Satya v The Queen
[2010] NZCA 165
•4 May 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA500/2009
[2010] NZCA 165BETWEENITHIEL SATYA
Appellant
ANDTHE QUEEN
Respondent
Hearing:22 April 2010
Court:Ellen France, Ronald Young and Cooper JJ
Counsel:C R Carruthers QC and L S Acland for Appellant
C T Gudsell QC for Respondent
Judgment:4 May 2010 at 3 pm
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe sentence of home detention imposed by the trial Judge will commence 24 hours after the date of the release of this judgment.
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1] Mr Satya, the appellant, is a pharmacist. He worked as the manager of a pharmacy in the Wairarapa beginning in 2001. Between 2002 and 2005 the Crown alleged he acted fraudulently making dishonest claims for dispensing subsidies.
[2] After a trial before Judge Tuohy, sitting alone, he was convicted of 74 counts of using a document fraudulently (to September 2003: Crimes Act 1961, s 229A, from 1 October 2003: Crimes Act 1961, s 228).[1] Counts 1 to 72 covered the period February 2002 to August 2005 and counts 73 and 74 were for September and October 2005.
[1] R v Satya DC Wellington CRI-2006-035-001448, 17 June 2009.
[3] The appellant has three grounds of appeal:
(a)there was insufficient evidence for the Judge to be satisfied beyond reasonable doubt that counts 73 and 74 had been proved;
(b)the Judge’s reasoning was circular and he failed to consider alternative inferences;
(c)counts 1 to 72 relied solely on propensity evidence and that evidence was insufficient to prove those counts beyond reasonable doubt.
Background
[4] The essence of the Crown allegation was that the appellant had claimed government subsidies for dispensing medicines that, to his knowledge, were not in fact dispensed to patients. To understand how this occurred it is necessary to consider how pharmacists receive government subsidies for the medicines they dispense and in particular the concept of repeat dispensing.
[5] A patient has 90 days within which to present a doctor’s prescription to a pharmacy. Some prescriptions are for a single dispensing, others authorise repeat dispensing. Once presented the prescription has a further 90 day life from the first dispensing. The rules are that unless the medication is made up and delivered to the patient (the dispensing) before or on the 90th day then the prescription no longer qualifies for government subsidy.
[6] When a patient presents a prescription to a pharmacist the pharmacist records (using computer software called Toniq) the details of the medicine, the patient details, any repeat dispensing and when the 90 day period expires. The information recorded enables a computer-generated report which subsequently identifies, in alphabetical order, patients who have repeat prescriptions due to expire. The report is known as a CTE report or “close to expiry repeats due”.
[7] The pharmacist is paid a set fee for each dispensing by the local District Health Board, here the Wairarapa District Health Board. The subsidy is payable only when the patient receives the medicine. Payment is made through a processing agent, HealthPac, as part of the Ministry of Health.
[8] Pharmacy staff, based on a CTE report, may call patients who are entitled to but have not sought a repeat dispensing shortly before the expiry of the 90 day period. The staff ask the patient if they want the repeat dispensing. If the patient wants the repeat medicine then it is made up by the pharmacy. Some patients have a standing order for repeat dispensing or pharmacy staff may know from contact with a patient that a repeat dispensing is required. In this case the repeat is also prepared by the pharmacist. The dispensing would be noted on the pharmacist’s computer and the medicine left at the pharmacy for the patient to pick up. Every two weeks a computer generated disc with all dispensing information including any repeat dispensing is prepared by the pharmacy and sent to HealthPac. This enables HealthPac to calculate payment of the government subsidy on each dispensing. Payment is then made electronically to the pharmacy.
[9] The pharmacist typically prepares the two weekly subsidy claim assisted by a computer programme. The programme prompts the pharmacist to defer the subsidy claim for any unclaimed dispensing. It asks the pharmacist “have you ‘deferred’ uncollected medicines”. This is intended to reflect the idea that the medicine has not been dispensed until the patient receives it. The subsidy may only be claimed after the patient has received the medicine. If by error or otherwise a subsidy claim is made for an unclaimed dispensing the programme allows the pharmacist to “reverse” the subsidy claim.
[10] The Crown case was that on 74 occasions Mr Satya presented the two weekly claim to HealthPac which contained false claims for subsidies for repeat dispensing of medicines when patients had not sought a repeat dispensing.
