Workcover Victims - 6/6/2008.
Remember these few rules and you wont go to wrong:
1.Firstly, obtain a Specialist Solicitor in your area of injury.
2.Do not sign any consents for workcover to get your full medical records
for your employer or their legal representatives. (make sure about this,
its extremely important, only records that are about your injury
should be supplied)
3. Obtain statements from all witnesses as soon as possible, so
memories dont fade.
4. Request copies of all medical reports, xrays, scans and pathology
created about you, to be sent to you as well as your solicitor. This will
allow you to have control over your claim at all times,ie: changing
solicitors during the claim.
5. Regularly request copies of all documents created from
workcover . (Freedom of information)
6. Keep a diary on appointments, include date, time, name of doctor,
address, and a summary of your opinion on this appointment. This allows
you to gague your case at a glance.
7. Be clear with your GP from the 1st appointment so he/she can
fully support your claims.
8. Do not allow any one involved with the claim to bully you or force
you into treatments,You have rights if in doubt always check with
your solicitor.
9. Keep a cost diary for all expenses incurred and include a column
for debts that have arisen since your injury.ie, loss of wages, loss time
for partners, mortgages, rent,medical costs,education.
10. The Ombudsman's Office is funded by workcover, beware
11.The Advisory Service is funded by workcover, beware
12.The Medical Panels are funded by workcover, beware
3 comments:
Here is an extract of a judgement recently handed down in a case of Workcover south australia against an injured worker who chose to speak out against the corruption.
He was bullied and never got a fair trial. Seems most of the allegations against him were trumped up simply to make a case against him.
Note how the poor bastartd had to sell his family home and the legal fees were " Beyond his means"
Thats can be taken to mean that it was big bullies against the underdog..
99. In considering this argument, I have read the affidavit of the appellant sworn on 6 May 2008. It is clear that Mr Di Fazio made decisions in relation to the conduct of the appellant’s trial and the recall of witnesses against the specific background of the appellant’s want of means and ability to fund a new trial. The trial to that point had been a costly exercise for the appellant, well beyond his reasonable means. The fact that this is so seems to be an unfortunate consequence of the fact that this trial on any view of the matter was poorly managed from the outset. As far as the appellant’s interests are concerned the only tangible result of the delay between January 2006 and April 2007, seems to have been that the funds he acquired from the sale of his home to pay for his representation were whittled away.
100. Mr Di Fazio did what he could to redress some of the obvious deficiencies in the conduct of the trial to that date by requesting the recall of nine witnesses. However, I am not able to conclude that his intervention at that point in the trial, against the background of what took place, did in fact effectively cure the prejudice suffered by the appellant as a result of the lack of representation at an earlier stage of the trial.
101. On the hearing of this appeal much attention was focussed on the minutiae of the many and varied complaints of the appellant. Some of the more serious complaints are:
* the failure by the magistrate to grant adjournment applications made between 17 March 2005 up to and including 3 January 2006;
* the failure to produce documents relevant to the cross examination of a number of prosecution witnesses including Faggoter, Daniel, Hazell, N and L Pope, Briscoe, Gadd, Denson and Wong;
* the refusal of the magistrate to give leave to the appellant to issue subpoenas for the production of documents and for the calling of witnesses; and
* the failure, in all of the circumstances of the magistrate to give the appellant sufficient time in order to prepare for cross examination, especially in relation to the expert witnesses.
102. In addition, the appellant complained that at the time, he was unaware of his right to challenge the expert opinion expressed by Dr Lunn, and that he was required to cross examine other experts such as Dr Acott at times when he was suffering from headaches and was not in a fit state to concentrate. The appellant also says that he was unaware that he was able to cross examine his own psychiatrist Dr Griffin on the totality of his appointments with him. It was not just confined as he thought during the cross examination, to the attendances out of which charges had arisen.
103. One example the appellant proffered in relation to the effect of the failure of the respondent to give timely discovery, is contained in the affidavit of Mr Cronshaw dated 7 February 2008. In that affidavit the appellant’s solicitor attests to his attempts to communicate with the Adelaide Magistrates Court during the period of adjournment between 11 December 2006 and 10 January 2007 about the provision of documents which had been obtained as a result of subpoenas issued earlier that year. That affidavit attests to the receipt of a number of documents supplied well after the prosecution closed its case in January 2006 but before the resumption of the trial in April 2007. The affidavit is replete with examples of documents which, had they been supplied prior to the commencement of the trial in October 2005, would have been of assistance in cross examination of a number of witnesses including Dr Lunn, Dr Wong, Dr Acott and Dr Williamson.
104. The respondent, on the other hand, argued that although documents relevant to some witnesses were not produced, and some of the witnesses were not called, in the end the magistrate did not rely upon the evidence of those witnesses, or specifically stated that he disbelieved them. The respondent also argued that some of the witnesses were actually helpful to the appellant. Whilst many of the respondent’s submissions are factually correct, in the end I cannot overlook the fact that the evidence in the main, on which the magistrate relied to satisfy himself beyond reasonable doubt of the proof of the appellant’s guilt, unfolded during the period of time when the appellant was unrepresented.
