Matia v Ministry of Social Development
[2014] NZHC 2759
•6 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000327 [2014] NZHC 2759
BETWEEN KORORIA MATIA
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 4 November 2014 Appearances:
N W Woods for Appellant
R See and J Burns for RespondentJudgment:
6 November 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 6 November 2014 at 12.30 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Rice Craig, Auckland
Meredith Connell, Auckland
MATIA v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 2759 [6 November 2014]
Introduction
[1] Following a defended hearing in the District Court at Manukau1 the appellant
Ms Matia was found guilty of:
(a) one charge of obtaining by deception (s 240 of the Crimes Act 1961); (b) four charges of fraudulently using a document to obtain a pecuniary
advantage (s 229A, Crimes Act 1961);
(c) seven charges of dishonestly and without claim of right, using a document to obtain a pecuniary advantage (s 228(b)), Crimes Act
1961.
[2] The period of offending was between 8 February 2000 and August 2012. Ms Matia had claimed that, during that period, she was not married or living in a relationship in the nature of a marriage in order to obtain a domestic purpose benefit and other supplementary benefits to which she would not have been entitled if she had declared her relationship with her partner, Mr Monty Poa.
[3] On 26 September 2014 Judge C J Field sentenced Ms Matia to imprisonment for two years, nine months.2 Ms Matia now appeals against her conviction.
The appeal
[4] The essential basis of the appeal is that the Judge erred in admitting the statement of Jean Te Kani3 (the appellant’s sister) as evidence in support of the prosecution. Ms Te Kani had died prior to the hearing after providing the respondent with a recorded interview.
[5] Mr Woods submitted that in particular the Judge failed to demonstrate any consideration of the second stage required for the admissibility of the hearsay
statement under s 8(1)(a) of the Evidence Act 2006 (the Act).
1 Ministry of Social Development v Matia DC Manukau CRI-2012-055-3109, 7 April 2014.
2 Ministry of Social Development v Matia DC Auckland CRI-2012-055-3109, 26 September 2014.
3 At certain stages in submissions and the Court record Ms Te Kani is referred to as Ms Te Pani.
[6] He submitted the evidence of Jean Te Kani was the cornerstone of the respondent’s case and in the absence of that evidence the informant’s case was irreparable.
[7] Mr Woods also submitted the position could not be cured by reference to the balance of the evidence. That evidence was also largely hearsay and objectionable. The prosecution case could not be pulled up by its boot straps.
The Judge’s approach to the admission of Ms Te Kani’s evidence
[8] The Judge conducted a voir dire to determine whether the evidence of Ms Te Kani should be admitted. Evidence was given at that hearing by Mr Johns, the fraud investigator with the Ministry of Social Development who carried out the interview with Ms Te Kani and by Ms Piki Matia. Ms Piki Matia is another sister of the appellant and Ms Te Kani. She gave evidence about Ms Te Kani’s health and capacity and her relationship with the appellant. Following that hearing the Judge ruled Ms Te Kani’s statement admissible. In the course of that ruling the Judge addressed the circumstances in which the statement was made and concluded they provided reasonable assurance it was reliable. The Judge then went on to address the issue of prejudice or potential prejudice if the statement was admitted. He dealt with it as follows:
[14] … Mr Wood submits correctly that it being impossible to cross- examine the maker of the statement then there is a risk of prejudice arising from that. In this regard, of course, the Court must always consider the provisions of s 7 and 8 Evidence Act, s 8 providing that the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding, or needlessly prolong the proceeding. Ss 2 provides:
“In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.”
[15] It is quite often submitted in cases such as this that if the evidence is admitted the defendant might be placed in a position of having to give evidence to rebut it. That, of course, is not determinative of the issue. In any case of this kind there is likely to be prejudice. The issue is whether in all the circumstances the prejudice could be said to be unfair. …
[16] The defence is not left in a position where, if the evidence is admitted, it must remain unanswered. For that reason I do not consider that
admitting the evidence would be contrary to the provisions of s 8. Having considered these matters I have reached the view that it would be proper to admit the statement of Ms Tekani [sic] pursuant to s 18 and it maybe led at trial.
