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South Australian Industrial Relations Court Decisions |
Zollo 
v Andrew Russell Thompson [1996] SAIRC 7 (8 March 1996)
I.42/1996
ZOLLO V. ANDREW RUSSELL THOMPSON
JUDGE J.P. McCUSKER - DEPUTY PRESIDENT
The Magistrate found the worker guilty on all counts. The worker appealed against all convictions.
HELD: The convictions on the first complaint and counts two and three of the second complaint quashed. The conviction on count one of the second complaint confirmed.
1. The first complaint quashed as the worker could not retrospectively form the requisite dishonest means and the evidence was insufficient to prove that element at the requisite time involved in that complaint.
2. Generally the findings as to credit made by the learned Magistrate should be preferred, though the Court must conduct an independent review of the evidence taken in the Court below.
Nicolle v. Quilty (1994) 61 S.A.I.R. 263 at 271.
Taylor v. Hayes (1990) 53 S.A.S.R. 282.
Devries v. Australian National Railways Commission [1992] HCA 41; (1993) 112 A.L.R. 641 at 645. Referred to.
T. v. Medical Board of S.A. (1992) 58 S.A.S.R. 382 at 395.
Distinguished.
3. Where matters fell within the exercise of a discretionary judgment of the Magistrate the usual principles applied.
House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499. Followed.
4. While the prosecution was under a duty to adequately state the charge in compliance with section 22A of the Summary Procedure Act 1921, in the given circumstances that had been done.
Smith v. Moody (1903) 1 K.B. 56.
John L. Pty. Ltd. v. The Attorney-General (N.S.W.) [1987] HCA 42; (1987) 163 C.L.R. 508.
Ex parte Lovell; Re Buckley and Another (1938) 38 S.R. (N.S.W.) 153 at 166.
O'Sullivan v. De Young (1949) S.A.S.R. 159 at 164.
Referred to.
5. The Magistrate's refusal to require the prosecution to particularise who it was initiated the alleged fabricated claim, was not in error as the issue was not how the worker came to have the requisite dishonesty, but whether at the time of the relevant deeds he had the requisite dishonesty.
Campbell v. Hakof, Supreme Court (unreported) S.5153.
Referred to.
6. The second and third counts of the second complaint could not be sustained.
Fuller v. Duchaternier, unreported, I.99 of 1995. Followed.
7. The contention that the counts in the second complaint were contrary to the rule against duplicity rejected.
Weinel v. Fedcheshen, Supreme Court (18 August 1995, unreported) Perry J.
Walsh v. Tattersall, Supreme Court (unreported, 2 November 1995, S.5323). Followed.
8. The worker's complaint that the first interview of the worker by an authorised investigator should have been rejected because that investigator had first hand knowledge of the matter, having attended the scene of the accident shortly after it had occurred and before being engaged to investigate, rejected.
R. v. Hayles (1990) 54 S.A.S.R. 549. Distinguished.
9. The findings of the Magistrate that the first interview was investigatory as distinguished from accusatory and conducted in a fair manner not shown to have been in error. Observations as to standards of conduct expected of authorised officers under section 110.
10. The worker's complaint that the second interview should not have been admitted because, it was not voluntary, the caution had not been given at the outset, it was unfair and amounted to cross-examination (inter alia), rejected. Such matters were within the Magistrate's discretion and error had not been demonstrated in its exercise.
R. v. Szach (1980) 23 S.A.S.R. 504 at 582.
R. v. Dolan [1992] SASC 3638; (1992) 58 S.A.S.R. 501 at 504.
McDermott v. R. [1948] HCA 23; (1948) 76 C.L.R. 501 at 511, 513-515.
D.P.P. v. Ping Lin [1979] UKPC 1; (1976) A.C. 574 at 593-4.
Cleland v. R. [1982] HCA 67; (1982) 151 C.L.R. 1 at 14-15.
R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133. Referred to.
11. The worker's complaint that the Magistrate erred in failing to treat the evidence of Gibson due caution, on the grounds that he was an accomplice, rejected. While the conclusion that Gibson was not an accomplice was erroneous, the Magistrate stated if in error in his conclusion then he directed himself as to the danger of Gibson's evidence and that assertion by the Magistrate ought to be accepted.
R. v. Standley, Supreme Court, unreported 8 December 1987, Johnson J. at p.12.
Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315 at 319.
R. v. Drinkwater (1981) 27 S.A.S.R. 396 at 405.
Devries v. Australian National Railways Commission (1993) 177 C.L.R. at 472 Referred to.
12. The worker's complaint that the overall examination of the evidence and reasoning of the Magistrate when accumulatively viewed disclosed a failure to properly evaluate the evidence and apply the appropriate onus, rejected.
Harris v. Mill (unreported) von Doussa J., 3 February 1988.
R. v. Calides (1983) 34 S.A.S.R. 355.
A. v. Samuels (unreported) Judgment No. 4104.
Abnett v. Rees (unreported) Judgment No. 9200, 26 June 1986.
Cutting v. Bates (unreported) Judgment No. 9123, 6 June 1986.
Cvarkovic v. Parker (unreported) Judgment No. 1024, 7 October 1988.
Prater v. Rowbottom (unreported) Judgment No. 2776, 12 March 1991.
Gibbons v. S.A. Police (unreported) Judgment S.4303, 3 December 1993.
G. v. R. (unreported) Judgment No. 5019, 4 April 1995.
Lynch v. Kennedy (unreported) Judgment No. 7716, 31 August 1984.
Sommerkamp v. Lodge (unreported) Judgment No. 2829, 31 May 1991.
Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193. Referred to.
13. The worker's contention that the prosecution wrongly permitted to call rebuttal evidence from Dr. North and to split its case rejected. The prosecution was faced with the worker asserting actual knowledge of the events in the statements provided to WorkCover which indicated memory. At trial the worker claimed no memory. The exercise of the discretion of the Magistrate in those circumstances was not in error.
14. Observation on the propriety of the destruction of statements taken on tapes, defence documents which were privileged coming into the hands of the prosecution's solicitors and the general standards required of prosecutors in section 120 matters.
Holmden v. Bitar (1987) 47 S.A.S.R. 509 at 517.
Milocco v. Bates (unreported) Judgment S.1720, 31 August 1989. Referred to.
Appearances:
Mr. D.H. Peek (of counsel) with Mr. A.J. Crocker (of counsel) for the Appellant.
Ms. R.A. Layton Q.C., initially with Mr. M.F. Newell (of counsel), and with Mr. A. M. Haig (of counsel) for the Respondent.
The second complaint contained three counts and charged, as amended, that between 8 April 1991 and 19 June 1992, at Port Lincoln, he obtained by dishonest means payments totalling $34,333.65 contrary to section 120(1)(a), that further on 10 April 1992 at Port Lincoln, dishonestly made a statement in relation to a claim under the Act knowing it to be false or misleading, in breach of section 120(1)(c) and on the 18 June 1992, at Port Lincoln, dishonestly made a statement in relation to a claim under the Act knowing it to be false or misleading under the same provisions.
The significance of the choice of 8 April 1991, is because on that date amendments to the Act came into operation.
The circumstances of the prosecution are reasonably simple. The defendant suffered quite serious injuries in a motor cycle accident on 12 December 1990. He was then aged 19 years. Shortly before the accident, his family opened Rino's Pizza Bar at Port Lincoln and it was the defendant's job to run it. By claim form dated 13 December 1990, the defendant's father made claim for work caused injury under the provisions of the Act, (see Exhibit P.2). The claim form asserted the injury happened at 11.30 a.m. when the defendant, `fell off motor cycle while going to a meeting with customers'. It was not disputed that this document was produced by the defendant's father, with the help of his accountant. At the time it was produced the defendant was in a serious condition in hospital. However the ambulance and like records showed the accident occurred between 12.30 p.m. and 1.00 p.m. The statement attached to the claim stated as follows:-
`Mr. Zollo was travelling to the Dockside Tavern at Lincoln Cove on his motor
cycle to meet people concerned with the supply of pizzas
to yachtsmen at the
Marina. He had been approached earlier that morning by people in his shop and
had been invited to discuss the
matter further at midday. The accident occurred
therefore during work related activities, that is, travelling from one place of
work
to another.
Pellegrino Zollo is employed as manager of Rinos Pizza Bar in Port Lincoln. He
is paid a salary of $600 per week and tax is deducted
in accordance with the
normal tax scales. A copy of his gross earnings and taxation record is
enclosed.
My accountant has assisted me in filling out the various forms and it is only at this time that I am aware that the new location should have been registered. Accordingly, an amendment advice is also enclosed.
(Signed)
..................
LUIGI ZOLLO '
As stated above the appellant's medical condition was quite serious. He was transferred at 4.00 p.m. on the day of the accident from the Port Lincoln Hospital to the Royal Adelaide Hospital. The referral letter signed by Dr. Peter Morton states as follows:-
`This 19 year old man was admitted this afternoon having suffered a motor cycle accident. He was riding along the road and apparently lost control when the front wheel left the bitumen. His condition is stable but he has suffered a
1. Left closed, middle and upper third displaced fracture of his femur. This is not shortened.
2. Left fractured patella
3. ? fracture medial condyle left femur
4. Undisplaced middle fracture of the mid right ulna
5. Assorted grazing and laceration left elbow.
He has been given 1 - 2 units of Hartmann's solution and will be given blood before leaving here. He has also 15 mgms of Morphine. He needs an orthopaedic procedure to sort out the fractured femur.'
The appellant was an in-patient of the Royal Adelaide Hospital until the 28 December 1990, when he was transferred back to the Port Lincoln Hospital. He was discharged from Port Lincoln Hospital on 11 February 1991. He received follow-up treatment thereafter at that hospital as an out-patient.
While in the Port Lincoln Hospital the defendant was interviewed by Constable D.E. McAllister, (Exhibit P7). In the statement the defendant says nothing about the accident occurring in association with employment. He says this about it:-
`I said, "What can you tell me about the accident?"
He said, "I was coming into the left hand corner and the front wheel started to slide so I grabbed the brake and the front wheel locked up. The bike began to tank slap and I lost control."
I said, "What do you mean by tank slap?"
He said, "This is when the handle bars go from side to side."
...
I said, "What can you remember after the bike began to tank slap?"
He said, "Waking up on the ground. I saw my bike and then I saw the neighbourhood watch sign and thought I must have hit that."'
The only other person at the scene when the accident occurred was Anthony Gibson. He gave a statement to the WorkCover investigator, Richter, on 1 April 1992, confirmatory of the appellant's later assertions. On the 3 April 1991, the defendant lodged a statement with WorkCover. That was received by WorkCover on 8 April 1991, (see Exhibit P9). In the statement he asserts the accident was a journey in the course of work and happened at 12.30 p.m. on the corner of St. Andrew's Terrace and Delphi Terrace, Port Lincoln. This is the first proved deed of the defendant claiming the injuries were compensable, having arisen out of or in the course of employment.
The appellant was thereafter interviewed by Richter on 10 April 1992 and by Saunders and Basey on 18 June 1992, (Exhibits P4 and P1 respectively). On 19 June, Gibson was re-interviewed by Basey. After repeating his earlier version and being informed by Basey he was lying and could be prosecuted, he gave a different version which refuted any work association with the accident. The taping of the initial part of this interview was wiped.
In the course of the appeal, as I understand her, Ms. Layton Q.C. for the respondent acknowledged difficulties existed with the first complaint. I have concluded that the first complaint should be dismissed. There was no satisfaction of the necessary elements to sustain that charge. While there is some amount of overlapping, Ms. Layton quite properly did not seek to sustain that segment of the charge dealing with the period from 3 April 1991 to 7 April 1991, (see appeal transcript 554). The focus of the issues on this appeal are confined therefore to the three counts contained in the second complaint. I deal with each of those in turn, in accordance with the approach adopted by counsel.
THE PROPER APPROACH OF THIS COURT TO FINDINGS ON CREDIT AND GENERALLY
Ms. Layton Q.C., for the respondent, contended this Court is required to defer to the findings on credit made by the learned Magistrate: see Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193, Brunskill v. Sovereign Marine and General Insurance Co. Ltd. [1985] HCA 61; (1985) 62 A.L.R. 53 and Devries v. Australian National Railways Commission, [1992] HCA 41; (1993) 112 A.L.R. 641 at 645.
Mr. Peek on the contrary argued that this case fell outside the usual rule of preferment to the advantage of the trial Judge. He contended a number of aspects of the trial were quite unsatisfactory and moreover a careful examination of the Magistrate's reasoning showed an inappropriate approach to the task of credit finding. He argued the culminative effect of these matters caused one to reach the conclusion that the result was unsafe or unsatisfactory: (see his contentions appeal transcript 297, 299 and 301). He relied on the decision of T. v. The Medical Board of S.A. (1992) 58 S.A.S.R. 382, in particular at 395. He argued one cannot necessarily assume demeanour played a large part in the resolution of the issues. Ms. Layton in reply contended that the case before me was distinguishable from T. v. The Medical Board of S.A. Extensive reasons were given by the Magistrate for the preferment of the evidence of the prosecution's witnesses to the defendant and his witnesses: see the judgment at pp.24, 25, 26 and the analysis of the evidence of Drs. Reid and North at pp.12 and 14.
