Navaratnam v Ministry of Social Development
[2014] NZHC 1538
•3 July 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-87 [2014] NZHC 1538
BETWEEN SHIVAH HARAN NAVARATNAM
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 24 June 2014 Counsel:
R A B Barnsdale for Appellant
M J Ferrier for RespondentJudgment:
3 July 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 3 July June 2014 at 2.30 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor’s Office, Wellington
NAVARATNAM v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1538 [3 July 2014]
Introduction
[1] This is an appeal against conviction. The appellant was convicted of nine charges, which can be grouped into four categories:
(a) one count of wilfully omitting to advise Work and Income that he was planning to travel overseas;1
(b)two counts of forging documents in the form of invoices for massage services;2
(c) two counts of forging documents purportedly from his landlord;3 and
(d) four counts of using a document to obtain pecuniary gain.4
Facts
[2] The appellant’s convictions arise out of his various dealings with Work and Income, a division of the Ministry of Social Development responsible for administering benefits under the Social Security Act 1964. On 13 October 2003, the appellant successfully applied for an unemployment benefit and accommodation supplement on the basis that he was single, had no cash or non-cash assets, lived at
58 Chartwell Drive, Wellington, with his landlord Charika Wijewardena and was required to pay board of $160 per week. As part of the application process, the appellant was required to acknowledge that he understood he was required to advise Work and Income immediately if he had a change in work situation, intended to travel overseas, had changes to his financial circumstances or made changes to his living situation (for example commencing a relationship in the nature of marriage).
[3] The appellant received an unemployment benefit from 13 October 2003 until
16 November 2005. He was then transferred onto a sickness benefit, which he continued to receive until 1 December 2012. Work and Income’s case is that from
1 Social Security Act 1964, s 127.
2 Section 257(1)(a).
3 Section 257(1)(a).
4 Crimes Act 1961, s 228(b).
2002 to 2007 the appellant was living in a relationship in the nature of marriage with
Ms Wijewardena, the woman whom he advised Work and Income was his landlord.5
That allegation forms the basis of the four counts of using a document for pecuniary gain.
[4] Between the period of 13 October 2003 and 1 December 2012, the appellant also had a number of specific interactions with Work and Income.
[5] On 13 October 2003 he applied for a Special Needs Grant/Advance on
Benefit to pay his landlord, “C Kularatne”, two weeks’ bond and one week of rent.
[6] On 26 November 2004 the appellant applied for a Special Needs Grant on the basis that he was moving to 19 Gurka Crescent with “C Kularatne” and was required to pay $800 for three weeks’ bond and two weeks’ rent.
[7] On 9 November 2005 the appellant applied for a disability allowance to cover his medical expenses. He submitted an invoice for a therapeutic massage from “Heather Elsworth”. The address and contact details listed on the invoice were his own. During his trial, the appellant accepted having made that invoice. His explanation was that he had received a therapeutic massage but was unable to obtain an invoice for it. He was convicted of forging this document.
[8] On 1 November 2005 the appellant applied for a (one-off) special benefit application to cover extra heating and gas bills, along with additional medical expenses.
[9] On 29 November 2006 the appellant sought review of his benefit to cover additional electricity, gas and heating costs. He also submitted a further invoice for therapeutic massage, this time under the name of “Total Body Care and Massage Therapy”. The details on that invoice were in fact the appellant’s own details. Again, his explanation was that he was unable to obtain an invoice from the person who had provided the therapeutic massage. The appellant was convicted of forging
this document as well.
5 Ms Wijewardena is also referred to as Ms Kularatne throughout the District Court decision.
[10] The appellant also submitted seven documents to Work and Income, purportedly from or signed by Ms Wijewardena, attesting to the relationship between himself and Ms Wijewardena as being that of landlord and tenant and claiming that Ms Wijewardena had sought additional payments from him for excessive electricity and gas costs. The appellant was convicted of forging two of those documents.
[11] The appellant departed New Zealand on 23 January 2009 and returned on
2 March 2009. His explanation for failing to advise Work and Income of his intention to leave, and of his trip, was that he was concerned that someone from Work and Income would endanger his safety by informing Sri Lankan authorities of his impending travel.
