonment for the offence of break and enter. The magistrate ordered that this sentence be served cumulatively upon his previously cancelled parole term of 4 years and 25 days in accordance with s. 31 of the Criminal Law Sentencing Act 1988 (SA). The total sentence imposed was 6 years and 25 days. A non-parole period of 4 years was fixed. He was released on parole on 24 February 2000. Although the offences currently before the court were committed while this defendant was on parole, it is our view that any liability that may have existed pursuant to s. 75 of the Correctional Services Act has been subsumed as a consequence of the subsequent cancelled parole term and sentence of the court."

The appellant's offending was serious. He engaged in a deliberate systematic fraud. He has a lengthy criminal history of dishonesty offences. In the past he has been troubled with heroin addiction. It is clear that much of his offending can be linked to this unfortunate circumstance. However whilst drug addiction might explain his offending, it can provide no excuse. There is insufficient evidence for me to find that he is no longer suffering from heroin addiction. I cannot conclude that further offending is unlikely.

To the appellant's credit he has seemingly made the most of the educational, rehabilitative and employment opportunities available within the prison system.

It is necessary that the head sentence and non-parole period reflect the gravity of the conduct and give effect to the consideration of general deterrence. On the question of whether the sentence should be suspended, the remarks of Cox J in WorkCover Corporation v Jelfs[18] are apposite and are echoed by Perry J in Ferrone v Waite[19]. Perry J said at (4):

"...offences of this kind are difficult to detect and, when uncovered, deterrence must be at the forefront of the sentencing process. Commonly, an immediate custodial term would be imposed where there has been a deliberate systematic defrauding over a period of time. The suspension of any term of imprisonment imposed in such circumstances is exceptional, not because the exercise of the discretion is couched in such terms, but because of the need to recognise that in such cases general deterrence looms large."

Although the appellant expressed a willingness to make reparation for the monies defrauded, to date he has not done so.

In my view the sentence imposed remains appropriate if not moderate allowing for the setting aside of the convictions on the duplicitous counts. The appellant still had to be sentenced with respect to many convictions involving systematic fraud. A longer term of imprisonment could have been ordered, particularly having regard to the appellant's antecedents. The non parole period of seven months was in the circumstances lenient.

This analysis and my views as to the appropriate sentence confirms that the magistrate did not expose the appellant to a double penalty. Even if this had occurred, I would not on appeal have imposed any lesser sentence.

This appeal is allowed for the limited purpose of setting aside the convictions on counts 5-13. Otherwise the appeal is dismissed.

JUDGMENT CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 Otherwise known as Joseph Szappanos, Peter Hallis, Joseph McGee, Peter McGee, Joseph Oneil, Joseph O'Neil, Joseph ONiel

2 Sherriff v WorkCover [1999] SASC 517

3 The appellant's date of birth has also been recorded as 18 January 1967.

5 The "incorrect classification argument" had not been raised earlier.

6 [2001] SASC 122

8 (1987) 10 NSWLR 247 see also Papps v Police [2000] SASC 183; (2000) 77 SASR 210

10 [1999] HCA 3; (1999) 73 ALJR 306

11 Lovegrove v Sundstrom [2001] SASC 122 and Sherriff v WorkCover [1999] SASC 517

12 [1994] HCA 42; (1994) 181 CLR 251

13 [1992] HCA 34; (1991-1992) 174 CLR 509

14 Rona v District Court of South Australia [1995] SASC 4922; (1994-95) 63 SASR 223 (at 227)

15 [1989] HCA 46; (1989-1990) 168 CLR 23

16 As cited in Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450 at (458)

17 [1994] HCA 52; [1994] 181 CLR 450

[1] Otherwise known as Joseph Szappanos, Peter Hallis, Joseph McGee, Peter McGee, Joseph Oneil, Joseph O'Neil, Joseph ONiel

[2] Sherriff v WorkCover [1999] SASC 517

[3] The appellant's date of birth has also been recorded as 18 January 1967.

[5] The "incorrect classification argument" had not been raised earlier.

[6] [2001] SASC 122

[7] Summary Procedure Act - s 5(3)(ii)

[8] (1987) 10 NSWLR 247 see also Papps v Police [2000] SASC 183; (2000) 77 SASR 210

[10] [1999] HCA 3; (1999) 73 ALJR 306

[11] Lovegrove v Sundstrom [2001] SASC 122 and Sherriff v WorkCover [1999] SASC 517

[12] [1994] HCA 42; (1994) 181 CLR 251

[13] [1992] HCA 34; (1991-1992) 174 CLR 509

[14] Rona v District Court of South Australia [1995] SASC 4922; (1994-95) 63 SASR 223 (at 227)

[15] [1989] HCA 46; (1989-1990) 168 CLR 23

[16] As cited in Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450 at (458)

[17] [1994] HCA 52; [1994] 181 CLR 450