Cruickshank v The Queen - [2014] NZCA 574

IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/2014
[2014] NZCA 574

BETWEEN	MICHAEL CHRISTOPHER CRUICKSHANK Appellant
AND	THE QUEEN Respondent

Hearing:	15 October 2014
Court:	Harrison, Asher and Lang JJ
Counsel:	E J Forster and W A Forster for Appellant P D Marshall for Respondent
Judgment:	28 November 2014 at 11.15 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal the conviction is dismissed.
BThe application for an extension of time to appeal the sentence is dismissed.

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REASONS OF THE COURT

(Given by Asher J)

Michael Christopher Cruickshank seeks extensions of time to appeal against his conviction and sentence for dishonestly and without claim of right using a medical certificate to obtain benefits under the Accident Compensation Act 2001.[1]

Background

[1]R v Cruickshank DC Auckland CRI-2007-044-4958, 21 July 2010 [Sentencing notes].

In 1995 Mr Cruickshank fell from a ladder while working. He suffered injuries to his hands, arms and neck, some of which were serious. Since then, he has received weekly payments from the Accident Compensation Corporation (ACC) on the basis that he has been unfit for work.
In order to claim the weekly payments from ACC, Mr Cruickshank provided ACC with medical certificates every 90 days or so, stating that he was unfit for work. We will refer to the terms of the medical certificates later.
One of those certificates was dated 28 October 2005. ACC later obtained information alleging that despite stating he was unfit to work Mr Cruickshank had carried out interior renovation work at a food court and at a residential property in Northcote between August and December 2005, for a Ms Parsons. As a result of this information, Mr Cruickshank was charged with one count of obtaining ownership or possession of benefits by deception and without claim of right,[2] and one count of dishonestly and without claim of right using a document, namely a medical certificate, with intent to obtain a pecuniary advantage or valuable consideration, being those benefits.[3]

The trial

[2]Crimes Act 1961, s 240(1)(a).

[3]Crimes Act, s 228(b).

Mr Cruickshank was tried by a jury in the Auckland District Court in April 2010. At the trial the Crown adduced evidence from eight witnesses to the effect that Mr Cruickshank had carried out interior renovation work for Ms Parsons at both the food court and at the residential property in Northcote. Ms Parsons gave evidence that Mr Cruickshank had done that work for her and that she paid him between $14,000 and $18,000.
Mr Cruickshank accepted that he had assisted Ms Parsons by picking up materials for her, cashing cheques and doing small amounts of work and giving her advice. However, he denied other aspects of the evidence, in particular receiving any money from her. He called five witnesses, all of whom in one way or another supported his claim that he did not receive payments and was not working for money for Ms Parsons.
At the end of the trial, on 19 April 2010,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cruickshank v The Queen

Details

AGLC: Cruickshank v The Queen [2014] NZCA 574
Case: [2014] NZCA 574
Decision Date: 28 November 2014 at 11.15 am

CaseChat Overview and Summary

In the matter of Cruickshank v The Queen, the defendant, Mr Cruickshank, seeks a review of his case which has not yet been heard. The respondent, The Queen, argues against the postponement of the criminal proceedings pending the outcome of the review process under the Accident Compensation Act. The legal dispute revolves around whether criminal proceedings should be delayed until the review process is completed under the Act. The Court of Appeal was tasked with determining whether the criminal proceedings should be stayed pending the outcome of the review process, and if there was any legal basis to delay the criminal case.

The court examined section 133(5) of the Accident Compensation Act, which pertains to the effect of reviews or appeals on decisions. The court concluded that this section does not apply to criminal proceedings, as it is concerned with civil matters under the Act. The court further found that the suggestion to delay the criminal proceedings on the grounds of fairness or good practice was unfounded. The court emphasised the importance of dealing with serious criminal allegations without delay, highlighting that criminal proceedings should take precedence over civil claims. The court referenced the principles articulated by Batt J in Australian Securities Commission v Kavanagh, which support the notion that criminal proceedings should be addressed first due to the serious nature of the allegations and the risk to personal liberty.

The court rejected the argument that the New Zealand Bill of Rights Act 1990 or the United Nations Convention on the Rights of Persons with Disabilities required or enabled a delay in the criminal proceedings. The court also noted the limited admissibility of District Court determinations in criminal proceedings under section 50(1) of the Evidence Act 2006. The court concluded that there was no legal basis to postpone the criminal proceedings pending the review process. The court did not need to determine the admissibility of a reviewer's decision in a criminal proceeding, although it observed that it would be "odd" if such a decision were admissible when a court's decision was not.

The final orders of the court were that the criminal proceedings should proceed without delay, and the suggestion to postpone them pending the outcome of the review process under the Accident Compensation Act was rejected.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Cruickshank is pursuing a review, although it has not yet been heard. Mr Forster submitted that it was an abuse of process for the criminal case to proceed prior to the ACC review process. He relied on s 133(5) of the Accident Compensation Act which provides:133 Effect of review or appeal on decisions …(5)If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. This submission is misconceived. Section 133(5) is located in part of the Act dealing with reviews or appeals of decisions made by ACC in relation to a claim, and provides that any review or appeal must be dealt with according to the processes of the Act. The section has nothing to do with any criminal proceedings that may be brought under the Crimes Act, rather than under the Accident Compensation Act. Indeed, the submission can be seen as continuing the confusion that was evident in Mr Forster’s submissions referred to above between a person’s right to claim compensation, and the dishonest use of a document to obtain a pecuniary advantage. They are different issues. We do not accept the suggestion that as a matter of fairness or good practice criminal proceedings should be postponed until the ACC review process is completed, nor that the New Zealand Bill of Rights Act 1990 or the United Nations Convention on the Rights of Persons with Disabilities require or enable that course of action. A criminal proceeding addresses an issue that is irrelevant to the ACC process, namely the dishonest use of a document. When a serious crime is alleged the trial should proceed without delay. There are good reasons for the criminal proceeding to take priority over any civil claim. We agree with the comment of Batt J in Australian Securities Commission v Kavanagh:[15]Ordinarily it is, I think, the deep-rooted ethos of the common law system that a criminal proceeding, involving, as it does, the risk to personal liberty and allegations of a more serious nature, should be dealt with first. That is not simply in the interests of an accused person but is in the interests of the community, in that its criminal laws may be vindicated as soon as possible if in truth there has been an offence committed.[15]Australian Securities Commission v Kavanagh (1994) 13 ACSR 573 (VSC) at 581. Any determination by a District Court on Mr Cruickshank’s entitlement will have limited admissibility. Under s 50(1) of the Evidence Act 2006 such evidence is not admissible in a criminal proceeding to prove the existence of a fact that was at issue in the proceeding in which the judgment was given. The position of a reviewer is not so clear and we do not need to determine this, although as the Law Commission observed in its 2013 review of the Act it would be “odd” if such a tribunal’s decision were admissible when a Court’s decision was not.[16] [16]New Zealand Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [9.17].

Ratio Decidendi

Legal Principle Established

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