The Queen v Peninsula Care Proprietary Limited
[1999] QCA 421
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- The Queen v Peninsula Care Proprietary Limited[1999] QCA 421
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The Queen v Peninsula Care Proprietary Limited[1999] QCA 421
The Queen v Peninsula Care Proprietary Limited[1999] QCA 421
COURT OF APPEAL
de JERSEY CJ
McPHERSON JA
DAVIES JA
CA No 276 of 1999
CA No 277 of 1999
CA No 278 of 1999
THE QUEEN
v.
PENINSULA CARE PROPRIETARY LIMITED,
KERRY MARIE BISHOP and
MALCOLM FRANCIS BISHOPApplicants
BRISBANE
DATE 06/10/99
JUDGMENT
DAVIES JA: These are three applications for extension of time within which to appeal against convictions under the Crimes Act 1914 (Cth) and, if they are granted, appeals against those convictions.
The applicants were each convicted on 9 July last on their own pleas of guilty. Notices of appeal were filed in each case on 13 August only a few days out of time. Explanations were give in each case for the delay and if there were reasonable prospects of success on appeal they would be sufficient to justify granting an extension of time. Accordingly this Court, without ruling on the applications for extension, proceeded to hear the appeals.
The indictment to which the corporate applicant pleaded guilty contained one count that between 30 June 1987 and 1 July 1995 at Brisbane and elsewhere in the State of Queensland it defrauded the Commonwealth of money paid pursuant to the National Health Act 1953 in respect of nursing and personal care staff costs for nursing homes. Each of the other applicants then pleaded guilty to a single indictment alleging that each was knowingly concerned in that offence.
The corporate applicant had originally been charged on an indictment containing 15 counts of defrauding the Commonwealth and one of attempting to defraud the Commonwealth of moneys paid pursuant to the National Health Act in respect of nursing and personal care staff costs for nursing homes and each of the other applicants had been charged on 16 counts of being knowingly concerned in the offences by the corporate applicant.
Applications were made to the trial Judge to stay each indictment on the ground, or at least the main ground on which this appeal was sought to be argued. That stay was refused.
Negotiations then took place between the parties which resulted in those indictments being withdrawn and the indictment to which I have already referred, to which each of the applicants pleaded guilty, being presented.
The frauds alleged in the original indictments and in the indictments to which the applicants pleaded guilty, were contained in forms, described as NH20 forms pursuant to which the applicants claimed funding from the Commonwealth for nursing homes owned and conducted by them.
Funding was payable at two levels. The higher level related to nursing and personal care costs; the lower to infrastructure costs. The indictments alleged that staff who did not provide nursing or personal care were included in the claim for nursing and personal care costs. Some of them were clerks (including clerks employed in Melbourne), others were handymen, gardeners, kitchen aids, cooks, cleaners and laundresses.
The argument advanced below for a stay of the earlier indictments and persisted in before this Court as a basis on which it was contended that convictions on the later indictments constituted a miscarriage of justice, was that in order to prove fraud, the representation that payment for these employees was payment for nursing and personal care costs must a representation of existing fact and it was not such a representation; it was either a representation of law or a representation of mixed fact and law.
It was submitted in this Court that the applicants were required to consult and interpret subordinate legislation of the Commonwealth, in particular the 1987 fee determination principles and subsequent amendments which sought to define the meaning of "nursing and personal care", "nursing and personal care staff" and "assistant to a nurse".
It may be accepted, for present purposes, that the first part of the contention I have just outlined is correct; that is, that to constitute the relevant offence the representation must be one of existing fact.
