Supreme Court of Tasmania|1999-05-17|Before: Evans J

R v Harris, Wayne Anthony [1999] TASSC 53 (17 May 1999)

CITATION: R v Harris [1999] TASSC 53

Criminal Law - Jurisdiction practice and procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Rolling up of 68 separate and distinct referrals into one charge would be bad for duplicity.

Walsh v Tattersall (1996) 188 CLR 77, Taylor v R 4/1997, applied.

Criminal Law - Jurisdiction practice and procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Charge alleging "false or misleading" not bad for duplicity.

Director of Public Prosecutions v Williams [1993] 1 VLR 238, applied.

R v Anthony (1982) 1 ACLC 20, referred to.

Ward v R (1989) 42 A Crim R 56, discussed.

Statute - Interpretation - Furnish false or misleading information under Health Insurance Act 1973, s129(2) - Whether mens rea necessary - Offence of strict liability.

R v Sender (No 2) (1982 - 1983) 44 ALR 139, discussed.

R v Giordano (1982) 71 FLR 309; P v R (1986) 82 FLR 351, referred to.

He Kaw Teh v R (1984 - [1985] HCA 43; 1985) 157 CLR 523; Ward v R (1989) 42 A Crim R 56, discussed.

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or improperly obtained - Written referrals provided pursuant to request under Health Insurance Act 1973, s20BA(1) - Relevant and admissible - Discretion to exclude not exercised.

Swaffield and Pavic v R [1998] HCA 1; (1998) 96 A Crim R 96; Bunning v Cross (1977 - 1978) 141 CLR 55; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19; Hanfstaengl v American Tobacco Company [1895] 1 QB 347, referred to.

Bartlett v R (1991) 100 ALR 177; Button v Evans [1984] 3 NSWLR 191, discussed.

Appellant: Commonwealth Director of Public Prosecutions

Judgment Number: [1999] TASSC 53

1 The accused is to plead to an indictment containing 68 counts alleging breaches of the Health Insurance Act 1973 (Cth) ("the Act"), s129(2). Count 1 is as follows:

"FURNISH A RETURN OR INFORMATION WHICH IS FALSE OR MISLEADING - Contrary to Section 129(2) of the Health Insurance Act 1973 (C'wth)

THAT WAYNE ANTHONY HARRIS on or about 10 October 1994 did furnish, in pursuance of the Health Insurance Act 1973 or of the regulations thereunder, a return or information, namely, a letter of referral by Dr Raymond Lawrence Jensen with respect to the baby of Jeanette Loring dated 21 January 1994 which was false or misleading in a material particular in that the document purported to have been made on 21 January 1994 when in fact it was made on or about 5 October 1994."

2 The other 67 counts are in similar terms to count 1, save that they relate to letters of referral for different babies and the dates of the referrals vary.

3 The Crown's case is that the letters of referral were provided by the accused in response to the following letter from the Health Insurance Commission.

The purpose of this letter is to ask, under the provision of the Health Insurance Act 1973, that you produce certain documents as set out below. I make this request in my capacity as a delegate, exercising powers, of the Managing Director of the Health Insurance Commission.

You are requested under section 20BA of the Health Insurance Act 1973 to produce to Dr R Lewis, a medical practitioner who is an officer of the Health Insurance Commission, certain written referrals required to be retained by you under that section. The written referrals in question are detailed in the attached Schedule.

You should note that paragraph 20BA(1)(e) of the Act requires you to produce the referrals within seven (7) days after your receipt of this request. The written referrals detailed or photo copies should be returned in the pre addressed envelope supplied. All documents will be treated with complete confidentiality and originals will be returned to you at the completion of this matter.

Should you have any queries about any of these requests, please feel free to contact me in relation to the request in question.

4 The Schedule which accompanied the letter was a list containing the Medicare number, name and initial consultation date of 82 people. For illustration purposes, the first few lines of the Schedule are set out below.

