Smith v The Queen
[2005] NZCA 297
•5 December 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA283/05
THE QUEEN
v
KAREN HELEN SMITH
Hearing:16 and 25 November 2005
Court:O'Regan, Baragwanath and Doogue JJ
Counsel:E A Hall for Appellant
K B F Hastie for Crown
Judgment:5 December 2005
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence imposed in the District Court is quashed. Instead, we sentence the appellant to 12 months supervision, subject to the following special conditions:
(a)The appellant is to undertake any counselling as directed by the Probation Officer;
(b) The appellant is to attend any psychological and/or psychiatric counselling, as directed by the Probation Officer.
____________________________________________________________________
REASONS
(Given by Baragwanath J)
[1] At the conclusion of oral argument on 25 November 2005 we dismissed the appeal against conviction and allowed the appeal against sentence for reasons to be given in writing. These are the reasons.
[2] Ms Smith was convicted following jury trial in the District Court at Palmerston North before Judge Connell on 18 counts. One was of omitting to advise of a change in circumstances as required by s 127 Social Security Act 1964 and the others were of using a document with intent to defraud contrary to s 229A Crimes Act 1961. The charges related to benefit fraud extending over a period of 12 and a half years and involving a total of about $55,000-odd in over payments.
[3] Ms Smith was sentenced to 12 months imprisonment with leave to apply for home detention. The sentence was deferred for two months. On 18 October 2005 the appellant was recalled to prison for alleged breach of the terms of her home detention. An application to the Parole Board to challenge that decision was to be heard later on in the morning of 25 November when we announced that the term of imprisonment had been set aside.
[4] The appeal is against conviction and sentence.
Background facts
[5] The charges covered the period June 1990 to August 2003. On 9 August 1982 Ms Smith had been granted accident compensation as a result of head injuries received following a motorcycle accident. She first applied for and was granted a sickness benefit in June 1990. In February 1992 following the birth of her child she applied for and was granted a domestic purposes benefit. Thereafter benefits were renewed on an annual basis until December 2002. In addition to the sickness and domestic purposes benefit Ms Smith also received accommodation benefits, accommodation supplements and special benefits.
[6] It was a condition of receipt of these benefits that Ms Smith advise the Department of any change of circumstances or income that would affect her entitlement. Each of the s 299A counts relate to separate instances of the appellant’s completing a written Department of Social Welfare benefit application to obtain or retain certain benefits. In every case she responded inaccurately to a printed question “Are you applying or have you applied for accident compensation?”She did so either by a tick in the “No” box or by writing “N/A” or indicating by other means that she was not receiving other income such as accident compensation.
[7] The s 127 charge of wilfully omitting to notify WINZ that she was receiving accident compensation was a global charge covering the entire period of the offending.
[8] Ms Smith was interviewed from 11.28 am to 1.58 pm on 28 July 2003 by a WINZ investigator. The notes of the interview extended to 16 pages. They include the passages:
The truth is I was living with so much confusion on so many levels, I avoided it I didn’t really know what to do. The debt. I have lived with debt for so long.
…
Q: Karen did you feel you were doing anything wrong?
A:I think I always knew. But there’s been so much nonsense with Helen’s father it was a question of survival… my essential motivation was to get a better life for me and Helen.
…
I just went n/a right the way through.
Q: Was that true?
A: No it wasn’t true.
Q: Can you tell me why it wasn’t true?
A:Cause I really can’t remember any of this I wasn’t really registering what I was doing.
Q:However you were aware that you had to tell WINZ that you were receiving ACC payments?
A:Yeah, and that way of thinking only came to me in the last couple of years, sorting out IRD I’ve had more clarity about what I’ve been doing.
…
Q:Did you understand that you had to (advise you were receiving ACC payments)?
A: Yeah I’m sure on one level I did I just filled in the forms.
…
I should have declared the ACC income but again I was in the habit of filling in the form and not thinking.
At other points Ms Smith said that she automatically filled in the forms, signing them without having read them.
[9] On 24 August 2004 Dr Barry‑Walsh, Consultant Forensic Psychiatrist, made a written report at the request of the appellant. His evidence was the subject of a judgment by Judge Rea, under s 344A Crimes Act 1961, delivered on 13 April 2005 permitting the doctor to give evidence at trial. Counsel agreed that the detail of what he could say was to be left until trial.
The trial
[10] Ms Smith’s defence at trial was lack of intent to defraud and to mislead WINZ. She was not called to give evidence on her own behalf; Ms Hall submitted to us that Ms Smith’s medical condition made that impracticable.