My conclusion, following a careful examination of the transcript in this case, as well as the reasons of the Magistrate, is that matters of credit played a large part in the process of reasoning of the Magistrate. Moreover I regard myself bound by the decision of the Full Court of this Court in Nicolle v. Quilty (1994) 61 S.A.I.R. 263 at 271, where Their Honours said:-
`Where serious criminal convictions are involved and the liberty of the subject is at stake, the court must conduct an independent review of the evidence given in the court below. Laurie v. Nixon (1991) 162 L.S.J.S. 16 per King C.J. at 19-20. In so doing the Court must not overlook, and must give due weight to the advantage enjoyed by the Magistrate in seeing and hearing the witnesses give evidence. Where the central issue of the decision is one of credit the appellate court should not overturn the magistrate's decision unless it can be shown that the magistrate has misused his advantage: Semple v. Williams 156 L.S.J.S. 40, Brunskill v. A.N.I. v. Sovereign Marine and General Insurance Co. Ltd. and Others [1985] HCA 61; (1985) 62 A.L.R. 53 at 56-57, De Vries (sic) v. A.N.R. Commissioner [1992] HCA 41; 112 A.L.R. 641 at 645 and 646.
In our opinion we are in as good a position as was the learned Judge on appeal to draw the proper inferences from the facts found by the Magistrate. Warren v. Coombes and Another [1979] HCA 9; (1979) 142 C.L.R. 531 at 551.'
Ms. Layton expanded upon this dicta. She referred to Taylor v. Hayes (1990) 53 S.A.S.R. 282 and said that the approach described by Perry J. in that decision was apposite with respect to this Court's role on this appeal: (see appeal transcript 343). In that case His Honour having cited the dicta of Sangster J. in Kubicki v. Wylie (1979) 81 L.S.J.S. 349 and the Full Court in Smith v. Samuels (1976) 12 S.A.S.R. 573 made the following observations (at 291):-
`In contrast with those observations as to the nature of an appeal under the Justices Act, a verdict of a jury should not normally be set aside on appeal unless, apart from error of law, it is "unreasonable or cannot be supported having regard to the evidence" or unless there was for any reason, a miscarriage of justice: see s.353(1) of the Criminal Law Consolidation Act. In such a case the question is whether the court is of the view that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, or whether it would be "unsafe, unjust or dangerous" to allow the verdict to stand. It is not sufficient to interfere simply because the appeal court disagrees with the jury's conclusion: see Whitehorn v. The Queen (supra), and Chamberlain v. The Queen (No. 2) [1984] HCA 7; (1984) 153 C.L.R. 521. While it is the responsibility of the Court of Criminal Appeal independently to assess the evidence (see Morris v. The Queen [1987] HCA 50; (1987) 163 C.L.R. 454), in doing so the function of the court is clearly quite different from that imposed upon a judge hearing a justices appeal.
It follows from the above observations that the scope of an appeal under the Justices Act is "not less but larger" than the scope of appeal under the Criminal Law Consolidation Act: see Ghys v. Crafter (supra) per Napier J. at 32.
While I suppose that there is no harm in using words such as "unsafe, unjust or unsatisfactory" or "cannot be supported having regard to the evidence", or the words `miscarriage of justice' in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s.353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate's findings. While it must give due weight to the advantage held by the magistrate is seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
The comments which I have made as to the nature of appeals under the Justices Act do not, of course, apply to appeals against sentence or against any other exercise of a discretion, as to which entirely different considerations apply.'
(see also Weinel v. Fedcheshen, Perry J., 18 August 1995, J No. S5216)
As I understood her argument, Ms. Layton said there were three matters that were operative when one considered the dicta of Perry J. Firstly there had to be a distinction drawn between cases which were the result of appeals from jury trials where different considerations clearly applied owing to the operation of section 353 of the Criminal Law Consolidation Act. Secondly that matters of discretion were not to be decided, other than on the usual principles expressed in the decision of House v. The King [1936] HCA 40; (1936) 55 C.L.R. 499 at 504-505. Thirdly that the advantage enjoyed by the trier of fact remained an important consideration when evaluating the process of reasoning in the Magistrate's judgment.
I believe these observations are consistent with the approach of the Full Court of this Court in Nicolle v. Quilty. I intend to approach the matter in that manner. I do not understand such an approach to limit in any particular way the thrust of the culminative approach taken by Mr. Peek. In any event I turn to deal with each of the matters in turn.
THE FAILURE TO ADEQUATELY STATE A CHARGE.
The second complaint, as amended, charged that the defendant between 8 April 1991 and 19 June 1992, at Port Lincoln, Adelaide and elsewhere:-
1. Did obtain by dishonest means payments and benefits totalling $34,333.65 under the Workers Rehabilitation and Compensation Act 1986, contrary to s.120(1)(a) of the Workers Rehabilitation and Compensation Act 1986.
2. On the 10th of April 1992, at Port Lincoln dishonestly made a statement in relation to a claim under the Workers Rehabilitation and Compensation Act, knowing the statement to be false or misleading. S.120(1)(c) of the Workers Rehabilitation and Compensation Act, 1986.
3. On the 18th of June 1992, at Port Lincoln, dishonestly made a statement in relation to a claim under the Workers Rehabilitation and Compensation Act knowing the statement to be false or misleading. S.120(1)(c) of the Workers Rehabilitation and Compensation Act, 1986.
Mr. Peek contended the charges were inadequate. He referred to the provisions of the Summary Procedure Act 1921.
`22A.(1) Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required."
Mr. Peek`s contention was that by reason of the repeal of sections 22A.(4) and section 55 the charges must comply with the rule in Smith v. Moody (1903) 1 K.B. 56 and John L. Pty. Ltd. v. The Attorney-General (N.S.W.) [1987] HCA 42; (1987) 163 C.L.R. 508. In the latter case, Mason C.J., Deane and Dawson JJ. stated, (at 519), as follows:-
`The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet; "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence": Ex parte Lovell; Re. Buckley and Another (1938) 38 S.R. (N.S.W.) 153, at 166.'
And further:-
`In De Romanis v. Sibraa (1977) 2 N.S.W.L.R. 264, at p.291, Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented at pp. 291-292:
"In Johnson v. Miller [1937] HCA 77; (1937) 59 C.L.R., 467 at p.486, Dixon J. saw the decision in Smith v. Moody (1903) 1 K.B., 56 at pp.61, 63 as requiring the information to specify `the time, place, and manner of the defendant's acts or omissions'; McTiernan J. [1937] HCA 77; (1937) 59 C.L.R., 467 at p. 501 referred to `fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason (1964) 81 W.N. (Pt 1) (N.S.W.) 286, at pp. 290, 291.
...
These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars.'
The other cases referred to by Mr. Peek make it sufficiently clear that one aspect at least of the reasons justifying the rule is the normal dictate of justice that the defence must know with sufficient clarity what it is alleged to have done to constitute the offence. In Ex parte Lovell; Re Buckley and Another (above cited) Jordan C.J. (at p.165) referred to the approach of the Courts of Kings Bench in this regard which was to ensure that the rules of natural justice should not be violated as well as to ensure that the Justices should not exceed their authority. In De Romanis v. Sibraa (above cited) Mahoney J.A. made similar reference in citing that dicta of Jordan C.J. In Fraser v. Barclay (1920) S.A.S.R. 157, the judgment of Murray C.J. refers to the rule providing fair information and reasonable particularity as to the nature of the offence.
Ms. Layton, contends, correctly in my opinion, that the issue is whether the information contained in the charge is sufficient to let the defence know, not only what provision is said to have been breached but how, when and where that breach occurred. She accepted the rule in John L. Pty. Ltd. v. Attorney-General (N.S.W.) as applicable in this regard. She contented the charges gave reasonable and sufficient information as to the nature of the charge. I agree with her. As Napier C.J. stated in O'Sullivan v. De Young (1949) S.A.S.R. 159 at p.164:-
`... but the right is to reasonable particularity, and "reasonable" excludes the idea of any hard and fast rule. It connotes a sense of proportion, and a judgment which takes into account all the circumstances of the particular case. What is "reasonable particularity" must necessarily depend upon the nature of the charge, and take into account the means by which the prosecution is entitled to discharge the burden of proof.
And again, "the defendant is entitled to know the precise charge". That means that the prosecutor is required to specify the offence - to say what the defendant has done - but it does not mean that the prosecutor is required to specify all the concomitants of the defendant's act or conduct. According to the usage of the common law, all the facts and the intent constituting the offence had to be stated with certainty in the indictment, i.e. with a degree of detail and specification regulated by circumstances. A time and place must always be alleged, and allegations of value, number, measurement, or quantity might be required, but, speaking generally, allegations of this kind need not be proved as laid.'
And later at 167:-
`I think that the moral to be derived from this survey of the cases is that, in matters of practice and discretion (where the court is not bound by statute or the authority of precedent), the practice should be moulded to serve the interests of justice and not to hinder them. I think that these cases show - quite conclusively - that the degree of detail and specification, which is required in stating the charge of an offence, must necessarily depend upon the nature of the charge, and take into account the means by which the prosecution is entitled to discharge the burden of proof.'
To the extent to which an opinion need be expressed I hold that this dicta is applicable to the current section 22A of the Summary Procedure Act 1921. I agree with Ms. Layton that as to the first count there is sufficiency of information to satisfy the provision and the rule at common law, even more so in the second and third counts, when little more information could have been provided in any sensible way. This conclusion conforms with the opinion I have reached on the matter of duplicity which in a sense runs parallel. The appellant's argument is therefore rejected.
THE ADEQUACY OF PARTICULARS PROVIDED
This matter necessitates some reference to `Agreed Facts' tendered by the parties on appeal in this Court.
1. The appellant's solicitors by letter dated 11th August 1992 and 16th October 1992, sought further and better particulars of the offences charged against the defendant. Those further and better particulars were provided by the complainant's then solicitors by letter dated 12th November 1992, (only part of which became Exhibit P8 and also T.202).
2. Following the opening of the complainant's case, counsel for the appellant applied to the Magistrate that the complainant be required to specify and elect whether the case against the complainant was alleging on the basis that the appellant initiated the fabrication or whether it was alleging that the appellant subsequently adopted a fabrication initiated by another person. Counsel for the complainant refused to elect and in particular claimed he was not required to indicate or elect whether the appellant initiated the fabrication or whether the appellant subsequently adopted a fabrication of the father. The application was refused by the learned Special Magistrate, (T.1).
Mr. Peek contends that the resolution of who was responsible for the initial alleged fabrication was a matter of fundamental importance to the conduct of the defence. The failure to make the prosecution elect and particularise in this regard required the convictions be set aside. He relies on Lafitte v. Samuels (1972) 3 S.A.S.R. 1; Dalton v. Bartlett (1972) 3 S.A.S.R. 549; Hayes v. Quinn (1992) 57 S.A.S.R. 6.
I merely observe that the strength of the election argument is somewhat muted by the fact that the first charge will be dismissed as already indicated. Moreover I refer to the point made by Ms. Layton, namely that the prosecution's case was that the defendant's injury did not occur in employment and he knew that to be the case at least as at 3 April 1991. There is no question but that he was aware what was charged against him. It is not a necessary ingredient to show how he came to have the requisite dishonesty. Therefore, it is very difficult to see how he has not been provided with the particulars he is entitled to have. Again I agree with Ms. Layton where she contends it is not a requisite to the proceedings to particularise who it was who initiated the idea of fabrication. The key is whether or not the defendant fabricated irrespective of whether he originated the idea or merely adopted it. Finally, there is no suggestion, as I understand it, that there was a failure in any way to provide the requisite particulars in respect to counts 2 and 3.
THE MEANING OF `STATEMENT' IN RELATION TO A CLAIM WITHIN SECTION 120(1)(c)
The provisions under examination read as follows:-
`120(1) A person who-
(a) obtains by dishonest means any payment or other benefit under this Act;
(b) dishonestly claims to be entitled to a payment or other benefit under this Act; or
(c) dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading,
is guilty of an offence.'
The appellant contends for a narrow application of the words, "in relation to a claim" and the respondent contends to the contrary.
I am attracted by the argument of Ms. Layton that the meaning to the words, "in relation to a claim", are to be given a meaning not confined to the process whereby the initial claim, (i.e. the initiating document), is made and dealt with under section 53 of the Act: see O'Grady v. Northern Queensland Co. Ltd. [1990] HCA 16; (1990) 92 A.L.R. 213; Smith v. R. [1994] HCA 60; (1994) 69 A.L.J.R. 24.
However despite any such view, I regard myself as bound by the Full Court of this Court in Fuller v. Duchaternier, (unreported), I.99/95. The majority in that case dealt with statements made by the worker to a doctor. That formed the basis of the charge under section 120(1)(c). The worker already had a determination for the payment of weekly compensation in his favour. The attendance on the doctor was by way of review of his progress. In that case the majority stated their conclusion as follows, (p.27):-
`There remains however, the question of whether the statement was made "in relation to a claim under" the Act which is of course an essential ingredient of a section 120(1)(c) offence.
It was the submission of Mr. Cuthbertson inter alia that the statement made by the respondent was not made "in relation to a claim under this Act". In effect he submitted the provision should be read down to statements made in furtherance of a claim for compensation and not statements such as the one under consideration which he asserted was made during a criminal investigation process.