5 The accused's reply to the Health Insurance Commission letter was as follows:

Herewith documents as requested per letter of September 21 from Mr Stutter, file no T94/7643. I was unable to find any file on the patient Tobias McCrae; perhaps his mother has a different surname to him. The following notes you may find helpful in going through the referral documents.

Some of the parents have different surnames to the babies, as follows:

I hope these notes are of some help to you. If you require any further information please do not hesitate to contact me.

6 The documents enclosed with the accused's letter included the 68 written referrals which are the subject of the charges in the indictment. The referral which is the basis of the charge contained in count 1 is as follows:

I would be grateful for a neonatal assessment on the baby of

7 I set out below the Act, s129(1), (2) and (3). Whilst subs(1) was repealed in 1985, I have included it as reference was made to it in the course of submissions:

"(1) A person shall not make a statement, either orally or in writing, or issue or present a document, that is false or misleading in a material particular and is capable of being used in, in connexion with or in support of, an application for approval for the purposes of this Act or for payment of an amount under this Act.

(2) A person shall not furnish, in pursuance of this Act or of the regulations, a return or information that is false or misleading in a material particular.

(3) In a prosecution of a person for an offence against this section, it is a defence if the person proves that he or she did not know, and had no reason to suspect, that the statement, document, return or information, made, issued, presented or furnished by him or her was false or misleading, as the case may be."

8 I turn to two preliminary matters which have been raised for my determination. Further preliminary matters for my determination have been foreshadowed.

9 The defence submits that as enacted, the Act, s129(1) and (2), distinguished between:

(1) a statement either orally or in writing, or a document (s129(1)); and

(2) a return or information (s129(2)).

10 Having drawn this distinction, as I understand the argument of the defence, it proceeds in this way. Ordinarily, no distinction would be drawn between an oral or written statement or document on the one hand, and a return or information on the other hand as they cover the same matters. The reason for the distinction is that s129(1) is intended to cover a single, oral or written statement or document, whilst s129(2) is intended to cover what was described by counsel for the accused as "a return or information in multiple form", such as the provision of information by the accused, in this case in the form of upwards of 68 separate written referrals. In result, when various items of information are provided at the same time, it is submitted that the effect of s129(2) is to require that all of the information be the subject of one charge only.

11 I reject this submission. Whilst there is some overlap in the forms of communication covered by subs(1) and subs(2), nothing flows from this. Subsection (1) is directed at communications "capable of being used in, in connexion with or in support of, an application for approval for the purposes of this Act or for payment of an amount under this Act". Subsection (2) is directed at communications furnished "in pursuance of this Act or of the regulations". As the objects of each subsection differ, it is to be expected that the communications covered by each subsection would overlap.

12 Each written referral provided by the accused to the Health Insurance Commission was separate and distinct. Each referral provided information on the particular baby to which it referred. Each referral provided a basis for an allegation that s129(1) had been breached. I can find nothing in the provisions referred to by the defence to support the submission that all of the referrals should be the subject of one rolled-up charge. This conclusion would be contrary to common sense and a count drawn on this basis would be bad for duplicity. See Walsh v Tattersall (1996) 188 CLR 77 and Taylor v R 4/1997.

13 In view of the defence's initial submission that all of the charges should be rolled into one count, it is somewhat paradoxical that the second submission advanced by the defence is that each of the 68 counts is bad for duplicity. The duplicity asserted is that each count alleges the furnished material was "false or misleading" and this involves an allegation of two distinct offences. In R v Anthony (1982) 1 ACLC 20, Demack J said at 23:

"It is sufficient to say that the words 'false' and 'misleading' do bear separate and distinct meanings. A representation may be false but not misleading, and a representation may be misleading and not false."

14 The issue whether the word "or" in a statutory provision creates one offence, or two or more offences, has been addressed on many occasions. A convenient summary of relevant authorities appears in Director of Public Prosecutions v Williams [1993] 1 VLR 238, Hedigan J at 242 - 245. At 245, his Honour set out the following passage from Romeyko v Samules (1972) 2 SASR 529, at 552, where Bray CJ said:

"The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow."

