M v Police HC Timaru CRI 2010-476-10
[2010] NZHC 1990
•4 November 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI 2010-476-000010
BETWEEN M
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 November 2010
Counsel: G E Martin for the Appellant
A R McRae for the Respondent
Judgment: 4 November 2010
ORAL JUDGMENT OF WILD J
Introduction
[1] Ms M appeals against her conviction on four charges of using a document to obtain a pecuniary advantage. The charges result from four carer support claim forms Ms M lodged, claiming reimbursement for money she had paid to her mother, Mrs Taylor, for care Mrs Taylor had provided to Ms M ’s child, Manuel.
[2] Each of the four charges is similarly framed. In respect of each of the four claim forms it charges Ms M with an offence under s 228(b) Crimes Act
1961 in that she (and I take this from one of the forms as an example):
dishonestly and without claim of right used a document, namely a Carer
Support Claim Form in the name of Manuel McDONNELL, invoice number
830135, with intent to obtain a pecuniary advantage, namely the payment of a benefit
M V NEW ZEALAND POLICE HC TIM CRI 2010-476-000010 4 November 2010
[3] The grounds of appeal advanced are three-fold:
(1)Claim of right: The Judge erred in finding the Ministry of Health (MoH) had proved beyond reasonable doubt that Ms M did not have a ‘claim of right’.
(2)Dishonestly - misdirection: The Judge failed properly to direct himself in relation to the requirement that the MoH proved that Ms M had acted dishonestly.
(3)Dishonestly – misapplication: The Judge failed correctly to apply the definition of “dishonestly”.
[4] A fourth ground of appeal relating to pecuniary advantage was abandoned by
Mr Martin in the course of his submissions this afternoon.
Background
[5] Manuel is one of Ms M ’s three children. He is disabled. Ms M is his primary caregiver. Over a period of about three years Ms M ’s mother, Mrs Taylor, supported Ms M by caring regularly for Manuel from Friday until Sunday. Manuel stayed with Mrs Taylor on Friday and Saturday nights. It seems that Mrs Taylor also cared for Manuel on other days.
[6] Ms M learned from an organisation called, I think, Life Links that Mrs Taylor may be eligible to claim from the MoH carer support for helping Ms M with Manuel’s care. She told her mother this. Mrs Taylor said she did not want to be paid for looking after Manuel, because he was her grandson.
[7] Ms M subsequently completed four successive carer support claim forms and lodged these with the MoH. Each of these forms:
• Showed Ms M as the fulltime carer of Manuel.
•Showed Mrs Taylor as the support carer (and as Manuel’s grandmother).
•Showed that the claim was by way of reimbursement to Ms M for payment made to Mrs Taylor. The form contained alternatives for the person to be paid “reimbursement to the full-time carer” and “reimbursement direct to the support carer”. On each form the first alternative was ticked.
• Contained a receipt signed by Mrs Taylor, in the following terms (I
take this from one of the forms as an example):
A Receipt must be provided where reimbursement is directly to the Full Time Carer.
Received from S M M
The sum of $2100
For the care of Manuel M
Provided between 9/8/07 and 30/9/07
Signed “Mrs E M Taylor”
•Contained details of the bank account of Ms M and her husband, for payment of the reimbursement.
•Was dated and signed by both Ms M and Mrs Taylor in the space headed ‘Signatures, I have read and accepted the terms and conditions on the back of this form’.
The appellant’s defence
[8] Ms M ’s defence to the charges was that her mother, Mrs Taylor, had gifted the moneys claimed to Ms M and her husband, as they were going through financial difficulties at the time. Her evidence was that her mother had said to her words to the effect “Well I’ve never been able to help before, now’s my chance to help, and I would like to give you the money”. Mrs Taylor was called by the prosecution. Under cross-examination by counsel for Ms M , Mrs
Taylor agreed that she believed the money claimed from the MoH was hers and that she was entitled to give it to her daughter.
[9] At the end of his submissions this afternoon, Mr Martin summarised the appellant’s case in the following way. First, the care claimed for had been provided to Manuel by Mrs Walker. Second, a claim could thus legitimately have been made for this care. This was not a situation where claims were being made for care that had not been provided. Third, Mrs Taylor wanted Ms M , her daughter, to have the care support monies. Mrs Taylor had consented impliedly to the claims being made by Ms M , by acknowledging receipt of the moneys from Ms M on each form. Fourth, Mrs Taylor was aware that the claims had been made on each occasion. Fifth, there was evidence that Ms M was gravely mistaken as to the amount claimable. This is a reference to the fact that in the first claim form she had claimed a total of $75 when in fact the entitlement was to $2,100 (28 days at $75 per day or part day). Lastly, in completing the form as she did, Ms M was honestly giving effect to Mrs Taylor’s intentions.
