Jeffries v Ministry of Social Development
[2022] NZHC 2114
•24 August 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2022-454-10
[2022] NZHC 2114
BETWEEN THERESA MARIE JEFFRIES
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 23 August 2022 Counsel:
P Murray for the Appellant
B Vanderkolk for the Respondent
Judgment:
24 August 2022
JUDGMENT OF GWYN J
Summary
[1] Following a Judge-alone trial in the Palmerston North District Court, Theresa Jeffries was convicted on a charge of obtaining by deception1 and two charges of dishonestly using a document.2 Ms Jeffries was acquitted of the remaining 21 charges.
[2] The trial took place in February 2020 and 2021, with the judgment issued on 1 April 2022.3 On 30 May 2022, Ms Jeffries was sentenced to 200 hours’ community work on each conviction.4
1 Crimes Act 1961, s 240 carries a maximum penalty of seven years’ imprisonment.
2 Section 228 carries a maximum penalty of seven years’ imprisonment.
3 Ministry of Social Development v Jeffries [2022] NZDC 5300.
4 Ministry of Social Development v Jeffries [2022] NZDC 15761.
JEFFRIES v MINISTRY OF SOCIAL DEVELOPMENT [2022] NZHC 2114 [24 August 2022]
[3] On 30 May 2022, Ms Jeffries filed a notice of general appeal against conviction and sentence.
Facts
[4] Ms Jeffries was granted a Domestic Purposes Benefit in early 2009. A condition of receiving the benefit is an obligation to inform the Ministry of Social Development (MSD) immediately of any change in circumstances that might affect the beneficiary’s entitlement, such as one’s relationship status and living situation.
[5] The basis of the charges against Ms Jeffries was the allegation that she failed to disclose to MSD a change in circumstances relating to her relationship status and living situation with the result that she was overpaid social security benefits.
[6] It was MSD’s argument that Ms Jeffries was, at three points while receiving the benefit, not entitled to it because she was living with her husband at the time. Ms Jeffries’ case was that her marriage had effectively ended after their wedding in early 2008 and some attempts at reconciliation never worked out.
[7] Ms Jeffries is 59 years old and has had no previous convictions in the last 20 years.
District Court’s decision
[8] Judge Northwood, in the Palmerston District Court, first noted that Ms Jeffries was facing charges for three periods where she was alleged to have dishonestly provided false information to MSD. The time periods were 6 September 2009 – 30 May 2010 (Period 1); 27 September 2011 – 12 November 2015 (Period 2); and 18 April – 28 October 2016 (Period 3). For each time period, the alleged dishonesty on Ms Jeffries’ part was her claim that she did not have a partner and that she was living apart or separated. For Periods 1 and 3, this took the form of a failure to disclose that Ms Jeffries had reconciled with her husband. For Period 2, it was alleged that Ms Jeffries falsely represented that she had separated from her husband.
[9] The Judge first canvassed in some considerable detail the significant volume of evidence before the court. The Judge then described the defence case. Essentially, Ms Jeffries claimed that while she remained close to Mr Jeffries, their relationship was not one in the nature of a marriage during the relevant time periods. The closeness they continued to share arose out of practical matters as well as their shared connection to Ms Brown, Ms Jeffries’ daughter from a previous marriage, who viewed Mr Jeffries as a father figure. The evidence demonstrated that Ms and Mr Jeffries had a volatile and unconventional relationship.
[10] Before embarking on the analysis the Judge noted that, the case against Ms Jeffries being a criminal one, it was for the prosecution to prove each element of the charges brought beyond reasonable doubt.
[11] The Judge noted that the concept of “living apart” was fundamental to Ms Jeffries’ case. He cited the authorities on this point, but concluded that because of the unconventional nature of their relationship and their personalities, it would be difficult to safely categorise Ms and Mr Jeffries’ relationship. The Judge, instead, assessed their situation in the context of how Ms and Mr Jeffries lived their lives.