[11] The Crown said that when the appellant was at work on his own in the pharmacy he would generate a CTE report. This identified those who were entitled to repeat dispensing shortly before the 90 day expiry date. Without contacting the patients the appellant would falsely process one or more repeat dispensings as if the patients had ordered a repeat(s). The appellant would make up the prescriptions and leave them on the unclaimed medicines shelf. The patients (mostly) did not uplift the medicine. Mr Satya then made claims for subsidies for this dispensing in his fortnightly claims. He did not defer claims for unclaimed medicines nor did he credit back claims for any unclaimed medicines. The pharmacy therefore wrongly received payment for these dispensings.
[12] The Crown claimed that the direct and circumstantial evidence established that the appellant had not contacted patients before making repeat dispensing claims. From this evidence the Crown invited the Judge to infer the appellant had acted dishonestly to obtain subsidy payments the pharmacy was not entitled to.
[13] These actions, the Crown said, constituted the 74 offences of fraudulently using a document. We turn now, therefore, to each individual ground of appeal.
Grounds of appeal
[14] The complaints reflected in the second ground of appeal are dealt with in the discussion of the other two grounds.
Insufficient evidence on counts 73 and 74
[15] The appellant accepts the Judge accurately summarised the essence of the case when he said:
[35] The crucial issue in respect of all charges is whether the Crown has proven beyond reasonable doubt that the accused had an intent to defraud, that he acted dishonestly and without claim of right.
[16] The Judge concluded the appellant had acted dishonestly because:
(a)he had not asked patients whether they wanted a repeat dispensing;
(b)he had not deferred uncollected repeat dispensing from the fortnightly prescription claims; and
(c)he made subsidy claims for repeat dispensing when (a) applied.
[17] The appellant’s case is that it was not proved beyond reasonable doubt he did not contact patients and failure to defer or credit uncollected medicines is “not determinative of dishonest intention”.
[18] There were four grounds which the Judge identified as supporting his conclusion that the appellant had not contacted patients before processing their repeat dispensing. They were:
(a)patient evidence that they had not sought repeats (the direct evidence) and the absence of any patient evidence that they had ordered repeats;
(b)the pattern of claims by the appellant;
(c)uncollected medicines; and
(d)repeat dispensing to dead patients.
Pattern of claims
[19] The first ground of appeal (on counts 73 and 74) relates to the evidence of a pattern of claims by the appellant.
[20] The Judge identified three days, 17 September, 2 October and 15 October 2005 on which he was satisfied the appellant was working on his own and had ordered the CTE reports relating to repeat dispensing.
[21] The Judge asked whether the appellant had contacted the patients on the CTE reports to see if they wanted a repeat dispensing. He concluded the answer was – no. The Judge identified circumstantial evidence, which he considered strongly supported the direct evidence of patients, that they had not been contacted. The Judge said:[2]
[2] At [41].
·As well as the direct evidence there was a substantial amount of circumstantial evidence. On 17 September 35 prescriptions for 22 patients were processed in the Toniq system between 15.52 and 16.47, ie. within one hour at a time when the accused was working alone. The first 22 of those prescriptions (14 patients) were processed in unbroken alphabetical order between 15.52:15 and 16.04:53. There were only a matter of seconds between the processing of the prescriptions for individual patients in most cases. The latter 13 prescriptions (7 patients) were dispensed consecutively in continuing alphabetical order (with one non‑cluster processing interpolated) between 16.39:13 and 16.47:26. There were again only seconds between the processing for individual patients.
·The pattern establishes to an extremely high degree of probability verging on practical certainty not only that the processing was done working from a CTE report but also that the patients were not present in the pharmacy when their prescriptions were processed. It is therefore unlikely that those patients at any time called into the pharmacy to personally ask for their repeats. If a patient had done that, it is very likely that the repeat would have been dispensed on the spot and would not therefore have appeared in the CTE report. Because of the short time gaps between processing for each patient, it is also extremely unlikely that patients were telephoned by the accused during the two time periods in which the cluster was processed that afternoon.
·Where a patient had other repeats due apart from the CTE report, they were processed at the same time. This feature is duplicated in all cluster processing by the accused. While it is possible that a patient, if contacted, may have requested all repeats due, it is likely that in some cases not all repeat medication available would be wanted by the patient. The routine processing of all repeats due for patients in clusters is a circumstance pointing towards the processing having been done as a matter of course rather than at patient request. This feature appears in the cluster for 17 September (Mrs M Bruce, Mrs T Elers, Mr H Russo) as well as in most of the others.