The statement which is the subject of the charge was made to a WorkCover investigator in the course of an interrogation about certain payments or benefits received by the respondent. This is clear from Mr. Basey's introductory remarks and the fact that the statement was made after a warning had been administered to him. Such a statement is to be distinguished from the statement of a worker or another person on his or her behalf made for the specific purpose of furthering or supporting a claim that the worker is entitled to a payment or benefit pursuant to the Act.
The purpose of section 120 of the Act is to prohibit the making of dishonest claims and any ancillary statements associated with the making of such claims. It was undoubtedly for this purpose that Parliament used the wide expression "in relation to a claim" in s.120(1)(c) of the Act.
Notwithstanding the use of such a wide expression the mischief which the subsection seeks to address is achieved by limiting its application to statements made in connection with the purposes of claiming a payment or benefit and not to statements made in the course of an investigation about monies received pursuant to a claim already determined.'
Counts 2 and 3 deal with the interviews of the appellant by, Mr. Richter, Mr. Saunders and Mr. Basey, investigators from WorkCover. On the authority of Fuller v. Duchaternier the interview with Basey and Saunders could not fall within the scope of section 120(1)(c) (c.f. Fuller v. Marshall, I.130/1995).
The earlier statement to Richter also falls outside the scope of the provision, on the basis of the majority in the Full Court. This statement, (Exhibit P4), occurred after the claim had been made and admitted by WorkCover. It followed the statement taken by Richter from Gibson, (Exhibit D5). Richter's own evidence about P4 is as follows, (p.61):-
`Q. What do you understand to be the purpose of your interview with the defendant on the 10th of April.
A. It was a preliminary type interview to gain some information for WorkCover.
Q. In relation to what.
A. The accident that occurred on the 12 December 1990.
...
Q. It wasn't simply to ascertain details of an accident was it. It was more specific than that.
A. Actually I had been given some specific questions to ask which I have asked in that interview.'
And at p.63
`... I was instructed by WorkCover the attitude and approach I should take, what the authority meant to me and I carried out those instructions.
Q. What were you told about the attitude you should take.
A. That it was an enquiry, and that I put no pressure on the claimant, and that I record the interview, and that I asked some specific questions, and any other questions that I saw fit that may assist me in the enquiry.'
(See also at Pages 89-90).
The decision of the Full Industrial Court in Fuller v. Duchaternier was appealed to the Full Supreme Court. Regrettably it was not until 15 December 1995, that this Court was notified a notice of discontinuance had been filed in the Supreme Court in those proceedings on 1 August 1995. As I regard myself as bound, the two counts in relation to section 120(1)(c) must be dismissed.
DUPLICITY
Mr. Peek, argued that the charge of obtaining by dishonest means payments totalling $34,333.65, between 8 of April and 19 June 1992, is contrary to the rule against duplicity. He contended that the provision in the Act prohibited each and every obtaining of a benefit. The offence was complete as soon as any such benefit or payment was in fact obtained. It was therefore inappropriate to charge a number of such obtainings in one count and simply add up the total of the benefits and payments obtained.
This matter has now been authoritatively resolved in two decisions of the Supreme Court. In Weinel v. Fedcheshen, (18 August 1995, unreported), Perry J., dealt with the contention as follows, (p.17):-
`The defendant contended that the terms in which s.120 is couched preclude the laying of a compendious count. I reject that submission. There are many examples where an offence is defined in similar terms but a compendious count has been permitted. The cases in which the relevant principles have been discussed invariable cover statutory provisions pursuant to which single counts relating to individual acts might equally well be drawn up. That does not preclude a compendious count where the circumstances warrant that course.
...
There was, therefore, no reason to suppose that in answering to the compendious count, the defendant did not know perfectly well what he was being charged with. He was being charged with dishonestly obtaining over the period asserted in count 1 the amounts therein referred to, that charge being said to be made out by reason of the course of conduct of which the individual acts particularised in the subsequent counts were indicative. The concern expressed by Toohey J. in S. v. The Queen [1989] HCA 66; (1989) 168 C.L.R. 266 when he said (281), "The objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet", does not, therefore, arise here.'
That decision was confirmed in a decision of the Full Court in Walsh v. Tattersall, (unreported, 2 November 1995, S.5323). In that case, Prior J. with whom the other Members of the Court agreed, stated the position as follows:-
`A further ground of appeal is that the conviction is bad for duplicity or uncertainty. No objection was taken to the form of the complaint at the hearing before the magistrate. "Nevertheless duplicity is a ground available to a convicted person on appeal, notwithstanding failure to take the objection at the trial, and if duplicity is shown on the appeal the appellate court will set aside the conviction (R. v. Molloy [1921] 2 K.B. 364; R. v. Wilmot (1933) 24 Cr App R 63), if the result is uncertainity as to the criminal act of which the appellant has been convicted (R v. Martinovic (1985) 122 L.S.J.S. 129)": R v. Traino (1987) 45 S.A.S.R. 473 at 475. In Weinel v. Fedcheshen (Perry J, 18 August 1995, unreported), a similar charge was laid as an alternative to the fifty-nine separate counts which identified the fifty-nine payments and benefits actually made or paid as a result of an injury alleged to have been suffered in the course of employment. Perry J. held that the compendious charge in the first count was not bad for duplicity. He conducted an admirable and useful review of authority. I agree with his conclusion that the first count before him was not bad for duplicity. I see no relevant distinction for this case. The same dishonest means applies to each payment made in the period referred to in the charge, namely a false pretence that the appellant was incapacitated for work between October 1992 and October 1993. Here there is no uncertainty as to the criminal act of which the appellant is convicted: Traino, above. That being said, it must be acknowledged that there is much to favour refraining from laying charges of this compendious kind. To do so often attracts arguments when specific or representative counts are clear and unassailable. In some cases the so called compendious charge will fail for duplicity. In others, a valid compendious charge may render obscure the particular dishonest means or other ingredient of an offence that must be proved to make good a particular charge. As a general rule, individual counts are to be preferred. Nevertheless, this particular charge is not bad for duplicity. It was not unfair to charge in this way in this case. One activity of a continuing kind was involved here, an ongoing false pretence as to incapacity for work resulting in the receipt of a substantial sum of money by that one continuing dishonest means: DPP v. Merriman [1973] A.C. 584 at 593. All payments were obtained by the same means: Merriman at 607. He was legitimate to charge in a single count one activity even though that activity involved more than one act of obtaining each of which amounted to an offence: R. v. Locchi (1991) 2 N.S.W.L.R. 309 at 312.'
The same circumstances exist here. The underlying dishonesty alleged is the appellant's assertion that the injury occurred out of or in the course of employment. I am attracted to the argument put by Mr. Peek and for the reasons he describes. But I am bound by the higher authority. On this basis his contention is rejected. In this supplementary submissions Mr. Peek stresses the approach of the Court in R. v. Traino (1987) 45 S.A.S.R. 473 so far as the second and third counts of the second complaint. As I have already ruled those counts must be dismissed this resolves the matter.
INVESTIGATION AND INTERVIEWS OF THE DEFENDANT
I refer to paragraphs 4 and 5 of the appeal which are as follows:-
`4. The learned Special Magistrate erred in admitting and in declining to exclude evidence of an interview between Mr. Richter and the appellant on 10th April 1992. (Reasons for Judgment, pp.4-11).
5. The learned Special Magistrate erred in admitting and in declining to exclude evidence of an interview between Mr. Gregory Saunders and the appellant on 18 June 1992. (Reasons for Judgement (sic) pp.4-11).'
The first matter in regard to the investigation and interviews of the
defendant raised by Mr. Peek concerned the fact that Richter had been at
the scene of the accident shortly after it occurred and therefore was a direct
witness.
He should not have been engaged to investigate and interview Zollo on
behalf of WorkCover on 10 April 1992. That fact made it unsafe
to admit the
statement of the interview. Mr. Peek relied on R. v. Hayles
(1990) 54 S.A.S.R. 549. Moreover he argued that the time disclosed in the claim
form, (see Exhibit P2), together with the letter
from Dr. Morton, (D4), made
Richter very suspicious of the appellant. This had affected the investigation
and made it far from objective.
Mr. Peek complained that prior to the
tape recording on 10 April 1992, discussion had occurred, and that had not been
recorded. Finally the
accumulated knowledge that Richter had at the time of the
interview demanded a caution be given to the defendant from the outset
and the
defendant should have been told while being questioned of the possibility of a
prosecution being laid against him, rather
than the interview being represented
to the appellant as a mere formality, relating to the management of his claim.
Mr. Richter was an authorised person for the purposes of s.110 of the Act. So too were Saunders and Basey. The Magistrate found that Richter informed the defendant he was authorised in accordance with the Act and showed him Exhibit D1, verifying that fact. However the Magistrate found Richter was ignorant of the contents of section 110 and did not inform the defendant of his rights or give him a caution, (see judgment p.7). The Magistrate noted the defence contention that several matters put to the defendant at interview on 10 April 1992, were false and misleading. In those circumstances, taken together with the failure to give a caution, the appellant contended at trial that the statement should not have been admitted. It is to be noted that the primary use of the statement was to establish proof of count 2 of the second complaint. As I have indicated that count cannot remain because of the decision of Fuller v. Duchaternier. However it was relevant to the prosecution case on count 1 of the second complaint.
The Magistrate dealt with matters as follows:-
`It is clear from the evidence that Mr. Richter took a very casual and even perhaps unprofessional approach to his task and Mr. Crocker has levelled considerable criticism at him. His nonchalant approach was carried into the courtroom and demonstrated in the manner and by the substance of some his evidence. However, Mr. Crocker concedes that Mr. Richter's actions and manner when interviewing the defendant were perhaps innocent. It is apparent (sic) from the evidence that Mr. Richter acted innocently and out of lack of knowledge of the law, not from deliberate or reckless disregard of it. This is certainly the strong impression I formed in regard to Mr. Richter's evidence. Whatever investigations were being conducted in the WorkCover office in Adelaide concerning the defendant's claim, Mr. Richter was far removed from them. He was asked to speak to the defendant and he did. As far as he was concerned, `It was a preliminary type interview to gain some information for WorkCover; (page 61 of the transcript) in relation to an accident which occurred on 12 December 1990 and although he had been given some specific questions to ask, his interview cannot in any circumstances, be put at any higher level than that of a general enquiry. The defendant was willing to be interviewed and had received prior notice of it; there is no evidence of intimidation or harrassment (sic). There is nothing which I consider grossly unfair or prejudicial to the defendant in the circumstances. Mr. Crocker reminded me of the classic principals (sic) gathered in Cleland's case on the issue of unfairness.'
The Magistrate then went on to deal with the aspects of the second interview and I will set then out here as there is a commonality of reasoning and principles applicable to both matters.
`Whilst voluntariness was not an issue in the Mr. Richter interview, it was however, the prime ground upon which the admissibility of the Saunders interview was challenged. Consequently, it was argued that, as a matter of law, I should rule to exclude that interview, on the basis that "a confession will not be admitted unless it was made voluntarily, that is in the exercise of a free choice to speak or to be silent." Mr. Crocker further submitted that even if the statement was voluntary and therefore admissible, I should, as a matter of discretion, reject it if I am satisfied that it was obtained in circumstances that would render it unfair to be used against the defendant and directed me to a number of grounds upon which I could be so satisfied.
I have reminded myself of the classic statements of the law bearing upon voluntary and non voluntary statements as found in McDermot (sic) v. The King; The King v. Lee and Others and Clelands' (sic) Case. I have carefully assessed the whole of the relevant evidence on the issue of voluntariness. I have taken aboard the criticism levelled at Mr. Saunders' procedure in conducting the interview and the nature of and manner of putting his questions. Mr. Saunders could have been a little more careful and cautious. He could have recorded what had transpired and what was said in discussion before the commencement of the tape recording and he could have actually recorded the reasons for stopping and starting the tape. He could have conducted the interview differently but on final analysis, I find that nothing that Mr. Saunders did or said was in any way sinister, unfair or improper. There is no evidence that he, or indeed Mr. Basey, were overbearing and intimidating. I find nothing to be inferred from the fact that they presented themselves unannounced, wearing suits, carrying attachè cases and a mobile phone. When referring to Mr. Basey, Mr. Crocker conceded that `This is a man who is employed by Workcover, and is an authorised officer and clearly by the manner in which he gave his evidence, and the role he has played in this, is a senior person, well respected". I was also extremely impressed by the manner in which Mr. Basey gave his evidence and I accept that he was not and would not be a party to any improper conduct.
Having directed myself in regard to the onus of proof and the relevant authorities, I find that the prosecution has discharged that onus and I am satisfied beyond reasonable doubt that the prosecution has negated the ground of involuntariness. I have no hesitation whatsoever in rejecting the allegations of involuntariness.
One of the other grounds argued by Mr. Crocker was that, although a caution was given to the defendant, it should have been given at an earlier stage than that at which the caution was actually administered and for that reason I should exclude the Saunders interview as a matter of discretion. Mr. Crocker referred to the case of Van der Meer v. R. [1988] HCA 56; (1988) 62 A.L.J.R. 656, where at p.661 the circumstances which oblige an investigating (police) officer to administer a caution, were considered by Mason CJ. This case (as was R. v. Dolan, unreported delivered 16 October 1992), was considered in R v. Webb and Hay, judgment No. S3708 by the Full Court of the Chief Justice and Cox J. and Matheson J. and I bear in mind those statements of the law.