The definitions of "nursing and personal care staff" and "nursing and personal care" are contained in each of the NH20 forms the subject of the charges signed by one or other of the personal applicants. Nursing and personal care staff is defined to mean in relation to a nursing home,
"employees of the proprietor of the nursing home or sessional, agency or contract staff who provide nursing and personal care to patients of the nursing home and who are:
(a)the Director of Nursing;
(b)registered nurses (other than the Director of Nursing), including registered nurses who supervise the work of other nurses;
(c)enrolled nurses or nurses' aids;
(d)assistance to nurses, wardsmen;
(e)therapists including dietitians, nutritionists, assistants to therapists and podiatrists;
(f)medical practitioners, pharmacists and psychologists; or
(g)social workers, qualified welfare workers."
It is also then provided in the definition that dentists, dental therapists and other members of the dental profession are excluded from those categories, except for the provision of training to NPC staff for oral and dental care.
Nursing and personal care is defined to mean,
"(a)the planning or giving of nursing care to an approved patient by nursing and personal care staff; and
(b)other care (including therapy, counselling and classification of patients) and oral care (where this is not given by a member of the dental profession), provided to an approved patient personally by nursing and personal care staff to -
(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance;
(ii)assist in the rehabilitation of the patient; or
(iii)meet a special need of a patient.
(c)the provision of a structured training program to other nursing and personal care staff by people with appropriate nursing, therapy or other appropriate professional qualifications, where the sole object of the program is to develop, maintain and improve the skills required by nursing and personal care staff in providing nursing and personal care or in assisting patients to maintain oral and dental health including training programs run by officers of the Department and programs on occupational health and safety."
Assistant to a nurse is defined in the fee determination principles to mean,
"A person who assists a nurse to provide nursing and personal care to approved patients and who is not a registered nurse or an enrolled nurse or a nurses' aid."
It can be seen from these definitions that the term "nursing care" is not further defined, but the term "personal care" requires that it be both personal and that if it doesn't come within paragraph (c) of the definition of "nursing and personal care", it be for one of the purposes defined in paragraph (b) of that definition.
In Seventh Ming Court Pty Ltd v. Lawrence (1996) FCR 367 at 378-9, Justice Branson said in respect of the above term "nursing care":
"Whether any particular activity in fact amounts to nursing care within the meaning of the definition is thus a question of fact to be determined in the light of the ordinary meaning of the expression 'nursing care'."
Her Honour's view, in my opinion, is undoubtedly correct. The meaning of ordinary words is not a question of law. In Brutus v. Cozens [1973] AC 854, Lord Reid, speaking of the meaning of the word "insulting" in s. 5 of the Public Order Act 1936, said at 861:
"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense, the Court will determine in other words what that unusual sense is. But here there is, in my opinion, no question of the word 'insulting' being used in any unusual sense. It appears to me for reasons which I shall give later, to be intended to have its ordinary meaning. It's for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of a statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved."
In Hope v. Bathurst City Council (1980) 144 CLR 1, Justice Mason as His Honour then was, with whose reasons the other members of the Court agreed, said at 7:
"However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens was just such a case. The only question raised was, whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question is one of fact."
In my opinion, both the question of what was nursing care and that of what was personal care (that is, relevantly, care given personally for one of the defined purposes) were each questions of fact. So is the question who was an assistant to a nurse.
In each case, the words are used in their ordinary sense. Moreover, in that sense, none of the categories of employees the subject of the charges could arguably have been performing either nursing or personal care.
The learned trial Judge was therefore correct, in my view, in refusing to stay the indictments and there is no miscarriage in the convictions on the subsequent indictments.
The applicant's counsel referred to matters of public policy and certainty, but as he submitted, or perhaps I should say conceded here, these are no more than additional arguments in support of the principal argument which I have just rejected.
I said earlier that I was prepared to assume for the purposes of considering this argument, that to constitute the offence the representation has to be one of existing fact. I would not like it to be thought that I am acceding to that proposition. However, it is unnecessary to consider it further.
Nor is it necessary to consider, in my view, the further argument of the respondent, that in any event having pleaded guilty to a different indictment alleging a different offence, none of the applicants can now appeal on the basis on which they have.
Because each of the appeals must, in my view, fail, the applications for extension of time should, in my opinion, be refused.
