Breen v Housing New Zealand

[2012] NZHC 1118

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-463-000302 [2012] NZHC 1118

PAUL BREEN

Appellant

v

HOUSING NEW ZEALAND

Respondent

Hearing:         15 December 2011

Appearances: P Breen (Self-represented Appellant) in Person

S N Haszard for the Respondent

Judgment:      24 May 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 24 May 2012 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Meredith   Connell   P   O    Box   2213   Shortland   Street   (DX   CP24063) Auckland 1140 for the Respondent

Copy To:     P Breen  (Self-represented Appellant)  3/16  Glen Atkinson  Street  St  Heliers

Auckland 1071

BREEN v HOUSING NEW ZEALAND HC AK CRI-2011-463-000302 [24 May 2012]

[1]      The appellant, Paul Breen, was a tenant of the respondent, Housing New Zealand.  Instead of paying a market rental for this tenancy, Mr Breen paid a much reduced rental based on what Housing New Zealand had determined was the appropriate  income  related  rent  (IRR)  for  him  to  pay.    Later  investigations  by Housing New Zealand caused it to form the view that its assessment of Mr Breen’s IRR was based on false information that he had supplied to it for the purpose of obtaining a reduced rent.  Housing New Zealand laid nine charges to this effect in the District Court against Mr Breen, all of which he denied.

[2]      Following a defended hearing in the District Court, five of the charges laid against Mr Breen were found to have been proven and he was convicted and then sentenced on those charges.  The remaining charges against him were dismissed for want of proof.  He now appeals against the convictions and the sentence imposed on him. The appeal is opposed.

[3]      Two of the charges on which Mr Breen was convicted were laid under the now repealed s 229A of the Crimes Act 1961.  Those charges alleged that on 9 April

2003  and  17  July 2003  respectively,  Mr  Breen,  with  intent  to  defraud,  used  a document with intent to obtain a pecuniary advantage.  The other three charges on which he was convicted were laid under s 228(b) of the Crimes Act; they alleged that on 7 May 2004, 6 May 2005 and 22 May 2006 respectively, Mr Breen dishonestly, and  without  claim  of right,  used  a document  with  intent  to  obtain  a pecuniary advantage. All the charges have as their foundation a failure on the part of Mr Breen to make honest disclosures in the IRR application forms that he completed.  In short, he presented himself to Housing New Zealand as someone who was living solo when, at all material times, he was found to be living in a relationship in the nature of marriage with a woman to whom I shall refer as Ms B.  Mr Breen and Ms B have two children together.  The first, M, was born on 28 September 2002 and the second child, S, was born on 28 November 2006.   Mr Breen is registered on their birth certificate as their father and they bear his surname.

[4]      The IRR forms that Mr Breen was required to  complete obliged him  to

disclose if he was married, living in a de facto relationship, or in a relationship in the nature of marriage.   In some of the applications, he described Ms B as a boarder from whom he received a contribution towards rent and in other applications, he made no representation at all regarding her presence at the rented property.  From time to time, he also declared that one or both of his children resided with him.

[5]      The judgment of the District Court provides a careful and thorough analysis of the evidence relating to the charges Mr Breen faced and the relevant law to be applied.

[6]      There appears to have been no dispute between the parties regarding the appropriate legal test to be applied to determine whether or not Mr Breen was living in a relationship that he was required to disclose to Housing New Zealand.   The Judge’s attention was drawn to the definition of partner in the Housing Restructuring and Tenancy Matters Act 1992 (the Act); the considerations provided in ss 2D(2) and (3) of the Property (Relationships) Act 1976 regarding when persons are living in a de facto relationship; and the legal tests for determining the same that were applied by Tipping J in the High Court in Thompson v Department of Social Welfare [1994]

2 NZLR 369, and by the Court of Appeal in Ruka v Department of Social Welfare [1997] 1 NZLR 154. For convenience, in this judgment I have referred to a relationship that Mr Breen was required to disclose to Housing New Zealand as being “a relationship in the nature of marriage”.

[7]      In the course of his judgment, the Judge referred to the helpful submissions he  had  received  from  Mr  Breen’s  counsel  on  the  relevant  parts  of  Ruka  v Department of Social Welfare. At [35] of the judgment he said:

Finally, before turning from Mr Robertson’s helpful submissions, I just refer to a citation from the judgment of Thomas J at p 169 of the Ruka decision where he stated as follows:

It is self-evident that in determining where a relationship is one in the nature of marriage, much must turn on the facts and circumstances of the relationship in issue.

The Judge described this as a sound statement impelling the Court to have regard to the special circumstances that exist in each case.

[8]      The Judge then applied his analysis of the relevant legal tests to the facts as he found them. At [36], he said:

Applying those factors to the present case I am satisfied that under both definitions, [Ms B] was living with Mr Breen at 23 Takatimu Street, Orakei as his partner.  It is admitted by Mr Breen that from 2002 and at least until May 2006 she was living with him at the property.  They were in a sexual relationship and produced two children.  It is clear that they gave each other emotional support and companionship.  That must be easily inferred.  They shared responsibilities for the children and that is confirmed by other witnesses and I also infer that while together they provided financial support for the children. They must have shared household and other domestic tasks, Mr Breen admitted as much.  They must have run a common household in such a small cottage [it was two bedroom].  They went on holidays overseas together.   All  of  the  evidence  taken  together  and  without  rebuttal  from Mr Breen must satisfy me on this point.

