R v Pawsey [1989] TASSC 48

3 Section 401(2)(b) of the Criminal Code provides as follows:-

"(2) The Attorney-General may appeal to the Court -

........................

(b) by leave of the Court or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against an acquittal on a question of law."

4 That section gives no express guidance as to the grounds upon which that discretion ought to be exercised.

5 In R v Jenkins [1970] Tas SR 13 Crisp J, in the course of giving reasons for judgment, with which Neasey J and Chambers J concurred, said at p16 in reference to s401(2)(b):-

"But, while the nature of the right of appeal is thus confined, the statute is silent as to the principles which the court should apply in deciding whether or not to grant leave. Applications by the Crown for leave under the section have been rare - the researches of counsel having produced but two appeals by the Crown against acquittal in the last twenty years. I think it would be true to say that both the practice of the Crown Law Officers of this State and the attitude of this Court has reflected the view expressed by Dixon CJ in Reg v Vallance [1961] HCA 42; (1961) 108 CLR 56, at p62 (one of the appeals referred to) where he said:

'I confess that an appeal under s401 by the Crown against an acquittal strikes me as standing on a different footing from an appeal against conviction. It is evident that the policy which guided the legislature was rather concern in the operation of the criminal law than of correcting verdicts of acquittal to which the Crown objected.'

Obviously a matter complained of must have a wider and deeper significance in the administration of the criminal law than its application to a particular case. But it is unwise I think by definition further to attempt to elaborate the principles which the court should apply. The court has a discretion, that is plain. It is a discretion which is to be guided by a concern for the administration of the criminal law of which the Code is the statutory expression, and this concern will be in general directed more to the consequences of the decision assailed in other cases than to the case in hand."

6 It appears to me to be clear that, although Crisp J did not purport to define the principles which the court should apply, he was saying that a necessary condition of the grant of leave is that the "matter complained of must have a wider and deeper significance in the administration of the criminal law than its application to a particular case".

7 With respect I am of the opinion that it is not competent for this Court to impose such a condition upon the exercise of a power which Parliament has conferred in unqualified terms and that the weight of judicial opinion in this State is against the proposition enunciated by Crisp J

8 In R v Jessop [1974] Tas SR 64 Crawford J doubted, and Nettlefold J expressly disagreed, with that proposition. At p86 Chambers J, after expressing his concurrence with the views of Crisp J, ventured "to elaborate just a little further" by expressing the view that:-

"In addition to the type of case visualised by Crisp J as a proper one justifying leave to the Crown, I think that this Court might justifiably in rare cases grant leave, although the point of law involved did not extend beyond the case then under review. I would restrict that, however, to what might be called a serious case of more than average public importance where there had been a fundamental error in the conduct or course of the trial."

9 With respect, notwithstanding the qualified terms in which it is expressed, that statement is a good deal more than merely an "elaboration" because it virtually negates the central premise of Crisp J's dictum that a necessary condition of the exercise of the power is that the matter complained of "must have a wider and deeper significance in the administration of the criminal law than its application to a particular case" (my emphasis).

10 In R v Williams and Kelly 20/1985 Neasey J saw no reason to alter his concurrence with the view stated by Crisp J in Jenkins' case, but was also inclined to agree with the view expressed by Chambers J in R v Jessop, whilst Underwood J expressed his agreement with the view expressed by Nettlefold J in Jessop's case.

11 I am thus of the opinion that it is not a necessary condition of the grant of leave under s401(2)(b) that the error of law complained of should answer any particular description. However, as with all statutory discretions, the power conferred by s401(2)(b) is not at large but must be exercised judicially in accordance with relevant principles. It is not appropriate or wise for this Court to attempt to make definitive statements of what those principles are, but there are two considerations which provide some guidance as to what principles should be regarded as relevant. First, it necessarily follows from the fact that leave is required that an applicant must demonstrate something more than merely that an error of law has occurred, for otherwise there would be no practical difference between s401(2)(b) and a provision such as s401(1)(a), which confers an unqualified right of appeal. Secondly, in accordance with the principle stated by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 at 473 both the general purposes which the criminal law is intended to serve, as well as any considerations of justice arising from the circumstances of the particular case, will be relevant to the exercise of the discretion. No doubt the fact that an important question of law of general application is involved is capable of being a relevant consideration, but it cannot be said that the existence of such a question would always be necessary for the grant of leave, nor, on the other hand, can it be said that the existence of such a question will always be sufficient to justify the grant of leave.

12 In considering whether leave ought to be granted in this case I am particularly influenced by the following considerations:

13 1 Although s129(1) has been repealed it has been replaced by new provisions, the operation of which would still be capable of being affected by the ruling which is the subject of this appeal. The case thus has ramifications which extend beyond the particular trial which is the subject of this application.

14 In my opinion the purpose and significance of any legislative provisions which are the subject of an application under s401(2)(b) would be relevant to the determination of the question of whether leave should be granted. The following comments made by Stable SPJ in R v White (1979) 23 ALR 432 at 437 and 438 as to the purpose and significance of s129 are therefore relevant:-

"The purpose of s129 is to ensure that the Health Insurance Fund, supported largely by the taxpayer, is not made the target of false or misleading claims. It says too that a person shall not furnish (obviously for the purpose of obtaining money from the fund) a return or information that is false or misleading in a material particular. The making of a claim on Form 1C for 'services specified in the attached assignment forms' is an activity in the control of the practitioner who signs the form - not by an agent, but personally. It is tantamount to a representation that what is written on the forms is true. I think it clear that the statute can be effectively enforced only if the doctor is made responsible for the accuracy of the material in the assignment forms which he or she submits under cover of the claim in Form 1C."