·Of the 35 cluster items dispensed on 17 September, 27 remained on the uncollected shelves on 19 October when the investigators arrived. In terms of patient numbers, medications for 17 of the 22 patients remained on the shelves.
·In respect of the remaining five, it is a reasonable and logical inference that their medications had been collected by or delivered to them. The Toniq records show that for four of those five patients, there had been a new prescription processed on a date between 17 September and 18 October. It is a reasonable and logical inference that those patients came into the pharmacy to obtain their subsequent prescriptions and it was then ascertained that there were uncollected repeats waiting for them on the shelves which they then collected. It is possible one or more of the four patients was already aware of the presence of the uncollected repeats and the subsequent dispensing was causally unrelated to the removal of the 17 September dispensings from the shelves. But it is very unlikely that it was unrelated in all four cases, particularly because only one of the five whose prescriptions were collected did not have a subsequent dispensing. The fact that the 17 September dispensings were collected by these four does not point to them having requested them. It is equally consistent with them not having done so.
·Of the 17 patients whose dispensings of 17 September had not been collected, four had had subsequent prescriptions dispensed (not within a cluster). The reasonable and logical inference is that most or all of those patients had been in the pharmacy on or about the dates of the subsequent dispensings in order to obtain the dispensed items. The fact that they had not then collected the items dispensed on 17 September, raises a strong inference that they did not know they were there because they had not requested them.
·The time during which the items lay uncollected, 32 days, is very long in the context of a requested repeat dispensing. The number and the proportion of patients in the cluster whose medications had not been collected is very significant. The various circumstances relating to the uncollected dispensings of 17 September together amount to compelling evidence that none of the cluster items dispensed that day were specifically requested by the patients and that the accused contacted none of them.
·The circumstantial evidence in respect of the 2 and 15 October clusters shows the same features, although the strength of the inference from the time items remained on the uncollected shelves is less because the time they sat there was shorter.
[22] HealthPac had become suspicious of the pattern of the appellant’s pharmacy repeat dispensing claims. They took the data they received from the pharmacy and tested it against four criteria. They described the resultant information as the CTE “clusters”:
(a)dispensing within seven days of expiry repeats;
(b)dispensing in alphabetical or reverse alphabetical order;
(c)dispensing within a short time (a few seconds, minutes or hours) between each item; and
(d)when (a), (b) and (c) occurred on days when the appellant was working alone.
[23] The appellant submits that this “pattern” evidence was only created by HealthPac applying certain criteria to the data they received from the appellant’s pharmacy and producing a computer-generated report which purported to show a pattern. Further, the appellant says that Mrs Linton, a pharmacy employee who had responsibility for contacting patients from the CTE reports also showed a similar pattern in her work.
[24] The pattern described in [22] by itself did not necessarily establish the appellant had not contacted the patients or had acted dishonestly. There was nothing untoward in the use of a CTE report identifying shortly to expire repeat dispensing ([22](a)). This report was in alphabetical order thus it could not be said to be unusual for the pharmacy staff to contact patients in alphabetical order ([22](b)). If after contacting a number of patients the dispensing was entered in the computer in one batch then there would be processing of dispensing within a short period ([22](c)).
[25] The Judge did not infer from this pattern alone that the appellant had not contacted patients or had acted dishonestly ([21] bullet point two). The fact that Mrs Linton had a similar pattern on 12 October of dispensing to Mr Satya’s did not therefore necessarily assist Mr Satya’s case.
[26] Mrs Linton had primary responsibility for contacting patients whose repeat dispensing was due and where the 90 day period was soon due to expire. These patients were identified by the CTE report. A similar pattern of use of the CTE report and dispensing record to that identifiable when the appellant was solely in charge of the pharmacy was found on 12 October 2005. That was a day on which Mrs Linton had been responsible for contacting patients. There were two other days on which Mrs Linton processed repeat dispensing requests in an alphabetical order. Given Mrs Linton showed the same pattern as the appellant, the inference of dishonesty the Judge took from the appellant’s actions was therefore wrongly taken, the appellant claimed. The Judge had not inferred dishonesty by Mrs Linton. The appellant submitted that the Judge should have applied the same standard to the evidence relating to Mr Satya and refused to infer dishonest motive.
[27] The Judge was well aware of Mrs Linton’s conduct and assessed the factual circumstances in this way:
[74] In this respect the defence pointed to a cluster of CTE repeat dispensing on 12 October 2005. The primary factors relied upon by the Crown – close to expiry repeat dispensings in alpha or reverse alpha order processed within a short time – are all present. The evidence is clear though that it was Leonie Linton, not the accused, who processed these dispensings.