THE CHIEF JUSTICE: I agree.
McPHERSON JA: The appellants were charged under the Crimes Act originally with various counts of defrauding the Commonwealth. They applied to stay the proceedings on the indictment or information on the ground that it constituted an abuse of the process of the Court.
Why a charge of defrauding the Commonwealth should be thought to invite or permit such an attack is far from clear to me, but it may have been a convenient course to take in order to avoid the very lengthy trial that would otherwise have followed. The underlying hypothesis seems to have been, and on appeal is, that somewhere in the charge of defrauding was the idea or conception that the accused, or the appellants or applicants, as they now are, might have made a representation to the Commonwealth that was at least partly a matter of law, or which was based on a misunderstanding of the law. Precisely how that could render the charge of defrauding an abuse of the process does not become any more clear to me; but the argument involves the proposition that, whatever evidence was capable of being adduced at the trial, the Crown was bound at some stage to invite the jury to decide a question of law.
The learned District Court Judge before whom the matter came rejected the application for a stay. The proceedings were then presumably ready for trial. Each of the appellants was then, however, arraigned on a fresh indictment charging an offence which was single, rather than multiple, but is said to have been of a similar kind. Each of them pleaded guilty to that single charge of defrauding. Each of them was then convicted and sentenced on that charge.
The application now is to extend the time within which they can appeal. They need to ask this Court for leave to withdraw the pleas of guilty, which led to the convictions with respect to which they need an extension of time to appeal. They rely as the ground of their appeals, as set out in the notices of appeal, that the primary Judge was wrong in refusing a stay of the proceedings below. They do not, however, appeal against the decision refusing the stay, but in their notices of appeal seek to rely on it as a ground for impeaching their own pleas of guilty which, of course, were given in response to an indictment different from that which His Honour was asked to stay. No doubt, one reason why they have not appealed against the refusal to stay those proceedings is because there is a decision of this Court to the effect that such a refusal is not appealable.
The appellants do, however, now seek to appeal against their convictions following upon their own pleas. That is an appeal of a kind that is sometimes possible, but it requires as a prerequisite that the appellants obtain leave of the Court to withdraw those pleas.
Leave to withdraw a plea of guilty is not granted as a matter of course, the more so on an appeal. Here the plea was made in response to a charge or an offence of which, at the very best for the appellants, it is said is incapable of being established by any evidence without transgressing the principle that juries do not decide questions of law but only questions of fact. To my mind, however, the issues that would be considered, or had the potential to be considered if this trial had gone ahead, are in no way different from those that commonly arise every day under any offence-creating provision of the Criminal Code. In Queensland, all our criminal law is statutory in origin. The function of a Judge at a trial of an offence charged under one of the provisions of the Code is, first of all, to interpret the Code which, of course, is a matter of law.
Having done so the Judge then directs the jury to the effect that a particular word or provision in the Code is capable of bearing the meaning at which he or she has arrived; and, further, that it is for them to decide whether, within that meaning, a particular fact or matter has been proved on the evidence beyond reasonable doubt.
Any number of examples may be taken to illustrate the point. One that was used in the course of argument concerned the definition in the Code of "grievous bodily harm". I will not repeat what was said about it, but it seems to me to make it clear that in cases of this kind the jury is not, and is never asked to, determine a question of law, but simply to decide a question or questions of fact based on an interpretation of the law arrived at by the Judge which, to the extent that is necessary, is made the subject of a judicial direction to the jury on the law. That is all that is, or would have been, required here.
In all the circumstances, and particularly for the reasons that Davies J has already given here, I can see no justification in this case for either extending the time within which to permit this appeal, or granting leave to the appellants to withdraw their pleas of guilty.
The appeal is, in my opinion, not one that could possibly succeed if it were argued at any greater length, or with any greater ability than it has been today. I agree with the order proposed.
THE CHIEF JUSTICE: Each application is therefore refused.