[9] Mr Woods emphasised that the ruling was a preliminary one confirming the evidence satisfied the s 18 and s 16 thresholds but submitted it preserved the Court’s position regarding s 8(1). He submitted the Judge failed to address the issue again in his substantive decision and so wholly failed to recognise the prejudice arising from the inability to challenge Jean Te Kani’s evidence under cross-examination. He effectively ignored it. The Judge therefore failed to carry out the balancing exercise required by s 8(1) of the Act and to consider the probative value against the prejudicial effect. As a result the appellant was denied her right under s 25(f) the New Zealand Bill of Rights Act 1980.
[10] While the Judge did not expressly refer to s 8 of the Act in his reserved decision in which he found the charges proved, the issue of the potential prejudice to the appellant was a live issue before the Court. It had been emphasised by Mr Woods in his closing submissions to the Court. The Judge recorded Mr Woods’ submission as to the inability of the defence to cross-examine Ms Te Kani.
[11] Given that, and given the ruling following the voir dire in which the Judge had considered the issue of prejudice under s 8, I am unable to accept Mr Woods’ submission that the Judge ignored or overlooked whether the inability of the appellant to cross-examine Ms Te Kani meant that the probative value of her evidence was outweighed by the risk that it would have an unfairly prejudicial effect. Part of the consideration of the probative value of Ms Te Kani’s evidence was its reliability. The Judge dealt with the issue of the reliability of Ms Te Kani’s evidence in a number of sections of his decision. The Judge was satisfied that Ms Te Kani was a witness of truth and importantly, that her evidence was corroborated in many material respects by other evidence.
[12] I do not consider the fact the Judge failed to expressly refer to s 8 in his final decision or to directly articulate that the probative value of Ms Te Kani’s evidence was not outweighed by the risk it would have had an unfairly prejudicial effect on the proceeding is fatal to the convictions. It is implicit in the Judge’s reasoning and
his conclusions on her evidence that he considered the probative value outweighed the risk of unfair prejudice caused by the inability to cross-examine her.
[13] Ms Te Kani’s evidence was properly admitted. She was unavailable and the circumstances relating to her statement provided reasonable assurance the statement was reliable. Her statement was recorded and transcribed. The Judge was able to hear the recording of her statement. He was able to assess the way in which she made her statement, how she interacted with the interviewer and her capacity to understand the questions put to her.
[14] The statement was taken by a fraud investigator for the Ministry. Ms Te Kani was aware of the purpose for which her statement was to be used, namely for the purpose of an investigation into the appellant’s entitlement to a benefit and particularly whether the appellant and Monty Poa had been living together.
[15] Although Mr Woods criticised Ms Te Kani’s statement as itself containing hearsay she made a number of statements from her own personal observations such as:
(a) the appellant and Mr Poa lived together at 14 Rice Crescent and had lived there for a few years;
(b)that she visited the property about every week and in fact had just come from there;
(c) that when she visited Mr Poa was either there or had gone to work; (d) Mr Poa’s clothes were at the address;
(e) she had seen Mr Poa sleeping there and together with the appellant; (f) Mr Poa and the appellant shared the same group of friends;
(g) they presented as a couple at events;
(h) she had seen them cuddle and kiss now and again;
(i) they called each other pet names, namely Mum and Dad.
[16] As further evidence of the reliability of the statement there were a number of occasions when Ms Te Kani was asked questions about issues which she had no knowledge of, such as in relation to their finances or whether they had taken any loans out together. She readily admitted that she had no knowledge of such things. The fact she thought they were married when there was no proof of marriage does not detract from the reliability of the rest of her statement to the extent it was based on her observations.
[17] Having regard to the nature, contents and the circumstances in which the statement was made and recorded the Judge was right to conclude that there was reasonable assurance it was reliable.