105. Moreover, the magistrate considered the state of the evidence at that time and ruled that there was a case to answer. The fact that he was later prepared to hear further submissions on the topic of the case to answer cannot change the fact that he had already made up his mind on that particular topic some 12 months earlier.
106. The same point can be made with regard to some of the other matters which were agitated by Mr Di Fazio towards the end of the trial. For example, the argument as to the validity of the complaint which had first surfaced much earlier, was put to the magistrate in April 2007 after he had commented much earlier that he had impliedly already accepted the validity of the complaint.
107. In Dietrich v The Queen (1992) 177 CLR 292, the High Court considered whether the conviction of a man who was unrepresented during his trial should be set aside by virtue of the trial judge’s failure to adjourn, postpone or stay the trial until legal representation was available.
108. In Dietrich’s case, Gaudron J commented that at least insofar as serious offences are concerned, legal representation where it is desired is essential for a fair trial.
109. At page 370 she stated:
There are two features of the criminal trial that strongly challenge the assumption that a trial may be fair notwithstanding that the accused, contrary to his wishes, is not represented. The first is the adversarial nature of the proceedings. The second is the nature of the forensic contest involved...
Decisions as to the evidence to be called and as to the course of cross-examination determine the factual account on which the jury must reach its verdict. And it must be expected that that evidentiary account will, on occasions, differ from the underlying facts (66). Further, as Certoma (67) points out, the factual account that emerges does so as a product of collaboration between the parties, whether overt or otherwise. Thus, in any given case, the way in which the case is conducted may affect its outcome. And, of course, that means that the knowledge and forensic skills which legal representation would bring to bear might also affect its outcome.
110. In summary I do not consider that given the constraints within which Mr Di Fazio was required to represent the appellant, the prejudice the appellant had suffered as a result of the entire Crown case unfolding during a period when he was unrepresented, was cured. The unfortunate concatenation of circumstances which occurred in the course of this trial combined to cause irreparable prejudice to the appellant. Those circumstances included:
* the fact that notwithstanding ten applications for an adjournment to enable the appellant to obtain the necessary cash funds from the sale of his house, the magistrate refused to postpone or adjourn the trial;
* at the close of the prosecution case, after finding a case to answer and requiring the appellant to elect, the magistrate thereafter was prepared to adjourn the trial repeatedly for a period of 15 months during which various counsel came and went without progressing the matter;
* the fact that during that 15 months the appellant’s financial means were depleted;
* the fact that during the period of that adjournment the magistrate made a number of comments as to the strength of the prosecution case and the insidious unfairness, as he saw it, to the appellant of the proceedings to date. These comments may well have influenced the decisions made by Mr Di Fazio in April 2007; and
* the failure of the magistrate to rule on the appellant’s challenges to the evidence in a timely way, in particular his challenges to the authorisations under s 110 of the Act. This might have prejudiced the ability of the appellant to effectively challenge that evidence at all.
111. There were a number of other additional points made by the appellant during the course of argument however, I have highlighted only the matters which I consider to have been substantially causative of a miscarriage of justice. For these reasons I would allow the appeal on this ground.
Here is an extract of a judgement recently handed down in a case of Workcover south australia against an injured worker who chose to speak out against the corruption.
He was bullied and never got a fair trial. Seems most of the allegations against him were trumped up simply to make a case against him.
Note how the poor bastartd had to sell his family home and the legal fees were " Beyond his means"
Thats can be taken to mean that it was big bullies against the underdog..
99. In considering this argument, I have read the affidavit of the appellant sworn on 6 May 2008. It is clear that Mr Di Fazio made decisions in relation to the conduct of the appellant’s trial and the recall of witnesses against the specific background of the appellant’s want of means and ability to fund a new trial. The trial to that point had been a costly exercise for the appellant, well beyond his reasonable means. The fact that this is so seems to be an unfortunate consequence of the fact that this trial on any view of the matter was poorly managed from the outset. As far as the appellant’s interests are concerned the only tangible result of the delay between January 2006 and April 2007, seems to have been that the funds he acquired from the sale of his home to pay for his representation were whittled away.
100. Mr Di Fazio did what he could to redress some of the obvious deficiencies in the conduct of the trial to that date by requesting the recall of nine witnesses. However, I am not able to conclude that his intervention at that point in the trial, against the background of what took place, did in fact effectively cure the prejudice suffered by the appellant as a result of the lack of representation at an earlier stage of the trial.
101. On the hearing of this appeal much attention was focussed on the minutiae of the many and varied complaints of the appellant. Some of the more serious complaints are:
* the failure by the magistrate to grant adjournment applications made between 17 March 2005 up to and including 3 January 2006;
* the failure to produce documents relevant to the cross examination of a number of prosecution witnesses including Faggoter, Daniel, Hazell, N and L Pope, Briscoe, Gadd, Denson and Wong;
* the refusal of the magistrate to give leave to the appellant to issue subpoenas for the production of documents and for the calling of witnesses; and
* the failure, in all of the circumstances of the magistrate to give the appellant sufficient time in order to prepare for cross examination, especially in relation to the expert witnesses.