The District Court decision
[12] In the District Court, Judge O’Driscoll did not accept the appellant’s explanation for failing to advise Work and Income of his overseas trip, reasoning that if the appellant had genuinely feared for his safety in Sri Lanka, he could have notified Work and Income of his trip upon his safe return to New Zealand.6
[13] In relation to the invoices submitted by the appellant for therapeutic massages, the Judge held that the documents were forgeries made by the appellant and given to Work and Income with the intention to mislead.7
[14] In relation to the remaining forgery charges, the Judge carefully considered each of the seven documents submitted to Work and Income and heard evidence from handwriting experts called by both the defence and the prosecution. The defence expert said that some of the signatures on the documents were completed by Ms Wijewardena; some were probably completed by Ms Wijewardena; and some were possibly completed by Ms Wijewardena. The expert was unable to offer an opinion as to one document. The prosecution expert largely agreed with that evidence but also testified that the signatures on two of the documents, dated
3 March 2006 and 12 November 2005 respectively, were forged.
6 Ministry of Social Development v Navaratnam DC CRI-2010-085-6114, 27 June 2011 at
[65]–[66].
7 At [71] and [76].
[15] Ms Wijewardena also gave evidence. She said that some of the documents were signed by her but others were not. She said the appellant would stand over her while she was busy and ask her to sign documents and she was not aware of what she was signing. The appellant’s evidence was that Ms Wijewardena signed all of the documents with knowledge of their contents.
[16] The Judge found the appellant not guilty of forgery in relation to the majority of documents, which the experts had agreed were signed by Ms Wijewardena, or were possibly signed by Ms Wijewardena.8 The Judge, however, found the appellant guilty in relation to the two documents which the handwriting expert for the prosecution said contained a forged signature. This evidence was substantiated by Ms Wijewardena’s own evidence that she had not signed those two particular documents. The Judge therefore drew the inference that it was the appellant who had forged those documents because no other party had any interest in them.9
[17] In relation to the four charges of using a document to obtain a pecuniary advantage, the Judge carefully considered the following evidence: first, that the documents in question were forms completed by the appellant, in which he described himself as single and not living in a relationship in the nature of marriage.
[18] Second, that Ms Grant, a tenant of the appellant, had said in evidence that “Shivah Ratna Haran”10 and “Charika Wijewardena” were listed as landlords on the residential tenancy agreement, with the address for service as 19 Gurka Crescent. Ms Grant said she had dealt with the appellant and Ms Wijewardena in relation to the tenancy, and during discussions with the appellant regarding tenancy issues, he would refer to Ms Wijewardena as his wife.
[19] Third, Mr Bedley, a telephone company employee, had referred to customer notes that recorded conversations between the appellant and the telephone company relating to Ms Wijewardena’s phone. In particular, the appellant was recorded as saying he wanted to make calls to his “partner” in Sri Lanka and, on a later date, had
referred to “his wife” as having a particular medical condition.
8 At [117].
9 At [118]–[119].
10 Mr Navaratnam also used this name.
[20] Fourth, two prosecution witnesses of Sri Lankan descent had given evidence about the status of the appellant’s relationship with Ms Wijewardena. Their evidence was that the appellant and Ms Wijewardena resided at three separate addresses at various stages. The second witness said that, while Ms Wijewardena is not Tamil and the appellant is, she was observed wearing Tamil attire when she was with the appellant.
[21] Fifth, Mrs Issar, a Work and Income investigator, said that during an interview on 6 August 2006 the appellant had referred to his relationship with Ms Wijewardena, saying their belongings were jointly owned, that they had travelled overseas together, they had an ongoing sexual relationship, celebrated Hindu festivals together and attended the temple together, and that he took their daughter to dancing classes. Mrs Issar also produced as exhibits the titles to Chartwell Drive, Halswater Drive, Pirie Street and Gurka Crescent showing that the properties had been transferred into the names of the appellant and Ms Wijewardena.