I do not think that the foregoing considerations are negatived by the submission made by counsel for the respondent that the error related to "a very specific provision in a very specific piece of legislation". The main considerations are that s129 has an important part to play in the operation of the Act and that the trial judge's ruling could have an effect on cases other than the particular case before him. The possibility that, for one reason or another, there may not be many such cases does not seem to me to be a matter of great weight.

15 2 I reject the submission made by counsel for the respondent that even if there were some ambiguity in the meaning of the expression "professional attendance" or "attendance ... on a patient" that would not justify the grant of leave because it is an ambiguity which could be removed by a simple amendment to the Regulations. In my view the possibility that the Executive Government might take some remedial action is irrelevant to this court's determination of whether in a particular case it is appropriate for it to exercise its function of declaring the meaning of statutes or regulations.

16 3 Although I do not overlook that the burden of persuasion that leave ought to be granted rests upon the applicant, it is relevant to record that counsel for the respondent did not submit that leave ought to be refused because of the weakness of the Crown case, nor, save to point out that the offences were not serious, did he submit that there were any considerations affecting the justice of this particular case or affecting this particular respondent which should be regarded as militating against the grant of leave.

17 I would grant the application for leave to appeal, allow the appeal and order that a new trial be had. Whether the Director of Public Prosecutions wishes to proceed - bearing in mind that the charges are not serious and the Commonwealth now has the ruling it sought - will of course be a matter for him.

18 The respondent medical practitioner was tried on indictment in the Supreme Court of Tasmania on 12 charges under s129(1) of the Health Insurance Act 1973 of the Commonwealth. A typical charge read as follows:-

"Statement of Crimes

Making a statement that is false in a material particular and is capable of being used in support of an application for payment of an amount under the Health Insurance Act 1973 contrary to s129(1) of the said Act.

Particulars

That the [respondent] on or about the 12th day of March 1984 stated in a Medicare Assignment form No AD49940 that a service prescribed in Item No 41 was prescribed by him ... on 7th March 1984 which statement was false in a material particular in that he had not provided a service of that kind to her on that date."

19 Section 129 of the Health Insurance Act in its relevant form at the time the alleged offences occurred provided:-

"**129 - ** (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.

Penalty: $500 or imprisonment for 6 months.

(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.

Penalty: $500 or imprisonment for 6 months.

(3) In a prosecution of a person for an offence against this section, it is a defence if the person shows that he did not know, and had no reason to suspect, that the statement, document, return or information to which the prosecution relates was false or misleading, as the case may be."

20 The various counts related to items 15, 16, 41 and 42 of the relevant regulations which provided for fees to be payable for different medical services. All four items related to a "professional attendance". Item 41 may be regarded as typical.

"Item No 41" provided:-

"Professional attendance at a nursing home, including aged persons' accommodation attached to a nursing home or aged persons' accommodation situated within a complex that includes a nursing home (other than a professional attendance at a self-contained unit) or professional attendance at consulting rooms situated within such a complex where the patient is accommodated within the nursing home or aged persons' accommodation (not being accommodation in a self-contained unit) - each in hours attendance when only one patient is seen .................".

21 Subsection 3(4) of the Act provided a definition of the expression "professional attendance". This read:-

"(4) Unless the contrary intention appears, a reference in this Act to a professional attendance or to an attendance is a reference to an attendance by a medical practitioner on a patient, including an attendance at the medical practitioner's rooms or surgery."

22 It is upon that definition of "professional attendance" that the Crown's case as to the alleged falsity in a material particular of the respondent's statement in the Medicare Assignment form rested.

23 The actual attendances for which the respondent had claimed were attendances to view and inspect the dead bodies of persons who had been his patients up to the time of their deaths; presumably so that he could put himself in a position to sign death certificates. The question arose during the course of the trial whether a patient who has died remains a "patient", within the definition of "professional attendance". That is to say, if one who had been a patient of the medical practitioner up to the time of death ceased thereafter to be capable of fulfilling that description, then the respondent had not provided the service described in the relevant items.

24 This question arose during the course of an argument as to the admissibility of certain other evidentiary material, and thereupon, in the absence of the jury, the admissibility of that material, together with the question whether a dead body could properly be described as a patient within the meaning of the regulations in the relevant items, were argued together. At the conclusion of that argument, the learned trial judge (Cox J) announced a ruling wherein he held that the relationship of medical practitioner and patient does not cease upon death, but continued in existence in the present case at least long enough to cover the visits made by the respondent in his professional capacity to view for proper professional purposes the bodies. In the course of that ruling, his Honour said, inter alia:-

"The definition section does not give a definition of 'patient' but in my respectful view it would be idle to suppose that the death of a person can of itself terminate that relationship, or have the effect of making the description of a patient no longer appropriate. If one's father dies he is no less one's father, the relationship remains the same and the obligations owed by the survivor to the deceased are no doubt altered by death, but by no means terminated. The same would be true of a solicitor-client relationship, the former continues to have some obligations arising out of the living relationship to the latter, notwithstanding death. ............. There is no reason why the word 'patient' should be read down for the purposes of the regulations as being confined to living patients capable of receiving treatment."