[11] Defence counsel at trial (not Ms Hall) called the evidence of the appellant’s brother concerning the effect of the accident on the appellant’s capacity to think rationally and as to the difficulty he saw for her in comprehending and coping with the WINZ interview. The defence also called Dr Barry‑Walsh. The scope of his evidence was the subject of an affirmation in this Court by defence counsel at trial. The Crown agreed that the facts set out in that affirmation accurately recalled what occurred in chambers before Dr Barry‑Walsh was called:
10.There was discussion with the Trial Judge and myself over the extent of the evidence I would be able to call from Dr Barry‑Walsh. The culmination of the discussion was that the Trial Judge ruled that I was not permitted to lead evidence from Dr Barry-Walsh in relation to the statement that the appellant made to the investigating officer during the course of the inquiry. The Judge ruled that I was limited to leading evidence of general cognitive impairment but could not ask the expert to provide comment on the specific interview with the WINZ investigator. I was clearly told that I was not to ask the expert to comment on the probable understanding of the Appellant of the question and answer session, nor was I allowed to ask him to comment on the reactions of the Appellant during that interview. My notes of the pre-trial discussion record that the constraints on me were as follows:
i.Dr Barry-Walsh was allowed to comment on the brain injury and its symptoms;
ii.Dr Barry-Walsh was allowed to comment on his observations of Ms Smith;
iii.I was not permitted to lead hearsay through the Doctor, no “de facto evidence of the accused” and I was not permitted to lead evidence of her “self-reporting”.
iv.I was prohibited from leading any evidence of sexual abuse;
v.In relation to the WINZ interview in July 2003 I was prohibited from leading evidence from Dr Barry-Walsh about that. My note records: “Interview – could not allow him to say anything about the statement.”
11.The defence case was lack of mens rea. The cross-examination of the Crown witnesses was designed to elicit evidence about the circumstances surrounding the signing of the benefit forms, the background of confusion concerned the ACC and WINZ entitlements as advised to my client and the oppressive interview with Ms McKenzie – the WINZ investigator. I cross-examined the witnesses on that basis. The defence evidence I led from Roger Smith was to alert the Jury to the concerns surrounding the July 2003 interview with the Appellant. The evidence of the Dr Barry-Walsh was paramount to link in the evidence given about the interview with the ability of Ms Smith to deal with the information presented. I wanted the expert to be able to comment on the interview process and how that would have impacted on the understanding and responses of my client. My argument was that the Appellant is easily led and her responses cannot be taken at face value because of her brain injury. Judge Connell ruled that I could not lead the evidence I felt was crucial to the defence case.
(emphasis added)
[12] The Judge was asked for a report pursuant to rule 17 of the Court of Appeal (Criminal) Rules 2001. He was asked to provide it within a week of its being requested, because the fixture for the appeal was imminent. He did not have the Court file available to him, and was not aware of counsel’s affirmation, which was filed at about the same time as the Judge’s report was received.It was his recollection that no ruling had been given as to the limits of Dr Barry‑Walsh’s evidence. He believed that he had read Dr Barry‑Walsh’s report which had been prepared for a pre‑trial hearing conducted by another judge. It contained conclusions reached by the doctor on ultimate issues. His recollection was that he and Crown counsel were concerned about the admissibility of such evidence and discussed the point with defence counsel who agreed with Crown counsel as to the matter that should not be led and he was not required to intervene further.
[13] In view of the agreement by counsel we approach the matter on the assumption that a ruling was given but without making any finding to that effect. We observe that the absence of any request to the Judge for a ruling is evidence strongly supporting his recollection.
[14] The doctor’s brief was dated 14 February 2005 and included the following opinion:
In my opinion Ms Smith has an acquired brain injury with stable and enduring cognitive impairments as a result of a motorcycle accident in 1982.
She has difficulty with memory function and higher level executive function, notably her ability to initiate and sequence complex events and to assimilate and process information.
She has impairment in her capacity to attend and concentrate, in memory function and fatigued during the interview.
I am unable to precisely quantify these impairments which would require neuro‑psychological testing but I am satisfied that these impairments exist on the basis of my assessment.
She has disturbance in her mood with emotional incontinence and periods of low mood with associated suicidal thoughts and feelings of hopelessness.
In my opinion this disturbance in mood probably does not represent a major depressive illness but is consequent of her life circumstances, the difficulty she has as a result of her disability in the acquired brain injury itself.
It would appear that she has adapted to her impairments by ordering her life in a way which limits the impact on her day to day existence.
I would have concerns about her capacity to deal with any major changes or disruptions in her current lifestyle.
The acquired brain injury with impairments are stable and have operated throughout the alleged offending.
These impairments are specific rather than global.
Therefore she is not operating on a reduced level of intellectual functioning but has more discrete impairments that impact upon her capacity to think and understand things.
It means that she requires more time to assimilate and understand material as her capacity to learn is impaired by her distractibility, difficulty in processing information, sequencing, her tendency to fatigue and her memory impairment.
Despite her impairments I believe she has a good understanding of her current circumstances as she has had the opportunity to slowly and carefully assimilate information.
She becomes flustered when placed under pressure or when confronted with new information.
Although she has difficulty with reading and with comprehension in particular, I believe that her impairment is not sufficiently severe as to render her incapable to understand the forms that she had to repeatedly fill in.