Hedigan J said that the above passage appeared to him to successfully encapsulate the principles which should govern judicial conclusions as to duplicity and, with respect, I agree with him.

15 The argument put by the defence could, in the circumstances of the charge under consideration, have been extended to a contention that as each charge alleges that the accused furnished "a return or information" and that the same was "false or misleading", four distinct offences are involved in each charge. As put, the argument was not taken this far. The ingredients which would distinguish the four offences are, furnishing:

16 In many circumstances where there has been a breach of s129(2), it is likely that the material furnished will be "information" as well as being contained in a "return" and that the material will be both "false" and "misleading". In that situation I am in no doubt that Parliament did not intend that the furnisher of the material could be charged with four separate offences. The act which attracts a penalty pursuant to s129(2) is furnishing material in the manner and circumstances referred to where that material possesses one or other of the forbidden characteristics of being "false" or "misleading". That being the case, only one offence is created by s129(2).

17 One of the concerns underpinning the law in relation to duplicity is that a person convicted or acquitted of a charge which is duplex, may be denied the benefit of a plea autrefois acquit or autrefois convict. Once it is established that s129(2) creates only one offence, that concern is overcome. An acquittal or conviction on a charge of furnishing material in contravention of the section will provide the accused full immunity from a further prosecution under the section.

18 It is, of course, proper and desirable for the prosecution to confine the charge as far as possible. If it is not asserted that the furnished material was both false and misleading, the charge should be limited to the particular forbidden characteristic relied upon. This course appears to have been taken in relation to a charge alleging a breach of s129(1) in Ward v R (1989) 42 A Crim R 56. In that case, it was alleged that the material which was the subject of the charge was false. There was no allegation that it was misleading. Accepting that s129(1) also only creates one offence, the eventual verdict against that accused would have enabled her to plead autrefois convict or acquit in the event that the Crown subsequently sought to lay a further charge alleging a breach of s129(1) relying on the same material, but alleging that it was misleading.

19 I have not been referred to any authority which adverts to the proposition that a charge alleging that information or conduct was "false or misleading" is duplex. In my experience, borne out by a cursory examination of the authorities, this allegation is commonly included in charges. I draw some comfort from this in relation to my conclusion that s129(2) creates only one offence, and that the charges under consideration are not bad for duplicity

20 I deal with three further matters raised for my determination.

Mental element of the offence created by s129(2)

21 The defence contends that mens rea is an ingredient of an s129(2) offence. The Crown says the offence is one of strict liability and relies on authorities referable to s129(1) (now repealed) in support of that submission. Section 129(1), (2) and (3) are set out in par7 above.

22 In R v Sender (No 2) (1982 - 1983) 44 ALR 139, Everett J held that s129(1) was an offence of strict liability. Whilst he referred to a number of prior authorities which were consistent with his decision, it is clear from 151 and 152 of his judgment that s129(3) was central to his decision. As he observed at 151, if mens rea was an element of the offence, the exculpatory provisions of s129(3) would be unnecessary. That observation applies with equal force to an s129(2) offence.

23 Everett J referred to and followed the decision of the Supreme Court of Queensland sitting in special circumstances as both a Court of Criminal Appeal and a Full Court in R v White (1978 - 1979) 23 ALR 432, which held that s129(1) created a strict liability offence. It is pertinent to note that whilst the charges being considered were alleged breaches of s129(1), Stable SPJ, who gave the decision of the court, referred at 438 to s129(1) and (2), when he said that s129(3) strengthened his conclusion that the section was one imposing strict liability.

24 In R v Giordano (1982) 71 FLR 309, the South Australian Full Court held by a majority that mens rea was not an ingredient of the offence created by s129(1), and approved R v Sender. In P v R (1986) 82 FLR 351, the South Australian Court of Criminal Appeal declined to review its decision in R v Giordano.