[12] For Periods 1 and 2, the Judge found that the prosecution was unable to discharge the burden of proving beyond reasonable doubt that Ms Jeffries was not living apart from Mr Jeffries or that Ms Jeffries dishonestly claimed to have been separated from Mr Jeffries on each occasion that she filled out the required forms, respectively.
[13] For Period 3, the Judge was satisfied on the evidence that Ms and Mr Jeffries had reconciled to a point where it could be said that they were not living apart. He recorded the date of this reconciliation as 18 April 2006. The basis of this finding was evidence of especially affectionate text messages between the pair, their plan to move to a new house and the increased amount of time the pair spent together during this period. Accordingly, Ms Jeffries’ failure to report this material particular to MSD when she was under a duty to do so constituted an act of deception contrary to s 240 of the Crimes Act 1961. The two charges of dishonestly using a document for this
period were also made out, the Judge finding that Ms Jeffries dishonestly completed the documents intending to obtain a pecuniary advantage.
[14] On 30 May 2022, Ms Jeffries was sentenced to 150 hours community work for the above convictions.
Grounds of appeal
[15] Ms Jeffries appeals the conviction on the basis that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.5
[16] The appeal against conviction proceeds under ss 229(1) and 232 of the Criminal Procedure Act 2011 (Act).
Submissions
For the appellant
[17] Mr Murray, for the appellant, submits that a key portion of the evidence was not addressed by the trial Judge which resulted in a miscarriage of justice in this case. The evidence was that Ms Jeffries had made some changes to her living situation in order to care for Mr Jeffries during a time when he was very sick and getting progressively worse. It was Ms Jeffries’ evidence that MSD was fully aware of these circumstances throughout because she had advised them in the course of a number of visits to their offices, including some where she was accompanied by Mr Jeffries, and through various phone calls. It was her evidence that MSD had sanctioned that arrangement. Mr Jeffries also gave evidence of two of the meetings described by Ms Jeffries. Collectively, that evidence is referred to as the MSD meetings evidence. The appellant submits that the MSD meetings evidence was not challenged by the prosecution but the trial Judge did not address it in the judgment.
[18] The appellant’s submission is that the inference the Judge drew as to Ms Jeffries’ living situation is unsupportable if regard is had to the unchallenged evidence put forward by Ms and Mr Jeffries that MSD was aware of the circumstances
5 Criminal Procedure Act 2011, s 232(2)(b).
and advised they could continue as they were. Therefore, the appellant submits, a miscarriage of justice has occurred in convicting Ms Jeffries.
For the respondent
[19] Mr Vanderkolk, for the respondent, submits that Judge Northwood did not err in his assessment of the evidence to the extent that a miscarriage of justice has occurred. Counsel submits that the Judge correctly identified the elements of the charges Ms Jeffries was facing; correctly identified the issues at trial; and correctly focussed the analysis on the state of the relationship between Ms and Mr Jeffries.
[20] The respondent submits that the Judge thoroughly addressed Ms Jeffries’ evidence and the evidence of her circumstances at the time. It was for the Judge to assess credibility of the witnesses and accord weight to the evidence accordingly. Mr Vanderkolk says that, in any event, the evidence specific to Period 3 (which spanned the period 18 April 2016 to 28 October 2016) that indicated that Ms Jeffries and Mr Jeffries had reconciled and were living together, was sufficiently compelling for the Judge to reach the conclusion he did, that Ms Jeffries intended to deceive MSD about her living arrangements.
[21] Accordingly, the respondent submits that the convictions were sound and no miscarriage of justice has occurred.
Relevant law
[22] Section 232(2)(b) of the Act provides that the first appeal court must allow the appeal if satisfied that, in the case of a Judge-alone trial, the judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
[23] A miscarriage of justice will be evident where an error, irregularity, or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.6 Justice Katz considered the meaning of a “real risk” in Nishant v Police:7
6 Criminal Procedure Act, s 232(4).
7 Nishant v Police [2019] NZHC 18 at [15] (footnotes omitted).
A “real risk” that the outcome of the trial was affected will arise if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. Irregularities which “plainly could not, either singly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them. However, a finding that there has been an unfair trial in terms of s 232(4)(b) means that it is unnecessary to consider whether this may have affected the outcome of the trial because s 232(4)(b) assumes that if an accused person has not received a fair trial then any resulting conviction must be set aside.
