R v Wade

[2008] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

CA223/07
[2008] NZCA 366

THE QUEEN

v

CAREY ALLAN WADE

Hearing:27 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ

Counsel:G W Wells for Appellant

N P Chisnall for Crown

Judgment:15 September 2008 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]        Mr Wade appeals against conviction on nine charges of using a document to obtain a pecuniary advantage.  He initially appealed against sentence as well, but as he has completed his sentence on home detention, he pursues only the appeal against conviction.

[2]        The appeal against conviction is brought on the basis that there was a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961.  The miscarriage is said to have arisen because of the failure of Crown counsel to call one of Mr Wade’s ACC case managers at the trial.  We will refer to the case manager as Ms G. 

Background

[3]        Mr Wade suffered a back injury in the 1980s.  As a result he received regular compensation payments from ACC between 1993 and 2000.  From 1998 until 2000 Mr Wade worked as a sub-contractor through his own business, Amora Enterprises Limited, providing welding and machinery maintenance services to a company called J W Patterson & Sons. 

[4]        During the time Mr Wade worked for J W Patterson he received approximately $41,000 in compensation payments from ACC.  In order to receive this compensation Mr Wade was required to submit medical certification which declared he was unfit to work and affirming that he was aware of his obligation to advise ACC should he perform any work or receive any income in addition to his compensation.  Mr Wade was found to have signed those entitlement forms knowing that the medical and financial information in the forms was false. 

Failure to call Ms G

[5]        Mr Wade’s defence at trial was that his work status was not hidden from his ACC case managers, and that he had disclosed his work situation to a number of case managers.  In particular Mr Wade maintained that he had informed Ms G of his work and was therefore no longer required to advise other case managers about it.   Counsel for Mr Wade, Mr Wells, submitted that because the Crown did not call Ms G as a witness at Mr Wade’s trial, defence counsel did not have the opportunity to cross-examine Ms G to this effect and therefore a miscarriage of justice occurred.

[6]        Ms G had made a statement in 2002 to an ACC investigator in which she said that she recalled meeting with Mr Wade on more than one occasion while she was his ACC case manager.  She could not recall how many times they had met.  She said that Mr Wade had not at any time told her he was working for J W Patterson; if Mr Wade had told her he was working, she would have recorded the discussion and investigated fully.

[7]        Mr Wade worked with at least four different case managers during the period of the fraud.  Ms G was the case manager for much this period: from early 1998 until March 1999.  Before this, another ACC officer, whom we will call Ms S, had been the case manager in charge of Mr Wade.  She also job-shared with Ms G from early 1997 to early 1998.  Another officer, Mr E, took over from Ms G in late 1998.  In early 2000 another case officer, Ms M, was made Mr Wade’s final case manager.

[8]        Although the Crown did not call Ms G, it did call Ms S, Mr E and Ms M as witnesses at the trial.  Each gave evidence to the effect that Mr Wade had never advised them that he was working.  The Crown had planned to call Ms G when the trial was scheduled for 21 March 2005.  On 8 March 2005 however, Mr Wade was put on notice that the Crown did not intend to call Ms G.  An adjournment was sought on the basis that Ms G and another witness were unfit to give evidence.  A medical certificate was filed stating that Ms G was suffering “significant mental health issues”. 

[9]        The trial was rescheduled for 8 August 2005 and Ms G was summonsed to attend.  She answered her summons and met with the Crown prosecutor but the prosecutor formed the view that the Crown should not call her as a witness.  This was apparently because she appeared to be suffering from mental illness and also appeared to demonstrate a hostile animus to the Crown.

[10]      A number of subsequent adjournments were granted on the basis of Mr Wade’s ill health.  During this time the Crown made an application to have Ms G’s statement read at trial on the basis that she was mentally unfit and therefore “unavailable” to give evidence under s 3 of the Evidence Amendment Act (No 2) 1980.  This application was later withdrawn, apparently on the basis that the Crown could not satisfy the requirement that Ms G was “unavailable”.  The Crown maintained that it could not call Ms G because she continued to demonstrate a hostile animus to the Crown. 

