Alexander v Thomas [1998] ICQ 31 (1998) 159 QGIG 1

I pp 451207100086 Vol. 159 1 nsl nd Government ■ I I GazettePUBLISHED BY AUTHORITY Annual Subscription $297 ISSN 0155-9362 FRIDAY, 4 SEPTEMBER, 1998 QUEENSLAND ll\DUSTRIAL COURT WORKCOVER QUEENSLAKD ACT 1996 Workplace RelaJions Act 1997 s. 360(3) - appeal from decision of industrial magistrate William Alexander AND Ivor Tudor Thomas (No. CS of 1998) JUSTICE WILLIAMS, PRESIDENT No. 1 25 August 1998 Workers' compensation - fraud reference to defrauding W orkCover Qld when offence occurred prior to enactment of WorkCover Queensland Act 1996 - whether complaint a nullity - previous injury - "similar" injury refers to the nature of the inJury not the site of the injury. JUDGMENT The appellant was charge,d on a complaint which relevantly was in the following terms: "The complaint of Ivor Tudor Thomas . . . duly authorised for fuis purpose by the Chief Executive Officer cf. W arkCover Queensland, made this 6th day of August 1997 .. , who says that between 19/06/96 and 23/09/96 at Kingaroy . . . William Alexander did defraud the WorkCover Queensland.". There was a notation in the top left hand corner of the complaint reading "WorkCover Quunslan.d Act 1996 s. 194(l)(d)''. That was intended to refer to the section of the relevant legislation under which the complaint was laid. Dunng the period from June to September 1996 when the offence JS alleged to have occurred the relevant legislation was the Workers' Compensation Act 1990, and the relevant entity the Workers' Compensation Board ot Queensland. 1be 1996 Act was assented to on 12 December 1996 and the provisions thereof establishing W orkCover came into force 1 -- 1 of 2 -- 2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETI'E 4 September, 1998 February 1997. ]hus the 1996 Act was in force on 6 August 1997 when the complaint was laid. Section 556(1) of the l 996 Act provided that proceedings for an offence against the 1990 Act may be started and continued as if the 1996 Act had not been passed. But subsection (2) thereof proYidcd that s. 525 of the l 996 Act applied as if those proceedings were fO£ an offence under the 1996 Act. Relevantly s. 525 provided that the proceedings could be commenced on the complaint of a person authorised by the C:bief Executive Officer and that all penalties covered under the ~eding were to be paid to W orkCover. Section 558 of the 1996 Act should also be noted. As WorkCover did not exist in the peciod June to September 1996, at the commencement of the hearing and before any other step was ta.ken, counsel fO£ the complainant applied to have the co~laint amended by deleting the last two words in the complaint ··workCover Queensland" and substituting "Workers' Compensation Board of Queensland". The Industrial Magistrate made that amendment relying on s. 48 of the Justices Act 1886, overruling submissions from counsel fO£ the appellant to the effect that the amendment could not O£ should not be made. After hearing evidence the Magistrate found the charge proved, recorded a conviction, and made consequential orders. From that decision the appellant appeals to this Court. Two broad grounds of appeal are relied upon. Firstly, the original coiqJlaint was a nullity, disclosing no offence known to law, and the Magistrate erred in permitting the amendment. Secondly, on the merits the Magistrate erred in finding the complaint proved. 1he reference on the face of the complaint to s. 194(I)(d) is not a reference to that section of the 1996 Act; it must be a reference to the provision so numbered in the 1990 Act. Section 194(l)(d) of the 1990 Act makes it an offence to defraud the Board in any manner. Defrauding WockCover is provided for by ss. 482 and 483 of the 1996 Act. Section 5 5 8 of the 1996 Act makes it dear that a reference in a provision of the 1990 Act to the Workers' Compen.sation Board may be taken as a reference to WorkCover' s Board. In the circumstances there can be no doubt that the complaint in quesuon was laid by a duly authorised person. The complaint and the attached paiticulars clearly defined the conduct which was alleged to constitute the fraud. It is also clear that any penalty and monies recoverable were to be pa.id to W orkCover Queensland. It is also beyond question that WorkCover Queensland was the successor for all purposes of the Board. 111e submi.~sion by coun.-;el for the awellant was that a<; W orkCover did not exist at the time of the impugned conduct the complaint alleged defrauding an entity which did not exist at the material time. It was said that in consequence the complaint was a nullity and could not be amended. Because WorkCover Queensland and Workers' Compeusation Board ct Queensland were two separate and distinct bodies corporate, constituted under different legislation, it was said that the effect of the amendment was not to correct a misdescription but to set up a new charge of a different offence. I cannO( accept those submissions. The complaint wa$ not a nullity. It was laid by a person duly authorised to do so. A.sat the date it was made (6 August 1997) WorkCover did exist as a body ccq:iorntc. It may have bee~, from an evidentiary point of view, impossible to prove the offence described in the complaint as originally laid, but that docs not mean that it was a nullity. 