Goldstien v R (No 1) [2021] NSWDC 83

District Court New South Wales

Medium Neutral Citation: Goldstien v R (No 1) [2021] NSWDC 83 Hearing dates: 02-03 March 2021 Date of orders: 03 March 2021 Decision date: 03 March 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed. Convictions and sentences passed set aside. Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Appellant – Debra Karen Goldstien Respondent - Crown Representation: Appellant Counsel - S. Russell Solicitor - D. Longhurst (McNally Jones Staff Lawyers) Respondent Solicitor - D. Gunter (DPP) File Number(s): 2019/00391075 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 August 2020 Before: Reiss LCM File Number(s): 2019/00391075

Judgment 1. HIS HONOUR: This appeal is against 13 convictions recorded by Magistrate Reiss sitting in the Local Court at Burwood on 26 August 2020. The appellant was charged with 14 offences contrary to s 254 of the Crimes Act 1900 which is in these terms: "A person who uses a false document, knowing that it is false, with the intention of: (a) Inducing some person to accept it as genuine, and, (b) ... (ii) obtaining any financial advantage or causing any financial disadvantage... is guilty of an offence." The maximum penalty is imprisonment for ten years. If dealt with in the Local Court, the maximum penalty is two years for each offence, but the maximum penalty that can be imposed by a magistrate sitting in the Local Court hearing multiple charges is five years. 1. The appellant was an employee of the Department of Corrective Services. The evidence tells me that she commenced casual employment with the Department on 13 October 2014 and became a permanent employee on 18 May 2015. At all material times the documentary evidence tells me that she was employed on a full time basis. At all material times she was working at the Dawn de Loas Correctional Centre at Silverwater, a correctional centre for females. The appellant was a Correctional officer. 2. The offences alleged arose out of claims for sick leave. Exhibit 4 in the Local Court was a statement of Ms Angela Feeney, who was a Senior Assistant Superintendent at the Dawn de Loas Correctional Centre and had been so employed since June 2019. Part of her duties includes looking after the rosters for custodial staff and/or other duties associated with being a Manager in a correctional centre. Part of her role was to sign off and approve leave requests from custodial staff. [4] of her statement is this: "If an officer is intending to take sick or carer's leave, they call a 1800 number and report their non-attendance to the Roster Support Unit. The staff at that unit then let the centre know and they enter it onto the computerised roster system. When an officer calls in sick it is their responsibility to complete a leave form upon return to duty. If they have a medical certificate they complete the form, including what was wrong with them or the reason for the absence, and attach the medical certificate to the leave form. The officer can hand the form in to one of the Roster Clerks or they can place it in a secured box in the main Gatehouse. A lot of staff don't get to see or access the Roster Clerk and so place any leave forms in this box. The Roster Clerk checks the officer's leave balances and records what their entitlements are and then places them in a folder for my signature." A similar description is provided by Ms Cathryn Hellams, the director of Human Resources for the Department of Corrective Services. [5] of her statement is this: "The process or when a correctional officer takes sick leave is: he/she contact [sic] a hotline and report in sick for as many days required. The day is initially recorded as sick leave, no certificate, pending a leave form. Once the leave form is submitted, the leave record is updated to reflect the type of leave taken and whether the absence is supported with a medical certificate or not. If the absence is on two consecutive days or less - certificates are not legally required to support the absence (unless the officer has been advised that he/she must provide a medical certificate for an absence of two or less days) and subsequent approval for sick leave. If the officer takes sick leave for more than two consecutive days, he/she is required to provide a medical certificate to his/her manager to support the absence. On any occasion when an officer takes sick leave, the officer is required to submit an 'application for leave of absence' form nominating the date of sick leave taken, whether the sick leave is supported with a medical certificate or unsupported." 1. The 13 convictions recorded relate to 13 different applications for sick leave. Each of those applications was accompanied by a document purporting to be a medical certificate. Each certificate is similar. Each bears a heading "Edensor Road Family Medical Centre" and then gives the address of that centre at Edensor Park, and then its phone number and facsimile number. There is then a heading "Certificate of Sickness", then, on the left-hand side below that, the date. There are then details of the medical practitioner issuing the certificate. In each case the certificate purports to be given by Dr P D Romeo of the Edensor Road Family Medical Centre. It also provides another telephone number which is different to the one at the top of the certificate. Each certificate then says: "This is to certify that today I have examined: Miss Debra Goldstien, [redacted] Gorokan 2263. In my opinion, she was/will be unfit for work from." The next line contains the date or dates on which the appellant was alleged to be ill. There is then a place for a signature to be placed and then again the doctor's name is typed out, together with his qualifications and a number which I infer is the doctor's registered number with something like Medicare. There is no dispute that the certificates are false. 1. Exhibit 3 in the Local Court were two statements of Dr Pasquale Romeo, one dated 3 December 2019 and a second dated 25 March 2020. Dr Romeo has been a general practitioner since 1991 and has worked at the Edensor Road Family Medical Centre since 1994. He has been shown the certificates involved in these proceedings. Paragraph 5 of his first statement is this: "I have checked my medical records at this practice for this patient, Debra Goldstien, and I was not able to locate any patient by that name. I've also checked the surname Goldstien and it does not appear on my records." The doctor's first statement then continues in this fashion: "The first medical certificate 'Certificate of Sickness' shown to me is dated 30 August 2019 and in the name of Debra Goldstien. This is a similar certificate format which I had used up until the end of October 2019. The practice and provider details are correct, however I do not have a patient on my database by the name of Debra Goldstien. 7. The second medical certificate 'Certificate of Sickness' shown to me is dated 22 September 2019 and in the name of Debra Goldstien. This is a similar certificate format which I have used up until the end of October 2019. The practice and provider details are correct, however I do not have a patient on my database here by the name of Debra Goldstien." The following three paragraphs contain the same information about certificates dated 5 October 2019, 2 November 2019 and 26 November 2019. The doctor's first statement ends with this: "11. In relation to the above five medical certificates shown to me, I can state that I did not supply any of them. These certificates have been created without my knowledge and permission." In the second statement, the doctor was shown a further 16 medical certificates which he said were "identical" to those previously shown to him and referred to in his statement of 5 December 2019. By use of the word "identical", I assume the doctor means that they were in the same form rather than they were exactly the same. Again the doctor points out that each of those other certificates was created without his knowledge or permission. 1. The first thing that excites one's curiosity is this, the appellant, according to the certificates, and there does not appear to be any issue about this, was living at Gorokan on the Central Coast. That locality is north of The Entrance. She was working at the Dawn de Loas Correctional Centre at Silverwater. The Edensor Road Family Medical Centre is in Edensor Park, which is west of Fairfield West and west of Canley Heights and west of Mt Pritchard. It is extremely implausible that a lady living on the Central Coast, working at Silverwater, if she wanted to take a day off work would travel all the way to Edensor Park in order to visit a medical practitioner to obtain a certificate to justify a day's absence from work. The commute between Gorokan and Edensor Park would be much longer than the commute between Gorokan and Silverwater. This anomaly did not occur, it would appear, to anybody at any time. 2. None of the certificates actually bears Dr Romeo's signature, but each does purport to bear his initials in capital letters. 3. The first charge in time is the charge which bears sequence number 3. The "application for leave of absence" bears date 3 February 2019 and claimed sick leave for 13 and 17 January 2019. It was accompanied by two "certificates", one bearing date 13 January 2019 and the other bearing the date 17 January 2019. That document appears to have been processed on 4 February 2019 by a person identifying himself or herself as M Russell. It was approved by somebody identifying himself or herself as O'Loughlin and annexed to that signature is also the date 4 February 2019. The evidence relating to it is contained in the statement of Ms Cathryn Hellams, made on 15 July 2020, which was exhibit 5 in the Local Court. Paragraphs 7, 8 and 9 of that statement are these: "7. The first 'Application for leave of absence' form shown to me is the name of Debra Goldstien, serial number [redacted], with location being Dawn de Loas, dated 3/2/19. The form depicts sick leave taken on 13 and 17 January 2019. An 'S' is depicted in a box under the 13 and 17, indicating sick leave with a medical certificate. The form appears to have been signed by Ms Goldstien. Two medical certificates are attached to this form for 13 and 17 January 2019. 8. HR [Human Resources] records show the two dates on this form were recorded as absences and thus paid to Ms Goldstien. These two dates amounted to $541.66. Those two days taken as leave were on two separate occasions and each were for one day, which did not require Ms Goldstien to provide a medical certificate. 9. Medical certificates are held at the centre with the leave form. When medical certificates are submitted by a staff member, CSNSW accept the medical certificates as true, correct and genuine. CSNSW would not have made payment to Ms Goldstien if it knew the certificates to be fraudulent." Her statement goes on to comment on each of the other claims for sick leave which supported the original 14 offences alleged and have led to 13 convictions being recorded by the Magistrate. One can see immediately that there is no averment by Ms Hellams that the documents were signed by Ms Goldstien. There is no evidence before me that they were in fact signed by her. 1. When I look at the 13 application forms before me, my curiosity is also excited. The signatures vary so remarkably that one must consider whether they could have been made by the same hand. For example, the application dated 3 February 2019 appears to show a capital D overwritten with a capital G, and the word "Gold" and the rest of the surname being essentially a glyph with a distinct curlicue at the end. 2. The signature on the application of 14 March 2019 could be the same but is dissimilar. Furthermore, I only have before me copies of the documents and there are no original documents in the papers sent to this Court by the Local Court. There may be the curlicue that I have referred to in respect of the first application, but it is hard to see. 3. The application dated 25 April 2019 appears very dissimilar. The application bearing the date 30 April 2019 might be the same as the first few. The signature on that of 13 May 2019 closely resembles the first signature. However the signature on the application dated 6 June 2019 is completely different. The signature on the application of 25 June 2019 might be an abbreviated form of the first signature. The signature on the application of 29 July 2019 may be initials with a large curlicue, but it is quite different to the signature recorded on that of 25 June 2019. 4. The marking on the application of 7 July 2019 purporting to be the signature of the appellant is dissimilar to every other application. The signature on the application dated 8 July 2019 is very dissimilar to every other signature. The signature on that of 1 August 2019 may be an abbreviated form of the original signature. It is similar to the signature on that application of 25 June 2019. 5. The signature on the application of 21 August 2019 appears to be the fullest signature of the appellant on any of the applications, but why it is so is completely unknown. It might be somebody was trying to write out her signature in full. The signature on the application of 28 October 2019 is dissimilar to every other signature, as is that on the application form dated 28 October 2019. The signature on that of 30 November 2019 is again dissimilar to every other signature. It appears to be mainly initials, but when initials only where involved on earlier applications they look completely different. There is no proof of any of the signatures are those of the appellant. 6. The handwriting and signature of unattested documents can be proved in a number of ways. They are by the calling of the writer of the document. That clearly could not be done by the Crown in criminal proceedings. The second method is by calling a witness who saw the document signed, but no witness has been called in respect of any of the applications in question. A third method of proving a signature is by calling a witness who has acquired knowledge of the writing of the person whose signature it purports to be. That has not occurred here. 7. Another way is by comparing the signature on the document in dispute with any other document which bears the signature and has been proved to the satisfaction of the Court to be genuine. Here no attempt was made to introduce any document which was shown to bear the signature of the appellant. It is likely that the appellant signed an application for employment form and probably a document which purports to be a contract for service. No such document was put into the evidence. No attempt was made to prove her signature in any fashion; for example, by even calling for the production of her driver's licence and tendering into evidence. 8. The fifth way in which the signature can be proved is by the calling of an expert witness who might be able to tell the Court that the signatures have all been made by the same person and who made that opinion by comparing the signatures on the documents here in question with a proven genuine signature of the appellant that they are the appellant's signature. The sixth method of proving a signature is by an admission of the party against whom the document is tendered, but no such admission was proved in these proceedings. 9. Of course there is the presumption of regularity, the application of the principle expressed in the maxim omnia praesumuntur rite esse acta, all things are presumed to have been done correctly until proved to the contrary. However that is of limited application in criminal proceedings. If these were only civil proceedings the presumption would be applied, however it would be erroneous to do so in a case of this nature. 10. No evidence was called as to how these applications for leave were provided to Corrective Services. If any of them was handed to a roster clerk, the roster clerk has not been called. They may all have been lodged in the box in the gatehouse at the Dawn de Loas Correctional Centre. That immediately raises a problem. Someone with mischief in mind could have replaced any applications made genuinely by the appellant with a bogus document purporting to be made by her supported by the false documents. 11. Another thing which excites my curiosity or concern is this. The evidence makes it clear that sick leave may be taken for one or two days without the production of a medical certificate. All that needs to be provided is a form; that is a completed "Application for leave of absence". If the duration of the sick leave or other leave is three or more days, a certificate must be lodged. The only application which required a medical certificate was the application made on 25 April 2019, which was the sequence 5 offence. The statement of Cathryn Hellams of 15 July 2020 says this: "11. The third 'application for leave of absence' form shown to me is in the name of Debra Goldstien, serial employee number [redacted] with the location being Dawn de Loas, dated 25/4/19. I can state that the leave form completed in Ms Goldstien's name applies for sick leave for 27, 28 and 29 March 2019, as well as for 10 April 2019. The 27 and 28 March 2019 have been amended to show absent code 'U', which indicates sick leave without pay with medical certificate provided. It is unclear from the leave form who changed the leave code from sick leave with medical certificate (S), to seek leave without pay with medical certificate (U). 29 March and 10 April 2019 are listed as sick leave with medical certificates. There are two medical certificates attached covering the four dates of sick leave taken. HR records show that 29 and 10 April on this form were recorded as sick leave and thus paid to Ms Goldstien. These two dates amounted to $1,158.76. The three days taken consecutively as sick leave required Ms Goldstien to provide a medical certificate. Of note at the bottom of the form there are written comments made by for '2 SL available and 2 SL without pay. Nil RL at the time of sick leave.' I understand SL to mean sick leave and RL to mean recreation leave." The evidence is clear that "recreation leave" is in fact part of the annual leave, so that part of annual leave can be taken as "recreation leave". 1. When there has been a change in a document it would be necessary to look at the original document to compare things such as the colour of inks and the nature of the changes. It is clear that the changes from S to U for 27 and 28 March 2019 have been made in a different pen to that used for the part of the document that is supposed to have been made by the appellant, however from the copied document before me it appears also that the notations made by the clerk who checked the document and by the person who approved the document use different inks or pens. The notations noted by Ms Hellams in her statement are unclear in the document before me. 2. However the point is this, the only time that a medical certificate was required was for the claim of three days continuous absence on 27, 28 and 29 March 2019. Even then the production of the medical certificate appears to have been otiose because the appellant did not have enough sick leave to justify payment of sick leave on two of the three days. That brings in another consideration, why go to the bother of obtaining medical certificates, the fraudulent ones, when the submission of the medical certificates was unnecessary. 3. I have earlier in these reasons recited the applicable provisions of s 254 of the Crimes Act 1900. Under s 252, the provisions of s 192D apply to s 254. Section 192D is in these terms: "(1) In this Part 'obtain' a financial advantage includes: (a) obtain a financial advantage for oneself or for another person, and (b) induce a third person to do something that results in oneself or another person obtaining a financial advantage, and (c) keep a financial advantage that one has, whether the financial advantage is permanent or temporary." The definition in s 192D(1) is apt to refer to the claiming of sick leave, that is pay for work not done. 1. The elements of the offence that have been summarised correctly by Mr Russell in his written submissions thus: "1. The appellant used a false document. 2. Knowing that the document was false. 3. With the intention of inducing a person to accept the document as genuine. 4. Thereby obtaining a financial advantage." The documents which are alleged to be false by the police, in the Local Court and by the Crown in this Court are the bogus certificates purporting to be from Dr Romeo. The only way that the Crown can prove that the appellant used those documents is by proving that the appellant submitted them with the applications for leave. That needs proof that the applications for leave relied upon by the Crown were in fact applications made by the appellant. The only way that that can be done is by pointing to the forms and pointing out that they contain the appellant's employee number, her name, where she worked and the days that she actually took sick leave. 1. However, the name of the person would be known to many. The fact that she worked at the Dawn de Loas Correctional Centre would be known to many. Her employee number would be known to many people at the Correctional Centre. There was no proof that any of the signatures are hers. If they were all so similar as to be clear that they were all made by the same person an inference might be drawn that they were in fact genuine applications, however there is no evidence before me to suggest that any one or more than one form of the signatures contained on the documents is that of the appellant. 2. True it is that it is a question for the tribunal of fact to determine whether the signatures were those of the appellant or not. However, I am only a lay man, just as a jury is comprised of lay persons. If the matter were to be tried with a jury and no expert evidence were called, a warning would need to be given to the jury about using their own opinions about the adequacy of the signatures to prove that these were genuine documents made by the appellant, in other words, that she had signed each of them, albeit the signatures are remarkably dissimilar. Hence the need to prove positively her genuine signature or to call expert evidence. That has not been done. 3. The question is whether the Court could be satisfied beyond reasonable doubt that these applications for leave of absence were generated by the appellant and that she attached to them the bogus medical certificates. Again, doubts arise in my view because of the dissimilarity of the signatures on the documents, the lack of the production of original documents, the lack of a need to support 13 of the 14 applications with a medical certificate and the implausibility of somebody living at Gorokan travelling to Edensor Park to obtain a medical certificate for one day's absence from work when a considerable amount of time would be taken commuting between Gorokan and Edensor Park to obtain a medical certificate. The other matter, of course, is whether it was necessary to obtain the certificates in any event when as an employee of the Department since October 2014, that is the best part of five years, she would have known what the policy of the department was as to when it was necessary to produce a medical certificate. 4. In the circumstances I could not be satisfied beyond reasonable doubt that the applications were in fact those that were submitted by the appellant. 5. There can be no doubt that the sick leave was paid to her. In cross examination on 12 August 2020 Ms Hellams gave this evidence: "Q. If you could just have a look at your statement...paragraph 7 on the third line you note that 13 and 17 January are then indicated as sick leave? Yes. Q. That's correct and then in the first line of paragraph 8 records show the two dates on the form were recorded as absences? A. Yes. Q. So you're only assuming that my client was paid sick leave? A. No, I checked her leave records when preparing that statement." It is clear that the documentary evidence that became exhibit 6, the applications and supporting medical certificates, were checked against the departmental records to establish what the leave records show that the appellant actually took leave on the days referred to in the application forms. However that does not mean that the application forms before the Court were those that she submitted. Proof that she used the bogus medical certificates is a necessary element and that can only be done by proving that the applications that she made were those acted upon by the Department, those before the Court as exhibit 6. Proof of that is absent. 1. Another matter which I take into account is this, the evidence before the Local Court was that the appellant was a lady of prior good character. That is she had no record of any convictions or any crimes, including crimes of dishonesty. At the time that these offences were alleged to have occurred, the appellant would have been 52 or 53 years old. That again is something that a tribunal of fact can take into account, whether a lady who has over that period of 52 or 53 years had no criminal conviction would suddenly turn to committing a fraud of the nature alleged in these proceedings. 2. For those reasons I set aside the convictions recorded and sentences passed by Magistrate Reiss sitting in the Local Court at Burwood on 26 August 2020.