[75] The defence argues that the existence of this cluster, created by a person in respect of whom no dishonesty is suggested, destroys the Crown case insofar as it is based upon inferences to be drawn from the existence of a cluster.
[76] There are, however, some factors which distinguish this cluster from the other 184, apart from the fact it was processed by Mrs Linton. The first is that it was the only certain occasion when Mrs Linton worked from CTE reports that she produced a full cluster. There were also short clusters on 10 August and 21 September 2005 for which she may have been responsible. But no others have appeared in all the many weeks in which she processed CTE repeats from reports. With the accused, a cluster seems to have been produced every time. There is no evidence of him processing from a CTE repeat report when a cluster was not produced.
[77] I consider that on 12 October, Mrs Linton was under particular pressure because she was intending to be away on the Friday and Saturday and was less rigorous than normal about contacting patients before dispensing. In Mrs Linton’s case, this does not indicate dishonesty because, in contrast to the accused, she did not prepare the claim disks and could not know that uncollected repeats would be claimed for. Nevertheless her notes on the computer show that she considered the individual repeats before dispensing. There are several indicators of the reverse in the accused’s dispensing.
[78] Despite the cluster on 12 October, I accept Mrs Linton’s evidence that she generally did contact patients. It is supported by her notes and the notations on her CTE report for 5 October. However, for the various reasons set out above, I do not believe the accused ever contacted patients directly to enquire whether they wanted their repeats. Direct enquiry would be needed in most cases. Mrs Linton’s normal practice showed that.
[28] The Judge was therefore able to distinguish Mrs Linton’s actions from those of the appellant on a rational basis.
[29] The Judge accepted that the pattern of dispensing on 12 October by Mrs Linton was similar to the patterns on 17 September, 2 and 15 October by Mr Satya. He concluded however that on 12 October Mrs Linton did not contact all patients whom she processed for repeat dispensings.[3] The Judge therefore applied the same standard to Mrs Linton’s evidence. However, the distinguishing difference between her and Mr Satya was that she did not make claims for subsidies based on her actions and she did not know that claims would not be deferred for uncollected medicines. Thus there was no evidence she had any dishonest intent. We therefore reject the claim there was any unfairness or inconsistency in the assessment of the appellant’s and Mrs Linton’s actions.
[3] At [77].
[30] This submission led to the appellant’s further point relating to the Judge’s inference that the appellant had acted dishonestly. The appellant submitted that when considering whether to “take” an inference where there are two inferences available of equal weight, a Judge is bound to take the inference which advantages an accused. We agree with the principle. However in this case there were not two inferences of equal weight available as to the allegation of dishonesty. The direct evidence from patients together with the circumstantial evidence established the appellant had not contacted patients. This evidence together with evidence relating to the claims themselves, including refusal of deferment, justified the inference of dishonesty. There was no equally powerful inference of lack of dishonest intent.
[31] As a further challenge the appellant submitted that the Judge was wrong to infer dishonest motive. The appellant submitted that from the facts there was an equally strong inference that even if he had not contacted all patients about repeat prescriptions there was a credible explanation for not doing so consistent with absence of fraudulent intent.
[32] Mrs Linton accepted that the underlying principle of the pharmacy was to do everything to help their patients. Mr Satya stressed this principle in his evidence. This included trying to ensure patients received their repeat dispensing before their prescriptions expired. Repeat dispensing in this way would save patients the cost of a new doctor’s visit to obtain a new prescription. Thus the appellant submitted that even if it had been established that he had processed repeat dispensing without contacting a patient it was just as probable an inference that he was doing no more than applying the principle of patient help rather than acting dishonestly.
[33] We reject this submission. The appellant did not ever say in evidence that he had processed a repeat dispensing when he had not contacted a patient so that he could save the patient money. The appellant rejected any claim that he had processed a repeat dispensing without one of the various forms of patient authority. Nor could it be said in any event that the two possible inferences had equal weight. The inference of dishonest intent and the evidence to support it was in our assessment comparatively overwhelming compared with the alternative inference invited. There was no error shown by the Judge in the way in which he dealt with this matter.
Processing of all repeats due
[34] The appellant submits that it was wrong for the Judge to rely upon the proposition that all repeats due to a patient were processed in every instance as supporting the inference of failure to contact patients and dishonest intent.