25 After that ruling was given, some discussion occurred between counsel and the judge, and thereafter counsel for the Crown made an application to amend the indictment in respect of the statement of the charges and the particulars. That application for amendment was opposed and was refused by his Honour, whereupon the Crown informed the court that it proposed to call no further evidence "in view of your Honour's ruling". The learned trial judge thereupon directed a verdict of acquittal, which was duly returned. Accordingly, the substance of the Crown's application for leave to appeal under s401(2)(b) of the Criminal Code which is presently before this Court is that the trial judge in directing the jury to acquit acted upon an erroneous view of the law in respect of the meaning of the word "patient" in the schedule to the Health Insurance (Variation of Fees and Medical Services) (No 31) Regulations.

26 In my respectful opinion, the learned trial judge did fall into error in holding that the body of a patient after death could any longer fit that descriptive character. It is, I think, simply a question of the ordinary meaning of the word "patient", unless there is anything in the Act or the Regulations which indicates that the expression should be given a meaning other than that which it ordinarily bears. All the well known dictionaries define a patient in the relevant sense as a living person who is under medical treatment. Thus the Oxford English Dictionary says that a patient is "one who is under medical treatment for the cure of some disease or wound; one of the sick persons whom a medical person attends; an in-mate of an infirmary or hospital". See also, Shorter Oxford English Dictionary, Macquarie Dictionary, Webster's Dictionary. In my view it is quite beyond the ordinary connotation of the word "patient" to treat it as being applicable to a corpse.

27 Nothing in the Act or Regulations was cited to us as tending to show that any meaning different from the ordinary meaning is intended. On the contrary, there are a number of provisions which support the proposition that "medical attendance" and "patient" are to be applied in their ordinary sense as referring to professional medical attendances upon a living person for purposes relating to treatment. Accordingly, in my respectful opinion his Honour's direction to the jury to acquit was based upon an error in law.

28 In respect of whether leave should be given to appeal, I think the matters which would ordinarily move a positive exercise of the discretion to grant leave to appeal against an acquittal are satisfied here. The Act which has been misconstrued in a significant particular is one of national application, the operation of which is of great importance to the country, both socially and financially. Furthermore, "the purpose of s129 is to ensure that the Health Insurance Fund, supported largely by the taxpayer, is not made the target of false or misleading claims" - R v White (1979) 23 ALR 432, per Stable SPJ at p437. In my view leave should be given, the appeal allowed, and a new trial of the respondent should be ordered.

29 The Commonwealth Director of Public Prosecutions has applied for leave to appeal against acquittals on 12 counts, the acquittals being directed by the trial judge. Each of the counts alleged that the respondent, who the Crown asserted was a medical practitioner (but this was not established by the evidence), breached s129(1) of the Health Insurance Act 1973. The subsection was in the following terms:

"**129 - ** (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.

Penalty: $500 or imprisonment for 6 months."

"1 STATEMENT OF CRIME

Making a statement that is false in a material particular and is capable of being used in support of an application for payment of an amount under the Health Insurance Act 1973 contrary to Section 129(1) of the said Act.

PARTICULARS

THAT JOHN CLARENCE KENDALL PAWSEY on or about the 12th day of March 1984 stated in a Medicare Assignment Form No AD49940 that a service described as Item No 41 was provided by him to Ida M Askey on 7 March 1984, that statement was false in a material particular in that he had not provided a service of that kind to her on that date."

31 The other counts differed only in their particulars, and then only as to dates, the number of the medicare assignment form, the item number of the service and the name of the person in respect of whom the service was provided. The item numbers referred to in the various particulars were 15, 16, 41 and 42. Those item numbers came from the Table of Medical Services in the Schedule to the Health Insurance (Variation of Fees and Medical Services) (No 31) Regulations 1984 and subsequent regulations such as the Health Insurance (Variation of Fees and Medical Services) (No 32) Regulations 1984. At all relevant times the description of the items did not alter. Pursuant to the regulations item 15 referred to the following medical service:

"15 Professional attendance, not being an attendance at consulting rooms, a hospital or a nursing home or an attendance that is one of 2 or more attendances on the one occasion at an institution, of more than 5 minutes duration but not more than 25 minutes duration (not being an attendance covered by any other item in this Part) at a time other than a time covered by Item 16 - each attendance. "

32 Item 16 was similar to item 15 but referred to a professional attendance outside certain hours or certain days. Item 41 referred to the following medical service:

"41 Professional attendance at a nursing home, including aged persons' accommodation attached to a nursing home or aged persons' accommodation situated within a complex that includes a nursing home (other than a professional attendance at a self-contained unit) or professional attendance at consulting rooms situated within such a complex where the patient is accommodated in the nursing home or aged persons' accommodation (not being accommodation in a self-contained unit) - each in hours attendance where only one patient is seen."

33 Item 42 was the same as item 41 except that it referred to an "after hours attendance" instead of an "in hours attendance".