1be situation here is clearly distinguishable from cases si1ch as R v Peacock ( 197 l) Qd R 4 71 which were relied on by courucl for the appellant m support cl hi'I argument The Court of Cnminal Appeal in Beer v McCann exparte McCann (1991) 57A Crim R IOI was concerned with the situation where the wording of lhe original charge was defective so that it was "true to say that there was no offence known in the terms charged" (l 03). The Court held that that problem could be overcome by making an appropriate amendment pursuant to s. 48 of the Justices Act 1886. (See also the reasoning ct de Jersey P. m the case of David v Thomas (1997) 156 QGIG 647. Given the words of the original complaint, the offence defined in s. l94(l)(d) of the 1990 Act, and the provisions (particularly the transitional provisions) of the 1996 Act, I have come to the conclusion that the original complaint was not a nullity, that there wa~ a defect thereiu in that there wa., a misnomer or misdescription ct the entity defrauded, that the appellant was not misled by that misnomer, that an amendment to correct the misnomer resulted in a cognate offence being charged, and that in consequeJlce it was proper for the Magistrate to exercise his power of ordering an amendment pursuant to s. 48(a) of the Justices Act I 886 because ct a defect in die complaint. It follows that there is no substa11ce in the first ground of appeal. It is not in dispute that the appellant suffered a fractured left scaphoid bone in a motor vehicle accident on 17 November 1995 whilst driving to work. Given the circumstances he was entitled to Workers' Compensation for any period off work in eonscquenre of that injury. He completed an awlication for compensation in the Board's standard form on 25 June 1996· he was off work from 19 June. 1hat standard form contained die followin~ question: "Have you previously suffered any similar injury or condition?' 'Ibere followed a direction: 'Tick appropriate box", and there were then two boxes, one marked "No·• and the other "Yes". The appellant placed a tick in the box designated "No" and that constituted one of the particulars of fraud alleged against him. It was the respondent's case that the ai:::pellaut had sustained a similar injury previously, and that was a matter which was relevant to the payment ct compensation. Further particulars of d1e alleged fraud were that in statements on 1 July 1996 and 28 August 1996 the appellant denied that he had previously suffered a similar injury. In the statement of 1 July 1996 the respondent relies on the statement: "I didn't aggravate the wrist when we took the cast off.'' That relates to a specific incident after the November 1995 injury and, it does not amount, either expressly or impliedly, to a representation that the appe.Uant had not sustained any similar injury prior to 17 November 1995. "lhe contents cl the statement of 29 August 1996 are of more significance. TI1erein one finds the following: "I don't think I have had medical treatment for a left wrist condition prior to the 17/11/95 .... I can't recall sustaining any serious injury to my left wrnt pria: to 17111/95. I can't recall having any problems with my left wrist in 1992 but I do have x-rays taken of both wrists in the past.". The appellant signed an endorsement to that statement asserting that the contents of it were true and correct to the best of his knowledge. ·n1e Magistrate erred in finding "that the defendant in hi.~ statement of I July 1996 ... denies havmg suffered any similar injury or condition.". The statement bearing that date i~ not capable in law of supporting such a conclusion, particularly where the allegation is of fraud. The Magistrate made a similar finding with respect to the staterr.ent of 29 August 1996. Strictly there was no denial of sustaining a similar injury therein. The words the appellant used were " T don't think'' and "I can't recall". The critical question for the Magistrate was whether or not by using those words the appellant wa~ consciously keeping from the Board the fact {as he well knew) that he had sustained similar injury in the past. That quest.ion was 11ot specifically addressed by the Magistrd1e. In his reasons the Magistrate refened to the definition of "similar" in the Concise Oxford Dictionary: "like, alike, havmg neutral resemblance or resemblance to, of the same kind, nature or amount, shape like, thing resembling another.". He then went on: ..Given this meaning there is no doubt in my mind that should the defendant have suffered any injuries to his left wrist, let alone left wrist/scaphoid, the answer to the appropriate question must be answered in the affirmative and could not be answered as the defendant has done in the negative. On a careful comideration and evaluation of the evidence in respect of this element it would appear that the defendant is asking this ..Court to believe that ht had a .sprained Mist in 1992 and a fracture to the same \>.TI.St in 1995, and that the sprain to that same wnst is not in any way a similar ir~ury or condition. However, I am far from agreement with that contention. l find on the evidence that there were two pnor similar mJur1es occasions to the left wrist/scaphoid of the defendant and accept that for whatever reason the defendant denied the similar injury in l 992 by dishonestly ticking the 'No' box where in fact he quite well k110w he should hav~ tid~ed the 'Yes' box.". 