As to the question of the caution, I find that Mr. Saunders was clearly mistaken in his court evidence when he proffered two grounds as to why he administered the caution when he did. I accept and find that his incorrect recall was an honest mistake. The caution was given when, as appears in exhibit P1, Mr. Saunders was satisfied that the defendant was giving inconsistent times of the accident. The defendant's challenge of the accuracy of the police and ambulance officer's records appears in the record of interview immediately after the caution. Mr. Crocker's criticism of Mr. Saunders' timing of the caution loses considerable ground in that regard, for it seems that the caution was in fact administered immediately after the first sign of conflict. Prior to that sign of conflict Mr. Saunders wished to hear what the defendant had to say about the accident for the purpose of determining the circumstances which gave rise to the Workcover claim. The investigation had not passed from the stage of general inquiry to the accusatory stage. Mr. Saunders made a considered judgment as to when to administer the caution. I can detect no error in that judgement and the timing of the caution in my view was beyond reproach.
I find on the whole of the evidence that, before the recorded interview was commenced, Mr. Saunders discharged his duties under section 110 of the Act and that the defendant was informed of his rights and obligations.
I have had regard to Mr. Crocker's contention of general unfairness in admitting the Saunders interview. I have listened to the tape, considered the evidence and assessed the witnesses. In my assessment I find the witnesses Mr. Richter, Mr. Saunders and Mr. Basey to be candid and forthright. Each impressed me as a witness of truth and I have no reservation in accepting their respective evidence as reliable and credible evidence. I have regard to the submissions of counsel and I have directed myself in accordance with the authorities. In all the circumstances, I find that on all grounds proffered by Mr. Crocker for my exercise of discretion to exclude exhibits P.1 and P4, are not made out. I rule that the Richter interview and the Saunders interview are admissible.'
I am not prepared to conclude an error on the Magistrate's part in adjudging the Richter interview, P4, as a preliminary type interview to gain information for WorkCover. I also accept that the Judge's rules relied on by Mr. Peek are not mandatory, though they do provide a good yardstick with which to consider the fairness of the interview. It seems from the reasoning of the Magistrate that he had due regard to these matters though I have been somewhat concerned with his usage of the phrase, `grossly unfair or prejudicial'. At the end of the day he had to consider the question of the fairness of the action taken. In my opinion, that was the ultimate obligation imposed on him. I am not satisfied that he failed to do this or that he failed to have regard to the relevant law on the matter.
As to the contention by Mr. Peek that the Richter statement when read as a whole discloses devious and surreptitious behaviour on the part of Richter, again I am not persuaded by that submission. Clearly the Magistrate was unhappy with some aspects of the action of Richter but on the evidence was entitled to conclude there was nothing sinister or underhanded in his approach. A reasonable reading of P.4 does not support Mr. Peek's argument. However I wish nothing that I have said to suggest the Court's expectation of authorised investigators under section 110 falls below those expected of police officers and for much the same reason of policy that applied to the conduct of police officers.
The criticism by Mr. Peek that Richter was a direct witness and therefore should not have been involved in the investigation relies as I have said on R. v. Hayles. In particular Mr. Peek is reliant on the dicta of Jacobs A.C.J. His Honour, (see at p.550), was of the view that for the police officer in that case, a primary witness to the events, should not have undertaken the role of investigator as well. It clouded his judgment and was contrary to the objective approach to the handling of the matter and the interrogation of the accused that should occur.
In my view the case of Hayles is distinguishable from the matter before me. A number of features of the Hayles' Case contributed to the view of the Court. Firstly there was the fact that the defendant called two witnesses who had given cogent evidence which remained unshaken in cross-examination. Secondly the case must be understood in the context of the peculiar matters relating to identification referred to by the trial Judge and quoted in the judgment of Prior J., (at 556). I also regard it as appropriate the comment made by Ms. Layton that the nature of the matters known to Richter are important in evaluating this issue. Richter had seen the appellant at the car park in the jetty area at about 12.30, (the initial claim had the accident occurring at 11.30). He had seen the appellant and Gibson leave on their motor bikes, (p.59, 66 and 68). He arrived himself at the scene of the accident shortly thereafter and established that an ambulance had been called. Added to this was the fact that this was a preliminary interview. It is a situation that must yield to the circumstances in existence and I do not regard the Magistrate's conclusion as indicative of error. The Magistrate found there was no intimidation or oppression on the part of Richter and the failure to keep notes did not affect the reliability, in the Magistrate's view, of the evidence of the conversation. In all the circumstances I am not able to agree with Mr. Peek's challenges to the Magistrate's ruling in this regard.
I turn to the admission of the interview between Saunders and the appellant of 18 June 1992, complained of in paragraph 5 in the grounds of appeal. The ground upon which this interview was primarily challenged was voluntariness. Alternatively if the statement was adjudged voluntary then it should be rejected as a matter of fairness.
As I understand the appellant's position he challenges the propriety of this interview on the following bases:-
1. That the caution was not given at the outset.
2. That the interviewers, Saunders and Basey, had already made up their minds to prosecute, as is indicated by the information they then had and the fact that the payments were in fact cut off on that day.
3. The purpose of the interview was merely to cross-examine including a misrepresentation to `trip' the appellant.
4. Additionally or in the alternative the purpose of the interview, namely the possibility of prosecution, should have been declared from the outset.
5. The matters related in the reasons of the Magistrate and set out above.
Mr. Peek relied in particular on dicta of King C.J. in R. v. Szach (1980) 23 S.A.S.R. 504 at 582, in the following terms:-
`Such legitimate investigatory tactics are not to be confused with falsehood or dishonest trickery. Honesty is to be demanded of the police and other law enforcement agencies at all times. Falsehood, express or implied, and dishonest trickery must always bring the condemnation of the courts however worthy the ends sought to be achieved by such methods. The end can never justify such means, and the courts must be ever ready to use the discretion to exclude evidence obtained by such means, even if technically admissible, in order to preserve the stream of justice from pollution and protect the citizen from the possibility of oppression. Devices and stratagems have a part to play in police investigation, but they must not be allowed to degenerate into dishonesty in any of its forms.
A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Reg. v. Fieldhouse (1977) 17 S.A.S.R. 92 and Reg. v. Hart (1977) 17 S.A.S.R. 100. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.'
However, I note His Honour then went on to say at the conclusion of his judgment:-
(586)
`As I have said, falsehood and dishonesty as a means of obtaining information should be condemned and discouraged by the courts. There are some grounds for a concern that information may have been withheld from Standing so that he would give the appellant a false impression as to the purpose of seeking the information. This was not the view, however, taken by the learned Judge who saw and heard police witnesses, and no doubt considerable allowance must be made for the difficulties under which they were conducting the investigation.'
Mr. Peek also referred to R. v. Dolan [1992] SASC 3638; (1992) 58 S.A.S.R. 501 at 504 there King C.J. said:-
`The cautioning of a suspect that he is not obliged to answer questions, is the offspring of the rule rendering inadmissible in evidence confessions which have not been made voluntarily. It is also related to the discretion which a trial judge has to exclude evidence, including confessional evidence, if the admission of that evidence would be unfair to the accused. The caution tends to negative any suggestion of involuntariness or unfairness. The omission of the caution in circumstances in which it ought to be given, is not decisive as to voluntariness of the confession nor of the fairness of admitting evidence of it. The judge must decide those issues by taking all relevant circumstances into account including the omission to administer the caution.'
King C.J. then went on to make a slight distinction between the situation of a person who was under arrest and one not under arrest but where the officer had decided to arrest. However in either case where there was an absence of a caution, the trial Judge had to decide whether in the circumstances the evidence ought to be excluded (at 506).
Olsson J. in Dolan was to the same effect. At p.512 he stated:-
`The Police already had in their possession a full and definitive statement from the alleged victim and had also obtained some confirmatory information from her mother. As a matter of plain common sense, having regard to the nature of the allegations made, it was almost inevitable in the circumstances that the appellant would be charged unless he was able positively to exonerate himself in some way.
Protestations of the police officer to the effect that it was only when he actually administered the caution that he had positively decided to make an arrest ring hollow. Even if he remained in some doubt up to that point, the plain fact of the matter was that the appellant was the prime suspect, there was a substantial body of information which had already been collected identifying him as the offender, and common fairness indicated that he should not be led into making unguarded statements in the guise of being asked to comment upon serious allegations made against him.'
His Honour went on to hold in Dolan that no only was there an absence of caution but also the circumstances, that led the defendant to make answers which were unfortunate because they were equivocal, very much open to interpretation and had a tendency to be highly prejudicial to him. That prejudicial effect had, in His Honour's view, caused the trial to miscarry and the failure to reject the admission was a failure in the due exercise of the discretion.
It is difficult to accept that Basey and Saunders were not in a state of high suspicion, at the very least by the time the interview occurred. As Mr. Peek points out the payments were stopped immediately thereafter. Moreover Basey's treatment of Gibson the following day indicates his conviction that the version which married with the appellant's version was false. It seems to me this was a dramatic moment in the investigation and there was a certainty of prosecution if there was a break through in the evidence. Mr. Peek pointed to the passages in the interview from pp.1-9 at which point the caution was given and described them as disingenuous since all the information was information they already knew. However while I am concerned with these features I am not persuaded the Magistrate was in error in allowing the statement to be admitted though the caution was given later than in the circumstances it ought to have been. There is some element of value judgement, and what I might have done if in the Magistrate's place is not the test, in having regard to the factors of voluntariness and fairness.
Mr. Peek contended that the failure to say what was the likely offence ought to effect the matter. Reference to the potential charges did not occur until very late (p.23 of P1). I again feel the circumstances dictate the situation. The appellant must have known this matter was of a serious nature and that the issue was the truth of the accident arising out of or in the course of employment. It must have been a matter known to him that to obtain benefits falsely was wrong. That was what Saunders and Basey were concerned with. That is what section 120 is concerned with.
Mr. Peek refers to the issue of when the accident happened raised in the
statement at p.10 and onwards and says that this was an example of
a falsehood
being employed by the interviewer with the intention of confusing and creating
an unfair circumstance upon the person
being interviewed. It was ultimately
confirmed that the accident happened at 12.30, but in the interview Zollo was
pressed on the
basis that he was in the main street at 12.30. Thus his account
of the events must be untrue. But, the Magistrate who heard and saw
them held
that this did not constitute actions of a sinister, unfair or improper nature.
I understand him to mean with the purpose
in mind of creating a unfair
circumstance. I think I am bound by that conclusion because it was influenced
by seeing the witnesses.
I conclude Ms. Layton's submissions are correct and that the Magistrate has not been shown to be wrong in accepting the evidence of Saunders and Basey or having concluded that the statement given was voluntary in fact: see McDermott v. R. [1948] HCA 23; (1948) 76 C.L.R. 501 at 511, 513-515. That finding of fact is not made in circumstances disclosing error such that I can set it aside: D.P.P. v. Ping Lin [1979] UKPC 1; (1976) A.C. 574 at 593-4. There is no finding that the appellant himself felt forced to give the statement or felt intimidated in any way. Moreover I am not convinced that the circumstances disclose unfairness such that required the Magistrate to exercise his discretion against the admission of the statement: Cleland v. R. [1982] HCA 67; (1982) 151 C.L.R. 1 at 14-15, R. v. Lee [1950] HCA 25; (1950) 82 C.L.R. 133.
The stopping and starting of the tape was ruled by the Magistrate as explicable. I do not regard this finding as disclosing error (see pp.233, 232). Statements by the appellant that certain threatening comments were made to him were denied. (p.51, 183). The Magistrate decided in favour of Saunders and Basey and I cannot disturb that conclusion. In all the circumstances the challenge to the admission fails.
THE GENERAL APPROACH OF THE MAGISTRATE TO THE EVALUATION OF THE EVIDENCE.
It is reasonably clear that the case for the prosecution hinged on the acceptance of Gibson's evidence. That is that the appellant was on a bike ride unassociated with work at the time of his accident. Gibson had stated that the appellant was on a work related journey when initially questioned about the matter. He did so to assist the appellant. In particular he gave a statement to Richter on 1 April 1992 which on the prosecution's case falsified the situation. Initially he sustained this version during his interview on 19 June 1992. He changed his story according to the findings of the Magistrate in the circumstances described by Basey at pp.197, 198. In the process of Gibson changing his story, he was told by Basey of the penalties in the Act for making false statements and the possibility of punishment including gaol. Basey made it clear to Gibson that he did not believe the initial version he gave. Basey confirms that Gibson was frightened during the entire interview. Apparently the initial version was taped but according to Basey that was wiped because Gibson asked if he could start again, (see Gibson at 163, 164, 165 and Basey at 185, 196 and 197).