[10] As I understand the nub of this defence, it proceeds along these lines. Had Mrs Taylor either claimed these moneys directly herself, or had they been paid to Mrs Taylor by Ms M , Mrs Taylor would have been free to give the moneys to Ms M . Because, had that happened, Ms M might have received these moneys lawfully, it cannot be a crime that she received them in the manner she did. That is, by claiming them from the MoH by way of reimbursement for what she claimed she had paid to her mother.
[11] I am going to deal with the points on appeal in a slightly different order than did Mr Martin.
Second point on appeal: “Dishonestly” – misdirection
[12] “Dishonestly” is defined in s 217 Crimes Act. Mr Martin submitted that the Judge failed to direct himself to consider whether Ms M ’s acts in lodging the claim forms were done without a belief that there was express or implied consent
to, or authority for, their lodgement from a person entitled to give such consent or authority. He submitted that that required a subjective assessment.
[13] I agree with that submission. In Hayes v R [2008] 2 NZLR 321, at [42]-[43]
the Supreme Court stated:
The objective facts of a particular case may be such that the jury can properly infer that the accused had a dishonest mind unless he or she can raise a reasonable doubt on the basis of a relevant but mistaken belief. In this respect the international jurisprudence is consistent with New Zealand’s view that, provided the accused’s belief is actually held, it does not have to be reasonable. This approach recognises the common law principle that mens rea is, in most cases, a subjective concept. Hence a mistaken belief in facts or circumstances that would, if correct, exculpate the accused, does not have to be reasonable or based on reasonable grounds.
[14] The Judge’s self-direction on dishonesty was cryptic. It is in the second sentence of [16] of his oral decision, which I set out in full in [17] below. Having referred to the requirement for proof that Ms M had acted dishonestly, the Judge directed himself:
... I am concerned to find what the prosecution has proved was in the defendant’s mind in each case ...
[15] Thus, the Judge understood that he was dealing with a subjective concept, or was required to make a subjective assessment. This first ground of appeal is not made out and I dismiss it.
Second ground of appeal: “Dishonestly” – misapplication to the facts in this case
[16] Mr Martin’s submissions on this ground were a detailed elaboration of the defence I have already outlined. To recap: both Ms M and Mrs Taylor thought that Mrs Taylor was entitled to the moneys claimed; Mrs Taylor wanted Ms M to have those moneys; Mrs Taylor knew Ms M was lodging the claims and receiving the moneys; although Ms M “had made fundamental mistakes” about the claim and the form, that fell short of establishing that she had acted dishonestly, or at least left reasonable doubt as to whether she had;
the Judge failed to take into account that Ms M “appeared not to completely understand how the claiming worked”.
[17] The Judge’s findings about dishonesty and claim of right are in this paragraph in his oral decision:
[16] The next issue is whether the defendant acted dishonestly and without claim of right. I am concerned to find what the prosecution has proved was in the defendant’s mind in each case. I am satisfied that she knew that what she was doing was not just inaccurate but wrong. I am satisfied that she knew that in completing the forms as claims for reimbursement, she was acting dishonestly. While she may have thought that she was morally justified in claiming the money because her mother was entitled to do what she liked with the money that she might have claimed as a carer, she adopted this particular mode of claim in order to mislead the Ministry into paying the claims on a completely different basis. She did not believe, albeit wrongly, that she was legally entitled to claim in this way. This was not just a mistake as to the correct method of claim. I am satisfied that the defendant believed that if she disclosed the truth to the Ministry then the claims might not be paid for the reason that she – and not her mother – was the ultimate beneficiary and that her mother – and not she – had provided the car. So, in doing what she did, she had no claim of right. I am satisfied that the prosecution has proved that in completing these forms, showing that she had already paid her mother this money, she knew that it was not the right thing to do and there was no proper basis for her to do this. She did this to ensure payment of the claims to her.
[18] Having read the notes of evidence, in particular the cross-examination of Ms M , I consider that all those findings were open to the Judge, indeed all of them were inevitable.
