Khalif v Ministry of Social Development

[2012] NZHC 1508

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000017 [2012] NZHC 1508

BETWEEN  FADUMA MOHAMED KHALIF Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         28 June 2012

Counsel:         S Bhardwaj for Appellant

RG Douch for Respondent

Judgment:      29 June 2012

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 29 June 2012 at 11.30 a.m.., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Bridge Law, 11 Worley Place, Hamilton for Appellant

(Email:  [email protected])

Almao Douch, P O Box 19173, Hamilton for Respondent

(Email:  [email protected] )

FADUMA MOHAMED KHALIF V MINISTRY OF SOCIAL DEVELOPMENT HC HAM CRI-2012-419-

000017 [29 June 2012]

Introduction

[1]      Ms Khalif pleaded guilty in the Hamilton District Court to two charges of wilfully omitting to make disclosure to a social welfare officer, contrary to s 127 of the Social Security Act 1964 (the Act), and one charge of obtaining a benefit by deception under the Crimes Act 1961.  She was convicted and sentenced by Judge Tompkins to 75 hours’ community work.  She has completed the sentence.

[2]      Ms Khalif has sought leave to appeal out of time against conviction and sentence.  Leave to appeal out of time was granted by Brewer J on 6 June 2012.

Background

[3]      Ms Khalif is a 24-year-old Somalian woman who came to New Zealand as a refugee in 1999.  She had lived in a refugee camp since the age of three.  She could not read or write English and could only speak Somali.   Her education in New Zealand has been limited and there is evidence that, even now, she has only a partial command of the English language.

[4]      In 2003 she applied for an unemployment benefit, a condition of which is that if she commenced employment or there were other changes to her financial circumstances that might affect her entitlement to a benefit, she would advise the Ministry of Social Development.

[5]      In 2007 she commenced two part-time jobs.  She did not advise the Ministry.

[6]      On 29 January 2010, Ms Khalif completed an application for review to her entitlement to benefit.  On the form she stated she had not worked or received any income other than her benefit in the preceding 12 months.  When interviewed a few weeks  later,  Ms  Khalif explained  that  she had  not  advised  the Ministry of  her employment because she did not think she had to inform the Ministry of part-time employment.

Entry of plea

[7]      Mr  Richard  Barnsdale,  barrister  of  Hamilton,  was  assigned  to  represent Ms Khalif.   They had a brief discussion.   Ms Khalif deposes in affidavits filed in support of the appeal that, without an interpreter to assist her, either in discussions with Mr Barnsdale or during her appearance in Court, she did not understand what was happening.   She did not understand the nature of the charges against her, the consequences of a guilty plea or the availability of a defence to the charges.

[8]      Ms Khalif said she told Mr Barnsdale that she thought she was allowed to work part-time.   This is confirmed by Mr Barnsdale in his affidavit.   His notes include the words “thought okay working part-time”.  Significantly, for the purpose of the appeal, Mr Barnsdale goes on to depose:

The element of the offence, which was important here was the failure to advise not the working itself and hence I did not take this as basis [sic] for a mens rea defence.

[9]      For reasons which I will shortly discuss it is unnecessary to give detailed consideration  to  other  matters  covered  in  the  affidavits  of  Ms  Khalif  and Mr Barnsdale and it was unnecessary for either to be cross-examined.

Right of appeal

[10]     There is no provision in the Summary Proceedings Act 1957 for a defendant to withdraw a plea of guilty after sentence has been imposed.   Conviction and sentence can be challenged only by an orthodox appeal against conviction under s 115 of the Act.[1]   An appeal will succeed only if the appellant is able to show that a miscarriage of justice will result if the conviction is not overturned.  That will not be the case if  the  appellant  has  fully understood  his  or her position  and  made an

informed decision to plead guilty.

[1] R v Le Page [2005] 2 NZLR 845 (CA).

[11]     There are three broad situations in which a miscarriage of justice will be

indicated:[2]

[2] R v Le Page at [17]-[19].

Where the appellant did not appreciate the nature of, or did not intend to

plead guilty to, a particular charge.

Where, on the admitted facts, the appellant could not in law have been

convicted of the offence charged.

Where it can be shown that the plea was induced by a ruling which embodied

a wrong decision on a question of law.

[12]     A further situation was identified by the Court of Appeal in R v Merrilees.[3]

[3] R v Merrilees [2009] NZCA 59.

That is:[4]

... where trial counsel errs in his or her advice to an accused as to the non- availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

[4] At [34].

[13]     That is the situation which the Crown accepts arose in this case.

Available defence

[14]     The  appellant  maintained  at  all  stages  that  she  did  not  believe  she  was required to declare a part-time job to the Ministry of Social Development.  That is what she told the Ministry officer when interviewed.   That is what Mr Barnsdale accepts she told him.

[15]     As is clear from the passage in Mr Barnsdale’s affidavit quoted in [8] above,

Mr Barnsdale did not recognise that Ms Khalif’s belief that she was not required to

declare part-time employment could not become the basis for a mens rea defence.

Yet, as Mr Douch frankly conceded, an honest belief on Ms Khalif’s part that she

was not required to disclose her part-time jobs would be a defence to both charges. [16]     The elements of the offence created by s 127 of the Act are:[5]

[5] R v Chilton [2006] 2 NZLR 341 (CA) at [50].

(a)       Wilfully doing or saying anything or wilfully omitting to do or say

anything;

(b)For the purpose of misleading or attempting to mislead an officer of the Department or other person;

(c)       Where that act or omission is also for the purpose of enabling receipt or continued receipt of a benefit by the offender or another person; or

(d)      Where that act or omission results in such receipt or continued receipt.

[17]     The offence of obtaining by deception also requires proof of an intention to deceive with knowledge that the representation is false in a material particular.[6]

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

Both offences require a dishonest purpose which goes beyond a mere failure to disclose.

[18]     If Ms Khalif did not appreciate that she was required to declare her part-time employment, she would have a defence to both charges.   She should have been advised accordingly.  Her counsel’s failure to do so plainly meant that she did not make an informed decision to plead guilty.  A miscarriage of justice would occur if the convictions are not overturned.

[19]     Mr Bhardwaj, who is to be commended for the assiduous way in which he has pursued the appeal, wondered whether it was necessary to remit the matter to the District Court, having regard to the time that has elapsed since conviction and the fact that Ms Khalif has served her sentence.   However, I consider that is the appropriate  course.    It  will  be  for  the  informant  to  decide  whether,  in  all  the

circumstances, it is appropriate or necessary for the charges to be pursued.

Result

[20]     The appeal is allowed.    The convictions and sentence are quashed.    The matter is remitted to the District Court.