His Honour then went on to state his conclusions as follows:-
`When I look at the whole of Mr. Gibson's evidence (in the context of the whole case) I am compelled to say that there is a ring of truth about it. His evidence has been vigorously attacked by Mr. Crocker, as evidence of a man who has lied to several persons on several occasions. Consequently, he argued, his court evidence cannot and should not be believed and accepted. I have given due weight to Mr. Gibson's evidence and his demeanour. As Mr. Newell put it in his address, "No, I don't think Mr. Gibson would think ill of me if I said that he wasn't a person who would pick things up, new answers up, very quickly". Indeed in assessing him and his evidence, I formed a distince (sic) impression that, at times, Mr. Gibson seemed confused and disorientated and clearly misunderstood questions. However, his evidence on the central issue was firm and consistent. I detect nothing sly or cunning in his evidence, other than the impression I gained that he would have preferred not to give any evidence at all, in particular, evidence unfavourable to the defendant. He struck me as a reluctant but honest and sincere witness who, when confused or misled, tendered to meander innocently. Having assessed the whole of the evidence, I am able to find with confidence, that whilst initially, Mr. Gibson was prepared to lie to help the defendant, he eventually told the truth and levelled with Workcover. I have no reservations in accepting his evidence.
Not unexpectedly the defendant spent considerable time in the witness box and I have had the opportunity of seeing and hearing him give evidence and assessing his reliability and truthfulness. I do not however, propose to analyse and canvas his evidence microscopically. I have assessed and considered the whole of his evidence and having regard to my observations of his demeanour, I have reached firm conclusions as to the reliability, truthfulness and accuracy of his evidence. In reaching those conclusions, I have taken aboard the evidence of the defendant's excellent character and after having directed myself on the topic of the relevance and use to be made of that evidence.
In considering his evidence, I have regard to the opinions expressed by Mr. North; the initial inculpatory statement made by the defendant to Dr. Morton; the overwhelming evidence and hospital records which indicate that the defendant was alert and orientated and had a good perception and understanding of the nature and extent of his injuries and the reason for hospitalisation within days of sustaining the injuries; Mr. Gibson's evidence and the statements made by the defendant during the Richter and Saunders interviews. I have regard to the defendant's quite unconvincing and implausible explanations that he had gone to the marina for business purposes "on instructions" he had received from his father, yet his father was not called to give evidence. In the main, the whole of the defendant's evidence was based on what others had told him, yet on pertinent points those persons were not called. Apart from his evidence regarding what he did or said and as to when and where (which was based on information received) there was a period of time in the sequence of events when his evidence was based solely on his own personal involvement and recollection, mainly the time when he allegedly entered the Marina. I find that his evidence as to what he did there and to whom he spoke and what was said was perplexing and quite unconvincing. He totally fabricated that aspect of his evidence. The defendant struck me as intelligent young man who demonstrated traces of guile and cunning beyond his years. He was unconvincing in the witness box. He showed signs of tension and anxiety but was prepared to veil his answers behind a screen of vagueness, selective recall and uncertainty. He demonstrated a willingness to continue to hide the truth behind the shield of having suffered injuries resulting in retrograde amnesia and severe post traumatic amnesia. I could not help but feel a great deal of sympathy for him as a number of questions, screaming for an answer, remained unanswered. I can only speculate on those aspects. However, at the end of the day I am compelled to say that the defendant lacked in sincerity and did not impress or convince me as a witness of truth and I am constrained to reject his evidence.
I find that I can only treat the evidence of Mr. Billinger and Mrs. Zollo with
suspicion and as being woven in the same web of deceit.
Mr. Billinger's
evidence lacks authenticity not only from the impressions that I formed that it
was `coached' evidence but also when
seen in the light of defendant's evidence.
There are many instances when Mr. Billinger "offered" evidence explaining it as
"uncanny"
and "co-incidental". His evidence that he saw and recognised the
defendant's motor cycle at the front of the Tavern is in direct
conflict with
the evidence given by the defendant contained in the Saunders' interview. In
that interview, the defendant said he
had left his bike at the back of the
tavern and had walked to the front of the tavern `cause you can't ride
your bike round the front' (my emphasis). Never was it suggested by the
defendant
that, having seen the `yacht people' at the gate at the rear of the
tavern, he then got on his bike and rode it a short distance
to the front of
the tavern, parked it at the spot and in the manner where Mr. Billinger says he
saw it and then went inside the tavern
to say a "quick hello". The defendant
said, `on the way out I had a quick hoy to someone in the tavern, just sort of
just stuck my
head through the reception'. That evidence I find also appears to
be in conflict with Mr. Billinger's evidence that the rider of
the motor cycle
moved towards the tavern and `it was only a matter of 5 minutes or less
he returned and pushed the bike back and drove off' (my emphasis).
As to Mrs. Zollo 's evidence, I was left with the distinct impression that it
was tainted by her desire to bolster the defendant's
unfounded assertions that
he had suffered post traumatic amnesia.
On the whole, having given careful consideration to the witnesses and their
demeanour and forming the best conclusions as to the
relative values of their
respective evidence, where there is conflict and contradiction, I find that I
am unable to place any reliance
and confidence on the evidence of the
defendant, Mr. Billinger and Mrs. Zollo and have no option nor hesitation in
rejecting their
evidence.
I find that the defendant has cunningly invented, fabricated and reconstructed
his evidence to bolster his defence which leaves me
with considerable doubt
considering his veracity. As to the evidence of Mr. Billinger and Mrs. Zollo ,
he was either inaccurate, untruthful
or at any rate, unreliable.'
The Magistrate then went on to state that despite all this the onus lies on the prosecution and that the onus was to prove the requisite facts beyond reasonable doubt. He went on to find the defendant guilty with the following statement:-
`... I find, by inference, that the defendant was involved with the fraudulent claim either from its inception on 13 December 1990 or subsequently and retrospectively became the central party to it with full knowledge of its falsity and dishonesty and continued to fraudulently and dishonestly receive benefits from Workcover during the period alleged in the complaints before the Court.'
Mr. Peek contended that an analysis of the Magistrate's reasons taken with the evidence by witnesses before him demonstrates error. He contended that it was the case for the prosecution that the appellant had enlisted Gibson's aid to give false statements to WorkCover to corroborate his own falsehoods. The sequence of events are as follows.
On 13 December 1990, the claim was put in by the appellant's father Exhibit D6. Following that on 1 April 1992, Ritcher interviewed Gibson on the prosecution case and on the prosecution's case gave a false version of events. The transcript, (102) reads as follows:-
`Q. Firstly, did you tell Mr. Richter the truth on that occasion.
A. No.
Q. In what respect were you untruthful.
A. I told Bill Richter that I went out to Billy Light's Point by myself and that Rino had gone into the marina, into the tavern.
Q. Why did you say that to Mr. Richter.
A. I was led to believe that Rino wanted to be placed there for the claim, so that is what I said.
Q. Are you able to tell the court how you came to believe that.
A. I am not real sure, I think I did speak to Rino, but I cant (sic) remember when it was and I think just through general talk in the town as well.
Q. Have you spoken at all with Mr. Zollo about the circumstances of the
accident, that you can recollect.
A. No.
Q. That is the defendant, Rino Zollo .
A. Could you repeat the question again please.
Q. Can you recollect speaking to Mr. Rino Zollo about how the accident
occurred.
A. Only once.
Q. When was that.
A. Rino asked me to have a meeting with him at his grandmother's place one night and we talked about it then.
Q. Do you recall when that was, in relation to the interview with Mr. Richter, whether it was before or after that interview.
A. It was afterwards.
Q. I think you were interviewed by Mr. Basey, were you not, from Work Cover Corp.
A. Yes.
Q. This conversation you had with Mr. Rino Zollo , was that before or after
you spoke to Mr. Basey.
A. Afterwards.
Q. Did you go around to Mr. Zollo 's grandmother's place.
A. Yes.
Q. And what occurred.
A. We just talked about the circumstances of the day of the accident.
Q. In particular, what did you talk about.
A. I previous to that, that afternoon I wrote down a rough copy of what happened prior to the accident or leading up to the accident and took that around and he read through that.
Q. Since that date have you spoken with him about the circumstances of the accident.
A. No.'
Under cross-examination this topic was revisited. I quote, (126).
`Q. And you don't suggest for a moment that he gave you any information about what you should say if anyone speaks to you.
A. Not then he didnt, (sic) no.
Q. How many occasions since that day in hospital in January 1991 have you
spoken to Rino Zollo .
A. Twice that I can remember.
Q. When was the first.
A. The first time was down at the pizza shop.
Q. Why were you there.
A. I was getting pizza.
Q. What was Rino doing.
A. He was sitting at the table in front of the shop.
Q. What did you talk about.
A. I only asked him how he was, I think and how he was going.
Q. There were other people in the shop.
A. I dont (sic) think there was at that time, no.
Q. Did he ask you about the circumstances of the accident.
A. No.
Q. Did he say anything to you about the accident, or the Worker's Comp claim.
A. No, not that I can remember, no.
Q. He certainly didnt (sic) ask you to tell a story to anyone if you got interviewed.
A. No, not then he didnt, (sic) no.
Q. The next occasion you spoke to him was the occasion at his grandmother's, when there was this man you describe as a 70 year old.
A. Yes.
Q. Are you certain that is the last time you spoke to him.
A. Yes.
Q. Are you certain that they are the only two occasions since you saw him in the hospital where you have spoken to him.
A. No, I am not certain no.
Q. So there is another occasion.
A. I think so, yes.
Q. Or occasions.
A. Maybe, yes.
Q. At the meeting at the grandmother's you went down there armed with your notes about what you thought had happened.
A. Yes.
Q. But you had already been interviewed by Mr. Basey in Adelaide by then.
A. Yes that's right.
Q. Was the occasion at the pizza bar when you just asked him about how his legs were, or how he was feeling, was that before or after the interview with Mr. Richter.
A. No, that would have been before.
Q. Before the interview with Mr. Richter.
A. Yes.
Q. And there was nothing said about what you should say to anyone on that occasion.
A. No, not that I can remember, no.
Q. When was it that Rino Zollo told you anything about what you should say if
people asked you questions.
A. I dont (sic) know, I cant (sic) remember. I cant (sic) give you - I cant (sic) even say he actually told me.
Q. You told his Honour that you were led to believe that Rino wanted to be placed at the marina for the purposes of the claim.
A. Yes.
Q. What do you mean by the phrase, `to be placed there'.
A. For me to meet him there, to have met him there on the way back from Billy Light's Point.
Q. So did you understand that he wanted you to factitiously say that you had met at the marina.
A. Yes.
Q. Do you agree that Rino Zollo has never said anything to you to lead you to
that belief.
A. No, I am not saying that he hasnt (sic). I can see in my mind a brief conversation but I cant (sic) tell you where it was, I cant (sic) tell you when it was, and If (sic) I could, I would.
Q. Who was it with.
A. With Rino.
Q. What did he say in that conversation.
A. Just that he wanted me to say that when I came back from the Billy Light's Point that I met up with him there - let me start again. We rode out there, he turned off at the marina and went in there. I rode out to Billy Light's Point and came back and met him back at the marina car park and then we went out from there and that is when he had his accident.
Q. He told you all that.
A. Yes.
Q. When he told you this you knew that wasnt (sic) true.
A. Yes.
Q. Did he tell you why he wanted you to say that.
A. Just because that is what he wanted, to be placed at the marina.
Q. Did he say why he wanted to be placed at the marina.
A. Just because he, through his Work Cover Claim that he needed to - he was going to the marina, whatever for his business, to the tavern the shop or I dont (sic) know, for his business.
...
Q. He asked you to say that he was doing business.
A. He was doing business, yes.
...
(and at p.130)
Q. Do you remember when you were giving your evidence you said you were led to believe that Rino wanted to be placed there for the purposes of the claim.
A. Yes.
Q. Remember saying something like `I think I spoke to Rino'.
A. Yes.
Q. You are much firmer on that, now arent (sic) you.
A. Well, as in I think I spoke to him, I can see it in my mind but I cant (sic) place where it was or when it was.
Q. You also told his Honour that your belief was based on general talk in the town, remember saying that.
A. Yes.
Q. What you are saying now is, that general talk had nothing to do with it, it was -
A. That was general talk as well. About the Work Cover claim.
...
Q. And the sole contribution, contributing factor as to why you have lied to Mr. Richter, is because Rino put you up to it.
A. Yes.
Q. You cant (sic) tell us where the conversation occurred.
A. No.
Q. Nor when.
A. No.
Q. Can you tell us anything about who initiated the meeting.
A. No, I dont (sic) think there was any initiation of a meeting.
Q. Was it a chance meeting.
A. Yes.
Q. Did he tell you who was likely to ask you questions.
A. No.
Q. It must follow it was before the interview you had with Bill Richter.
A. Yes, must have been.'
The meeting between Richter and Gibson as indicated occurred on 1 April 1992 and that was where he made his first statement Exhibit D5. Richter's interview with the appellant occurred on 10 April 1992 Exhibit P4. Then on 18 June 1992 there was the interview between Saunders, Basey and the appellant Exhibit P1. That was followed by a interview between Basey and Gibson at Holden Hill on 19 June 1992.
I now turn to a consideration of the issue of whether or not Gibson should have been treated as an accomplice for the purposes of evaluating his evidence. As an accomplice a warning would have been applicable. Mr. Peek argued Gibson was an accomplice on the prosecution's case. Ms. Layton contended he was not. I think it true to say that the prosecution was contending he was involved in aiding and abetting at least in regard to the second and third counts on the second complaint.
In R. v. Standley unreported 8 December 1987, Johnson J., with whom the other Members of the Court agreed, said, (at p.12):-
`There must be some evidence which would permit the jury to find as a reasonable possibility that the witness is an accomplice before the question arises of the Judge being required to give the accomplice warning.'