[35] The Judge said ([21] third bullet point) that where a patient had other repeats due apart from those identified in the CTE report those were also processed at the same time as the CTE identified repeat. Thus when the appellant processed the claims from the CTE clusters the appellant routinely processed all repeats due. The Judge remarked that it seemed unlikely that all patients in the cluster contacted by the appellant would have asked for both the dispensing repeat that was due, and any other repeat dispensing even though not due, to be dispensed.
[36] The Judge used the evidence of processing of repeats due in this way to support the inference that there had been no patient contact by the appellant. This inference was clearly open to the Judge on the facts. It was a further piece of circumstantial evidence relevant to the question of whether the appellant had contacted patients before dispensing repeats and ultimately dishonest intent. We reject this challenge.
Second and third repeats
[37] On a number of occasions the computer records showed that the appellant dispensed second and third repeats for patients close together. Sometimes the records show the appellant dispensed a second repeat early on a particular day and a third repeat was dispensed later in the same day.
[38] The Judge considered that it was unlikely a patient would request a further repeat of their medication when they had just received a repeat. This in turn supported the Crown case that the appellant had not contacted these patients. The appellant says that this inference was not for the Judge to take and his reasoning was speculative.
[39] This inference was clearly open to the Judge. It is unlikely that a patient would request a repeat medication and then on the same day ring and request a further repeat of medication. The Judge was entitled to use this evidence together with the other evidence as supporting the inference of failure to contact patients by the appellant. The fact this pattern was also present in Mrs Linton’s processing on 12 October does not assist the appellant. The Judge concluded that Mrs Linton had not contacted patients on 12 October.[4]
Direct patient evidence and absence of direct patient evidence
[4] At [77].
[40] The Judge had direct evidence from some patients with respect to counts 73 and 74 that, despite repeat dispensing being processed by the appellant, they had never requested any such medicines. There was similar evidence with respect to some counts in the counts 1 to 72 group.[5]
[5] At [61].
[41] The appellant says that the Judge wrongly failed to take an adverse inference toward the Crown case because all of the patients for the periods covered by counts 73 and 74 were not called to give evidence. Thus the Judge placed too much weight on the evidence of those patients who gave evidence that they had not sought repeat dispensing. The Judge did not place enough emphasis on the fact that not all patients relating to all counts gave evidence that they had not requested repeat medications.
[42] The appellant submitted the Crown did not call evidence from sufficient patients of the pharmacy to justify the inference that the appellant had not contacted any patients.
[43] The Crown did not rely solely on direct evidence to establish failure to contact patients. They had significant circumstantial evidence, as we have recounted, to infer failure to contact patients. In addition over 30 witnesses gave evidence that they or those they cared for had not ordered the repeat dispensing for medicines the applicant had dispensed. We reject this complaint.
[44] The appellant says the Judge also erred when he said that the inference that patients had not been contacted was “greatly strengthened by the absence of any evidence from patients that they had requested the repeats dispensed for them”.[6] The Judge said the principles established in Trompert v Police,[7] R v Gunthorp[8] and R v Haig[9] were relevant to this case. He considered he was entitled to draw an inference adverse to the appellant’s case and said if there were patients who had ordered repeats during the relevant time it was inconceivable that at least some would not have been called to give evidence.
[6] At [41].
[7] Trompert v Police [1985] 1 NZLR 357 (CA).
[8] R v Gunthorp [2003] 2 NZLR 433 (CA).
[9] R v Haig (2006) 22 CRNZ 814 (CA)
[45] The appellant’s case is that this approach misunderstands Trompert and effectively reverses the onus of proof.
[46] In this case we do not consider the Judge should have concluded the inference that the appellant had not contacted patients was greatly strengthened by the appellant’s failure to call evidence from patients to say they had been contacted by the appellant.
[47] In Gunthorp the accused faced fraud charges. The trial was by Judge alone. The trial Judge took the accused’s silence on cheque authorisation as prima facie authority for the use of the cheque the subject of the fraud charges. On appeal this Court emphasised the Judge did not draw any inference from the accused’s silence and so the Judge’s approach was unobjectionable.