25 The defence submits that the authorities referred to are no longer good law when examined in the light of the decision of the High Court in He Kaw Teh v R (1984 - [1985] HCA 43; 1985) 157 CLR 523. In that case, the High Court held that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to the Customs Act 1901, s233B(1)(b). As to a different offence created by that Act, s233B(1)(c), it was held that the prosecution bore the onus of proving that the accused knew of the existence of the prohibited import in his possession. In reaching their decision in relation to s233B(1)(c), the members of the High Court paid regard to exempting statutory provisions applicable to that provision (but not applicable to s233B(1)(b)) which are very loosely equatable with s129(3). As I understand the submission put to me by the defence, it is contended that as the High Court found that to establish a breach of s233B(1)(c), the prosecution bore the onus of proving that the accused knew of the existence of the prohibited import in his possession, notwithstanding the existence of exempting provisions loosely equatable with s129(3), then, by parity of reasoning, a similar decision should be reached in relation to s129(2) and (3). That submission is not supportable. The reasons given by the members of the High Court show that the decision of the court turned on the particular statutory provision under consideration. Matters referred to included the meaning of the words "in his possession" in s233B(1)(c). The judgments focus on the meaning of those words. Gibbs CJ, agreed with by Mason J, referred to this as the critical question at 541. See also Brennan J at 585 and 589, and Dawson J at 598. Importantly, the construction adopted by the court did not render the exempting provisions meaningless or nugatory. See Gibbs CJ at 539 and Brennan J at 589.

26 The decision of the Court of Criminal Appeal in New South Wales in Ward v R (supra), was handed down subsequent to He Kaw Teh v R. That decision is consistent with prior authorities to which I have referred that mens rea is not a mental element of an s129(1) offence. The court held that the offence is one of strict liability. Campbell and Allen JJ at 70 rejected a submission that there was any inconsistency with this construction of s129(1) and the principles declared by the High Court in He Kaw Teh v R. I agree. Mens rea is not an ingredient of the offence created by s129(2).

Admissibility of evidence of the provision of written referrals

27 The Crown seeks to lead evidence that the accused forwarded the 68 written referrals which are the subject of the charges in the indictment to the Health Insurance Commission. The defence submits that this evidence is not admissible. The evidence is relevant if it can be established that the referrals were furnished by the accused "in pursuance of the Act or of the regulations" for the purposes of s129(2). The referrals were provided in response to a letter from the Health Insurance Commission. The relevant correspondence is set out in pars3 - 6 above.

28 The parties' submissions in relation to this issue and to subsequent issues refer to the Act, s20BA. I set out below subs(1) - (5) of that section:

"20BA Confirmation of referral to a consultant physician or specialist

(a) a practitioner refers a patient, in writing, to a consultant physician or a specialist; and

(b) the physician or specialist receives the referral; and

(d) retain the referral for the period of 18 months beginning on the day on which the service was rendered to the patient; and

(e) produce the referral, if asked to do so by the Managing Director, to a medical practitioner who is an officer of the Commission within 7 days after receiving the request.

(2) The consultant physician or specialist must not, without reasonable excuse, fail to comply with the managing director's request.

(a) a consultant physician or specialist renders a specialist medical service to a patient; and

(i) the service was rendered to the patient in an emergency situation without a referral; or

(ii) the service was rendered as a consequence of a referral that was recorded on a hospital record and not given to the physician or specialist to retain on his or her records;

the Managing Director may request the physician or specialist to produce such information as is in his or her possession or control relating to whether the patient was so treated:

(d) within 7 days after receiving the Managing Director's request.

(4) The consultant physician or specialist must not, without reasonable excuse, fail to comply with the Managing Director's request.

(5) A medical practitioner who is an officer of the Commission may make and retain copies of, or take and retain extracts from, any referral or information produced under subsections (1) and (3)."

29 The Crown says that the letter requesting the referrals was sent pursuant to s20BA(1)(e) and that the accused, by providing written referrals in response to that letter, furnished information in pursuance of the Act for the purposes of s129(2). The defence says the referrals were not furnished pursuant to the Act for the following reasons:

(1) Section 20BA(1) only authorises a request for referrals in relation to patients, and the referrals requested and provided did not relate to patients.