34 Opposite those items in the regulations appeared amounts of money which were the fees upon which medicare benefits payable in each State for the particular medical service, designated by the item number, were to be calculated. For example, the Health Insurance (Variations of Fees and Medical Services) (No 31) Regulations 1984 provided a fee for item 15, rendered in Tasmania, of $19.00 and for item 16, $25.50.

35 It was the Crown case that the accused had falsely stated in medicare assignment forms that he had provided a particular "medical service" to a named person, the falsity of the statement being established by the fact that the named person was dead at the time the alleged service was rendered. The Crown's argument was that a "medical service" could not be rendered to a dead person, only to a living person, and to state in a medicare assignment form that the service was rendered in respect of a person, who happened to be dead, was to make a false statement. It was also the Crown case, although the evidence had not fully established it when the trial came to an end, that what the accused had done was conduct post-mortem examinations at funeral parlours, in respect of the bodies of dead persons who had been living in nursing homes and, having died there, whose bodies had been transported to the parlours. The accused's "attendances" on the bodies had allegedly occurred some hours after the bodies had arrived at the parlours.

36 The medicare assignment forms were allegedly submitted by the accused for the purpose of his obtaining payment of the medicare benefits payable for the alleged medical services, pursuant to the Health Insurance Act 1973.

37 After evidence from some witnesses had been heard, Crown counsel wished to tender certain documents as part of the evidence of Mr JW. Stutter, then manager of branch operations for the Health Insurance Commission. The documents can generally be described as a medical benefits schedule book, issued by the then Department of Community Services and Health to medical practitioners, and some standard form letters which were sent to medical practitioners by the Health Insurance Commission. Generally speaking those documents explained how and in what circumstances claims for medicare benefit could be made in the view of the authors of the documents. Objection was taken to the evidence which was then received on the voir dire. Crown counsel argued that the documents should be admitted particularly as they tended to show that the accused had not followed the advice he had received, and that he should not have submitted medicare assignment forms which he knew, or ought to have known, improperly suggested that there had been valid assignments and which incorrectly claimed that specific medical services had been provided.

38 This was relevant to the defence which the accused would have been entitled to raise under s 129(3) of the Health Insurance Act 1973 which provided:

"129(3) In a prosecution of a person for an offence against this section, it is a defence if the person proves that he did not know, and had no reason to suspect, that the statement, document, return or information, made, issued, presented or furnished by him was false or misleading, as the case may be."

39 The documents were not, in my view, properly admissible at that stage of the trial because there was insufficient evidence that they were in fact received by the accused.

40 The learned trial judge however did not consider the proposed evidence from that point of view. He in fact had regard to the thrust of the entire Crown case, not all of which had been developed but the nature of which his Honour was aware, and came to the conclusion that, as a matter of law, the description in the medicare assignment form of a post-mortem examination of a body being items 15, 16, 41 or 42 in the table of medical services, in the Schedule, was not capable of being found by the jury to be false. In other words the learned trial judge in effect found, when ruling on the admissibility of evidence, that at the end of the Crown case there would be no case for the accused to answer, because what he was alleged to have falsely stated was not in fact false. In conclusion the learned trial judge said:

"... the only basis it seemed to me upon which any of this material could be relevant would be as going to an issue as to his belief that the statement was not false, but as I have said in my view the statement in question could not reasonably be found by a jury to be false in any event. So that is the ruling I make in respect of the material that was sought to be adduced on the voir dire but no doubt the Crown would see that it has some consequences or is likely to have some consequences."

His Honour had earlier said that if he ruled in such a way then on the Crown case as he understood it, there would be no case to answer.

41 Crown counsel then applied to amend the indictment so as to allege false statements in different documents than those alleged. The learned trial judge properly refused the application to amend and counsel then said that the Crown proposed to call no further evidence. The learned trial judge thereupon directed the jury to bring in verdicts of acquittal on all 12 counts and the jury complied. A reading of the transcript makes it clear that Crown counsel had planned to call quite an amount of further evidence (such as evidence of an interview with the accused), but decided not to do so because of the prospect of an inevitable upholding of a no case to answer submission at the end of the Crown's case.

42 I turn to consider whether the learned trial judge was correct in concluding that the description of a post-mortem examination being a particular medical service itemised in the Schedule was, or could have been found by the jury to be, a false statement. The relevant provisions of the Act were as follows. Section 10(1) provided:

"10(1) Where ... medical expenses are incurred in respect of a professional service rendered in Australia to an eligible person, medicare benefit calculated in accordance with sub-section (2) is payable, subject to and in accordance with this Act, in respect of that Professional service."

43 By virtue of s3(1), unless the contrary intention appeared, "'eligible persons' means an Australian resident or an eligible overseas representative". An "Australian resident" meant a person who was ordinarily resident in Australia and included a person domiciled in Australia. The term "eligible overseas representative" meant such persons as the head of a diplomatic mission, or the head of a consular post established in Australia, representing certain other countries, or a member of the staff of such a mission or post, or a member of the family and of the household of such a person. I find difficulty in accepting that a dead person can be described as being a person who is ordinarily resident or domiciled in Australia. A dead person is not resident at all. He resides no where. If his body is taken overseas permanently, it cannot be said that he becomes resident overseas, nor can it be said that his domicile would therefore be changed. In my view only living persons can have a place of residence and a domicile. Accordingly where s10(1) provided that medicare benefit was payable when medical expenses were incurred in respect of a professional service rendered to an eligible person, that person had to be a living person and not a dead person. This does not necessarily provide the answer in this case, because the accused was not charged with making a claim for a benefit to which he was not entitled, but with making a false statement which was capable of being used in support of a claim for benefits. However s10(1) shows a legislative policy that medical benefits should only be payable in respect of patients living at the time of the rendering of the professional service.