102. In addition, the appellant complained that at the time, he was unaware of his right to challenge the expert opinion expressed by Dr Lunn, and that he was required to cross examine other experts such as Dr Acott at times when he was suffering from headaches and was not in a fit state to concentrate. The appellant also says that he was unaware that he was able to cross examine his own psychiatrist Dr Griffin on the totality of his appointments with him. It was not just confined as he thought during the cross examination, to the attendances out of which charges had arisen.
103. One example the appellant proffered in relation to the effect of the failure of the respondent to give timely discovery, is contained in the affidavit of Mr Cronshaw dated 7 February 2008. In that affidavit the appellant’s solicitor attests to his attempts to communicate with the Adelaide Magistrates Court during the period of adjournment between 11 December 2006 and 10 January 2007 about the provision of documents which had been obtained as a result of subpoenas issued earlier that year. That affidavit attests to the receipt of a number of documents supplied well after the prosecution closed its case in January 2006 but before the resumption of the trial in April 2007. The affidavit is replete with examples of documents which, had they been supplied prior to the commencement of the trial in October 2005, would have been of assistance in cross examination of a number of witnesses including Dr Lunn, Dr Wong, Dr Acott and Dr Williamson.
104. The respondent, on the other hand, argued that although documents relevant to some witnesses were not produced, and some of the witnesses were not called, in the end the magistrate did not rely upon the evidence of those witnesses, or specifically stated that he disbelieved them. The respondent also argued that some of the witnesses were actually helpful to the appellant. Whilst many of the respondent’s submissions are factually correct, in the end I cannot overlook the fact that the evidence in the main, on which the magistrate relied to satisfy himself beyond reasonable doubt of the proof of the appellant’s guilt, unfolded during the period of time when the appellant was unrepresented.
105. Moreover, the magistrate considered the state of the evidence at that time and ruled that there was a case to answer. The fact that he was later prepared to hear further submissions on the topic of the case to answer cannot change the fact that he had already made up his mind on that particular topic some 12 months earlier.
106. The same point can be made with regard to some of the other matters which were agitated by Mr Di Fazio towards the end of the trial. For example, the argument as to the validity of the complaint which had first surfaced much earlier, was put to the magistrate in April 2007 after he had commented much earlier that he had impliedly already accepted the validity of the complaint.
107. In Dietrich v The Queen (1992) 177 CLR 292, the High Court considered whether the conviction of a man who was unrepresented during his trial should be set aside by virtue of the trial judge’s failure to adjourn, postpone or stay the trial until legal representation was available.
108. In Dietrich’s case, Gaudron J commented that at least insofar as serious offences are concerned, legal representation where it is desired is essential for a fair trial.
109. At page 370 she stated:
There are two features of the criminal trial that strongly challenge the assumption that a trial may be fair notwithstanding that the accused, contrary to his wishes, is not represented. The first is the adversarial nature of the proceedings. The second is the nature of the forensic contest involved...
Decisions as to the evidence to be called and as to the course of cross-examination determine the factual account on which the jury must reach its verdict. And it must be expected that that evidentiary account will, on occasions, differ from the underlying facts (66). Further, as Certoma (67) points out, the factual account that emerges does so as a product of collaboration between the parties, whether overt or otherwise. Thus, in any given case, the way in which the case is conducted may affect its outcome. And, of course, that means that the knowledge and forensic skills which legal representation would bring to bear might also affect its outcome.
110. In summary I do not consider that given the constraints within which Mr Di Fazio was required to represent the appellant, the prejudice the appellant had suffered as a result of the entire Crown case unfolding during a period when he was unrepresented, was cured. The unfortunate concatenation of circumstances which occurred in the course of this trial combined to cause irreparable prejudice to the appellant. Those circumstances included:
* the fact that notwithstanding ten applications for an adjournment to enable the appellant to obtain the necessary cash funds from the sale of his house, the magistrate refused to postpone or adjourn the trial;
* at the close of the prosecution case, after finding a case to answer and requiring the appellant to elect, the magistrate thereafter was prepared to adjourn the trial repeatedly for a period of 15 months during which various counsel came and went without progressing the matter;
* the fact that during that 15 months the appellant’s financial means were depleted;
* the fact that during the period of that adjournment the magistrate made a number of comments as to the strength of the prosecution case and the insidious unfairness, as he saw it, to the appellant of the proceedings to date. These comments may well have influenced the decisions made by Mr Di Fazio in April 2007; and
* the failure of the magistrate to rule on the appellant’s challenges to the evidence in a timely way, in particular his challenges to the authorisations under s 110 of the Act. This might have prejudiced the ability of the appellant to effectively challenge that evidence at all.
111. There were a number of other additional points made by the appellant during the course of argument however, I have highlighted only the matters which I consider to have been substantially causative of a miscarriage of justice. For these reasons I would allow the appeal on this ground.
Wow 'Done Over', that is a terrible situation. Let it be a warning for all, thanks for posting. James
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