Fahey v Keating [2002] ICQ 61 (2003) 172 QGIG 78

78 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 ######################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate Francis Michael Fahey AND Daniel Peter Keating (No. C87 of 2002) PRESIDENT HALL 19 December 2002 DECISION The appellant was a long-term employee of the Queensland Ambulance Service. By the latter part of 2000 he was employed upon training work. On 19 December 2000, in reliance upon a medical certificate, the appellant absented himself from work for a period of two months. I should add that he had been receiving treatment for an adjustment disorder with depressed and anxious mood since 23 September 1999. On 1 February 2001 the appellant claimed benefits under the WorkCover Queensland Act 1996. He did so by completing an application form which had been prepared by WorkCover Queensland. The form was received at the Rockhampton office of WorkCover on 14 February 2001. It is a form which requires written answers to some questions but provides for other questions to be answered by ticking a circle marked Yes or No. Materially, the appellant answered the question, “Did you stop work because of this injury?” (Question 27) by ticking a circle adjacent to the word Yes. He answered the question, “Have you returned to work?” (Question 29) by ticking the circle adjacent to the word No. By the time the appellant completed the application form on 1 February 2001 he had in fact conducted private training sessions for and at the business premises of the enterprise known as Encham Mine for a period of about half a day on each of 6, 7, 9 and 10 January 2001. He had done so pursuant to an arrangement entered into with Encham Mine prior to the cessation of work with Queensland Ambulance Service. The arrangement required him to conduct similar private training sessions on 17, 18, 20 and 21 March 2001. Notwithstanding the acceptance of his claim for benefits and the payment of benefits the appellant did not within 14 days of performing that work disclose the performance of the work to WorkCover Queensland. By s. 163 of the WorkCover Queensland Act 1996 he was required to do so. In due course Daniel Peter Keating, a public officer within the meaning of s. 142A of the Justices Act 1886 and duly authorised by the Chief Executive Officer of WorkCover Queensland, instituted proceedings by complaint against the appellant for each of three criminal offences under the WorkCover Queensland Act 1996; viz a charge of making a false or misleading statement to WorkCover Queensland under s. 483, a charge of defrauding WorkCover by a course of conduct under s. 482 and a further charge of defrauding WorkCover under s. 482 based upon the deeming provision at s. 484. The appellant was convicted on all three charges. He appeals against each conviction. In the alternative, he appeals against the severity of the penalty imposed, viz 15 months’ imprisonment to be suspended after four months, the quantum of the restitution order made against him pursuant to s. 486 and the Industrial Magistrate’s decision to secure an order for costs made against him by an order that in default the appellant serve a further period of six months in prison. The appeals are brought pursuant to s. 341(2) of the Industrial Relations Act 1999. Consistently with a view which I expressed in Hawkins v. Jones (2000) 165 QGIG 253 I accept that an appeal does lie pursuant to s. 341(2) of the Industrial Relations Act 1999. There being no question of fresh evidence, I accept also that the appeal is an appeal by way of a rehearing, compare s. 348. The powers available to the Court are those at s. 341(3). I do not understand the parties to dispute any of that. -- 1 of 5 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 79 Offence under s. 483 To understand the appeal, it is necessary to understand the form of the complaint. The formal parts omitted, the complaint was: “on and from the 17th day of March 2001 up to and including 1st day of October 2001 at Rockhampton in the Magistrates Court District of Rockhampton in the State of Queensland Francis Michael FAHEY did make a false statement to WorkCover, that he knew was false or misleading in a material particular Particulars of Offence 1 1. The statement was contained in a document, namely an ‘Application for Compensation’ which was dated 01.02.01 and received by the Rockhampton Office of WorkCover on the 14.02.01 2. The statement which Fahey knew to be false or misleading consisted of an answer to questions contained in such application, namely – (a) the answer ‘Yes’ to question ‘Did you stop work because of this injury?’ (b) the answer ‘No’ to the question ‘Have you returned to work?’ 3. Fahey knew the statement to be false or misleading as he (a) did not stop work because of any injury, (b) continued to work, and was then working for remuneration in the capacity of a ‘Specialist in First Response and Emergency Procedure Training’. The first point taken by the appellant is the discrepancy between the date in the complaint and the date in the particulars. The date in the particulars, viz 14 February 2001, is the correct date. That was the date originally alleged in the complaint. In the course of making amendments to the complaint at the commencement of proceedings the date in the complaint was changed to 17 March 2001. No-one knows why. No issue was raised about the matter at the hearing. If any point had been taken about the matter the Industrial Magistrate would have been required to amend the complaint pursuant to s. 48(c) of the Justices Act 1886 because on the evidence the statement was made on 14 February 2001. There is no