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Court of Criminal Appeal 12 April 2006

Suman SOOD v Regina

[2006] NSWCCA 114

Also reported as 165 A Crim R 453
Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST CONVICTION PARTICULAR OFFENCES CRIMINAL LAW ELEMENTS OF STATUTORY SCHEME

Citation: Suman Sood v Regina [2006] NSWCCA 114
Court: New South Wales Court of Criminal Appeal
Date: 12 April 2006
Judge(s): Spigelman CJ, Simpson J, Adams J

Background

The appellant was a medical practitioner who operated a clinic providing termination of pregnancy services. She was registered as a provider with the Health Insurance Commission (HIC) and made claims for Medicare benefits through bulk billing arrangements, under which a patient assigns their Medicare benefit directly to the treating doctor as full payment for the professional service rendered.

The Crown alleged that, while claiming assigned Medicare benefits for termination procedures, the appellant also charged patients separately for counselling and operating theatre services. Under s 20A of the Health Insurance Act 1973 (Cth), an assigned Medicare benefit must be accepted as full payment for the professional service in question. The Crown's case was that by charging additional fees and still submitting bulk billing claims, the appellant made false declarations on the claim forms and dishonestly obtained financial benefits from the HIC.

A jury in the District Court convicted the appellant on all 96 counts of dishonestly obtaining a financial benefit by deception, contrary to s 134.2 of the Criminal Code Act 1995 (Cth). She was sentenced to 300 hours of community service on the first count and fined $250 on each of the remaining 95 counts. The appellant did not challenge the sentence but appealed against conviction.

  • Whether the trial judge made a ruling of law that the appellant had made a false statement on the claim forms by reason of having no entitlement to claim the Medicare benefits
  • Whether the trial judge's summing-up effectively directed the jury to find, as a matter of law, that the appellant had made a false statement
  • Whether the question of the appellant's entitlement to claim the benefits was a question of law (for the judge) or a question of fact (for the jury)
  • Whether the additional fees for counselling and theatre services were charged "in respect of" the procedure covered by the relevant Medicare item number, such that the appellant had no entitlement to bulk bill
  • Whether the trial judge's directions on dishonesty were adequate and in accordance with the definition in the Criminal Code, and whether any deficiency constituted a miscarriage of justice
  • Whether, if the conviction were quashed, a new trial should be ordered or the appellant should be acquitted outright

Decision

Entitlement as a question of law or fact

By majority (Spigelman CJ and Adams J; Simpson J dissenting), the Court held that whether the appellant was legally entitled to claim the assigned Medicare benefits was a question of law to be determined by the trial judge, not a question of fact for the jury. Spigelman CJ applied the principle from Collector of Customs v Pozzolanic Enterprises Pty Ltd that the proper construction of a statutory regime, including whether conduct falls within or outside that regime, is a legal question. Simpson J dissented, concluding that the issue was one of mixed law and fact and thus properly a jury question.

The trial judge's summing-up

Spigelman CJ and Adams J agreed that the trial judge did not formally rule on entitlement as a matter of law before the jury's deliberations. However, Spigelman CJ held (with Simpson J dissenting on this point) that the effect of the summing-up was nonetheless to direct the jury that the appellant had, as a matter of law, made a false statement. This was a legally significant distinction because entitlement, being a question of law, required a judicial ruling rather than a jury finding.

Meaning of "in respect of"

The Court divided on whether the additional charges fell within the phrase "in respect of" the procedure under the statutory scheme. Spigelman CJ (with Adams J contra, and Simpson J not deciding) held that the phrase "in respect of" carries a wide meaning in the legislative context, and the additional services were sufficiently connected to the procedure to fall within it. Adams J took the contrary view, concluding that the relevant charges were for genuinely distinct services not covered by the item number, and that the appellant therefore had a reasonable basis for treating the extra fees as falling outside the bulk billing claim.

Dishonesty directions

All three judges agreed that the trial judge's directions on dishonesty were confusing in relation to a central element of the offence. The directions failed to conform to the definition of dishonesty set out in the Criminal Code, and this failure constituted a miscarriage of justice. This ground alone was sufficient to allow the appeal.

New trial

Spigelman CJ and Simpson J ordered a new trial. Adams J dissented, concluding that the appellant should be acquitted outright. Adams J reasoned that, on the evidence adduced at trial, no conclusion adverse to the appellant on entitlement was rationally open, and that permitting the Crown to mount a substantially different case (including expert evidence it had deliberately chosen not to call) would be inappropriate.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Under the Criminal Code Act 1995 (Cth), a conviction for dishonestly obtaining a financial benefit by deception requires that the jury receive directions on dishonesty that conform to the Code's definition; failure to do so can constitute a miscarriage of justice sufficient to quash a conviction.
  • By majority, the Court of Criminal Appeal held that whether a Medicare provider was legally entitled to claim assigned benefits under the Health Insurance Act scheme is a question of law, to be resolved by the trial judge rather than left to the jury as a factual matter.
  • A summing-up that effectively directs a jury to find a false statement as a matter of law, without the trial judge first formally ruling on entitlement, is procedurally problematic where entitlement is itself a legal question.
  • The phrase "in respect of" in the Health Insurance Act 1973 (Cth) was held by Spigelman CJ to carry a broad meaning, such that additional charges for services connected to a bulk-billed procedure could still fall within the item number claimed, though Adams J reached the opposite conclusion on this statutory construction point.
  • Where a conviction is quashed on appeal, the question whether to order a new trial requires consideration of whether the Crown's conduct at trial, including deliberate forensic decisions about evidence, would render a fresh trial against the interests of justice.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth): ss 130.3, 134.1, 134.2
- Health Insurance Act 1973 (Cth): ss 20, 20A

Cases
- Collector of Customs v AGFA-Gevaert Ltd (1995) 186 CLR 389
- Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
- Dalima Pty Ltd v Commonwealth of Australia (NSW Supreme Court, unreported, 22 October 1987)
- Hope v Bathurst City Council (1980) 144 CLR 1
- Peters v The Queen (1998) 192 CLR 493
- R v Petroulias (2005) 62 NSWLR 663
- Vetter v Lake Macquarie City Council (2001) 202 CLR 439
- Wonall Pty Limited v Clarence Property Corporation Limited (2003) 58 NSWLR 23
- Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642