[9]      In the District Court, and in this Court in support of his appeal, Mr Breen submitted that he had not provided Housing New Zealand with correctly filled out IRR forms because Housing New Zealand employees had not made him properly aware of the correct definition of “a partner”, and he said the legislation was confusing. The Judge, however, rejected this explanation.

[10]     The Judge found that Mr Breen “would have been well aware of the true nature of his relationship with [Ms B] and his obligations to Housing New Zealand in respect of the IRR calculation”.   The Judge described Mr Breen’s behaviour towards Housing New Zealand’s employees as evasive and facetious and this was confirmed for the Judge by what he regarded as flippant comments that Mr Breen had made to Housing New Zealand’s employees.   In this regard, it is worthwhile looking at the relevant circumstantial evidence.   The house was a two bedroom house.  One of the Housing New Zealand witnesses who had gone through the house found evidence that showed one of the bedrooms was occupied by a child.  This left one remaining bedroom.  If, as Mr Breen contended, Ms B was simply a boarder, it is difficult to see where she would have slept.  The logical inference to draw from this circumstance was that Ms B shared a bedroom with Mr Breen.

[11]     Furthermore, there was evidence from another Housing New Zealand witness that in a later interview, Mr Breen accepted that one of the bedrooms was used by a child and Mr Breen said that he did not make Ms B sleep in the lounge.  He then told

the investigator to use his imagination when it came to ascertaining where Ms B slept.  This evidence also supported the conclusion that Ms B was living in the house with Mr Breen in a relationship in the nature of marriage.   Mr Breen made other statements at this time to Housing New Zealand that were not helpful for his case. On one occasion, he described Ms B as a prostitute, who stayed at the house and was paid for sex.  He also said he allowed her to stay there so that she had access to their two children.

[12]     There was evidence from the New Zealand Immigration Service that showed that Mr Breen, Ms B and their children had travelled overseas together on a number of occasions.  This evidence also supported the inference that they were a family at the time of these travels and that Mr Breen and Ms B were then living in a relationship in the nature of marriage.   The travel evidence showed that they had travelled to Thailand in September 2001; they had travelled overseas together with their eldest child on 23 May 2004, and on that occasion, they remained out of New Zealand for over two months; they travelled to Melbourne in November 2004, with Mr Breen and the child returning to New Zealand in April 2005 and Ms B returning in June 2005.   In May 2007, Mr Breen, Ms B and their two children travelled to Thailand.  All four returned from that trip via Hong Kong in July 2007. In August 2008, there was evidence of them travelling to separate cities in Australia. The Judge noted that it was unclear from the records whether they had all met up while in Australia.

[13]     There was evidence from employees of the kindergarten and the primary school attended by M that was consistent with Mr Breen presenting Ms B to those agencies as his partner.

[14]     In  2009,  Mr  Breen  described  Ms  B to  Housing New  Zealand  as  his  ex partner.   At that time, he questioned whether he should record Ms B on an IRR application form as a boarder.  He described her as his ex partner, who sometimes stayed at the property, but only for 3.5 days each week.  It could be inferred from this description given in 2009 that Ms B had at some earlier time been his partner.  This inference,  when  coupled  with  the  evidence  of  earlier  close  association,  would suggest that at the time they were travelling together, having children together and

when Ms B was staying at the house, that this was all occurring in the context of a relationship between Mr Breen and Ms B that was in the nature of marriage.

[15]     I consider, therefore, that there was enough evidence before the Judge to support the conclusion he reached that from 2002 until at least May 2006, Ms B was living with Mr Breen at the property in a relationship that was in the nature of marriage and that Mr Breen should have advised Housing New Zealand of Ms B’s presence as his partner.

[16]     In respect of the charge relating to the IRR application dated 22 May 2006, it was accepted that the form contained details of a boarder and one child of the defendant; that was in handwriting that was not that of Mr Breen.  Mr Breen relied on this fact in the District Court, as well as in this Court, to argue that he was not responsible for describing Ms B as a boarder.  However, at [40] of the judgment, the District Court Judge found that the offence occurs from the fact that Mr Breen had failed to disclose that he was living at the address with his partner.  The entries as to boarder and child on the form were, therefore, not relevant.   Here, the Judge’s finding was that it was the omission on Mr Breen’s part to include a reference to Ms B as his partner on the IRR form that constitutes the offence, rather than the details that have been written on the form by some person other than Mr Breen, who is likely to have been a Housing New Zealand employee.  I concur with that view.

[17]     On appeal, Mr Breen attempted to run the same arguments that were run in the District Court.  He argued that he had informed Housing New Zealand of Ms B’s presence as a tenant and that he had described her as a boarder on the advice of a Housing New Zealand employee, who had said to him: “Put her down as a boarder”.