[18] A substantive challenge was made to the statement on the basis of Ms Piki Matia’s evidence of animosity between Ms Te Kani and the appellant. However, the Judge had the advantage of assessing Ms Piki Matia’s evidence at the voir dire. He considered her evidence as itself unreliable. He found her to not be a truthful or convincing witness, noting that she had herself had issues with the Ministry.
[19] Whether or not the appellant and Mr Poa were in the relationship in the nature of a marriage involved consideration of:4
(a) whether and how frequently the parties live in the same house; (b) whether the parties have a sexual relationship;
(c) whether the parties give each other emotional support and
companionship [the parties have a number of children together];
4 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
(d)whether the parties socialise together or attend at activities together as a couple;
(e) whether and to what extent the parties share responsibility for bringing up and supporting children;
(f) whether the parties share household and domestic tasks,
(g) whether the parties share costs and other financial responsibilities;
[20] Ms Te Kani’s evidence was directly relevant to a number of those issues and was probative of them.
[21] In Clasen v Police5 this Court upheld an appeal against conviction concluding that the hearsay identification evidence of the complainant offered through a police constable was inadmissible. Crucial to the prosecution case was the issue of identification by the complainant. The complainant was a visitor to New Zealand who had been racially abused in a mall. After the incident he walked through the mall with the police officer and identified the complainant. The hearsay evidence in that case involved the police officer giving evidence of the complainant pointing out the offender to him. However, given identification was crucial to the case only cross-examination could have exposed the unreliability of the identification. The officer’s evidence about the complainant’s identification of the alleged offender was general in the extreme. No written statement had been taken to which reference could be made. The probative value of the statement on the crucial issue of identification was weak. The prejudice of not being able to cross-examine the complainant outweighed it.
[22] By contrast, in Bishop v Police6 Lang J rejected a submission that the inability of a party to cross-examine meant that the statement should be excluded under s 8 of the Act. The complainant had made a detailed statement a very short
time after the incident in issue. There was some independent evidence to support
5 Clasen v Police HC Auckland CRI-2011-404-108, 7 July 2011.
6 Bishop v Police HC Gisborne CRI-2008-416-3, 28 February 2008.
there was a general incident involving the complainant and Mr Bishop although no direct evidence of the actions underlying the offence itself.
[23] In K v R7 the Court of Appeal considered whether the interview of a deceased witness should be excluded from evidence under s 8. The Court stated:
[28] It is now well-established that, where the Court has determined that a provision in the Act renders evidence admissible that would otherwise be inadmissible, that fact alone will not be sufficient to bring s 8(2) into play, even if it affects the manner in which the defendant is able to offer an effective defence. The section requires the Court to weigh the probative value of the evidence, and balance it against any unfairly prejudicial effect that it may have on the proceeding. In this context the word “unfairly” has been interpreted as meaning “illegitimate”. The evidence will only be excluded under s 8(1)(a) where the balancing process persuades the court that the probative value of the evidence is outweighed by the risk that the evidence will have an illegitimate prejudicial effect on the proceeding. In assessing the latter in a criminal proceeding, s 8(2) requires the court to take into account the right of the defendant to offer an effective defence.
[24] The Court went on to conclude:
[31] We do not accept that the inability of Mr K's counsel to cross- examine the complainant if the videotaped interview is admitted as evidence at trial will affect the manner in which he conducts Mr K's defence. The defence will still be able to ask the jury to accept that the identified shortcomings in the complainant's evidence are such that they cannot be sure of Mr K's guilt. Counsel for Mr K would undoubtedly take that approach regardless of whether or not the complainant was available for cross- examination. That approach will not require Mr K to give evidence.
Importantly the Court rejected the submission that cross-examination might lead to further concessions as speculative.
[25] Similar considerations to that noted in K v R applied to the evidence of Ms Te Kani in the present case. Mr Woods emphasised the perceived shortcomings in Ms Te Kani’s evidence to Judge Field. While the Judge did not refer to s 8 expressly, nor to a direction under s 122 it is apparent he was aware that an important issue in the case was the reliability of Mr K’s evidence but, for the reasons given, confirmed he considered the evidence to be reliable. The reliability of the evidence was directly relevant to the probative value which is part of the balancing exercise under
s 8. The probative value of the statement in relation to the factors in issue
7 K v R [2014] NZCA 393.
outweighed any unfair or illegitimate prejudice. The Judge was aware of the need to be cautious about the evidence.