While a reading of the evidence leaves a conclusion hardly clear cut given Gibson's confusing testimony set out above, in my view that possibility referred to by Johnson J. existed. Even if it is not correct that he was an accomplice then the Magistrate had a duty to deal with his evidence in a manner appropriate to the circumstances of a witness who was potentially unreliable (i.e. had told lies in respect to the matter and had a known motive to assist the prosecution). In Bromley v. The Queen [1986] HCA 49; (1986) 161 C.L.R. 315 at 319 Gibb C.J. stated:-
`What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of a particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is "Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?" [1986 A.C., at p.141]. There is nothing formal or technical about this rule.'
In the same case, Brennan J. noted, (325), that even in the established categories the rule of practice requires only such force as is needed to ensure that in the circumstance of a particular case there is no miscarriage of justice. I have no doubt on reading the transcript and particularly the cross-examination of Gibson that the defence solicited the material that justified the contention that Gibson had a motive for supporting the prosecution's case and being under some pressure in the circumstances otherwise than for reasons of the achievement of the truth. However as Ms. Layton states, the Magistrate states he directed himself as to the dangers of accepting the uncorroborated evidence of Gibson, (p.15): c.f. Mitchell A.C.J. in R. v. Drinkwater (1981) 27 S.A.S.R. 396 at 405. I acknowledge a concern with respect to the comments made by the Magistrate about Gibson (at p.16) and a rather remarkable impression this admitted liar had on the Magistrate as a `honest and sincere witness' whose evidence was `firm and consistent' on the central issue such that he had `no reservations in accepting his evidence'. But that may well have been so to the person seeing and hearing him: Devries v. Australian National Railways Commission (1993) 177 C.L.R. at p.472 (above cited). I do not agree with Mr. Peek's contention that in the circumstances this ipso facto amounted to a serious error of reasoning or demonstrated such infection of approach to the matter as to cause him to come to a wrong conclusion.
Mr. Peek took me to a number of authorities in respect to this issue of the approach of the Magistrate to the evidence. He commenced with Harris v. Mill, (unreported), von Doussa J., 3 February 1988. That case concerned an appeal against a conviction for assault on a young woman. The complainant then aged 14 said she was accosted by the appellant when walking. The prosecution called the complainant, a Mr. Ellis and a Sergeant Lawton, the latter two having no knowledge by direct evidence of the events. The case depended on the testimony of the young woman.
In his reasons for finding the defendant guilty, the Magistrate stated:-
`The onus of proof in these proceedings lies on the prosecution throughout and it has to prove all the elements of the alleged offence beyond reasonable doubt.
I indicate that I have had the opportunity of observing the personality and demeanour of the witnesses during the trial. I have assessed the accuracy of their observations and have formed a judgment upon their respective reliability and credibility.
...
In this case as in most trials heard summarily, the key issue is who to believe and to what extent and I am the sole person to assess the truthfulness and credibility of each of the witnesses called to give evidence.'
The Magistrate then went on to evaluate the comparative worthiness of the complainant and the appellant. He said this of the complainant:-
`...The victim, who was 14 years old at the time of the incident and 15 years old when giving evidence in court was obviously very nervous and at times confused by the court proceedings and questioning. I gained the distinct impression that at times during the course of giving evidence she was very tense and terrified by the court atmosphere and events, notwithstanding the obvious courtesy shown to her by counsel. She was tearful on several occasions. Nevertheless I am satisfied that she was a truthful witness and I accept her evidence notwithstanding signs of hesitation, vagueness, tenseness and fear. Having made allowances for her age and in my assessment immaturity I found her evidence to be consistent, convincing and reliable in relation to the matters in issue.'
He then assessed the appellant and was highly critical of him in almost every aspect. He concluded there was no confidence to be had in anything the defendant said and rejected his evidence on all central issues.
von Doussa J. commenced his analysis as follows, (p.9):-
`I am constrained to say that the opening paragraphs of these brief Reasons appear more a ritualistic formula of words than a proper application of principle to the facts of the case.'
He went on with the following further comments at pp.10 and 12:-
`In a summary trial without jury, the magistrate is not required to employ in his Reasons all the conventional language of the customary warning given to a jury, but the need for care in relation to the evidence of a child is no less. A magistrate must have regard to the dangers inherent in the evidence, and normally it could be expected that the reasons for judgment would make express reference to the topic, stating the degree of warning appropriate to the particular witness, and indicating what, if any, evidence was considered to provide corroboration ...
The Reasons for Judgment leave me with a strong sense of uneasiness that all the dangers which lurk in uncorroborated evidence of a young witness have been swept aside without adequate consideration ...
I think her evidence should have been considered with much care, yet no consideration seems to have been given to other possible explanations for the way she gave evidence. The reasoning of the Magistrates (sic) leaves me with the impression that he has assumed the reliability of her evidence-in-chief and on this assumption attributed all her difficulties to immaturity.'
Mr. Peek relied on this case saying that there were considerable similarities between its facts and the situation here. He also referred to the following passage and contended there was reason to think the Magistrate had failed to approach the matter in accordance with these principles.
`In a sense the key issue of many trials is credibility, but to pose the question as "who to believe" is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R. v. Calides (1983) 34 S.A.S.R. 355. There is a very real risk that the enquiry will become: "Which of the parties giving the competing stories is to be preferred". The preference of the victim's evidence to that of the defendant, even where the defendant's evidence is in consequence rejected, leaves unanswered the essential question of whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant's evidence does not provide positive proof of guilt. The preference of the victim's evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt. Even a finding that the victim was a truthful witness does not mean that the victim's evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant's guilt.'
His Honour allowed the appeal and quashed the conviction because of his accumulated concerns with the matter. In particular he dealt with the very strong criticism of the defendant's evidence described by the Magistrate as, `unconvincing, inconsistent, reconstructed and unreliable' and the observation that on a number of occasions the defendant qualified or sought to explain an answer previously given by him, when he felt the evidence was detrimental to him. His Honour said:-
`I have read and re-read the defendant's evidence and those statements do not convey the impression which I have received from the transcript. Counsel for the respondent, very properly in my view, conceded that he could not identify passages in the evidence which could support the breadth of these statements.'
He moreover stated that there was force in the submission that, instead of approaching the defendant's evidence with the presumption of innocence and with due regard to his uncontested good character, the Magistrate approached his evidence with a suspicion of guilt.
In pressing his argument in this regard Mr. Peek has referred to a very large number of authorities. I will not quote or refer to all of them but I refer to some out of deference to the earnest and well prepared argument submitted to me in this regard.
In the matter of A. v. Samuels (unreported) Judgment No. 4104, delivered 12 December 1978, the issue was an allegation of gross indecency in a public place. Mitchell J. referred to the Crown argument that the matter was simply one of credibility and the preferred view of the Magistrate should not be disturbed. She said, (p.6):-
`The special magistrate preferred the evidence of Mr. Bennett and Mr. Mathews to that of the appellant to whom he referred as having been in cross-examination "not as frank as he should have been". His Honour added:-
"Many of his answers were evasive and somewhat lengthy. When a decisive short answer could be given over and over again the answers were very prolix."
If the finding rested solely on credibility, after a proper evaluation of the evidence, then clearly it would not be for this court to interfere. But it seems to me that the special magistrate misconceived the evidence of the witnesses Mathews and Bennett.'
Her Honour went on to say, (p.8):-
`In my view it is unsafe to accept the evidence of any witness upon the ground that there is no apparent motive for the witness to wish to do injury to the person whom the evidence is calculated to injure. The reasons for false or mistaken evidence are multifarious and the fact that evidence is bizarre does not entitle it to more credence because no reason for concoction of the evidence is apparent than it would have if the evidence were commonplace.'
In Abnett v. Rees, (unreported), Judgment No. 9200, delivered 26 June 1986, the issue was an assault occasioning actual bodily harm. In the course of the short reasons the learned Magistrate recorded that the prosecution bore the onus of proving all of the elements of the alleged offence beyond reasonable doubt and further that the issue of the identity of the assailant involved in the alleged assault was an issue at trial and required reference to the authorities as to the danger inherent in the evidence of identification and of acting upon that evidence. The reasons of His Honour Matheson J. indicate that evidence tendered at trial, of the similarity between the appellant and his brother, showed that they looked very similar indeed. He also made reference to a passage in the Magistrate's judgment to the following effect:-
`The defendant did not impress me as a witness of truth and I reject his evidence. The evidence of his witnesses did little to establish a reasonable doubt of his guilt in my mind.'
His Honour went on to say, (p.10):-
`But I think that in a case of this sort, these words were unfortunate, to say the least. They do not engender a confidence in the reader that the learned Magistrate had kept an open mind until he had heard all of the evidence in the case. He had the advantage of seeing and hearing the witnesses called by the appellant, but in his reasons he says nothing adverse about their demeanour or anything of that sort, and upon reading their evidence, one does not get the impression that their evidence was incredible or that the cross-examination had been effective. I am frankly amazed that the learned Magistrate said what he did.
I think the learned Magistrate also overlooked the line of cases about the legal effect of a conclusion that an accused person was lying. I very much doubt whether the Judge considered whether there were reasons other than guilt that might account for untruthfulness, for example that he was trying to protect his father who was also being prosecuted for assaulting Poston, see Broadhurst v. The Queen (1964) A.C. 441 at 457. And I think it is likely that the learned Magistrate also overlooked the fact that there were three possibilities open to him, first, that he might be completely satisfied with the evidence led for the prosecution, in which case a conviction was the proper result; second, that he might be completely satisfied with the evidence presented by the appellant, in which case there would inevitably have been a dismissal of the information; and third, that he might arrive at the result that he was unable to say where the truth lay, or that he was unable to say who was telling the truth, in which case the proper decision would have been a dismissal of the information (see The Queen v. Calides (1983) 34 S.A.S.R. 355 at 357 (sic).
The appellant here made no admissions and denied his guilt on oath. There was no circumstantial evidence pointing to his guilt, and in all the circumstances I think a reasonable doubt arose.'
In Cutting v. Bates, (unreported), Judgment No. 9123, delivered 6 June 1986, the issue was shoplifting. In the course of dealing with the Magistrate's analysis of the evidence Jacobs J. stated, (p.7):-
`The learned special magistrate was moreover prepared to draw the inferences necessary to sustain a conviction because the security officer "has deposed to a number of things favourable to the accused, although he could have gilded his evidence against the accused". That reasoning, I am bound to say, inspires little confidence in the decision, and I would not like to see it repeated. It will be a sad day for the administration of justice, summary or otherwise, if the evidence of a witness is to be accepted as a basis for inferring guilt simply because the witness declined to perjure himself.'
In the matter of Cvarkovic v. Parker, (unreported), Judgment No. 1024, delivered 7 October 1988, the issue was common assault. Cox J. described this ex-tempore judgment as a typical jury case depending very much on the view taken of the witnesses. The Magistrate preferred the prosecution witnesses to the evidence of the appellant and his two witnesses. His Honour (p.4) stated his concern in the following terms:-
`I have read and re-read the evidence and I must say that I am puzzled by the learned Magistrate's criticisms of these witnesses. Molosovic's evidence reads sensibly and he does not claim to have seen everything. Perhaps he did give a different description of the way the appellant grabbed Bosnyak's shirt. Whether that was of great significance, six months later, would depend on the circumstances. Otherwise there does not seem to be any intrinsic error in Molosovic's evidence, - nothing to brand the witness as "completely unreliable". I suppose the criticism that "he was looking to construct his evidence" may have been an assessment of his demeanour but that is not clear. As for Vuin, the only reason the learned Magistrate had already given for regarding his evidence as unreliable was his inability to hear what was being said and the obstruction to his view created by parked or passing cars. One might regard a witness's evidence as inconclusive, because he was not in a position to hear or see everything that happened, but one would not ordinarily use the word "unreliable", and say that one had "absolutely no confidence" in his evidence, because of that.'
His Honour went on to allow the appeal and remit the matter for rehearing.
In the matter of Prater v. Rowbottom, (unreported), Judgment No. 2776, 12 March 1991, the issue concerned behaving in an indecent manner while visible from a public place. White J. referred to the reasoning of the Magistrate and in particular his statement that the account given by the main witness for the prosecution was clear and believable and `I am not persuaded by what the defendant said or any other material before the court that I should disbelieve it'. He went on to say, (p.6):-
`It is difficult to detect any misdirection in the way the magistrate approached the task before him other than a subtle implication of the reversal of the onus of proof in the underlined passage above. It is possible that he fell into the trap described by Wells, J in The Queen v. Calides (1983) 34 S.A.S.R. 355 and 356:
"On one approach to this case, it would appear [there were two bodies of evidence] that those two bodies of evidence were fundamentally opposed to one another and, as the learned Judge very properly pointed out to the jury, they could not both have been true on important matters."
The direction complained of in the Queen v. Calides was:
"...both versions in this case cannot be true. Either [the prosecution witnesses] have told you things on oath that are not true or the accused has. The two versions cannot be explained by any misunderstanding. It is for you to decide where the truth lies."
Wells J. went on to observe (at p.358):
"That may be a perfectly practical start, but, unfortunately, in my opinion, it suffers badly from a lack of proper guidance from the principles relating to onus and standard of proof ... it is wrong to treat ... [two competing bodies of evidence] with the comment, `It is for you to decide where the truth lies."