(2) The letter asking for the referrals did not oblige the accused to produce them and Dr Lewis, the designated recipient for the referrals, did not personally receive or examine the referrals that were provided.

30 All the charges relate to newly born children examined by the accused at the Burnie Hospital. When examined, the mothers of the children were occupying beds in that hospital.

31 The defence relies on the following provisions in the Act, s3:

(1) In this Act, unless the contrary intention appears:

patient, in relation to a hospital, does not include:

(b) except as provided by subsection (2), a newly-born child whose mother also occupies a bed in the hospital.

(2) For the purposes of this Act:

(a) a newly-born child who occupies an approved bed in an intensive care facility in a hospital, being a facility approved by the Minister for the purposes of this subsection, for the purpose of the provision of special care shall be deemed to be a patient of the hospital; and

(b) where there are two or more newly born children of the same mother in a hospital and those children are not in-patients of the hospital by virtue of paragraph (a) - each such child in excess of 1 shall be deemed to be a patient of the hospital."

32 No evidence was put before me to establish that any of the newly born children came within s3(2) so I proceed on this basis that none of the babies who are the subject of the charges were patients in relation to a hospital as defined by the Act.

33 A definition of patient was included in s3(1) so as to confine the meaning of patient when used "in relation to a hospital". This recognises that when the word patient is used, other than in relation to a hospital, it has its normal meaning, which, in the context of this legislation, and, in particular, s20BA, I consider to be a person under medical treatment, or accepted for medical treatment. As to the meaning I have adopted, I set out the following which is taken from the meaning ascribed to patient in The Concise Oxford Dictionary 6th ed Oxford University Press, Oxford, 1976 at 809:

"Person under medical or dental or psychiatric treatment; person accepted by doctor etc for treatment if this is needed in future."

34 There is nothing to suggest that the word patient as used in s20BA is intended to have the restricted meaning given to patient when used in relation to a hospital. There is no logical reason for so confining its meaning, and to do so would impose an unwarranted restriction on the scope of the section. The Act includes numerous provisions in which the word patient is used without any restriction on its ordinary meaning. See for example ss4AAA, 4AB, s19CB(1), 19DB, 129AAA(1), 133(2). Where the Act refers to a patient in relation to a hospital, this is done expressly; illustrations are ss3A and 3B. I am satisfied that the referrals provided related to patients for the purposes of s20BA.

35 As a consequence of complaints made to the Health Insurance Commission about the accused's attendances on new-born babies, a Case Management Committee resolved that a letter be sent to the accused pursuant to s20BA(1) requesting him to provide referrals which related to babies who were the subject of accounts he had rendered. At the time, Mr J Stutter was the manager of the Professional Review Division of the Commission in Tasmania. The managing director of the Commission had delegated all his powers under s20BA(1) and (3) to the manager of the Professional Review Division. A standard form letter had been prepared by the Commission for use when a s20BA(1) request for the production of referrals was to be made. The letter of 21 September 1994, which Mr Stutter sent to the accused is based on that standard form. As required by s20BA(1)(e), the letter designated a medical practitioner who was an officer of the Commission as the person to whom the referrals were to be produced. The designated person was Dr R Lewis, the Commission's senior medical adviser who was based in Victoria. The letter included an envelope in which to return the referral. The envelope was addressed to the Manager, Professional Review Division, Hobart, and marked: "Attention; Senior Medical Adviser Dr R Lewis". The accused responded to the letter by sending the requested referrals back to the Commission in that envelope.

36 The envelope was received by Mr Stutter at the Commission in Hobart. He telephoned Dr Lewis in Victoria and obtained his permission to open it. Mr Stutter read and examined the referrals contained in the envelope and the accused's accompanying letter. There is no evidence to establish that Dr Lewis has ever personally received or examined the referrals.

37 The defence submits that Mr Stutter's letter of 21 September 1994 was insufficient to oblige the accused to provide the referrals, as the letter included the following sentences:

"The written referrals detailed or photocopies should be returned in the pre-addressed envelope supplied. All documents will be treated with complete confidentiality and originals will be returned to you at the completion of this matter."