suggestion that time was an element of the offence, compare R. v. Bartlett [1972] QdR 337 at 343 per Campbell J with whom Hart and Hoare JJ agreed. Neither is it the case that the complainant’s case was conducted on the basis that an offence was committed on 17 March 2001 and no other date, compare R v. Jacobs [1998] 1 QdR 96. As I have indicated, the complainant’s case throughout was that the statement had been made on 14 February 2001. The appellant has not been prejudiced or disadvantaged in any way. It would be a miscarriage of justice to upset the Industrial Magistrate’s decision on this ground. It is then contended that the charge was duplicitous in that two falsehoods were alleged, viz (1) stopping work because of the injury and (2) not returning to work. The criticism is unfounded. He who drew the particulars was careful to allege but one falsehood, viz the appellant stopped work on 19 December 2000 because of the injury and has not done any work since. Whilst it is true that the lie arises out of two statements – made by way of ticking circles in answer to two questions – each of which could conceivably have been pleaded as a breach of s. 482, there is no obstacle to the complainant wrapping the statements into a compendious lie and alleging a single offence, R v. Bartlett, op. cit., at 343 per Campbell J and R v. Traino (1987) 45 SASR 473 (Court of Appeal). Of course, having pleaded a compendious lie, the complainant must prove the compendious lie. Here, it is contended that the complainant failed to prove “unequivocal consciousness of guilt”, to use the expression used by MacKenzie P in Wills v. Workers’ Compensation Board of Queensland (1993) 144 QGIG 507 at 508 (see also Perrett v. Hastie (1998) 159 QGIG 8 at 11 per Williams P). It may be conceded that the Industrial Magistrate commenced by inquiring what a reasonable man in the appellant’s circumstances would be taken to have meant if he had given the answers which the appellant did. One cannot however leap to the conclusion that the Industrial Magistrate was applying an objective test. One can legitimately move from a finding about what a reasonable man would have understood the words to have meant to a finding that the appellant had the same intention. The emphasis is on the verb “may”. The inference is not obligatory. One has to look at the whole of the evidence. The Industrial Magistrate did. The Industrial Magistrate who had the advantage of hearing and observing the appellant give evidence, and who seems to have taken an entirely adverse view of the appellant’s credibility, had before him not only an impression that the appellant was “playing down” the nature of the work which he had performed at the Encham Mine, but a transcript with any number of instances where the appellant’s evidence was at odds with the evidence of the witnesses who had no motive to deceive. For example, the appellant claimed to have been told to perform the work at Encham Mine by way of rehabilitation by his psychologist, Mr Michael John. It was the evidence of Mr John that he did not tell the appellant to perform the work at Encham Mine. It was Mr John’s evidence that he became aware of the work after the event and was shocked at the incompatibility of the work performed and the claims which the appellant had made to him about his condition. The appellant gave evidence that he had told each of two doctors, viz Dr Athey and Dr McPhee, that he was working. On the evidence of the doctors the Industrial Magistrate, as he was entitled to do, found that that was not so. Additionally, the Industrial Magistrate was confronted with the reality that the appellant must have been aware when he filled in the application form that he had performed work at the Encham Mine only a very short time previously, and could only have acted honestly if he believed that he was entitled to receive money by way of wages from the Encham Mine and by way of benefits from WorkCover for the same half days. Further, by a letter to WorkCover Queensland dated 27 February 2001 arguing his case for benefits Mr Fahey asserted: “My concentration is pathetic. I cannot remember from one day to the next what I have been doing; I jump from one thing to another during the day and not finish anything.”. Yet he had been working for Encham Mine – supervising training courses only six weeks earlier and was about to undertake further work of the same kind. The language used by the Industrial Magistrate, e.g. “purposefully” suggests strongly that His Worship was applying a subjective test. In my view the submission that the complainant did not make out a case of unequivocal consciousness of guilt cannot be sustained. It is true that the complainant did not call medical evidence that the appellant was incapable of working. That was because the complainant accepted that the appellant was suffering from the psychological disorder and sought to prove that the appellant was not incapable of work by proving that the appellant had been working. The complainant was entitled to do that. I accept the submission that question 27 is ambiguous. I could well understand an honest claimant answering question 27 by ticking the circle at Yes and answering question 29 by ticking the circle at Yes in the belief that the question was about his principal or normal occupation. If such a claimant were prosecuted for breach of s. 483 because of the answer to question 27 I should have thought that it might have been difficult to show unequivocal consciousness of guilt. All that is of no consequence. The appellant was not charged with giving an inaccurate answer to question 27. He was charged with making “a statement to