44 "Professional service" meant, according to s3(1), such things as a medical service to which an item in the Table in the Schedule related, being a service that was rendered by or on behalf of a medical practitioner. This definition does not assist for the purposes of this case.

45 Section 19(1) provided that a medicare benefit was not payable in respect of a medical examination for the purposes of life insurance, superannuation or provident account schemes, or admission to membership of a friendly society. Section 19(5) provided that unless the Minister otherwise directed, "a medicare benefit is not payable in respect of a health screening service, that is to say, a professional service that is a medical examination or test that is not reasonably required for the management of the medical condition of the patient." Section 19 did not assist to define what a "professional service" or "professional attendance" were, nor what the respective items in the Table meant. They simply restricted the circumstances in which a claim for benefit could be made and, as I have said, the accused was not charged with making a claim for benefit to which he was not entitled.

46 Section 20(1) provided:

"20(1) Subject to this Part, medicare benefit in respect of a professional service is payable by the Commission on behalf of the Commonwealth to the person who incurs the medical expenses in respect of that service."

47 A dead person cannot incur medical expenses, nor can a dead person receive payment of a benefit. But of course a person other than the person in respect of whom the professional service is rendered, can incur the medical expenses in respect of that service. An example of this would be a parent incurring the medical expense of a professional service rendered to his child. In such event, the medicare benefit would become payable to the parent.

48 The false statement allegedly made by the accused was made on a medicare assignment form and s20A applied to such a situation. The relevant passages in it were:

"20A(1) Where a medicare benefit is payable to an eligible person in respect of a professional service rendered to the eligible person to another eligible person, the first-mentioned eligible person and the person by whom, or on whose behalf, the professional service is rendered (in this sub-section referred to as 'the practitioner') may enter into an agreement, in accordance with the approved form, under which -

(a) the first-mentioned eligible person assigns his right to the payment of the medicare benefit to the practitioner; and

(b) the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service by the first-mentioned eligible person.

(2) ...

(3) Where an assignment under this section takes effect, or an agreement under this section is entered into, with respect to a medicare benefit, the medicare benefit is, subject to section 20B, payable in accordance with the assignment or the agreement, as the case may be.

(4) ...

(5) An assignment of a medicare benefit shall not be made except in accordance with this section."

This section enabled medical practitioners to do what is called "direct bill", that is to say to render claims for payment of benefit direct to the Commission, instead of rendering accounts for the services to the patients or the other persons who incurred the medical expense. Because it required that the professional service had to be rendered to an "eligible person", that is to say an Australian resident or an eligible overseas representative, an assignment could only be effective in such circumstances. The section reflected the legislative policy evidence by s10(1), that a benefit was only to be payable in respect of patients living at the time of the rendering of the professional service.

49 The Table of Medical Services was originally Schedule 1 to the Health Insurance Act 1973. Section 4 authorised the variation or alteration of an item, or of a rule of interpretation in the Table by regulation. By virtue of s4(3) the Table prescribed by such a regulation had effect as if it were set out in Schedule 1 in the place of the Table in that Schedule. Pursuant to regulations such as the Health Insurance (Variation of Fees and Medical Services) (No 31) Regulations 1984 the Table was substantially replaced. The terms of items 15, 16, 41 and 42 are referred to earlier in these reasons. They all required a "professional attendance". Section 3(4) defined that term as follows:

"3(4) Unless the contrary intention appears, a reference in this act to a professional attendance or to an attendance is a reference to attendance by a medical practitioner on a patient, including an attendance at the medical practitioner's rooms or surgery".

50 It is to be further noted that items 41 and 42 required the attendance to be on a "patient". The meaning of the word "patient" is therefore critical. Can a dead person be a "patient" for the purpose of the expression "an attendance by a medical practitioner on a patient"? The word was not defined or explained by the Act. Rule 6(1) of the Rules for the interpretation of the Table of Medical Services provided that "'attendance' means a physical attendance on not more than one person on the one occasion". When used in the present tense, a dead man is not usually referred to as a "person", although he may well be referred to as "a dead person".

51 The Shorter Oxford English Dictionary provides meaning of "patient" as "one who is under medical treatment for the cure of some disease or wound; one of the sick persons whom a medical man attends; an inmate of an infirmary or hospital". The meaning of "persons" is provided as "an individual human being; a man, woman, or child; ... the living body of a human being; either (a) the actual body, as distinct from clothing, etc, or from the mind or soul, or (b) the body with its clothing etc ... Law. A human being (natural p) or body corporate or corporation (artificial p), having rights or duties recognised by law". These meanings expressly or impliedly require that a "patient" or a "person" be living.