[22] Sixth, an employee of Tower Medical Insurance gave evidence that the appellant and Ms Wijewardena jointly held a health insurance policy from
1 December 1999 to 31 August 2007. His further evidence was that on 24 August
2007, Ms Wijewardena notified the insurance company that her relationship with the appellant had ended and discussed the removal of her name from the policy. The Judge also noted that various policy documents and notations from the appellant to the insurance company referred to his “wife” and there was also reference to his “Mrs” having to go public for surgery.
[23] Seventh, a senior manager at Sovereign Insurance gave evidence that the appellant and Ms Wijewardena had life cover and total and permanent disability insurance. The application for this was signed by the appellant on 17 November
2003 and the policy commenced on 12 December 2003. Mr Navaratnam was the
owner of Ms Wijewardena’s policy and vice versa. The policy lapsed on 31 July
2009. In the appellant’s application for the policy, he had stated he was living at
58 Chartwell Drive and was self-employed with an income of $35,000.
[24] Eighth, a Wellington City Council employee gave evidence referring to applications for dog registrations made by either the appellant or Ms Wijewardena between 2000 and 2007, showing various dogs registered in either or both names.
[25] Ninth, an employee of Contact Energy gave evidence that the appellant had an account number at 19 Gurka Crescent, from 10 December 2004 until at least
30 September 2008.
[26] Finally, Ms Wijewardena gave evidence that she had commenced a relationship with the appellant in 1999, when he stayed in her bed for the first time. She said there had been a sexual dimension to their relationship before he moved into 58 Chartwell Drive. Initially the appellant had introduced her socially as his “partner” and later as his “wife”, and had wanted her to change her name to his but she had refused. She said the appellant would buy her gifts and that they travelled overseas together. She said the appellant never paid her a bond or rent and that she never charged him for extra power usage. She accepted that the appellant had a separate bedroom at 58 Chartwell Drive but said he never slept in that room.
[27] The appellant gave evidence that he was not in a relationship in the nature of marriage with Ms Wijewardena. He said their relationship had not yet reached that point because of a number of issues, including his inability to bind as a step-family, her mental health issues, their spiritual and religious differences, the lack of emotional bonding between them and his frequent absences from home.
[28] The appellant relied on comments he made to Mrs Issar on 6 August 2008, that Ms Wijewardena was not emotionally committed to him and that the relationship was one of convenience and said they separated in 2003/2004.
[29] Having carefully considered all of the above evidence, the Judge outlined the law in relation to what constitutes a “relationship in the nature of marriage”, referring to Ruka v Department of Social Welfare.11 The Judge found that the appellant had lived in a relationship in the nature of marriage with Ms Wijewardena
from 2002 to 2007, relying on the following factors: the significant duration of the
11 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
relationship; that the pair had described each other as “partners’ and had presented and were known to the outside world as partners; that there was a sexual element to their relationship; that the pair acknowledged they loved each other, had bought each other gifts, had travelled overseas together, holidayed together, had joint bank accounts, and held a number of properties in their joint names. The Judge accordingly found the appellant guilty on all four counts.
Grounds of appeal
[30] The grounds of appeal advanced are that:
(a) the Judge erred in finding that the appellant lived in a relationship in the nature of marriage during the relevant period;
(b) the Judge had not properly considered the appellant’s reason for
failing to disclose his trip overseas to work and income; and
(c) the prosecution had not proved any of the charges beyond reasonable doubt.
Submissions
First ground of appeal
[31] Counsel for the appellant, Mr Barnsdale, argued that the appellant had misunderstood the legal concept of “living in a relationship in the nature of marriage”; did not think he was in such a relationship; and therefore did not have the required dishonest state of mind.
[32] Mr Barnsdale also challenged the finding that the appellant was in a relationship in the nature of marriage, submitting that there was evidence of the lack of mental and emotional commitment to the relationship. In this regard, he referred to the evidence of Ms Wijewardena that the sexual relationship between the two had ceased at the end of 2006; to the fact there was violence in the household and a loss of trust within the relationship precipitated by her discovery of the appellant’s visit to
a massage parlour. He also referred to the appellant’s evidence about a number of factors, suggesting there was no commitment to a long term relationship. In support he referred to the following aspects of the appellant’s evidence.