3 4 September, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1bere was evidence which in broad tenl).5 indicated a relatively minor injury to the left wrist in 1984 and 1992. 1here was also a considerable b~y of evidence to the effect that no fracture was mvolv~ m either of those injuries; rather the rnjury wa~ more m the natme of a spram. Given the reasoning of the Magistrate quoted above he applied the test whether or nl){ there was similarity wid1 respect to the site of each injury. It is the appellant's contention that in so doing he erred; it is said he should have considered similarity of d1e two injuries. 'lbere is certainly much force in the contention ct the appellanL Clearly not all injuries to the wrist area would be regarded as "similar" to each other. Is a laceration to the wrist requinng 2 or 3 sutures a "similar" injury to a fracture of the scaphoid bone in that \\-Tist? Perhaps more importantly, would a worker honestly endeavouring to answer die question on the application form regard them as .. similar"? For there to be fraud the complainant would have to establish that the person answering the question knew that they were "similar" and dishonestly answered that they were not. It is not to the point for the respondent to say that a different answer may have affected in some way the Board's decision with respect to compensation. lf the answer is honestly given, and is responsive to the question, then there is no fraud. If the questioner wants information with respect to all injuries of whatever type sustained at a particular site on the body then it should ask that specific question. Such partia.ilars woold not ordinarily be forthcoming from a person honestly answering questions with respe-,et to "similar'' injuries. It should also be noted that the respondent called a~ part of the Board's case Dr Morgan and Dr Blenkin. Dr MO£gan was of the view that the 1992 incident (he was the then treating doctor) did not rerult in a frncture but was only a sixain. Dr Blenkin thought that the fracture shown on the 1995 x- rays was an old fracture which was at least 6 months old and possibly years old. 1he Magistrate accepted Dr Morgan's evidence on some points, it does not appear to have specifically addressed the conflict ct medical evidence as to whether or not there wa~ a fracture m 1992. Perhaps the explanation for h1.s failure to do so was that he considered that the nature cl the injury was irrelevant to the issue of similarity. Gtven the whole of the evidence a finding could not he made beyond reasonable doubt that the appellant had suffered a fracture to his left wrist JXior to the injury of 1995. The resJXmdent Board could not establish fraud if it had to establish that the appellant dishonestly withheld from it knowledge that he had sw:tained a fracture to his wrist prior to 1995. In my view the conviction cannot stand. 111e Magi.'itrate applied the wrong test in determining what was "similar'' for purJX)ses of the complaint. Ile did not address the question whether or not the injuries were "similar"; rather h<' considered whether or not the appellant had sustained any injury to a similar site on a previous occasion. Ordinarily if that was the only error involved the matter would be sent back. for re-hearing. But given the evidence, particularly the conflict of medical evidence (indeed the strength of medical evidence that no prior fracture had beeu 1-w,tained), the necessary element of dishonesty in answenng the question could never be established beyond reasonable doubt. The notice of appeal was filed some four days out of time. Given the circumstances outlined in die affidavit of J.R. McNamara, and bearing in rrund my conclusion on the merits, this is an appropriate case in which to extend the time for filing the notice of appeal and I so order. It follows that the appeal should be allowed, the conviction should be quashed, the orders of the Magistrate set aside and iu lieu thereof it should be ordered that the complaint -be dismissed and that the respondent pay the aweilaut's costs of the proceedings before the ~agistrate. The re~pondent is f'.Jrther ocdered to pay the appellant's costs of this appeal to be taxed ou the Supreme Court's scale. 1 The costs of _the p:·oceedings before the Magistrate would be the f?,lo1,1,1 ng: 10struct1ons to defend $437, preparation for trial $1,317, Counsel's fee on trial $594, and solicitor instn1cting coumel $238, a total of $2,586 Dated this twemy-hfth day of August, 1998. G. WILLIAMS, President. Appearances:- Mr PJ. Davis (instructed hy Baldwin Conroy) on behalf of the appellant Mr G.C. Rhead (instructed by WorkCover Queensland) on behalf of the respondent Relea.5ed: 25 August 1998 ###########################f###################f##ffl##### -- 2 of 2 --