52 The learned trial judge, in the course of his ruling on the admissibility of evidence, referred to the definition of "professional attendance" in s3(4) and said:

"It is the essence that the attendance be by a medical practitioner on a patient, this describes the relationship between the two, not the mere fact that one is treating the other, thus a social attendance on a friend by a Doctor who also happens to treat the latter as a patient on occasion is not a professional attendance. It implies that the attendance is of a professional character undertaken for the purpose of fulfilling obligations arising out of the Doctor-patient relationship. The definition section does not give a definition of 'patient' but in my respectful view it would be idle to suppose that the death of a person can of itself terminate that relationship, or have the effect of making the description of patient no longer appropriate. If one's father dies he is no less one's father, the relationship remains the same and the obligations owed by the survivor to the deceased are no doubt altered by death, but by no means terminated. The same would be true of a solicitor-client relationship, the former continues to have some obligations arising out of the living relationship to the latter, notwithstanding death. There is no suggestion here that any attendance by Dr Pawsey upon his deceased patients was other than one conducted by him as a medical practitioner for the purpose of conducting an examination, which his expertise as a medical practitioner and medical confidante of the deceased, equipped him to perform. Such attendances clearly were performed in pursuance of the relationship of Doctor-patient which existed between him and the deceased. There is no reason why the word 'patient' should be read down for the purposes of the Regulations as being confined to living patients capable of receiving treatment.. ... The kind of attendance allegedly carried out by the Accused in my view falls squarely within the meaning of professional attendance in the relevant Item in the schedule, and such a statement could not reasonably be found by the Jury to be false."

53 With respect I disagree with his Honour when he said that the death of a person cannot terminate the doctor-patient relationship. In my view a patient ceases to be a patient on his death. Further, if one's father dies he no longer is one's father. He was, but no longer is. The relationship of solicitor and client terminates on the death of the client. There may be some continuing obligations on the part of the solicitor, but they are not owed to the dead body, they are owed to the personal representatives or to some other persons. In Cordery on Solicitors 8th edn, p73 it is said:

"Where the client dies the solicitor's authority comes to an immediate end, so that the solicitor can recover no costs for subsequent work unless the personal representatives ratify the retainer by continuing the action and so make themselves liable."

54 The conclusion I have come to is that items 15, 16, 41 and 42 require the professional attendance to be on a living person. The items did not apply to an attendance on a dead body, and I say this regardless of whether or not the body belonged to a person who died only a few hours, or as much as many years, before the doctor's attendance on it.

55 Counsel for the Crown relied on the definition of "professional attention" in s3(1) which referred to "medical or surgical treatment". I do not find the definition of assistance as the term "professional attention" did not appear in the Act or the Schedule in any relevant context. He also submitted that support for his argument could be found in s20B(3), which required that a copy of an agreement of assignment had to be retained by the assignor. But that does not help as although the assignor clearly had to be living (to be able to effect the assignment) the professional service could be rendered to someone other than the assignor. For the same reason counsel's reliance on s127 was not justified.

56 The ruling of the learned trial judge was the basis upon which he directed the jury to acquit the accused in respect of each of the twelve counts. The appeal is against the acquittals on the following grounds:

"1 That the learned trial judge erred in law in holding that the words 'patient' and 'person' in the said Act and in the Schedule to the Health Insurance (Variation of Fees and Medical Services) (No 31) Regulations included a corpse.

2 That the learned trial judge erred in law in holding that a professional attendance for the purposes of the said Act and Regulations included a post mortem attendance.

3 That the learned trial judge erred in law in holding that the falsity of the alleged false statements fell to be determined divorced from the context and purpose of the words used.

4 That the learned trial judge erred in law in holding that whether or not a benefit was payable for the alleged attendances was irrelevant to the falsity or otherwise of the alleged false statements."

57 For the reasons I have given grounds 1 and 2 have been made out. Ground 3 fails because the learned trial judge did not so hold. Count 4 fails for the same reason.

58 By s401(2) of the Criminal Code, the right of the Crown to appeal is severely limited. In this case the right depends upon para(b) of s401(2) which permits an appeal "by leave of the Court or upon the certificate of the judge of the court of trial that it is a fit case for appeal, against an acquittal on a question of law". Clearly a question of law is involved. I turn to consider whether leave should be given. The court has a discretion and Parliament did not see fit to refer to the principles upon which the exercise of the discretion should be based.

59 In Reg v Jenkins [1970] Tas SR 13 the Court unanimously gave leave to the Crown to appeal and then upheld the appeal, set aside an acquittal and ordered a new trial. On the question of leave, Neasey and Chambers JJ concurred with Crisp J who at p16 referred to the view expressed by Dixon CJ in Reg v Vallance [1961] HCA 42; (1961) 108 CLR 56 at p62 where he said:

"I confess that an appeal under s401 by the Crown against an acquittal strikes me as standing on a different footing from an appeal against conviction. It is evident that the policy which guided the legislature was rather concern in the operation of the criminal law than of correcting verdicts of acquittal to which the Crown objected."

"Obviously a matter complained of must have a wider and deeper significance in the administration of the criminal law than its application to a particular case.

But it is unwise I think by definition further to attempt to elaborate the principles which the court should apply. The court has a discretion, that is plain. It is a discretion which is to be guided by a concern for the administration of the criminal law of which the Code is the statutory expression, and this concern will be in general directed more to the consequences of the decision assailed in other cases than to the case in hand.