[33] For instance, the appellant’s statement that:12
we had numerous long periods of separation, estrangement and involuntary cohabitation… the cohabitation did not amount to what could be regarded as a relationship in the nature of being married, because fundamentally one of us couldn’t fulfil our expectations to get into the marriage … We wouldn’t have been in a relationship in the nature of marriage and not married, it was a no, no … to me there is no distinction because … in our culture it was not right to be living together… specifically there were lots of issues that were
… stressed to the extent that we couldn’t really merge our emotional life
together on a consistent basis.
[34] And to a further passage in the appellant’s evidence when he referred to the age difference between himself and Ms Wijewardena, to his difficulties in bonding with her children, to community considerations because he was Tamil, and to her “severe anxiety issues and delusional fears”.
[35] The appellant had also said in evidence that he did not receive emotional and mental support from Ms Wijewardena,13 that there was a “standing expectation” that he would enter into a sexual relationship with Charika and live under the same roof and enter into a marriage, but that circumstances had prevented them from entering into that kind of relationship. His evidence was that they slept in a separate room.14
[36] In response, Mr Ferrier for the Crown pointed out that the Judge had reviewed the leading authority on what constitutes a “relationship in the nature of marriage” and been properly satisfied that the appellant was living in such a relationship from 2002 to 2007. In reaching that decision the Judge correctly relied on the cumulative effect of the circumstantial evidence referred to in his decision, and on the fact that he did not accept the appellant’s evidence as truthful and accurate. Mr Ferrier submitted that the Judge was best placed to make such
determinations of credibility and fact.
12 Notes of Evidence at 219-20.
13 Notes of Evidence at 229.
14 Notes of Evidence at 239.
Second ground of appeal
[37] Under this head of appeal, Mr Barnsdale submitted that the Judge’s decision was reached despite evidence of the appellant’s paranoia about people knowing his movements, the effect of any article he had written on the civil war in Sri Lanka, the effects of the civil war in Sri Lanka and his concern that his file be kept secret by Work and Income. Those factors should have been sufficient to raise a reasonable doubt.
[38] In response, Mr Ferrier submitted that the Judge considered all of these factors and correctly found that the appellant’s explanation for his omission was not a lawful excuse or a defence to the charge. In any event, once the appellant was back in New Zealand, and therefore out of harm’s way, he could have notified Work and Income of his trip away and without repercussions.
Third ground of appeal
[39] There was a two part challenge to the sufficiency of evidence underpinning the forgery convictions in respect of two of the documents claiming additional payments from Work and Income. First, that the Court was not entitled to infer that the appellant must have been responsible for forging those documents simply because the two experts agreed they had not been produced by Ms Wijewardena and she had denied writing them. Secondly, on the basis that no guilty verdict could be safely entered because of Ms Wijewardena’s uncertainty as to the circumstances in which the other documents were signed and in respect of which the appellant was found not guilty.
Approach on appeal
[40] This is an appeal against a decision of the District Court under s 115 of the
Summary Proceedings Act 1957, and thus a general appeal15 by way of rehearing.16
The Court is therefore required to come to its own view on the merits,17 and to
15 Summary Proceedings Act 1957, s 115(4).
16 Section 119(1).
17 Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
succeed the appellant must satisfy the Court that the grounds of appeal have been made out and that the Court should differ from the original decision.
[41] While the High Court can reach a different view on the facts to that taken by the District Court, caution is required when an assessment of the credibility of witnesses is required, as the High Court does not have the advantage of having seen and heard the evidence, as it was given by the witnesses.18
Discussion
[42] The first ground of appeal relates to s 228(b) of the Crimes Act 1961, which provides:
228 Dishonestly taking or using document
Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
…
(b) dishonestly and without claim of right, uses or attempts to use any document.
[43] Adams on Criminal Law refers to three components of the mental elements required. First, the defendant must have intended to obtain the pecuniary advantage. Second, the defendant must have been dishonest. Third, the defendant must have no claim of right.19
[44] Having reviewed the judgment below, it cannot be said the Judge made an express finding that the appellant was dishonest. The term “dishonestly” is defined in the Crimes Act 1961 as “an act done without a belief that there was authority for that act from a person entitled to give such consent or authority”.20 In Hayes v R, the Supreme Court held it is for the prosecution to show the defendant’s state of mind is dishonest. The objective facts of a particular case may be such that a jury can
properly infer that an accused had a dishonest mind, unless he or she can raise a
18 R v Munro [2007] NZCA 510; [2008] 2 NZLR 87 at [73], [74] and [83].
19 Adams on Criminal Law [online looseleaf edition] at [CA228.05].
20 Crimes Act 1961, s 2.
reasonable doubt on the basis of a relevant but mistaken belief. Any such belief must be genuinely held, but there is no requirement that it be reasonable.21
[45] The Judge was required to make a finding as to the appellant’s state of mind, particularly in light of his defence that he honestly believed he was not in a relationship with Ms Wijewardena.
[46] However, considering the matter afresh, I would unhesitatingly reach the same ultimate result as the Judge. Notwithstanding the lack of an express finding on the issue, the evidence considered by the Judge was conclusive and discloses no reasonable doubt that the appellant had a relevantly dishonest mind. He was unquestionably in a relationship with Ms Wijewardena, yet he maintained that she was his landlord and consistently listed his relationship status as “single”. The deliberate statements he made unequivocally lead to the conclusion that he dishonestly intended to conceal his true relationship status with her from Work and Income. Otherwise the appellant would have disclosed he was in a relationship, whilst maintaining that it was not in the nature of marriage.
[47] Additionally, the objective evidence from the telephone company, other tenants and the insurance company strongly suggests the appellant perceived himself to be in a relationship in the nature of marriage with Ms Wijewardena. That reinforces the conclusion that he had a dishonest mind when he concealed his relationship status.
[48] In conclusion, I cannot accept the submission that Mr Navaratnam was not in fact in a relationship in the nature of marriage with Mr Wijewardena. The objective factors highlighted by Judge O’Driscoll all provide conclusive evidence that he was in such a relationship.
[49] The remaining grounds of appeal can be dealt with in short form. I accept the
Crown’s submission that there was sufficient evidence on which to find the appellant
guilty to the requisite standard in relation to each of the convictions.
21 Hayes v R [2008] NZSC 3, (2000) 23 CNRZ 720 at [42] – [43].
[50] In relation to the second ground of appeal, Judge O’Driscoll was entitled to reject the appellant’s explanation for failing to advise Work and Income of his overseas trip. In this regard the Judge was undoubtedly influenced by his own assessment of the appellant’s credibility and reliability, an assessment with which this Court will not interfere. My own view is that Sri Lankan authorities would in any event have been in receipt of all border control information relating to entry and thus the appellant’s arrival and presence in Sri Lanka would undoubtedly have been officially recorded.
[51] The third ground of appeal based on a sufficiency of evidence argument relates to the various forgeries of which the appellant was convicted. Dealing with the two convictions for forging claims for additional payments from Work and Income first, the evidence of the handwriting experts was consistent that these documents were not signed by Ms Wijewardena. Where their expert evidence differed, the Judge gave the appellant the benefit of the doubt. In the end he was acquitted of the majority of charges relating to those claim forms. It was an open inference that the appellant must have forged Ms Wijewardena’s signature, if she had not signed the two documents herself. The appellant was unable to point to any other person who could have signed those documents.
[52] Finally and for the sake of completeness, the allegations of forgery in relation to the claims for therapeutic massages were properly accepted by the Judge. The documents purported to be from two respective therapists. Yet the contacts details listed on those invoices were those of Mr Navaratnam. The only issue was whether Mr Navaratnam forged those documents. He admitted that admitted that he did. His excuse (that he really did undergo those massages but he did not obtain invoices), even if it were to be accepted, would not absolve Mr Navaratnam.
Conclusion
[53] The appeal is dismissed.
Goddard J
0
3
0