[24] The Supreme Court in Sena v Police confirmed the onus is on the appellant to show an error has been made.8 The appellate court must bear in mind any advantages a trial judge may have had, particularly that they were able to hear and assess evidence in person. The Court also noted, regarding appellate assessment of judges’ reasons:9
… imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
Analysis
[25] The issue is whether this Court can conclude that the Judge’s omission in not addressing in the judgment the evidence of the MSD meetings indicates an error in his assessment of the evidence, and whether such an error amounted to a miscarriage of justice.
[26] While the District Court judgment is lengthy and otherwise thorough in its description of the evidence, it does not address the MSD meetings evidence the appellant now points to as being exculpatory of Ms Jeffries.
[27] The MSD meetings evidence was not challenged in cross-examination. Mr Vanderkolk submitted that was so, at least in part, because there was no opportunity to call prosecution evidence on the point, the prosecution case having
8 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
9 At [37].
closed before Ms Jeffries’ evidence. However, as Mr Murray indicated, Mr Jeffries gave his evidence in April 2017 (well before the trial) because of his terminal illness. While his evidence on this point was not as extensive or detailed as Ms Jefferies, it squarely raised the issue of the MSD meetings. The prosecution was thereby alerted to the need to address the MSD meetings in its own evidence.
[28] As the Supreme Court observed in Sena,10 a Court has to undertake a contextual assessment; a Judge is not required to refer to every issue or argument in detail (or at all). However, the MSD meetings evidence is significant, was not challenged or contradicted, and stands in stark contrast to the evidence the Judge did specifically refer to and which he concluded demonstrated that Mr and Ms Jeffries had reconciled and were living together and thus Ms Jeffries had misled MSD about her situation. The judgment does not address the MSD meetings evidence. While it would have been open to the Judge to accept this evidence, to reject the evidence in its entirety or, perhaps, to conclude that Ms Jeffries was not honest in her discussions with MSD and therefore she could not rely on their sanctioning of the arrangements. What was required however was that the Court weigh the MSD meetings evidence against the address evidence, before making an assessment of Ms Jeffries’ credibility.
[29] I accept the appellant’s submission that, by failing to address this probative evidence, the Judge made an error.
[30] I conclude this was an error which carried a “real risk” that the outcome of the trial would be affected and amounts to a miscarriage of justice, in terms of s 232.
[31]I allow the appeal and set aside the convictions.
[32] Mr Vanderkolk submitted that, if I uphold the appeal, the appropriate course would be to remit the matter back to the District Court to reconsider this narrow point. Mr Murray opposes that course and says I should enter an acquittal on the three charges.
10 Sena v Police, above, n 8, at [37].
[33] Whether a retrial should be ordered requires a “flexible approach”,11 with a focus on a factual inquiry as to where the interests of justice lie. In this case, the evidence was heard over a total of two weeks, in February 2021 and February 2022. Mr Jeffries’ evidence was heard earlier because of his illness. Mr Jeffries has since died. While the convictions relate only to Period 3, it would be necessary to rehear all of the evidence relating to that period. The relevant events occurred some six years ago. The charges for which Ms Jeffries was convicted concerned a total of $7,285. Having regard to those factors I conclude that the interests of justice do not require a retrial.
Result
[34] The appeal is allowed. Ms Jeffries’ convictions are quashed and a judgment of acquittal entered.
Gwyn J
Solicitors:
Mr Murray, Palmerston North
BVA The Practice, Palmerston North
11 Reid v R [1980] AC343, [1979] 2 All ER 904 (PC, Jam), affirmed in H v R [2022] NZSC 42, at [29].
3
0