In the present case, the situation is not as black and white as it was in The Queen v. Calides and the magistrate did not direct himself expressly in the form of the direction given in Calides case ...
This statement contains a subtle reflection of the error in Calides case. There was no onus of persuasion upon the defendant. He could have stood mute. The magistrate had to go further and make a positive finding that he accepted her (i.e. the prosecution witnesses) evidence to the exclusion of the defendant's denials which he rejected completely.'
In Gibbons v. S.A. Police, (unreported), Judgment S4303, dated 3 December 1993, the issue was charges of assault upon a patient in a hospital by a nurse. Again the prosecution put the matter of being a simple question of credit resolved by the Magistrate who favoured the prosecution. His Honour, Mullighan J., dealt with the analysis by the Magistrate and stated, (p.8), as follows:-
`It may be seen from the reasons for judgment that the learned Special Magistrate did not say that he had brought to account the evidence of good character in any of the ways in which it is relevant. He seems to have accepted that the appellant is of good character because he said that he did not think "that your general character is at all in issue" and that the prosecution witnesses had not "suggested that there is anything adverse about your general character". However, he did not go on to say that the evidence had to be considered when deciding whether to draw from all of the evidence the conclusion that the appellant was guilty of either charge and that it is a factor affecting the likelihood of the accused committing the crimes charged. Also he did not say whether he had considered the evidence of character in assessing the credibility of any explanation given by the appellant and his credibility as a witness: The Queen v. Trimboli (1979) 21 SASR 577 per King CJ at p.578. As was pointed out by the High Court in Attwood v. The Queen [1960] HCA 15; (1960) 102 CLR 353 at p.359, evidence of good character of an accused "denotes a description of evidence in disproof of guilt". However, as was pointed out by King CJ in Trimboli's case, at p.578, evidence of previous good character cannot prevail against evidence of guilt which is convincing.'
His Honour in Gibbons then went on to deal with the aspect of the evidence given by the accused which had been viewed poorly by the trial Magistrate, (p.11):-
`Evidence of the accused at a trial may result in one of the following consequences. It may disprove the prosecution case or some important feature on it. It may strengthen the prosecution case and convince the court of the guilt of the accused. It may raise a reasonable doubt about the guilt of the accused. It may cause the Court to conclude that it cannot say where the truth lies. To pose the question as to whether the evidence of an accused person raises a reasonable doubt as to the evidence in the prosecution case is not to reverse, or in some other way to inappropriately apply, the burden of proof, particularly in a case where the court has accepted the witnesses in the prosecution case as being truthful, reliable and accurate. In that circumstance, the court is merely considering whether the sworn evidence of the accused has the consequence of casting doubt on the prosecution case or leaving the court in the position that it does not know where the truth lies.'
His Honour considered the totality of the matters raised on appeal and came to the conclusion that there were errors, such that it could not be said that the appellant had had a trial according to law. He allowed the appeal and quashed the convictions.
In G. v. R., (unreported), Judgment S5019, delivered 4 April 1995, the matter concerned unlawful sexual intercourse with a person under the age of 12 years. The trial proceeded before a Judge without a jury. In the course of their reasoning the Court of Criminal Appeal stated, (p.13):-
`In any case considerable caution must be exercised before making conclusions about the credibility of witnesses based upon their demeanour in the witness box. Some persons, including some children, may give evidence in an apparently plausible and convincing manner but not be truthful, reliable or accurate. Others may give a poor impression but be speaking only the truth. Needless to say, there are pressures on most witnesses which may affect their demeanour and apparent credibility, and no less an accused person who is facing very serious charges. Demeanour in the witness box may mask the true position and it is usually desirable to postpone conclusions about credibility of witnesses until after careful scrutiny and evaluation of all of the evidence. It does not appear from his reasons for the verdicts that the learned Trial Judge adopted that approach.
...
The learned Trial Judge appeared to have approached his task on the basis that "this is really a matter of oath against oath" and that having rejected the appellant as a witness of credit, he was left with the evidence of the grandson which he found necessarily truthful and reliable because of his favourable view about his credit. Such an approach would constitute an error.'
The Court then made reference to the decision of Harris v. Mill quoted above and went on to acquit the accused.
I accept the propositions that appear in each of these authorities but also recognise that they have been applied to the given circumstances before the Court in those cases. A further matter Mr. Peek addressed was the use that could be made of a conclusion that the accused lied. I think this is an important issue in this particular case because for reasons that I will relate on a reading of the transcript, the testimony of the appellant, if one is to go by the transcript alone, was very poor indeed.
Mr. Peek referred to Lynch v. Kennedy, (unreported), No. 7716, delivered 31 August 1984. That was a case involving the larceny of various items. The issue on the appeal was whether the Magistrate was entitled to draw an inference of guilt from the accused's evidence. In the Magistrate's decision appealed from, he was clearly impressed by the fact that the accused lied. He stated:-
`I find support for my conclusion in the fact that the defendant has shown himself to be prepared to lie if he believed it to his advantage. He lied to almost every person he came across that morning, and to Detective Kennedy. He gave various accounts to Detective Kennedy, all of which he has admitted were lies. Having observed him giving his evidence I would not be prepared to believe one word that he said, unless there was strong corroborative evidence to support him. Two people who could seemingly give corroborative evidence, namely his de facto wife and Plunkett, have not done so. I am entitled to, and do, draw an adverse inference against the defendant, although I hasten to add that is in no way a major factor in the conclusion which I have reached.'
Mohr J., coming to the conclusion that on the evidence, there was a reasonable possibility that some other person or persons interfered with and stole the property, ruled that whilst there could be no doubt the appellant had lied throughout, `that alone does not make him a thief'.
In Sommerkamp v. Lodge, (unreported), Judgment No. 2829, delivered 31 May 1991, the case concerned a prosecution under the Air Navigation Regulations. The Magistrate in finding the appellant guilty showed she attached great weight to discrepancies in his, the appellant's, version. In a long judgment, White J., referred to the decision of The Queen v. Harris (C.C.A.) unreported and the comments of King C.J. to the following effect, (at p.3):-
`Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking "a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all", Broadhurst v. The Queen (1964) App. C. 441 per Lord Devlin at 457'.
And at p.4:-
`The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime, must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood, is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt. What was said by the New Zealand Court of Appeal in The Queen v. Toia 1982 1 N.Z.L.R. 555 at 559 in relation to New Zealand can be said with equal truth of South Australia. I quote the passage:
"It is regrettable that a mystique seems to be developing in New Zealand about lies in criminal cases. The matter is not really complicated. There are two main ways in which lies by an accused may be important.
First, occasionally they are capable of adding something to the Crown case, whether as corroboration or simply as strengthening evidence. But as pointed out by this Court in R. v. Collings [1976] 2 NZLR 104, 116-117, most lies are not in that category. ...
Secondly, and more commonly, proved lies by an accused, whether in evidence or in statements out of Court, may be relevant to credibility. This is no more than a matter of common sense.
...
Generally speaking, however, a more elaborate Dehar type direction is needed only where it is suggested that a lie falls into the first of the two broad categories that we have mentioned. In other words, if [a judge is] prepared to go as far as to say to the jury that a lie by the accused may actually strengthen the case against him, the Judge will have to bring home to them also that before using it in that way they must be satisfied of two things."
In the same case I said at p.1-2:
"I agree that the appeal should be dismissed for the reasons given by the learned Chief Justice. I agree also with his Honour's comments about the too frequent, and usually inappropriate, use of lies told by the accused as evidence of consciousness of guilt. On relatively rare occasions a lie may constitute evidence of a consciousness of guilt and, as such, constitute a positive piece of evidence tending to add to other positive piece of evidence in proof of the prosecution case. In such cases, the lie constituting evidence of consciousness of guilt may either tend to corroborate or confirm the evidence of a witness requiring corroboration or confirmation or itself be one positive piece of circumstantial evidence which could be used with other circumstances to make out a case against the accused. When this is so, the appropriate use to be made of the lie capable of constituting consciousness of guilt must be carefully explained to the jury.
Apart from such relatively rare cases, the fact that an accused person has lied out of court to the police or in court to the jury is no more than a factor tending to undermine the credibility of his evidence in court. Such a lie can never constitute positive proof of the prosecution case. Rather, it is a negative factor which tends to weaken the defence case. Since there is no onus on an accused to prove anything, the only value of such a lie to the prosecution is that the accused's sworn denial of involvement in the alleged crime or involvement in the manner alleged or of guilty intent is of less value in undermining the force of the evidence in the prosecution case than would otherwise be the case. I said that a lie in the latter type of case does no more than undermine the credibility of an accused. The onus rests as steadily upon the prosecution to prove its case beyond reasonable doubt against an accused who has lied as against an accused who has not. For the above reasons the prosecution should not, in the great majority of cases, attempt to use lies by the accused as evidence of `consciousness of guilt' but confine the use thereof to attacks upon the credibility of the accused person as a witness. The confusion raised by inappropriate references to lies as evidence of `consciousness of guilt' is unproductive and a source of confusion to all involved in the trial. In this case the learned trial judge was forced to give a direction about lies and consciousness of guilt (and other explanations for lies) because the prosecution, in addressing the jury, had placed so much stress upon the lies as evidence of consciousness of guilt. The accused's evidence of his minor defensive role was, however, completely inconsistent with the medical evidence of the numerous injuries suffered by the elderly victim and the accused's lies merely adversely affected his credibility as a witness and thereby weakened the force of his opposition to the evidence of the prosecution witnesses.'"
In Edwards v. The Queen, [1993] HCA 63; (1993), 178 C.L.R. 193, the High Court considered the same matter. Brennan J. stated the matter thus, (p.202):-
`The telling of a lie by an accused is frequently relied on as a piece of evidence tending to inculpate the accused in the offence charged. The jury must consider the weight to be given to that evidence, but the weight of particular pieces of evidence does not involve a standard of proof. The relevant standard of proof governs the making of a finding of material fact on the pieces of evidence which logically, if not chronologically, the jury has al-ready evaluated. The standard directions given by judges to juries in criminal cases distinguish (perhaps without consciously adverting to the distinction) between the evaluation of evidence and the finding of material facts. Recognition of this distinction goes a long way towards avoiding whatever misunderstanding there may be about the majority judgments in Chamberlain v. The Queen [No. 2] [1984] HCA 7; (1984) 153 C.L.R. 521 relating to the drawing of an inference of guilt.'
His Honour then went on to cite the remarks of Lord Devlin in Broadhurst's Case in the following terms:-
`It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.'
At p.208, Deane, Dawson and Gaudron J.J. stated as follows:-
`Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to "convert what would otherwise have been insufficient into sufficient evidence of guilt" or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that "if he tells the truth, the truth will convict him."'
Part of the reason for the importance of these matters is demonstrated when one considers the evidence of the accused. Apart from his statements in Exhibit P1 and P4, he gave evidence under oath about the accident. He stated, (208) as follows, in relation to the period immediately preceding his accident:-
`Q. What is your next actual memory of that day.
...
A. My next definite memory, speaking to Gibbo in the carpark. He was sitting on his bike and I was sitting on mine and I recall asking him if he would like to go for a ride to the marina because I had a job to do.'
He then states his next memory was waking in the Royal Adelaide Hospital, `with strings attached', (209). He relates a conversation he had with Gibson in February 1992, (216). The topic of the accident came up. He states:-
`A. He told me that we met down the front street and we chatted for a bit and that he did recall me asking him if he would like to go for a ride to the marina because I had a job to do and he agreed that I follow him out and when we got to the marina I turned off and he continued on and on the way back he said he saw me have the accident.
...
Q. Who told you that you had a job to do at 12.
A. My father.
Q. Do you recall when or where you were told that.
A. No, I can't recall exactly where but it probably would have been sometime when I was in Port Lincoln Hospital.
Q. Prior to speaking to Gibbo in February 92, did you have any other belief as to what happened on the day of the accident.
A. I knew that I had been instructed to go to a job down in the marina and I could recall asking Gibson if he wanted to come for a ride and I can recall following him out of the main street and therefore, it made sense to me, that is what I must have done.
Q. Prior to speaking to Gibbo in February 92, did you of your own knowledge, know or have any actual memory of why you should be going to the marina.
A. No, not of my own memory no.
Q. Prior to speaking to Gibbo in February 92, did you have a belief as to why you were going to the marina.
A. Yes I did.
Q. What belief did you have.
A. I believed I was going there to do a job as instructed by my father, who was my employer.
Q. Why did you have that belief.
A. He told me of the events of the morning and I did recall rolling the oven, so it made sense and I believed I went to do that job.
Q. Do you recall when your father told you about the reason for going to the marina.
A. No, it probably would have been whilst I was in the Port Lincoln Hospital after I returned from Adelaide. ...'
(I leave aside for the time being the cross-examination concerning his statement to Constable McAlister on 14 January 1991 Exhibit P7, which is dealt with at pp.239 through to 249.) In cross-examination he was tested as to his very specific statements to Mr. Richter on 10 April 1992 and in particular, (256), he gave the following answers.
`Q. You also said to him "From the foreshore I went down to the marina saw these people, hopped into the Tavern very quickly, just said hullos, just because they ordered pizzas on weekends or something, I just said "Hullo" and on my way back that is when I had the accident. You said that to Mr. Richter did you not.