WorkCover that he knew was false or misleading in a material particular”. And there was no ambiguity about the lie which he was alleged to have told. In my view the appeal against conviction for breach of s. 483 must be dismissed. -- 2 of 5 -- 80 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 Charge under s. 482 (course of conduct) The charge and the particulars were as follows: “Charge 2 That on and from the 14th February 2001 up to and including the 1st day of October 2001 at Rockhampton in the Magistrates Court District of Rockhampton in the state of Queensland Francis Michael Fahey did defraud WorkCover. Particulars of Offence 2 1. Fahey obtained and supplied to WorkCover medical certificates alleging he was totally incapacitated for work 2. Fahey knew such allegations to be untrue as he was not totally incapacitated for work or at all. During the period alleged Fahey worked for remuneration in the capacity of a specialist “in First Response and Emergency Procedure Training” and was not incapacitated for work as he alleged. 3. The complainant repeats and relies on the particulars set out in charge 1 and says such statements was (sic) made by Fahey for the purpose of misleading WorkCover to its detriment by causing WorkCover to pay to and on behalf of him compensation/benefits in the sum of $4,055.35 to which he knew he was not entitled 4. Fahey knowingly misleads a general practitioner to believe he was incapacitated for work when he knew such was not the case 5. Fahey knew he was not incapacitated for work and not entitled to compensation/benefits totalling $80,991.13 6. By failing to notify WorkCover of the remuneration Fahey was receiving as a specialist “in First Response and Emergency Procedure Training” he knowingly mislead WorkCover to believe he was totally incapacitated for work. On transcript the medical certificates referred to at particular 1 were further particularised as certificates given by Dr McPhee on 19 December 2000 and 6 March 2001. Once again the complaint is attacked as duplicitous. Here, it seems to me, that there is merit in the attack. The principles governing duplicity in criminal counts are reviewed scholarly by Kirby J in Walsh v. Tattersall (1996) 188 CLR 77 at 104 to 112. The indicia and authorities commonly relied upon to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences are critically reviewed. None of that avails here. The difficulty is s. 482(2). The difficulty is well captured in the passage from the decision of Moynihan P in Jones v. WorkCover (1999) 162 QGIG 333 at 334 to 335. His Honour said (emphasis added): “There is another difficulty which arises on the face of the complaint. It was apparently laid in reliance on s. 482 of the WorkCover Act. That provision must be looked at in the context of the Justices Act 1886, s. 43 of which provides:– ‘43. (1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except – (a) in the case of indictable offences – if the matters of complaint are such that they may be charged in 1 indictment; (b) in cases other than cases of indictable offences – if the matters of complaint – (i) are alleged to be constituted by the same act or omission on the part of the defendant; or (ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or (iii) are founded on substantially the same facts; or (iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character; (c) when otherwise expressly provided. (2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph. (3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section – (a) if an objection is taken to the complaint on the ground of such noncompliance-the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; (b) if no such objection is taken to the complaint-the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination. (4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant’s defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately.’. Section 482 of the WorkCover Act ‘otherwise expressly provides’ in terms of subs 1(c) of the Justices Act 1886. It says:– ‘482. (1) A person must not in any way defraud or attempt to defraud WorkCover or a self-insurer. Maximum penalty – 400 penalty units or 18 months imprisonment. (2) If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of the conduct would constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute but 1 offence committed over a period specified in the complaint laid in relation to the conduct, and may be charged and be dealt with on 1 complaint.’. On the face of it the complaint in the present case complains of a number of instances of conduct each instance of which would constitute a separate offence notwithstanding that they are described as particulars. What is described as particular 2 itself involves a number of distinct offences constituted by the activities complained of with respect to each of a number of certificates. Each such occasion is at least arguably an instance of conduct constituting a separate offence which is recurrent in terms of s. 482(2). The same cannot however be said of the offences constituted by the conduct complained of by particulars 1, 2 and 3 as compared one to the other.”