[26] The principal ground of appeal must fail.
[27] Mr Woods also criticised other hearsay evidence given in support of the case, particularly the accounting evidence of Giles and Liew. However, the challenged evidence was the subject of hearsay notices and rulings by the Court. The accounting evidence, which supported the prosecution case, was properly ruled admissible as business records. The Judge was correct to conclude that there would be no useful purpose in calling an accountant to produce the accounts of the Poa and Matia partnerships as some went back as far back as 2003 to 2006.
[28] Next, the evidence supporting Ms Te Kani’s evidence was not limited to the documentary hearsay evidence. As Mr Woods conceded there was also direct evidence of the Navman records which placed Mr Poa’s truck outside Mr Poa and the appellant’s home at Rice Crescent overnight on 318 occasions in 2010, 153 occasions in 2011 and from January to July 2012, on 179 occasions. The suggestion by the appellant that it was parked there for convenience but that he lived around the corner is unconvincing.
[29] It is also important to record that the case occupied three days and there were
11 witnesses in total called. One of the witnesses called for example was Ms Watson, the managing director of Mr Poa’s employer, Southern Districts Towing Ltd. In response to a question from the Court she identified the appellant and Mr Poa as relationship partners.
[30] My review of the evidence overall confirms the Judge was entitled to conclude the charges were proved beyond reasonable doubt.
[31] Mr Woods next generally criticised the Judge as not identifying each of the individual charges and discussing the evidence relating to each one. However, the Judge did consider the charges separately:
[5] I remind myself of the burden and standard of proof applicable in all criminal trials. The informant is required to satisfy me beyond reasonable doubt that all of the elements of a particular charge have been made out. It is also important that I consider each information separately and not adopt a global approach, although it is the informant’s position that at all material times the defendant was in a relationship in the nature of a marriage with Mr Poa. Each information, of course, refers to the date upon which the defendant declared her relationship status.
[32] Later the Judge concluded the evidence disclosed that Mr Poa and the appellant did indeed have a relationship in the nature of marriage at least from February 2000 to August 2012, the period covered by the informations. He confirmed he was satisfied that on each occasion she signed the Income Support Review forms or the Work and Income Review forms she was in a relationship in the nature of marriage and was fully aware of this. He then went on to identify the four categories of offending, finding in each case in relation to each one of the offences the offending was made out before concluding:
[38] I have not listed each information under its relevant CRN number but for the purpose of this decision, I record that I have, in fact, considered each individual document and the evidence relating to it.
[33] For the above reasons the appeal must be dismissed.
[34] There is a further feature of this appeal. Even if the appeal had succeeded on the technical ground raised it would have been remitted for a retrial given the further evidence now available to the Ministry.
[35] For the purposes of sentencing a pre-sentence report was obtained. In the course of that pre-sentence report the appellant effectively admitted the relationship with Mr Poa (which she had denied before Judge Field and which she seeks to argue before this Court did not exist). The report writer records the appellant as saying that she has been living at the same address for the past 15 years and:
Also at the address are her husband. …
Later:
Ms Matia reported being with her partner for the past 20 years. She has five children from this union although considered the relationship as having been
‘on and off’ for periods of time. She added that during that time, he would
leave for a couple of days and do his ‘own thing’ before returning, although
had been less inclined to do this over the past decade.
... She advised that her partner was placed on a sickness benefit a year ago
after suffering from a heart attack. …
… In relation to her offending she was asked why she had not advised WINZ of her change in circumstances. She advised that in 1996 her partner had left for two months to do some ‘womanising’ during which she went on a benefit. When he returned she never notified WINZ and was “[not too] sure” why not. She offered no other information.
[36] On any retrial that further evidence of the appellant’s admissions could be led. It is inevitable that a further finding of guilt would follow.
Result
[37] The appeal is dismissed.
Venning J
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