[11]      On 30 May 2006 Mr Wade’s trial counsel made applications for a stay of proceedings and for a discharge under s 347 of the Crimes Act 1947.  One of the grounds for these applications was the unavailability of Ms G, on the basis that her unavailability would result in specific prejudice to Mr Wade through lost opportunity to cross-examine that witness and that there would be insufficient evidence to convict Mr Wade.

[12]      On 18 August 2006 Judge Rollo declined the applications.  Judge Rollo noted that the test for the stay of proceedings was not satisfied “particularly as Ms G is available to the defence as a witness”. 

Did the decision not to call Ms G result in a miscarriage of justice?

[13]      There was no evidence before us (and no application to adduce such evidence) as to what Ms G would have said if she had been a witness at Mr Wade’s trial.  All we know is that she was mentally ill and hostile to the Crown and that the Crown prosecutor did not therefore call her.

[14]      The fact that she was not called meant that her evidence as recorded in her ACC statement (to the effect that Mr Wade had not told her of his work status and details of it) was not before the jury.  As noted earlier, the intended application to have her statement read to the jury was withdrawn.  It was obviously helpful to Mr Wade’s defence that that evidence was not before the jury.

[15]      The underlying assumption of the submission made on Mr Wade’s behalf is that Ms G would have given evidence to the effect that she was told of Mr Wade’s work status, contrary to what she had said in her statement.  But in the absence of any evidence from her to that effect, that is only speculation.

[16]      More importantly, there is nothing before us to indicate that Ms G was not able to be called as a defence witness.  Mr Wells argued that the case for Mr Wade was prejudiced because Ms G’s absence as a Crown witness meant she would not be cross-examined.  But as Judge Rollo correctly noted, if she could have been called as a defence witness, this prejudice would have been substantially avoided.

[17]      Mr Wells argued that Ms G’s availability as a defence witness was not assured.  He referred us to a witness statement of an investigator engaged by the Crown in May – July 2005 which indicated that Ms G and her husband (a medical practitioner) were strongly opposed to the idea that she should give evidence.  He also pointed to a letter to the Court from her husband dated 8 August 2005 in which Ms G’s husband “certified” that “[Ms G] is unfit to appear as a Court witness because of the undue stress that will place on her”.  The letter continued: “I feel that she would, in any event, be unable to add anything to the statement she gave several years ago”.

[18]      There is, however, nothing indicating what the position was at the time of Mr Wade’s trial, some 18 months later (the trial began on 27 February 2007).  Mr Wells said it appears that neither the prosecutor nor Mr Wade’s trial counsel (not Mr Wells) investigated Ms G’s position at that time.  He accepted that the witness summons that had been served on Ms G in August 2005 would have remained active and could have been enforced at the time of the trial.

[19]      Counsel for the Crown, Mr Chisnall, argued that, when seen in the context of a strong Crown case against Mr Wade, Ms G’s absence as a witness was not a material matter.  He pointed out that all the ACC case officers and all the medical specialists who had examined Mr Wade at the relevant time gave evidence to the effect that Mr Wade had not told them about his work for J W Patterson & Sons, contrary to Mr Wade’s assertion in his interviews with ACC and WINZ personnel.  He pointed out that Mr Wade had not said in the course of those interviews that he had told Ms G he was working.  He argued that Mr Wade made a tactical decision not to call Ms G as a witness, and sought to take advantage of the fact that she could not be called by the Crown.

[20]      The reasons for Ms G not being called as a Crown witness were genuine.  She appears to have remained available as a defence witness.  The defence did not call her but rather sought to take advantage of her absence, with some success.  There is nothing before us to indicate what her evidence would have been, if she had been called.  The Crown case against Mr Wade was strong, even without Ms G’s evidence.  In those circumstances, there is no reason for us to conclude that a miscarriage of justice occurred.

Result

[21]      We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington