Osborne v Ministry of Social Development

[2015] NZHC 2709

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-000038

[2015] NZHC 2709

BETWEEN

EMMALEEN MARIANA OSBORNE

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	20 October 2015
Counsel:	J M Woodcock for appellant S J Simpkin for respondent
Judgment:	3 November 2015

RESERVED JUDGMENT OF DOBSON J

[1]                 After a three day Judge alone trial  in  the  New  Plymouth  District  Court, Ms Osborne was found guilty of two charges of obtaining by deception and 10 charges of unlawful use of a document. The charges related to fraudulently claiming benefit support from the Ministry of Social Development (MSD), with the quantum stipulated at $110,745.59.

[2]                 On 6 May 2015, Ms Osborne was sentenced by the trial Judge, Judge Roberts, to two years and three months’ imprisonment. Ms Osborne has appealed against her conviction on the grounds that there was a breach of her right to legal representation and to a fair trial, and that the conduct of the trial was unfair.

OSBORNE v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 2709 [3 November 2015]

[3]                 Ms Osborne also appealed against her sentence on the ground that she was inadequately represented on sentencing, but no submissions were advanced in support of that appeal.

Factual background

[4]                 The charges were laid in May 2013. MSD alleged that Ms Osborne had been living with her husband (Mr O’Brien) while collecting a sole parent benefit to which she was not entitled. Mr O’Brien was also charged with applying for a benefit on the basis that he was a single person, but his offending was on a smaller scale.

[5]                 Ms Osborne’s first appearance in the District Court at New Plymouth was on 10 July 2013. She was accompanied by an extended family member, Mr Tonga- Awikau.

[6]                 On 24 July 2013, Ms Osborne appeared before Judge Courtney, who recorded on the informations “not guilty [plea] entered due to defendant’s failure to plead”.

[7]                 In an affidavit sworn in support of her appeal, Ms Osborne acknowledged seeing a duty solicitor at the Court on the occasion of one of her earlier appearances. She deposes that she saw the solicitor with Mr Tonga-Awikau, and was advised by the solicitor that if she was found guilty she would go to prison. That  advice shocked Ms Osborne. The solicitor advised Mr Tonga-Awikau in Ms Osborne’s presence that she needed a lawyer and that the “section 13” Mr Tonga-Awikau intended to rely on in defending Ms Osborne “wouldn’t stick”.1 The solicitor told Ms Osborne that she could apply for legal aid, but she did not do that because she was taking the advice of Mr Tonga-Awikau and thought he could help her.

[8]                 The proceeding was called before Judge Murfitt on 21 August 2013, and a transcript has been prepared of the discussion that occurred on that day. At each appearance, it seems that the charges against Ms Osborne were called at the same time as the charges against Mr O’Brien, although they had not been charged jointly. On

1      There was no elaboration as to the statutory provision Mr Tonga-Awikau had in mind. It is a fair inference that it was a reference he considered justified a claim by Ms Osborne that she could deny the Court had jurisdiction over her.

that occasion, the Judge had the charges against Mr O’Brien called first, and explained to him that Mr Tonga-Awikau could not act as his representative in presenting a defence. When Ms Osborne was called, the Judge went over the same matters in some detail. Having clarified with Mr Tonga-Awikau that he did not have standing in the District Court, Judge Murfitt asked Ms Osborne why she did not want to get a real lawyer. Her response was because her whanau had arranged for Mr Tonga-Awikau to represent her. Judge Murfitt’s response was:2

I can tell you now … Ms Osborne, that no judge is going to allow Mr Tonga- Awikau to be your representative. He may accompany you at a defended hearing if, if you wish, as your McKenzie Friend, but he can’t speak for you, either you will need to represent yourself when this matter goes to a hearing, or you will need to have a lawyer.

[9]                 When the Judge asked Ms Osborne what the nature of her defence was likely to be, she responded that she wished not to speak, but she wanted Mr Tonga-Awikau to do so. The Judge repeated that Mr Tonga-Awikau could not do so. He observed that the charges involved fraud under the Crimes Act 1961:3

… so it’s serious stuff. Jail could follow. Are you sure you want to go down this tikanga road?

[10]              Ms Osborne simply replied “yes”. After further exchanges, the Judge strongly urged Ms Osborne:4

… to engage a real lawyer and not some bush lawyer …

[11]              When Ms Osborne sought clarification on what a bush lawyer was, the Judge clarified:5

… that is a lay person who offers legal advice.

[12]              The  charges  were  called  again   on   18 September,   12   November  and   2 December 2013, and on 6 May 2014. The latter three of those calls were before the Registrar.

2      Transcript 21 August 2013 at 8/9.

3      At 9/20.

4      At 10/23.

5      At 10/28.

[13]              The matter was then called on 19 May 2014 before Judge Roberts. On that occasion, the charges against Mr O’Brien were again called first, and he indicated that he was not entering a plea because he did not recognise the charge. When the Judge indicated that the refusal to plead would be treated as a not guilty plea, Mr O’Brien objected that he had never said not guilty, and Judge Roberts responded:6

I’m treating it as a not guilty. The Judges are allowed to do that. Now you’ll be well aware that no Court has upheld these arguments about the jurisdiction not being recognised. I just want to make it abundantly plain to you that it may count against you at the end of the day, but that is a decision you will have taken into account undoubtedly. Ms Osborne, I take it you are of the same view? You won’t be represented at trial?

[14]              When Ms Osborne indicated to the Judge that her representative (referring to Mr Tonga-Awikau) was on his way, and prosecuting counsel indicated that on prior occasions it had been clarified that Mr Tonga-Awikau was not a lawyer, Judge Roberts stated:7

Right. If you are expecting, Ms Osborne, that this man will be able to speak during your trial I am telling you now that is not something that will occur. If he is not a lawyer he has no standing. For you two I tell you, you will be ill- equipped to deal with this matter yourself. You are better advised to take a lawyer. The decision as to whether or not you do that, however, is yours. The defended hearing for both of you now during the week of 22 September, five days have been allocated. You will be required to produce your witnesses in the event that you are calling witnesses during that period. Thank you.

[15]              The proposed fixture for September 2014 could not proceed because there was no Judge available, and the fixture was set for 23 February 2015 when it proceeded.

[16]              At the outset of the trial, Ms Osborne and Mr O’Brien both remained unrepresented. From listening to the audio recording of the exchanges at the outset, I accept Ms Woodcock’s characterisation that before the proceeding commenced, Mr Tonga-Awikau made a very brief attempt to address the Court and was told that he had no right to speak in Court. No raised voice or disrespectful tone is apparent. It may be that Mr Tonga-Awikau made some form of non-verbal communication that offended the Judge or, perhaps more likely, Judge Roberts had encountered Mr Tonga- Awikau on a previous occasion and anticipated that he would challenge the jurisdiction

6      Transcript 19 May 2014 at 3.

7      At 4.

of the Court to deal with the charges against Ms Osborne. He was promptly regarded by Judge Roberts as disruptive, and Court security personnel and the Police were asked to take him away. The Judge ultimately treated him as having been trespassed from the Court. The charges were then put to Ms Osborne and Mr O’Brien, not guilty pleas were entered and the trial began.

[17]              The manner in which the Judge dealt with Mr Tonga-Awikau is not directly relevant. The issue is the predicament that then confronted Ms Osborne when she had to embark on her own defence, completely unaided, when she had anticipated having whatever limited support Mr Tonga-Awikau could provide for her.

[18]              A review of the transcript of  the  evidence  at  the  hearing  confirms  that  Ms Osborne and Mr O’Brien had minimal involvement in testing evidence given by prosecution witnesses. At the outset, the Court accepted that the evidence could be adduced by the prosecution in relation to charges against both defendants, and evidentiary rulings were made on applications to adduce a hearsay statement from a prosecution witness who had died, and to adduce business records without being produced by a witness. It is unrealistic to expect that Ms Osborne might have understood the possible importance of these evidentiary issues, or the options available to her.

[19]              The transcript records an exchange at the end of the first day’s hearing, in the following terms:8

MS OSBORNE: Judge Roberts I have something I have to read out for the record. For the record and under the purpose to record evidence this is an illegal hearing and cannot be allowed to continue until you, Judge Roberts, cease to breach my human rights, this is due to –

THE COURT: Thank you I am not listening to this drivel. I will see you tomorrow morning.

[20]              I take this to be the exchange that Ms Osborne refers to in her affidavit where she recalls discussing the trial with Mr Tonga-Awikau outside court in a break, and writing down something to read to the Judge “about my rights”. She deposes that when she returned to the courtroom, she tried to tell the Judge what she had written,

8      Transcript 23 February 2015 at 52.

but he would not listen. Ms Osborne does not claim in her affidavit that had she been afforded the opportunity to do so, she would have asked for an adjournment once  Mr Tonga-Awikau had been excluded, in order to retain a lawyer. Any such claim would be obviously self-serving and would be treated cautiously. What she does acknowledge is that she should have applied for legal aid and had a proper lawyer to help her, and that she was stupid in not doing so.

Grounds of appeal

[21]              Because the charges were laid in May 2013, the appeal is still to be dealt with under the Summary Proceedings Act 1957.9 The appeals were brought out of time, but there was no substantive opposition to the application for leave to bring the appeal out of time. I accordingly grant the requisite extension of time.

[22]              The first point on the appeal against conviction is that proceeding with the trial whilst Ms Osborne was not represented was in breach of s 30 of the Sentencing Act 2002, which provides:

30No sentence of imprisonment to be imposed without opportunity for legal representation

(1)No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2)Subsection (1) does not apply if the court is satisfied that the offender—

(a)was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b)fully understood those rights; and

(c)had the opportunity to exercise those rights; and

(d)refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3)If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

9      Criminal Procedure Act 2011, s 397.

(a)quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b)quash the conviction and direct a new trial, or make any other order that justice requires.

(4)For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—

(a)refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and

(b)refuses or fails to engage counsel by other means.

[23]              Section 30 is sometimes treated as creating a right for an unrepresented defendant not to be convicted when vulnerable to a sentence of imprisonment. However, its place within the scheme of the Sentencing Act does no more than restrict a court’s powers on sentencing to less serious sentences than imprisonment where a defendant was not represented at the stage of the proceedings at which he or she was at risk of conviction. Section 30(3)(b) recognises the prospect of quashing convictions where they were entered against an unrepresented defendant, but that is an option where the consequences of convicting an unrepresented defendant cannot be adequately addressed by re-sentencing.

[24]              The question is whether the exception in subs (2) applied here. I am satisfied that throughout the course of the numerous calls of the proceedings before the trial, Ms Osborne was more than adequately advised of her rights to retain a lawyer, and the desirability of doing so. She rejected that clear advice and, despite adequate opportunities to retain a lawyer, she preferred to rely on a McKenzie Friend. She maintained that stance, despite being told that the McKenzie Friend could not speak for her, or ask questions on her behalf.

[25]              However, her election to rely on the McKenzie Friend could not have factored in the prospect that even the very limited assistance that a McKenzie Friend could afford her would not be available.

[26]              Ms Woodcock submitted that the process became inadequate when the Judge did not afford Ms Osborne an opportunity to reconsider her earlier elections not to seek legal representation once she knew that she could not rely on her McKenzie

Friend for any help at all. Ms Woodcock argued that the Court ought to have afforded Ms Osborne the opportunity at that point to retain a lawyer, even if that involved an adjournment of the trial. Did that turn of events change the complexion of her previous decisions not to retain a lawyer, so as to take her circumstances outside the exception in s 30(2)?

[27]              I consider that the exception in s 30(2) still applies. Ms Osborne had previously been told in no uncertain terms by two judges that a McKenzie Friend could not speak for her. She had also been repeatedly warned of the seriousness of potential consequences, including a prison term, if she were convicted, in addition to being positively discouraged from relying on Mr Tonga-Awikau. It would be unduly paternalistic of the law to impose on trial courts any more onerous obligations than were met at the various pre-trial calls of Ms Osborne’s charges. To do so would impose an unrealistically high expectation that the criminal justice system should save defendants from their own fully informed decisions not to retain counsel, however imprudent that may have been.

[28]              I infer from the review in Ms Osborne’s affidavit of her interview with the duty solicitor in the presence of  Mr Tonga-Awikau,  and  the  intentions  signalled  by  Mr Tonga-Awikau in his exchanges with Judge Murfitt on 21 August 2013, that he was not planning to help Ms Osborne by challenging the prosecution’s ability to make out the elements of the offences with which she was charged. Rather, he intended to dispute the jurisdiction of the Court to determine criminal charges brought against tangata whenua, such as has been argued unsuccessfully in a range of criminal proceedings.10

[29]              Ms Osborne acknowledges having been told by the duty solicitor of the risks involved in adopting that tactic. That confirms my view that there was no material impediment to the opportunity she had to exercise her rights to obtain legal representation that would take her case outside the exception in s 30(2).

10     See Phillips v R [2011] NZCA 225. The Supreme Court has declined leave to appeal on the issue, on the basis that such claims are “plainly unsound legally”: Wallace v R [2011] NZSC 10.

Was there a fair trial?

[30]              The second aspect of Ms Osborne’s challenge to her convictions was that, even if the rejected opportunities to obtain representation brought her within the exception in s 30(2) of the Sentencing Act, she nonetheless did not receive a fair trial as a result of being unrepresented, in breach of her right to a fair trial  under  s 25(a) of the  New Zealand Bill of Rights Act 1990 (BORA).

[31]              The approach to a possible breach of this right was considered by the Supreme Court in R v Condon.11 The Supreme Court ruled:

·     The right to a fair trial is absolute.

·     If the trial is fundamentally flawed because the defendant had no lawyer, or for any other reason, the defendant will not have had a fair trial and the conviction must be quashed.

·     The right to consult and instruct a lawyer in s 24 of BORA will not be breached if a defendant makes an informed choice to go to trial without a lawyer, or by his or her conduct creates a situation in which, on a proper balancing of the various interests, further delay in holding the trial should not be tolerated.

·     An appellate assessment of the fairness of trial should address the circumstances in which the defendant came to be tried without a lawyer, and the manner in which the judge presided over the trial. For instance, whether the Judge clearly explained the court procedures and otherwise minimised disadvantages of the defendant being unfamiliar with the trial process and with the rules of evidence.

·     The Court should have regard to the defendant’s capacity and characteristics, such as level of intelligence and education, any previous

11     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]–[82].

experience in a courtroom and ability to express him or herself clearly in that setting.

[32]              With these considerations in mind, I have reviewed the transcript of the evidence. I have also reflected on the audio recording of the beginning of the trial when Mr Tonga-Awikau was very promptly excluded, and the Judge proceeded with a notional taking of not guilty pleas in light of Mr O’Brien and Ms Osborne’s refusals to plead. They readily bear out Ms Osborne’s claim in her affidavit that she was quite unable to cope on her own in mounting any form of defence and was over-awed by the occasion. She had mistakenly thought that her McKenzie Friend would be able to deal with matters so that she would be found not guilty. I am comfortable in inferring that she had no appreciation of what she should assert to defend the charges, or how she would go about doing that.

[33]A number of issues that could have involved legal argument arose, such as:

·     the appropriate form in which to hear evidence in the charges brought separately against Ms Osborne and Mr O’Brien;

·     the granting of leave for the prosecution to introduce a hearsay statement of a deceased neighbour who had lived next door to an address at which the prosecution alleged the couple had lived; and

·     the admission of business records without their being adduced by a witness.

My provisional analysis suggests that legal argument on these points would have made no difference.

[34]              I am mindful that in Cant v R, the Court of Appeal held that where a defendant is fairly and squarely responsible for his own lack of legal representation at trial, that effectively absolves the Court from responsibility for deficiencies in trial process arising from the defendant being unrepresented.12 The Court of Appeal acknowledged a residual possibility that a defendant might nevertheless establish that his trial was

12     Cant v R [2013] NZCA 513 at [26]–[27].

unfair because his defence could not, in the particular case, have been conducted adequately without counsel’s assistance.13

[35]              In Cant, the Court of Appeal undertook a careful analysis of the conduct of Mr Cant’s defence at trial on charges of sexual violation. The Court appointed counsel in that case to conduct the cross-examination of the complainant, and Mr Cant was allowed to appear with a McKenzie Friend. In all the circumstances of that case, the Court of Appeal was satisfied that it had been possible for Mr Cant to obtain a fair trial without legal representation.

[36]              Ms Osborne’s predicament as an unrepresented defendant contrasts starkly with that of Mr Cant, as reviewed by the Court of Appeal. She had no meaningful appreciation of any of the issues likely to determine whether the charges against her were proven, and had no assistance in cross-examining any of the important witnesses.

[37]              It was argued for MSD that the presence of defence counsel would not have altered the outcome; that the prosecution case was a strong one, and that her convictions would have ensued whatever defence may have been attempted. That submission has some merit. There were numerous solid strands in the prosecution case that placed Ms Osborne and Mr O’Brien in the same residential addresses for substantial parts of the lengthy period in issue. For instance, there was evidence from an employer of Mr O’Brien confirming that, at one point, Mr O’Brien was living at the address acknowledged as Ms Osborne’s. In addition, there was an analysis of financial records that suggested Ms Osborne’s benefit payments (her only source of income) were not being applied to the purchase of food for her household, and evidence of Mr O’Brien paying the rent for a property let to Ms Osborne.

[38]              Further, the couple remained legally married and they accepted that they shared responsibility for parenting their two children. In a recorded interview of Ms Osborne by an MSD investigator, she appeared to justify her claims for a single person’s benefit on the basis that she resided at different addresses from Mr O’Brien. The defence that Ms Woodcock foreshadowed might have been run for her was that they no longer lived together as man and wife, despite sharing the same residential addresses. Whilst a

13 At [28].

marriage subsists, there is a presumption that the parties are discharging their legal duty to cohabit. With evidence that they were sharing residential addresses, real difficulty arises in rebutting the presumption that they are indeed cohabiting, and are instead “living apart”.14

[39]              Accordingly, I accept that this was a strong case for the prosecution. However, to find that the presence of defence counsel would not have made any difference to the outcome would be speculative to an extent that overrides the requirement for ensuring that defendants are afforded fair trials. Here, there was a complete lack of any competent testing of any aspect of the prosecution evidence by cross-examination, and nothing by way of submissions. I accordingly find that Ms Osborne’s trial was unfair.

[40]              I accept that the prospect of adjourning the trial when it was about to start would most probably be anathema to a judge confronted with that predicament. Nearly two years had elapsed since the charges were laid, and they related to offending that stretched back more than 10 years before the trial. There had been unusually protracted attempts to allocate a fixture, with up to five days being required for some 11 prosecution witnesses. On one view, Ms Osborne had rejected advice to retain a lawyer so often that she could not have any expectation of her trial being deferred to afford her a belated opportunity to do so. Further, from the Court’s perspective, the presence of a McKenzie Friend, with the attitude and  attributes  demonstrated by  Mr Tonga-Awikau, would likely be seen as not adding materially to the quality of the defence that Ms Osborne could muster once she had resolved not to retain a lawyer.

[41]              Ms Woodcock emphasised that the delays in getting the prosecution to trial were not attributable at all to Ms Osborne. She also made the point that however wrong it was for Ms Osborne to elect to face trial unrepresented but with the support of her McKenzie Friend, the outcome was still a trial that was unfair to her because of her complete inability to conduct a defence. Accordingly, however unpalatable the prospect was of granting an adjournment for a lawyer to be retained in the circumstances that confronted Judge Roberts, that was the appropriate course in order

14 See, for example, King v Chief Executive, Ministry of Social Development HC Wellington CIV-2009-485-000705, 9 July 2009 at [22]–[24]; Director-General of Social Welfare v W [1997] 2 NZLR 104.

to avoid a wasted trial because the defendant could not receive a fair trial. Depending on resources, a possible alternative may have been to appoint an amicus to assist, and delayed the commencement of the trial, initially for some hours, to enable Ms Osborne to have had adequate assistance.

[42]              Ms Woodcock raised an additional concern that a Judge alone trial had proceeded, without an appropriate election. Ms Osborne’s affidavit deposed that she did not recall making such an election. However, the endorsements on the lead information from the appearance on 18 September 2013 include “ESJ”, which I take to be a record of an election of summary jurisdiction.

[43]              The issue of any appeal against sentence becomes academic. Because of the finding that Ms Osborne did not receive a fair trial, I quash the convictions and direct a re-trial.

Dobson J

Solicitors:

Crown Solicitor, New Plymouth for respondent

Counsel:

J M Woodcock, New Plymouth for appellant