. -- 3 of 5 -- 10 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 81 It has to follow that each of the matters particularised should have been made the subject of a separate charge. (Arguably, the conduct at particular 1 and the conduct at particular 4 is recurrent within the meaning of s. 482(2)). The decision in Jones v. WorkCover, ibid, is but three years old. In my view it should not be overturned because of some change in the composition of the Court. In my view it should be overruled only if it be shown to be contrary to a subsequent line of authority in superior Courts, given per incuriam, or it be shown that some important principle was not adverted to, compare Queensland v. The Commonwealth (1977) 139 CLR 585 at 599 to 600 per Gibbs J. Here the case sought to be made is that the decision was given per incuriam. Strictly, His Honour did not overlook any decision on s. 482. The point seems to be that His Honour did not notice that only one offence was alleged. Reliance is placed on the decision in Walsh v. Tattersall (1996) 188 CLR 77 and R v. Jacobs [1998] 1 QdR 96. Without seeking to be impertinent, Walsh v. Tattersall, op. cit., seems to me to be a case without a ratio decidendi. R v. Jacobs, op. cit., involved a charge of “carrying on the business of unlawfully trafficking in … dangerous drugs”. It is in the nature of proving that a defendant has “carried on the business of unlawfully trafficking in … dangerous drugs” that repetitious transactions over a period of time each of which may constitute the offence of trafficking in a dangerous drug will be proved. Particulars of the case which the Crown seeks to make may be given, though each transaction identified might have been made the subject of a separate prosecution. It is implicit in the offence created that such particulars may be given without attracting the criticism that the charge is duplicitous. Here, the indication at s. 482(2) is exactly the other way. The purpose of the subsection is expressly to limit the circumstances in which a series of actions each of which might itself be made the subject of a charge may be bundled together in a compendious way to support one charge of fraud. His Honour did not fail to notice that acts which may be offences may be used to sustain a single count. His Honour held that s. 482(2) ousted that rule. Pursuant to s. 341(3)(b) I allow the appeal against the conviction on the second charge and set aside the decision of the Industrial Magistrate. Subsections 482 and 484 (deemed fraud) I do not set out the complaint and the particulars. The ground of appeal was that the complainant had not made out “unequivocal consciousness of guilt”. For the reasons rehearsed in dealing with the first charge I am satisfied that the Industrial Magistrate did inquire into and did determine that there was an unequivocal consciousness of guilt. A reasonable man would have known that the performance of the work had to be disclosed. In determining whether in all the circumstances of the case the appellant knew what a reasonable man would have known the transcript was awash with material (identified previously) consistent only with the view that the appellant knew the disclosure should have been made. I dismiss the appeal against the conviction on the third charge. Penalty I have considered the leading authorities, viz David v. Thomas (1997) 156 QGIG 647, Wenzel v. WorkCover Queensland (1999) 161 QGIG 106 and Burge v. WorkCover Queensland (1988) 159 QGIG 364. The authorities stress the need for a sentence reflecting public disapproval and with a strong deterrent aspect for offences of this kind. The approach is that only “strong mitigating circumstances” would justify omission to impose a custodial sentence. Save that the appellant had no previous convictions, there are no mitigating circumstances here. There was no timely plea of guilty. That of course is not a factor of aggravation, but it means that a mitigating factor which might otherwise have been available to the appellant on sentence is not available to him. There is not the least indication of remorse. On the contrary the appellant met the charge by seeking to deceive the Industrial Magistrate. Although the appellant’s conduct has not been as outrageous as the conduct of the appellant in David v. Thomas, op. cit., the total amount of benefits paid, viz $88,000, is larger. (In David v. Thomas the amount was $47,600). And the maximum penalty has moved from 12 to 18 months. The head sentence is within range. The suspension after four months is perhaps a little generous but the appellant cannot complain about that. There is no reason to believe that the conviction on charge 2 caused the Industrial Magistrate to impose a higher sentence. Save for the issues relating to the medical certificates, the matters particularised are substantially the matters which led to the convictions on charge 1 and charge 3. In any event, the critical point is that the objective gravity of the matters upon which the appellant was convicted on charges 1 and 3 must, in the absence of mitigating factors, justify a sentence of the type imposed. I dismiss the appeal against sentence. Order for repayment The Industrial Magistrate ordered the appellant to repay the sum of $80,991.13 to WorkCover Queensland. $80,991.13 is the sum of the weekly payments, hospital expenses, medical expenses and travel expenses which WorkCover has paid to or on behalf of the appellant. The order was made pursuant to s. 486 of the WorkCover Queensland Act 1996. Though the point was not taken in the application to appeal, counsel for the appellant has attacked the order. WorkCover Queensland has been content to deal with the matter upon the merits. The basis of the attack is that s. 486 requires a causal relationship between proven fraud and the compensation paid. It is put that the appellant’s medical condition was never challenged. The submission is that on the evidence the appellant’s compensation should have been reduced by a modest sum of money because, for a very short period, the appellant was able to carry out work other than his normal work for the Queensland Ambulance Service for an employer