38 Section 20BA(1) obliges a medical practitioner to produce referrals when asked to do so. It does not specify the manner in which the referrals are to be produced. Accordingly, insofar as the letter told the accused he should return the referrals in the enclosed pre-addressed envelope, he was not obliged to adopt that course. See Ex parte Wickens [1898] 1 QB 543. The letter was an unequivocal request for the production of the referrals pursuant to s20BA. That the letter specified the means of producing the referrals did not vitiate that request. The accused could have produced the referrals by means which differed from those indicated in the letter. The accused, having acquiesced to and acted on the request in the letter, there is no basis for a finding that he did not produce the referrals pursuant to s20BA(1).

39 The above approach is consistent with the decision of the Full Court of South Australia in Bartlett v R (1991) 100 ALR 177. An issue in that case was whether documents provided by the appellant in response to a notice to furnish information which purported to have been given under the Social Security Act 1947 (Cth), s163, were given pursuant to that section. If so, that Act, s165, applied to make the documents inadmissible in evidence against the appellant. It was contended that the notice did not conform with the requirements of s163 so that there was no obligation to comply with it and, in result, that the documents were not furnished or produced pursuant to that section. King CJ, agreed with by Perry J, said at 180:

"I do not think that it is necessary to resolve the question whether the document in question in each of the counts under discussion is a valid notice under s 163 so as to give rise to an obligation to comply with it. It would not follow from the existence of grounds for refusal to comply with the purported notice that any information furnished or any document produced in compliance with it is not furnished or produced in pursuance of the section. I think that the question whether the recipient of the notice is obliged to comply with it and the question whether the compliance enjoys the protection of s 165 are distinct questions which are to be answered on different considerations. The recipient of a notice purporting to be given under the authority of s 163 may be entitled to refuse or fail to comply by reason of some defect of form or procedure relating to the notice. If, however, he complies with the notice, notwithstanding such defect, perhaps in ignorance of it, by furnishing information or producing a document, it seems to me that such information is furnished or such document is produced in pursuance of the section and that such information or document therefore attracts the protection of s 165. Each of the documents in question demanded the information sought by the questions contained therein and expressly purported to do so by the authority of s 163 or its predecessor. I think that the information furnished in those answers and the documents produced by filling in the answers and signing the forms were furnished and produced respectively in pursuance of s 163 irrespective of whether the appellant may have had grounds for refusing to comply with the demands."

40 The letter advised that the original referrals would be returned at the completion of the matter. It is evident from s20BA(5) that there was no entitlement to keep the original referrals until the end of the matter. Subject to a right to make and retain copies of any referral, or take and retain extracts from any referral, they had to be returned. The inclusion in the letter of the misconceived indication that the referrals would be retained did not nullify the request or make it anything other than a request pursuant to s20BA(1)(e). Notwithstanding that indication, had the accused been so minded, he could have insisted on the immediate return of the referrals.

41 The defence submits that the obligation to "produce the referrals" is an obligation to produce them to the designated medical practitioner face to face. As this was not done, it is contended that the referrals were not produced. The defence relies on the following passage in Button v Evans [1984] 3 NSWLR 191, Carruthers J at 199:

"To 'produce' a document to a Customs officer on the other hand involves, to my mind, the concept of a person presenting a document to a Customs officer, whilst they are in each others' presence."

In that case, Carruthers J was construing a provision of the Customs Act 1901 (Cth) that referred to a "document produced ... to an officer". The facts were that the accused had handed the relevant document to an officer. Carruthers J was not directing his mind to whether the document could have been produced to the officer other than in a face to face situation. He was not dealing with the Health Insurance Act 1973. In the circumstances I do not find what he said to be of assistance. In Hanfstaengl v American Tobacco Company [1895] 1 QB 347 at 355, Rigby LJ said of the word "produced" that it is "a word that has not got an exact legal meaning, but requires an interpretation to be put upon it in the statute in which it occurs."

42 A meaning ascribed for "produce" in The Concise Oxford Dictionary (supra) at 884 is: "Bring forward for inspection or consideration". To my mind that meaning is consistent with the requirements of the Act and I can see no reason for imposing a requirement that the production of a referral pursuant to s20BA should be made on a face to face basis. The obligation imposed on the accused by the request to produce the referrals was to bring them forward or provide them for the inspection of Dr Lewis. Provided that that objective was achieved, the means by which it was achieved is irrelevant. The accused could have produced the referrals in person, or by an agent, or as he did, by posting them to the address where he had been requested to make them available for inspection by Dr Lewis. By doing so, the accused produced the referrals. To find otherwise involves the proposition that a practitioner who, in response to an s20BA(1) request to produce referrals, made them available for examination otherwise than by means of a face to face meeting would be in breach of his or her obligation to produce them. That would be an absurd result.

43 The defence submits that as there is no evidence that Dr Lewis ever personally received or examined the referrals, it has not been established that they were produced as required for the purposes of s20BA(1)(e), in which case they have not been furnished in pursuance of the Act for the purposes of s129(2). This submission is based on the misconception that some positive action on the part of Dr Lewis is necessary for the referrals to have been produced. That is not so. The documents were produced once they were brought forward and made available for the inspection of Dr Lewis at the specified address. It is irrelevant that he apparently did not inspect them. What I have said in relation to the production of the referrals applies with equal force to the issue of whether they were furnished. The relevant meaning of furnish is: "Provide, afford or yield", The Concise Oxford Dictionary (supra). Upon the referrals being delivered to the designated address, as requested, they were provided or, more particularly, furnished, regardless of anything that Dr Lewis did or did not do.

44 For these reasons, I am satisfied that evidence of the delivery of the referrals is relevant and admissible.

Discretionary exclusion of evidence of the referral

45 The defence submits that the accused's provision of the referrals in response to the letter of 21 September 1994 should be excluded in the exercise of the Court's discretion. It is for the defence to satisfy the Court it would be unfair to allow the Crown to use the referrals in evidence against the accused, or that for reasons of public policy the evidence should be excluded.

46 Mr Stutter gave evidence to the effect that when preparing the letter dated 21 September 1994, which was forwarded to the accused, he did not know that accused did not have the referrals, although he thought this likely. For relevant purposes, the doctors who would have provided the written referrals were Doctors Jensen and Thavarasah. As Mr Stutter was suspicious that no written referrals had been provided, he delayed sending the letter to the accused and arranged for Dr Lewis to travel to Tasmania to counsel Doctors Thavarasah and Jensen in relation to the matter. His intention was that this consultation would take place before the letter was sent to the accused and before there was any opportunity for the accused to discuss with Doctors Jensen and Thavarasah the matters raised in the letter. Mr Stutter was concerned to avoid any collaboration between the doctors. This arrangement broke down and the accused received the s20BA(1) letter, and conferred with Doctors Jensen and Thavarasah before they had been counselled by Dr Lewis. On about 5 October 1994, the accused obtained the backdated referrals which are the subject of the charges from Doctors Jensen and Thavarasah.

47 Having received the letter requesting production of the referrals, the accused telephoned Mr Stutter on about 27 September 1994 and enquired why it had been sent. Mr Stutter mentioned a sudden increase in the referral rates of babies in the north-west of Tasmania since the accused had begun to practise in that area. Mr Stutter said he wanted to make sure that there were no sweetheart deals between the accused and obstetricians. The accused asked Mr Stutter whether, in general, there was a problem if no written referrals could be provided. Mr Stutter in substance said that in that event there could be severe penalties, it was possible that any benefits that had been paid would have to be repaid, and it was possible that disciplinary action could be taken. Following this conversation, the accused approached Doctors Jensen and Thavarasah, requested that they provide him with documentary evidence of their referrals and obtained from them the referrals which are the subject of the charges.