[18]     The difficulty Mr Breen faces on appeal is that the Judge in the District Court has reached views on the facts which, in part, hinge on credibility and reliability assessments the Judge made of the witnesses that he heard and saw.   In addition, Mr Breen elected not to give evidence in the District Court.   Thus, his version of events can only have been before the Judge in the form of statements that had been given   earlier   to   Housing   New   Zealand,   or   as   a   result   of   concessions Housing New Zealand witnesses made in their evidence as to what Mr Breen might

have told them.  In this form, Mr Breen’s account may have carried less weight than

the sworn evidence given before the District Court.

[19]     The outcome of the defended hearing was that the Judge was satisfied beyond reasonable doubt that the evidence he heard from Housing New Zealand proved the charges against Mr Breen.  There was ample evidence before the Judge from which he could conclude that Mr Breen had failed to provide the information he was required to provide in the IRR applications.   This evidence also supported the inference that Mr Breen’s omission to provide this information was deliberate and done for the purpose of obtaining an IRR rather than a market rent for the tenancy. Against the weight of the prosecution case, the defences raised by Mr Breen had little hope of success.

[20]     Although it is a case dealing with an appeal in the civil jurisdiction, the comments of the Court of Appeal in Rae v International Insurance Brokers Ltd [1998] 3 NZLR 190 (CA) regarding the reluctance of an appellate court to interfere with the trial judge’s findings of credibility and reliability are apposite here as well. At 199, Thomas J said:

Counsel's optimism, even if guarded, is difficult to comprehend. It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness's feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess'' a trial Judge's findings of facts when it does not share

those advantages. Exceptional caution in departing from the trial Judge's findings of fact are therefore regarded as imperative.

[21]     Mr Breen argued before me that he could not at the material times inform Housing New Zealand that Ms B was his partner because she would not provide him with her Inland Revenue “personal tax summary income statements”.  First, it needs to be recognised that this was said in the context of Mr Breen representing himself and making this statement as part of his submissions.  He did not direct me to where I could find this information in the form of evidence.  Secondly, it seems to me to be a red herring.  A personal tax summary of income would be necessary to obtain an IRR.  But if a tenant of Housing New Zealand simply declared he was living with a partner  and  that  his  partner  would  not  make  her  taxable  income  available  to Housing New Zealand, the likely consequence is that Housing New Zealand would have simply applied a market rent to the tenancy by default.  The way in which the system works is that tenancies are to be charged at market rents, save where a tenant provides information that satisfies Housing New Zealand that an IRR is applicable. Thus, there is nothing in this argument to assist Mr Breen’s case; it does not excuse his failure to inform Housing New Zealand at the material times that Ms B was his partner.

[22]     Mr Breen has attempted to appeal on other grounds.  In particular, Mr Breen argues that he was unlawfully evicted under s 51(1)(d) of the Residential Tenancies Act 1986.  Not only is there no evidence to show that Housing New Zealand acted unlawfully, but, in any event, it is difficult to see how an unlawful eviction could affect the safeness of Mr Breen’s conviction.

[23]     Where Mr Breen complains that he had been retrospectively found guilty on the basis of the Property (Relationships) Amendment Act 2005, Civil Union Act

2004 and the Crimes Amendment Act 2003, that was clearly not the case. He has been found guilty under the Crimes Act 1961. In informing his decision, the Judge applied the definition of “partner” as it applied when the offence was committed (at [26]–[30]).

[24]     Insofar   as   Mr   Breen   argues   that   he   was   interrogated   twice   by

Housing New Zealand for evidence without being able to present his defence, the

answer is twofold.   First, since the comments he made to Housing New Zealand were not made while he was under arrest or being detained, Housing New Zealand did not improperly obtain those comments by not informing him that he should not incriminate himself.   Secondly, at trial, Mr Breen was given the opportunity to present his own evidence, but elected not to do so.  He cannot now complain about his own election.

[25]     Ultimately, I have considered all of Mr Breen’s appeal grounds and find no merit in them, nor any evidence to support his claims.  In short, I am satisfied that the Judge reached the correct conclusion on the evidence before him.  It follows that I find the conviction to have been properly entered and accordingly, the appeal against conviction is dismissed.

[26]     Mr Breen also filed his appeal against the sentence imposed on him.   The appeal against sentence was directed at the order to pay reparation of $54,103, plus interest, which accrued at the rate of five per cent per annum.  However, during the hearing, the focus was very much on the appeal against his convictions.  The sum of

$54,103 represents the debt that Mr Breen owed to Housing New Zealand once the rental for the tenancy was adjusted from an  IRR basis to a market rental.   As Mr Breen did not provide information or argument that showed that the order of reparation was a manifestly excessive sentence to impose on him, I can see no basis for interfering with  the order.   Accordingly,  the appeal  against  sentence is  also dismissed.

Result

[27]     The appeal against conviction and sentence is dismissed.

Duffy J