and in a location where the normal stressors were not present. Reliance was placed upon the decision of Gray J in Hazim v. Secretary, Department of Family and Community Services (2002) 116 FCR 533. Whilst the respondent did concede the reality of the appellant’s medical condition, I am not aware of any concession that the appellant’s employment with the Queensland Ambulance Service was a significant contributing factor to the injury. Neither am I aware of any concession that the condition did not arise out of or in the course of one of the circumstances at s. 34(5). Neither were those issues directly canvassed. The respondent and the appellant were involved in a serious criminal prosecution. It was a prosecution which might lead to the incarceration of the appellant and, indeed, on the authorities almost inevitably would. Understandably, the complainant restricted itself to the pleadings. The factual basis for a submission that the appellant was a claimant with an entitlement who had dishonestly exaggerated the extent of his incapacity has not been laid. The decision of Mr Justice Gray cannot be applied to the language of s. 486. The terms of the section are: “486 Fraud and related offences end entitlement to compensation and damages (1) This section applies if a person is convicted of any of the following offences committed against WorkCover or a self-insurer in relation to an application for compensation or a claim for damages – (a) an offence under section 482; (b) an offence or an attempt to commit an offence under the Criminal Code, section 123, 408C, 430, 488 or 494. (2) Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends. (3) If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation or damages by WorkCover or a self- insurer, by conduct that is the offence, then, whether or not a penalty is imposed, the court must on application by WorkCover or the self-insurer, order the person to repay WorkCover or the self-insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence. (4) An order made by a court under subsection (3) may be enforced as if it were an order made by a court in civil proceedings for a debt. -- 4 of 5 -- 82 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 2003 (5) Any costs incurred by WorkCover or the self-insurer in relation to a proceeding for damages to which subsection (3) applies are to be recovered on a solicitor and own client basis from the person convicted under section 482. (6) Subsection (2) does not apply to a person only because the person is taken under section 484 to have – (a) attempted to defraud WorkCover or a self-insurer; or (b) defrauded WorkCover or a self-insurer of an amount not more than the equivalent of 1 week of the person’s normal weekly earnings.”. The scheme is that upon conviction for the offence described at s. 486(1) “any” entitlement to compensation which the person convicted might otherwise have had comes to an end and the Court entering the conviction must order the person to repay to WorkCover all amounts of compensation paid to the person as a result of the commission of the offence. The intention expressed by the phrase “as a result of the commission of the offence” is an intention that all compensation in fact paid to the person consequent upon the commission of the offence should be repaid. One cannot import into the phrase an intention that on inadequate evidence the Industrial Magistrate should tease out the past and guess at the assessment WorkCover Queensland would have made if the truth had been told. I dismiss the appeal against the repayment order. Orders about costs The appellant attacks the decision of the Industrial Magistrate to secure payment by the appellant of the sum of $15,229.22 awarded against him by way of costs by an order requiring that he serve six months in prison in default of payment. No point about that is taken by WorkCover. This ground of appeal was not raised by the application to appeal. It seems to me that there is a prior question. Costs were assessed by the Industrial Magistrate on the hypothesis that the appellant had been convicted of all three charges. With the benefit of hindsight charge 2 should not have been brought and, charge 2 having been brought, the appellant should have succeeded on that charge. It seems to me that costs now have to be assessed on the basis that the complainant enjoyed mixed success. I have considered remitting that matter to the Industrial Magistrate. Given that the Industrial Magistrate is based at Rockhampton that might prove an expensive course. It will be necessary in any event to reserve the question of costs on this appeal. It seems to me that the cheapest and most expeditious course is to take written submissions both upon the question of costs under s. 335 of the Industrial Relations Act 1999 and the question of costs in the Industrial Magistrates Court and to deal with the matter of costs in the Industrial Magistrates Court pursuant to s. 341(3)(a), (b) and (c). If the parties cannot agree upon a timetable for the exchange of documents my Associate will arrange for the issue of the necessary directions. In view of the significant period of time to pay allowed by the Industrial Magistrate it is not I think necessary to stay the orders about costs. I adjourn the appeal insofar as it relates to the orders about costs made by the Industrial Magistrate. I reserve the question of costs of the appeal in this Court. Dated 19 December 2002. D.R. HALL, President. Released: 19 December 2002 Appearances: Mr S. Keim, instructed by Justin Crosby Solicitors, for the appellant. Mr T. Carmody SC, directly instructed by WorkCover Compliance Unit. -- 5 of 5 --