[19] Mr Martin submitted that Ms M ’s evidence about her understanding of reimbursement was vague. But Ms M accepted that she knew what a reimbursement was. She accepted that she knew, in lodging the claim forms, she was representing to the MoH that she had already paid to her mother the moneys she was claiming for herself by way of reimbursement. For example, there was this exchange in cross-examination:
Q.Now, I’m not going to go through each of these other forms because they are all filled out in the same way, but in each of the forms, you are claiming for support care that you say has been paid to your mother, but has not been paid to your mother. Isn’t that the case?
A. That is correct. But, as I said, she did not want the money.
[20] There were further indications in the evidence supporting the Judge’s findings. Ms M accepted that when she was first spoken to by the MoH investigator, Mr Bracegirdle, she denied that she had not paid her mother. She accepted that she had claimed that she had paid her mother “through groceries and through taking her and Manuel out”. She also admitted that subsequently, in a formal interview with Mr Bracegirdle on 8 April 2009, she had stated that she had paid her mother between $3,000-3,500, although she had accepted she had not paid her mother the full $8,396 she had claimed from the MoH by way of reimbursement. Those answers are consistent only with Ms M understanding that she had made the claims by way of seeking reimbursement, and needed to demonstrate, if she could, to the MoH that she had previously paid the moneys to her mother. They are not at all consistent with her defence that she had not committed the crimes she was charged with, because her mother was entitled to the moneys and had given them to her.
[21] Under cross-examination, what Mrs Taylor had told the MoH was put to Ms M . Mrs Taylor had told the MoH that she had only ever received two payments from her daughter, one of $500 and the other of $1,000. Both these payments had been made to her after February 2009 (in other words well after the periods covered by the four claims), and after Mrs Taylor asked her daughter whether she could have some of the care moneys. The following exchange took place:
Q. He (Mr Bracegirdle) explained to you that your mother had provided statement saying that she’d only ever received two payments from you. A payment of $500 and a payment of $1,000?
A. Yes.
Q.It was at that point that you said on the telephone that you were going to “have this out with your mother”?
A. Yes, I did.
Q.And again, you were asked whether what your mother said was correct. You replied “Yes, but Mum and I agreed it would be all right”?
A.Yes, but I was also, now I know that it’s wrong and I did not know it before, was that I was on the understanding that yes, she received the
$1,500 in cash, but I also thought that the groceries and when I’d
taken them out, was also included in that, so for me, it wasn’t just
$1,500 that she had received.
[22] Indeed, it was put to Ms M that the very fact that her mother had subsequently asked her for some of the money was another reason for Ms M to know that what she had stated on the claim forms was dishonest. She replied “No, I don’t think so”.
[23] I uphold the Judge’s finding that the MoH had proved to the criminal standard that Ms M had made the four claims dishonestly, that is knowing that she was not entitled to claim those moneys for herself by way of reimbursement of moneys she had previously paid to her mother for caring for Manuel.
First ground of appeal: Judge erred in finding that prosecution had proved Ms
M did not have a “claim of right”
[24] Mr Martin’s submissions on this ground were essentially the same as those on the grounds of appeal relating to the need for the prosecution to prove that Ms M had acted dishonestly. In short, because the appellant believed the funds were legitimately claimed and that Mrs Taylor was entitled to give them to Ms M , Ms M did have a claim of right. The fact that the money did not pass through Mrs Taylor’s bank account did not evidence a lack of claim of right on Ms M ’s part. It merely meant that she “in effect acted as a trustee of those funds”.
[25] Claim of right is defined thus in s 2 Crimes Act 1961:
claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.
[26] Thus, here, the MoH needed to exclude the reasonable possibility that Ms M believed what she did was lawful. For the reasons I have already given, I uphold the Judge’s finding that the MoH had proved beyond reasonable doubt that Ms M did not believe she was entitled to claim these moneys by way of reimbursement. Literally, the MoH proved that Ms M knew full
well she had no right to claim these moneys by way of reimbursement, because she knew that she had not previously paid them to her mother.
[27] This ground of appeal also fails and is dismissed.
Result
[28] As none of the three grounds of appeal has succeeded, the appeal against conviction is dismissed. Ms M ’s convictions on each of the four charges stand. She has not appealed against the sentences imposed on her: a concurrent sentence of 120 hours community work on each charge.
Solicitors:
Argyle Welsh Finnigan, Ashburton for the Appellant
Crown Solicitor, Timaru for the Respondent
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