[48] The Court said:
[142] It is true, as counsel submitted, that an inference may be drawn only from evidence, not from the absence of evidence. Equally, a Court’s right in certain circumstances to have regard to an accused’s failure to give evidence “is not allowed to supply the want of necessary proof”: R v Burdett (1820) 4 B & Ald 95 at p 140 per Holroyd J, quoted in Trompert at p 358. On the other hand, where facts are proved which call for explanation by the accused he “preserves silence at his peril ...the silence of an accused person has always been a major indication of guilt in cases where he might be expected to speak if he were innocent”: per F B Adams J in Purdie v Maxwell [1960] NZLR 599 at p 605, in a passage adopted in Trompert at p 358. As Lord Diplock put it in another Privy Council case, Haw Tua Tau v Public Prosecutor [1982] AC 136 at p 153, “What inferences are proper to be drawn from an accused’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense”. One of the circumstances of this particular case is that the person preserving silence was the chairman of directors, who should be able to account for his actions as having been honest and in the best interests of the shareholders.
[143]Here the Judge did not go so far as to draw an inference from Mr Hawkins’ silence. Rather, he treated that silence as giving the prima facie case of authorisation and direction sufficient further weight to bring it to the point of proof beyond reasonable doubt. He was in our view entitled to do that; it was a commonsense conclusion.
[49] In this case the Judge did draw inferences from the appellant’s failure to call evidence which went to the heart of the Crown case against him. The appellant gave evidence at trial and denied he had not contacted repeat dispensing patients however the Judge rejected this evidence as untrue. The fact that there were no witnesses called by either side who said they had been contacted by the appellant was neutral. It neither helped nor hindered the Crown case. The Judge’s conclusion that the inference that the appellant had not contacted patients was strengthened by this “lack” of evidence was therefore wrong.
[50] However, having considered the Crown evidence supporting the claim that the appellant had not contacted patients the Judge was entitled to note that there was no evidence from patients stating that they had been contacted by the appellant and there was therefore no other independent evidence supporting the suggestion that the inference the Crown invited should not be taken.
[51] As we have identified there was ample evidence both direct and circumstantial that the appellant had failed to contact patients and that he made the subsidy claims for dishonest purpose. Consequently, no miscarriage arose from the Judge’s error.
[52] Further, the appellant tried to cross-examine one of HealthPac’s investigators about what patients had told the investigator regarding contact with the pharmacy. The suggestion was that some patients had said to the investigator that they had been contacted by the pharmacy regarding repeat dispensing. The Judge was right to refuse to allow this cross-examination. The answers sought on behalf of the appellant were hearsay (Evidence Act 2006, s 4). None of the pre‑requisites for admission of the evidence were present (Evidence Act, ss 17, 18 and 22). The patients could have been called to give evidence by the appellant. Further, the Crown accepted that Mrs Linton had contacted a number of patients about repeat dispensing perfectly legitimately. There was nothing in the investigator’s notes to show who had contacted the patient and therefore the evidence could not have been of assistance to the appellant in any event.
Uncollected medicine
[53] When HealthPac inspectors visited the pharmacy managed by the appellant, on 18 October 2005, 27 of the 35 items processed as repeat dispensing on 17 September 2005 by the appellant remained on the uncollected medicine shelf in the pharmacy. The Judge considered this evidence was relevant circumstantial evidence supporting the conclusion that the patients had not ordered the medicines.
[54] The appellant submits this evidence is too “weak” to support the inference taken by the Judge. The strength of the evidence is not that an individual medicine for an individual patient remained on the uncollected medicine shelf. By itself this evidence would neither support nor detract from the Crown case. An individual patient may simply forget to uplift an ordered repeat. Or, a patient uplifting a repeat prescription already dispensed may do so when they visit the pharmacy or when they contact the pharmacy subsequently to request a repeat even if not pre‑ordered.
[55] However, the coincidence that 27 out of 35 items were unclaimed after more than five weeks from the claimed patient request for a repeat dispensing is obviously remarkable. The high percentage of unclaimed items over an extended period identifies why it is remarkable and therefore by inference supportive of the Crown case that these were dispensings not requested by individual patients.
[56] The appellant pointed to the existence of unclaimed items arising from Mrs Linton’s processing on 12 October. He submitted that given it was not claimed that Mrs Linton had been dishonest it would be wrong to take an inference against the appellant from this evidence.
[57] The evidence relating to unclaimed items arising from Mrs Linton’s processing on 12 October is not helpful to the appellant. The evidence established 15 patients were contacted, and 24 items processed on 12 October. By 18 October 15 items were uncollected. First, this was on an occasion when the Judge concluded Mrs Linton had not contacted all patients on the list as she claimed. Secondly, there was only a short time gap between the processing, on 12 October and the check of unclaimed items on 18 October. This can be contrasted with the five week gap relating to the appellant. The Judge was entitled to use this circumstantial evidence as supporting the Crown claim that the appellant had not contacted patients.