Beyond this I do not think it is wise to go. ..".

61 Crisp J gave leave to appeal, in relation to two grounds. As to one of them he considered that it raised a substantial question of law which was of considerable importance in the administration of the criminal law. In relation to the other ground he considered it a matter of great importance and he found compelling reasons why the matter should be considered by the Court of Criminal Appeal.

62 The circumstances in which leave to appeal should be granted came before this Court again in Reg v Jessop [1974] Tas SR 64. Chambers J at p83 referred to the fact that the discretionary power had been conferred in terms that are unqualified, but it was in his view perfectly proper for the Court to pronounce upon the type of case which would normally be regarded as a fit one warranting the grant of leave. He considered it a legitimate judicial function to lay down broad guidelines on such a subject. At p85 he said that as the other members of the Court in Reg v Jenkins (supra) had concurred with the reasons for judgment of Crisp J, his judgment must be taken as the judgment of the Court. Chambers J expressed his concurrence but then went on to say as follows, at p86:

"In addition to the type of case visualised by Crisp J as a proper one justifying leave to the Crown, I think that this Court might justifiably in rare cases grant leave, although the point of law involved did not extend beyond the case then under review. I would restrict that, however, to what might be called a serious case of more than average public importance where there had been a fundamental error in the conduct or course of the trial."

63 With the views referred to above, must be contrasted those of Crawford and Nettlefold JJ in Reg v Jessop (supra) . They considered that the discretion of the Court of Criminal Appeal was unfettered. After saying that he had some difficulty in accepting the dictum of Crisp J in Reg v Jenkins (supra) , that "obviously a matter complained of must have a wider and deeper significance than its application to a particular case", Crawford J said at p70:

"The discretion given to the Court of Criminal Appeal to grant or refuse leave to appeal is, in its terms, unfettered. The significance of the matters complained of in the administration of criminal law is an important matter to be taken into account by the Court but, with respect, I think that it may be too limiting to make the test merely one of weighing the significance of the matter complained of in the administration of the criminal law against the application of that matter to the particular case. It may be that the failure of a judge to conduct a particular trial in accordance with the law should, in the circumstances of that trial, be given more weight than the significance of the matter complained of in the general administration of the criminal law. However, it may be that the dictum of Crisp J does in fact refer to sufficiently grave matters arising in the course of the trial, because, after all, it is in the public interest that a grave error by a trial judge which may well have resulted in an acquittal should not be allowed to have the necessary result that the acquittal stand. It may be that not only the seriousness of the error, but also the seriousness of the crime of which an accused has been acquitted should in some cases be a relevant matter."

His Honour went on to say that he found it unnecessary to express any firm opinion on such matters. The point of law involved in the case he was considering was of great importance in the administration of criminal law in this State and for this reason he held that leave to appeal should be granted.

64 Nettlefold J in Reg v Jessop (supra) said at p93 :

"I cannot find in the legislation any sufficient indication that the Crown should be refused leave unless the question raised will be important in other cases. Parliament may well have held the view that the community, expressing its will through the executive, was entitled to insist that the minimum requirement for a proper trial, namely, that the law be ''applied correctly, should be observed. Indeed, I cannot find any indication that leave should not be granted unless the decision on the question is of some importance in future cases. The fact that the Crown is confined to a question of law alone is not, in my opinion, such an indication."

"But the history of the provision does not persuade me that the Crown should only be granted leave if the decision which is challenged is of importance for subsequent cases. The public interest may require that an error on a question of law alone should be corrected despite the fact that the decision is not likely to be followed in later cases. For example, serious cases like murder, 'pack rape' and armed robbery often cause feelings of grave concern in the community. And the public interest requires, in my opinion, that the Crown should be entitled to seek leave to appeal if an error of law has been made even though it is a patent error which will not be followed in later cases. For, in such a case, the error may be so serious that it may be said correctly that justice has not been done according to law.

I am persuaded that the scope, purpose and real object of this paragraph does entitle this Court to grant leave to appeal to the Crown if a serious error of law has been made even though the error is not likely to affect the conduct of future trials."

65 The question came before this Court again in Reg v Williams, unreported, Serial No 20/1985. (The High Court overturned this Court's decision in Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 on different grounds). Neasey J said that he saw no reason to alter his concurrence with the view stated by Crisp J in Reg v Jenkins (supra) , although his inclination was also to agree with the way in which that view was further expounded by Chambers J in Reg v Jessop (supra) . He did not take the matter further because he considered that the test enunciated in Jenkins' case justified the granting of leave to appeal in the case he was considering. He considered that there was a matter of substantial importance in the administration of justice in this State which required answering. Cox J did not express an opinion as to what, if any, test should be applied. He simply said that in his view the Crown had a much stronger case for the grant of leave than it had in Reg v Jessop. Underwood J considered that the view of Nettlefold J in Reg v Jessop represented a proper view of the question. He could see nothing in the Code which indicated that such a view was other than in accordance with the intention of Parliament as expressed by the words of the legislation. He considered that the question of law which was raised in the case he was considering was of importance and of general application. He therefore considered that leave to appeal should be granted.

66 I prefer the views expressed by Crawford and Nettlefold JJ in Reg v Jessop and Underwood J in Reg v Williams. Parliament left the discretion whether or not to grant leave to appeal unfettered by any rules. The discretion must be exercised judicially taking into account all the circumstances and the justice of the case. Matters proper for consideration include, but are not necessarily limited to, the significance of the matters raised in the administration of criminal law in general, the seriousness of the crimes alleged to have been committed by the accused and the significance of the alleged error of law to the result of the case in question. The Court of Criminal Appeal must be persuaded that it is a fit case for appeal.

67 The view I take is that leave to appeal should not be granted. The ruling of the learned trial judge is of no significance to the administration of criminal law generally, but only to a restricted class of offences under the Health Insurance Act 1973. The crimes alleged to have been committed by the accused were not serious. The Crown case was put on the basis, not that the accused did not conduct post mortem examinations, but that in claiming medicare benefits he falsely stated that such examinations were medical services itemised in the Schedule. There was nothing in the prosecution case, established by the time the trial finished, which showed that the accused made the allegedly false statements knowing that they were false. It was of course for the accused to establish as a defence that he did not know, and had no reason to suspect, the statements were false, but it is proper to consider the seriousness of the case so far as it appears from the evidence for the prosecution. It is further relevant to consider that the 12 counts involved claims for benefits totalling only $222.95, and no more than $24.25 in any one particular case.

68 The ruling of the learned trial judge resulted in the acquittal of the accused and it is appropriate therefore to consider the strength of the case against the accused on the assumption that the ruling was wrong. On all counts the success of the Crown's case depended on it being established that the accused made a statement which was capable of being used in support of an application for payment of benefits under the Act. The Crown relied upon medicare assignment forms as containing the false statements. Those forms were admitted into evidence as part of the evidence of Mr JW Stutter, an officer with the Health Insurance Commission. All of the forms were received by the Commission in company with forms of "Claim for Assigned Benefits" in the name of "Dr CJK Pawsey". In the case of counts 1 and 2 the medicare assignment forms were initialled "J. p". The remaining medicare assignment forms and all of the forms of claim for assigned benefits appear to have been signed "J Pawsey" in the same hand. The only direct evidence of the author of the signatures or initials was that of Mr Stutter, in response to a question whether he could "decipher" any of the signatures, and he answered "most of them are signed by Dr Pawsey, some are initialled 'JP'". The accused was charged in the name of John Clarence Kendall Pawsey. There was no evidence establishing that he is the same person as the Dr CJK Pawsey named on some of the forms. Further, the evidence of Mr Stutter that he could "decipher" the signatures as being those of "Dr Pawsey", is doubtful proof that the signatures were in fact those of the accused. There was no evidence from Mr Stutter that the person he was referring to was the accused, nor was there any evidence from him that he was familiar with the signature of the accused. He had never met the accused. In my view the evidence was of doubtful weight, and in fact should not have been admitted without some further evidence showing that Mr Stutter was capable of expressing an opinion on the subject.

69 The prosecution sought to establish that at the time of the rendering of medical services, as allegedly claimed by the accused, the person to whom he claimed to have rendered those services was dead. In the case of counts 1, 4, 5, 7, 8, 11 and 12 the records of nursing homes contained evidence of such a fact. In the case of count 2 the sole evidence about this was contained in the patient history card kept by the Derwent Court Nursing Home, and it was of doubtful value. The evidence was given by the Director of Nursing at the home, Mrs Bensch. She produced a patient history card for the relevant patient, Mrs Davis. At the bottom of the handwriting on the card was written "Died 6.00 pm 20.3.84". Mrs Bensch gave evidence that such cards were filled in by the doctors concerned with the treatment of patients. As to Mrs Davis' history card she did not know who had written the reference to the time and date of death, but she recognised the earlier writing on the card as that of "Dr Pawsey". She did not know how the note of death had come to be written, it was not "the usual record" to be seen on a patient history card and she first saw it some two years after March 1984. It would not have been reasonably open for the jury to have convicted on count 2 on the basis of such doubtful evidence.

70 In the case of counts 1, 3, 4, 5, 6, 7, 9, 10 and 12 there were produced by an employee of the Southern Regional- Cemetery Trust, forms of "Certificate of Medical Attendant" which purported to state inter alia the relevant time of death. In the case of count 1, the form was purportedly signed "C John Pawsey" with an initial also appearing between the words "John" and "Pawsey". Whether the initial is "K" is impossible to ascertain from the signature. In relation to the other counts the signature at the bottom of the forms was that of "J Pawsey". There was no evidence directly establishing the signatures as being those of the accused. They were similar to those of "J Pawsey" on the medicare assignment forms and on the forms of claim for assigned benefits, proof of which I have already explained was doubtful.

71 No evidence of any admissions by the accused was produced at the trial.

72 There were, it is clear, weaknesses in prosecution case, for the reasons I have explained. This Court can only consider the matter upon the basis of evidence heard at the trial. I have considerable doubts as to whether there was sufficient evidence upon which the accused could or would have been convicted, notwithstanding the ruling of the learned trial judge.

73 For the reasons I have given I am not satisfied that this is a fit case for the granting of leave to appeal and I would refuse such leave.