48 Against this background, the defence submits that the Court should exercise its discretion to exclude the referrals as evidence. The submissions put on behalf of the defence were somewhat diffusive and difficult to relate to the applicable authorities. I will do the best I can to deal with those matters that call for consideration.

49 As already referred to in pars38 and 39, there were deficiencies in the letter of 21 September 1994 requesting the referrals. A further criticism directed to that letter by the defence is that it was misleading. It was expressed in a manner which suggested that written referrals were required to be retained by the accused in relation to all of the patients detailed in the accompanying Schedule. Section 20AB(3) does not envisage the existence of written referrals where a service was provided in an emergency, or the referral was recorded in a hospital record. The letter made no mention of this, and it also did not refer to s20BA(2) which recognises that a practitioner may, with reasonable excuse, fail to comply with a request.

50 Whilst, with the benefit of hindsight, the drafting of the letter could have been improved, any inadequacies in the letter were not the result of malice or impropriety on the part of Mr Stutter. The Case Management Committee had decided that it was appropriate to send a letter to the accused pursuant to s20BA(1). Mr Stutter acted on that decision by utilising a standard form letter provided for that purpose. He did not advert to the matters which have been raised in criticism of the letter.

51 The defence submits that the letter, coupled with Mr Stutter's telephone conversation with the accused on 27 September 1994, entrapped the accused. Whilst it is evident that the letter, coupled with the conversation, prompted the accused to obtain and provide the backdated referrals, this was no entrapment. Entrapment in the context of the discretion to exclude evidence involves unlawful or improper conduct, the object of which is to induce or procure the commission of a crime. I refer to Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19: R v Massey [1994] SASC 5133; (1994) 62 SASR 481; Emanuele v Dau (1995) 78 A Crim R 242, and R v Hsing (1991) 25 NSWLR 685. In requesting the referrals, Mr Stutter was acting in accordance with a statutory entitlement to do so. Rather than seeking to induce the accused to commit the offences for which he has been charged, Mr Stutter made arrangements, the object of which was to discourage the commission of any offence. He made arrangements for Dr Lewis to counsel Doctors Jensen and Thavarasah, the ultimate providers of the backdated referrals.

52 The defence submits that Mr Stutter should have cautioned the accused when the letter was sent, or when he spoke to the accused on 27 September 1994. I do not accept this submission. At that time the backdated referrals were not in existence, and I can see no basis for imposing an obligation on Mr Stutter to warn the accused against future conduct which might amount to a breach of the Act.

53 In the exercise of the Court's discretion to exclude evidence for unfairness, the unreliability of the evidence is an important consideration, although it is not the only consideration. See Swaffield and Pavic v R [1998] HCA 1; (1998) 96 A Crim R 96, Brennan CJ at 105 - 106, and Toohey, Gaudron and Gummow JJ at 124. I am not satisfied that there is anything unreliable about the evidence of the referrals, or that their admission into evidence would, for any other reason, deny the accused a fair trial. They were not provided as a consequence of any impropriety on the part of Mr Stutter or anyone else associated with the Commission. Being unable to discern any reason why it would be unfair to the accused for the referrals to be admitted into evidence, I decline to exercise this aspect of my discretion.

54 In the exercise of the discretion to exclude evidence on the grounds of public policy, unfairness to the accused is only one factor and may be of little relevance. See Bunning v Cross (1977 - 1978) 141 CLR 55 at 75 and Ridgeway v R (supra) at 39. A significant consideration in the exercise of this discretion is the degree of criminality involved in the charged crime. That consideration benefits the accused in this matter as mens rea is not an ingredient of a s129(2) charge. However, the trigger for any consideration of the exercise of the discretion is unlawful or improper conduct which induced or procured the challenged evidence. As I am not satisfied that Mr Stutter or anyone at the Commission behaved improperly or unlawfully in obtaining the evidence, there is no basis for the exercise of my discretion to exclude it on public policy grounds.

R v Harris, Wayne Anthony [1999] TASSC 53

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

R v Harris, Wayne Anthony [1999] TASSC 53 (17 May 1999)

Parties

Legislation Cited (1)

Cases Cited (8)