Dispensing to patients who were dead
[58] The evidence established that the appellant had processed repeat dispensing requests (within the CTE clusters) to patients who had died. The appellant submits that the Judge was not entitled to infer that dispensing to deceased persons could only be explained because no enquiry had been made of the patient or the caregiver as to whether a repeat dispensing was required. The appellant says there are other explanations for such dispensing including standing orders for repeat medicines. The appellant’s case is that it is a common error to dispense medicines for deceased patients.
[59] As to this aspect the Judge said:
[71] The evidence relating to dispensing by the accused of medication for deceased patients within CTE clusters is further support for that conclusion. While there was the possibility in respect of a few patients that the death had not been notified to the pharmacy and a standing request existed, most cluster dispensing to deceased patients could only be explained on the basis that no enquiry was made of the patient or the patient’s caregiver whether the medication was wanted. I found the explanation of reimbursing rest homes for medication unpersuasive. Such reimbursements are very unlikely to have been dispensed in CTE clusters. The evidence around Mr Brown’s dispensing on 17 September 2005 shows how very unlikely the reimbursement explanation is.
[60] The Judge therefore identified the very issue the appellant raises and rejected it as an explanation for all of the dispensing to dead patients.
[61] The 11 patients who were deceased but had medicine dispensed were within the CTE report clusters used by the appellant. The appellant’s evidence was that before dispensing items on the CTE reports he contacted either the patient or their caregiver or used other information to establish a repeat dispensing was required. If in fact he had contacted any of the 11 patients’ families or caregivers he would have discovered they were dead. In the circumstances, therefore, the Judge’s inference was properly open to him.
[62] Apart from the inference of dishonest conduct, which was open to the Judge from his conclusion that the appellant had not obtained patient authority for repeat dispensing, the Judge also concluded that dishonesty could be inferred from the fact that the appellant had not deferred uncollected repeat medicine from his fortnightly subsidy claims.
[63] The Crown case was that the evidence relating to deferrals was circumstantial evidence supporting the inference of dishonesty. The appellant submitted that failing to defer claims for unclaimed medicine was common amongst pharmacies. In those circumstances no inference of dishonesty from the appellant’s failure to defer could be properly taken. However, the evidence the appellant said supported this proposition does not stand up to analysis.
[64] Ms Susan Pearson was a customer support manager employed by the software retailer who had supplied the computer software to the pharmacy. She was asked about the habits of pharmacies using the deferral option for uncollected dispensing. In cross‑examination by the appellant’s counsel it was put to her that there were a large number of pharmacists who were not deferring uncollected medicines in 2005. She said she was aware of some pharmacists doing so but did not confirm a large number were doing so. In fact, no other evidence was called which established that large number of pharmacists were deferring claims for uncollected dispensing.
[65] As we noted at [9] when Mr Satya came to complete his two weekly claim for dispensing subsidy a computer screen would have prompted him to consider uncollected medicines. In particular he would have been asked:
“Have you ‘deferred’ uncollected medicines?”
[66] This was intended to prompt the operator to check the uncollected medicines shelf and defer claiming for any medicines that had not been collected by a patient. Evidence established that with respect to the subject matter of the charges the appellant invariably refused to defer a claim for uncollected medicines. This evidence was relevant in assessing dishonest motive and was properly taken into account by the Judge as a relevant factor.
Counts 1 to 72
[67] The appellant submits that the Judge’s reasoning for convicting the appellant on counts 1 to 72 improperly relied upon unreliable and insufficient evidence relating to counts 73 and 74. The appellant’s case is that the Judge adopted an impermissible propensity analysis to convict the appellant on counts 1 to 72. In any event the appellant says propensity evidence alone is not sufficient to convict the appellant on counts 1 to 72.
[68] As to his conclusions with respect to counts 1 to 72 the Judge said:
[69] I have reviewed all the 181 daily clusters identified by the Crown in respect of Counts 1–72. I am satisfied from the patterns evident in respect of each one of those days that the dispensing was done from a CTE report. Indeed the accused acknowledged in evidence that his practice was to run CTE reports and dispense from them. I am also satisfied that it was the accused who carried out the dispensing on these 181 days. He was on duty and Leonie Linton was not. It was, however, very much in issue whether in respect of those days, it is proven that the accused did not contact patients to find out whether they wanted a repeat. There was no direct evidence from patients about those days.