A. Yes I did.
Q. What was the source of that information.
A. That was based on two sources of information. Firstly that I was told by my father that I had been instructed to do a job and secondly that Mr. Gibson in February had told me that I did turn off at the Marina. Therefore I assumed that yes that is what I would have done.
Q. Your job wasn't at the Tavern was it.
A. No. It was in the Marina.
Q. Your job wasn't at the Tavern was it.
A. No it was not.
Q. when (sic) you turned off you were to the best of your knowledge at that stage going to see some people at a gate removed from the Tavern.
A. Yes but it is very nearby and at the same token it is a good opportunity to use a colloquial phrase, to kill two birds with one stone. My job was manager and to promote the business. The tavern work pre-regular customers, especially weekends, they would order multiple pizzas and it was good P.R.
Q. Well did you assume that you popped into the Tavern.
A. It is most likely I would have, yes.
Q. Did you assume you sort of said hullo.
A. Yes I assumed that.
Q. Why would you assume that.
A. Well I wouldn't have gone in there for a drink or anything of that nature so I assume on a business trip it would have been a short, sharp and shiny trip, meeting.
Q. Was that your habit whenever you went to the Marina.
A. How do you mean is that my habit.
Q. When you went to the Marina other than on business would you pop into the Tavern and see your customes (sic) just sort of say hullo or something and that would be it.
A. No because I don't think I ever went to the Tavern before that particular day as far as on a business trip.
Q. But you had no intention when you left as far as you can determine of going to the Tavern did you.
A. How can you -
Q. From the information that you had, the time you were going to the Marina you had no intention to (sic) going to the Tavern.
A. No, but as I said before being in the close vicinity of the other meeting it is most likely I would have gone there on the grouns (sic) that they are good customers.
Q. So when you said "From the foreshore I went down to the Marina, you meant (sic) to say from the foreshore I assume I went down to the Marina".
A. Yes.
Q. I assume I saw these people.
A. Yes.
Q. I assume I popped into the Tavern.
A. Yes.
Q. I assume I said "Hullo" to them.
A. Yes.
Q. When you were asked "Where did Anthony Gibson go what did he do" and you said "Well I turned off to go to the Marina and he kept going".
A. Yes he told me that in February 1992.
Q. That wasn't an assumption on your part.
A. No that is information I had obtained, Mr. Gibson had given it to me and I was relaying it.
Q. It wasn't a recollection.
A. No it was not.
Q. So what you meant to say was "When I turned off to go to the Marina, he told me that he had kept going".
A. To be more correct, yes.
Q. The next question you were asked, "When you were at the Marina to see these yachts people, how many people"
OBJECTION Mr. Crocker objects.
QUESTION REPHRASED.
Q. Right, when you were at the Marina to see these yachts people how many people did you talk to and your reply was "Two".
A. Yes on the assumption that my father told me that there were two people that came to the shop that morning so I figured there were two that I had to see and did see.
Q. And that you spoke to.
A. Yes.
Q. So when you said "Two" you meant to say I assume I saw the two people that my father had told me about.
A. Yes.
Q. Then he asked "Just two do you know who their names are". To which you answered "No I don't know what their names are because like I said I don't have very much to do with the yachts people very often. These two just dropped in when I was fitting the oven. I cruised down there to see them .. and just organised them to ring from the LeuisureCentre (sic) phone, like the phone that was at the Leuisure (sic) Centre just to ring from there and say they are the yacht people there would be no hassles, there would be no problems at all right.
A. Yes.
Q. What was the source of the information contained in that answer.
A. Can you break that down please.
Q. You said you didn't know what the names of these people were correct.
A. No I did not.
Q. In fact you didn't even remember that you had been down to see people did you.
A. No.
Q. You didn't even remember that people had been into your shop.
A. No.
Q. You didn't convey that to Mr. Richter when he asked you whether you knew their names.
A. No.
Q. You said that I cruised down there to see them like at all, what was the source of that information.
A. That was an assumption based on that my father told me I had an appointment at 12 o'clock.
Q. Your assumption was that you would have kept that appointment on time, correct.
A. Around about yes.
Q. Or otherwise these people who were unknown to you may well have disappeared and you would lose custom.
A. Possibly.
Q. You would try to be on time.
A. Yes.
Q. That would be your habit to be on time.
A. Yes that would normally be my habit.
Q. And you assume you only spoke to them for a very brief period of time.
A. I assume so.
Q. You made a very brief visit to the Tavern.
A. Yes.
Q. Is that your assumption.
A. Yes.
Q. And you assume you left them to come back to town.
A. Yes.
Q. So the accident occurred you say could have occurred at 12.30.
A. In that time phrame (sic) yes.
Q. What time phrame (sic) are we talking about Mr. Zollo .
A. My understanding it was somewhere between 12.15, my understanding it was 12.15 but given the information I had been given by Mr. Richter and Mr. Gibson, I believe it could have been between 12.15 land (sic) 12.30.
Q. Your answer continues, "And just organise them to ring up from the LeisureCentre phone, like the phone that was at the LeisureCentre. Just to ring from there and to say that they were the yacht people and there would be no hassles.
A. Yes.
Q. What was the source of that information.
A. that (sic) is an assumption based on the fact that they would have to ring to order a pizza and it is not likely they would be telephoning from the Dockside Tavern which is a source of food anyway. It is more likely that they would have had to go to a public phone box nearby.'
This style of answering continued through a lot of the defendant's cross-examination. The matters went further with the appellant describing the person occupying the reception desk and correcting Mr. Richter that it was a boy and not a girl. He stated in cross-examination, (264), that on reflection that was an assumption. He went on, (264) to confirm that he had no memory whatsoever of the attendance at the tavern and moreover his only grounds for all he said to Richter was that he had been told he had to go to the marina and Gibson had told him he had turned off on the road leading to it. Of course Gibson denied this.
He was cross-examined in respect to his statement to Saunders and the following appears, (274):-
`Q. He asked, "The arrangment (sic) was that you'd meet them at 12 oclock (sic) at the marina is that correct" and you said, "That's right".
A. Yes.
Q. Saunders said, "Which route did you take to go to the marina from here" and you and you said, "From here right I did my plan, I went from here down to the main street. I had about 15 minutes to kill, right, so I went down the main street, grabbed a drink, went from the main street down to the marina." What was the source of that information.
A. It was an assumption based on the fact I cant (sic) remember having breakfast that morning, therefore, I thought I would have been hungry and had something to eat in the middle of the day.
Q. You cant (sic) remember during the day, apart from the time when you were woken up and the time you remember pushing the oven.
A. Yes.
...
Q. Mr. Saunders said later "How long do you reckon you were at the marina for" and you said, "Not long". He said, "5 minutes" and you said, "Yeah, 5-10 minutes". What was the basis of that answer.
A. That the task I had to do down there was not a long task.
Q. He asked you, "When did you actually meet these people at the marina" and you said, "Down the marina, like you know, where you, oh you wouldnt (sic) know. Where you go into the yachts, right. There's a gate and up there is where I met them at the gate". Is that an assumption.
A. Yes that is.
Q. Based on what.
A. Based on the fact yachts people would be in the marina and the only way out of the marina is through the gates.'
In the light of the information in P1 and P2, this revised recall by the
appellant is extraordinary. It must have certainly allowed
the Magistrate to
form a poor view of the appellant's credibility. However having considered the
reasons for decision, I am not convinced
that the Magistrate employed this
material in a negative sense, that is that rather than regarding it as having
no affect on the
reliability of the evidence of Gibson, allowed it to proceed
to a positive piece of evidence of the appellant's guilt. It was clearly
a
justification for the Magistrate regarding information emanating from the
appellant as very unreliable and this of course would
have effected the view
that he would have taken of the evidence of the doctors. It is quite clear that
Reid's evidence was contingent
on the history he obtained, (249) and the truth
of what Zollo told him, (364). It is to be remembered that Dr. North was giving
evidence
without the assumption of the history that was given to Reid. Dr.
North never attended on Zollo .
I regard the attack by Mr. Peek on the treatment of Billinger, Zollo and
Reid by the Magistrate as insufficient to show a failure by the Magistrate in
the overall
context of the evidence he had to deal with. Moreover these
considerations fall within the group of matters the Magistrate had the
advantage in respect to. In other words, I am not persuaded there was a failure
to attach the correct onus of proof, or, that there
is some demonstrated error
of reasoning in considering the matter. The attack upon the conclusion of the
Magistrate and his reasonings,
as disclosed in the evaluation of the evidence,
fails.
REBUTTAL EVIDENCE
The appellant has contended that the fact that the prosecution was allowed to call rebuttal evidence and in particular Dr. North amounted to splitting the case, as the defence case at a very early stage disclosed the appellant's memory was a matter in issue, (i.e. the memory of the events). Mr. Peek refers to Shaw v. R. [1952] HCA 18; (1952) 85 C.L.R. 365 and R. v. Hickman [1993] SASC 3993; (1993) 60 S.A.S.R. 415, inter alia.
I am in agreement with Ms. Layton where she contends that a fair reading
of the transcript shows the case for amnesia was not squarely before the Court
at the outset
or during the prosecution. In fact the prosecution would have
been entitled to regard the statements, Exhibit P1 and P4, as indicative
of the
position that would be taken by the defence. Moreso given the extent of that
loss of memory which, as indicated in the passages
taken from the evidence,
show quite an inordinate post traumatic amnesia. The defence contended an
amnesia through to weeks after
the accident. Zollo did not recall anyone
visiting him during his period at the Royal Adelaide Hospital, (210). He did
not remember
receiving treatment in that institution. His first knowledge of
time was in Port Lincoln at the end of January before Tunarama. That
is a very
significant position and of course was at odds with his earlier
representations, (see also Exhibit P11). As a result, it
did constitute in my
view a peculiar situation which empowered the Magistrate, in the exercise of
his discretion, to allow rebuttal
evidence: see R. v. Chin (1985) 157
C.L.R. 617.
THE DESTRUCTION OF EVIDENCE AND THE QUESTIONS RELATING TO PRIVILEGE DOCUMENTS.
During the course of this hearing I was alarmed by the actions of the WorkCover officials in wiping certain tapes of interview with Gibson. At the time and now I regard this as improper. The proper task of the investigator is to collect evidence and certainly not to destroy any. However I am not persuaded in the result that it is cause to quash the result of the trial. See Gibson at pp.163, 164, 165, 185, 186 and 191. But, I repeat my disquiet about such actions. See Holmden v. Bitar (1987) 47 S.A.S.R. 509 at 517.
I also deal with the question of the behaviour of the prosecution in having in its possession statements made by Gibson to the defendant's solicitors and which Gibson thereafter, gave to the prosecution without the defence being advised. In other words the prosecution failed to pass that information on to the defence. I indicated at the hearing of this matter that I regard that behaviour as quite improper and to be censured. The behaviour of the prosecution under section 120 should be, in my view, no less than that imposed on the Crown Prosecutor in normal prosecutions. See Carter v. Hayes S.M. and Another [1994] SASC 4477; (1994) 61 S.A.S.R. 451. As Jacobs J. said in Milocco v. Bates, (unreported), Judgment S1720, of 31 August 1989. I quote from the latter:-
`In these circumstances, it is unnecessary to examine further the criticism of the conduct of the prosecutor. Some of the matters were brought to the attention of the learned special magistrate during the course of the trial, and others were raised, somewhat belatedly, after judgment had been reserved and just before the magistrate was about to deliver his decision and his reasons, when he was asked to abort the trial. He declined to do so, because he was confident that his judgment was not and would not appear to be, impeded or influenced by any of the matters that were raised, and there I think this aspect of the case should rest, but perhaps with this observation, that an appearance of fairness on the part of those who prosecute, or indeed on the part of those who defend, is important to the due administration of justice. Glib references to "objectivity" and "impartiality" are not of much help, because an adversary situation invites taking one side or the other; but although the defence may be expected to fight for an acquittal, it is really no part of the prosecutor's role to fight for a conviction at any cost. At the very least fervour must be tempted by discretion. The fact that criticisms of the kind made in this case, which do not strike me as frivolous, are made at all is a cause for some disquiet, even if they have no legal consequence.'
CONCLUSION
As I have indicated above and as was emphasised by Ms. Layton at the outset, findings of credit featured significantly in this case. I agree with her that the elements which had to be proved beyond reasonable doubt under section 120(1)(a) are:-
(1) that the accused obtained compensation.
(2) that he was not entitled to it.
(3) that it was obtained as a consequence of the accused's `dishonest means', that is by acts of the accused done in the knowledge it was dishonest and for the purpose of obtaining the compensation he was not entitled to: see Campbell v. Hakof Supreme Court (unreported) S.5153, Catlin v. Weinel I.109/1995.
In this case by accepting the evidence of Gibson the Magistrate had a basis for concluding the accident did not happen arising out of or in the course of employ. Furthermore given the same evidence the Magistrate had a basis for concluding the requisite dishonesty. The other points were not in issue. I have given careful consideration to the submissions of Mr. Peek. I have considered them in the accumulative manner in which he has asked. I have been concerned with aspects of the matter but I am not persuaded there was error which justifies my interference with the Magistrate's conclusions. However as explained above, the appeals against the first complaint and Counts 2 and 3 in the second complaint are allowed and those convictions are quashed. The appeal against Count 1, in the second complaint, is dismissed.
I will hear counsel on the remaining matter of penalty.
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