[70] The factors that led me to that conclusion in respect of Counts 73 and 74 exist in respect of the earlier days except evidence from patients and the physical evidence of the uncollected medications. Those factors point strongly towards the conclusion that the patients were not contacted. In my view, there is also a strong inference from the direct evidence in relation to Counts 73 and 74 that the pattern of patients not being contacted and uncollected medicine lying on the shelves is likely to have existed on the earlier days. There is no reason to think that the accused operated any differently earlier.
[69] The Judge also included in the established pattern he identified the evidence relating to dispensing to dead patients and the coincidence of second and third repeat dispensings close together in time.
[70] The Judge then considered whether there were other possible explanations for the pattern and the record of Mrs Linton’s actions on 12 October and its significance.
[71] The Judge then said:
[79] Even accepting the possibility of standing requests by a few patients and the odd specific request recorded in a chit or the diary, I am satisfied that no request was made by most of the patients in the clusters contained in each one of Counts 1–72. There were sufficient numbers of individual dispensings for me to be sure of this in respect of each charge. It follows that at least some (perhaps most in many cases) repeat medications dispensed by the accused in clusters from CTE reports were not collected or received by the patients because they had not asked for them and did not know they had been dispensed. The numbers of dispensings in each charge are such that I am sure that there would have been uncollected items at the time each of the batch claims were sent.
[80] The accused acknowledged that he processed all the claims to HeathPac covered by Counts 1–72. I do not believe his evidence that he often checked the uncollected shelves and deferred claims for repeats found there. Obviously he did not do so in respect of any of the claims covering items found on the shelves on 19 October. Apart from 17 isolated instances, of which only four were not for automatic deferrals or “owed” items, the Toniq analysis showed that none of the individual items covered by the 74 counts were deferred. This is in the context of many hundreds of individual dispensings. It is not credible that the accused deferred uncollected medications until they dropped off the claim in circumstances where he had been habitually dispensing repeats without request. The financial effect of that was a loss for the pharmacy of the dispensing fee and a complete loss of the value of the medication if the item was past its use by date and could not be returned to stock. From experience the accused must have known at the time he dispensed that many items would not be collected. He would not have habitually dispensed unrequested medications if his practice was to defer permanently uncollected items because to do so would have involved substantial losses for the pharmacy, and made the original dispensing a source of loss rather than profit. No one would have understood this better than the accused.
[72] As the Judge identified the Crown established a pattern of conduct by the appellant which ran through all 74 counts. As we have observed there was strong evidence to support conviction on counts 73 and 74 both direct and circumstantial. All had the same pattern of conduct by the appellant.
[73] Although not mentioned by the Judge in his reasons there was also “direct” evidence from patients, or family or others caring for elderly patients that they had not ordered repeat dispensing as claimed by the appellant in counts 1 to 72. This direct evidence related to counts 24, 29, 30, 40, 41, 47, 48 and 67. Some of the evidence, as with counts 73 and 74 was directly from patients themselves. In other cases it was from family members who had the responsibility and care of a patient and were the contact person for any repeat dispensing request. In other cases the repeat dispensing had been processed after the patient had died. Evidence was given from family members and employees of facilities in which the deceased had lived immediately before their death that no repeat dispensing requests had been made.
[74] Although the Judge considered that this case involved propensity reasoning we consider it is better analysed as involving inferences from established patterns of conduct. The Judge was satisfied from the direct and circumstantial evidence on counts 73 and 74 that the appellant had not contacted patients. The inference from that conclusion and other circumstantial evidence was that in making subsidy claims he was acting dishonestly. Similar direct evidence was available on some counts in the 1 to 72 count group. The same or a similar pattern of circumstantial evidence was also present in counts 1 to 72. We do not consider there was any circularity or impermissible analysis involved in the Judge’s assessment.
[75] We are therefore satisfied the Judge was entitled to draw the inferences he did as to counts 1 to 72 and that there was sufficient evidence for conviction.
Motive
[76] The Judge’s conclusions that there was advantage to the appellant in increased turnover and profit by the pharmacy were challenged by the appellant. However, as the Judge recognised, the Crown did not have to prove motive. It may, as the Judge said, have been no more than the appellant’s ambition to have the pharmacy business performing to the highest level.
Summary
[77] For the reasons given therefore we are satisfied that the appeal against conviction must fail. The sentence of home detention imposed by the trial Judge will commence 24 hours after the date of the release of this judgment.
Solicitors:
Duncan Cotterill, Nelson for Appellant
Crown Solicitor, Wellington for Respondent
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