However the extent to which she attended and concentrated during the completion of these forms is uncertain.
With regards to her interactions with WINZ, particularly with regard to the statement, I would observe that her account suggests that the statement was taken at the end of a lengthy and emotionally difficult interview.
He[r] head injury means that she has impaired concentration, fatigues easily, and prone to rapid shifts in mood.
It is plausible that as she described she was tired and had given little thought to her answers or attending to them at the time of the statement.
In other words her acquired brain injury may have in a number of ways exacerbated her tendency to be led.
With regards to legal proceedings her acquired impairment is not sufficiently severe as to render her unfit to stand trial.
However, as I have noted, Miss Smith has difficulty in regulating her mood and in my opinion is vulnerable to changes and stresses partly consequent of her brain injury as well as a result of emotional difficulties related to her sexual abuse.
Therefore the process of a trial is likely to be highly demanding of her.
She is at risk of a depressive as a result of the stress of the trial.
(emphasis added)
[15] Although the brief commented upon the taking of the WINZ statement it did not include any attempt to comment specifically on any of the 17 episodes that were the subject of the particular counts.
[16] Examined in chief the doctor gave general evidence of the effect of the global intellectual impairment resulting from the kind of injury suffered by the appellant. Crown counsel cross‑examined him upon a paragraph in his report where he said:
Although she has difficulty reading and with comprehension in particular, I believe that her impairment is not sufficiently severe as to render her incapable [of] understanding the forms that she had to repeatedly fill in.
[17] Asked whether it was a matter of attention and concentration at a particular time the doctor responded “Yes, that’s right.” In re‑examination defence counsel elicited the following sentence from the report:
However the extent to which she attended and concentrated during the completion of these forms is uncertain.
Submissions on appeal
The first ground: the Judge erred in limiting the evidence available to be produced from Dr Barry‑Walsh
[18] Ms Hall submitted that either the Judge erred in restricting the scope of Dr Barry‑Walsh’s evidence or there was miscarriage of justice because the expert evidence needed to assist the jury was lacking.
[19] In relation to the appellant’s admissions at interview Ms Hall submitted that Dr Barry‑Walsh should have been permitted to provide more specific assistance to the jury as to the appellant’s capacity to respond even if that meant giving evidence directly to the issue of her state of mind.
[20] In oral submissions she extended that submission to the occasions of the 17 specific counts. She argued that the ruling and alternatively the limitation of the scope of Dr Barry‑Walsh’s evidence accepted by trial counsel meant that there was no proper link between the general evidence of impairment and the specific events which they were required to appraise. While the appellant’s brother made such linkage in his account of the interview the appellant’s case would have been materially assisted had Dr Barry‑Walsh been permitted to do likewise.
The second ground: the summing up
[21] Ms Hall submitted that the Judge’s comments in relation to the right to silence were misleading and that the directions as to onus and standard of proof were inadequate.
Crown submissions
[22] For the Crown Ms Hastie submitted that the ruling which we are assuming to have been given conformed with the statement of principle by the Full Court in R v Makoare CA324/00 20 November 2000 summarised at [22]:
As the study of the mind progresses the Courts have been increasingly, if cautiously, willing to allow appropriate evidence so that the jury will have the advantage of a greater understanding of human responses.
Conviction appeal: discussion
The first ground: limiting the evidence from Dr Barry-Walsh
[23] Nowadays the Court’s task is to assess what assistance a jury requires to deal with the unfamiliar topics that justify the admission of expert evidence. The judgment entails reconciling the competing interests: as far as practicable ultimate issues are left to the jury without expression of expert opinion; but that precept must yield to the extent required by the overarching interest of ensuring a fair trial. It is essential that the jury is properly equipped to perform their task. In some cases that practical exercise will require expert evidence on ultimate issues.
[24] We have emphasised in the passage reproduced at [11] the ruling that counsel:
…could not ask the expert to provide comment on the specific interview with the WINZ investigator.
[25] We have also emphasised the passages of the doctor’s brief reproduced at [14]:
He[r] head injury means that she has impaired concentration, fatigues easily, and prone to rapid shifts in mood.
It is plausible that… she was tired and had given little thought to her answers or attending to them at the time of the statement.
In other words her acquired brain injury may have in a number of ways exacerbated her tendency to be led.
[26] We consider that the judgment to exclude the evidence mentioned was borderline; another judge could well have made a different decision. The real question is whether the exclusion of this evidence either alone or with other factors has caused the trial to miscarry. We are satisfied that is not so. A careful reading of the transcript and the summing up reveals that the defence case of the appellant’s disability was put squarely and substantially before the jury. It included, importantly, the doctor’s general evidence as to the effect of the appellant’s injury upon her capacity to concentrate and to reason. We consider that there was sufficient material available to the jury to equip its members to understand the defence submission about linkage.
The second ground: the summing up
[27] We have also considered the criticisms of the summing up against the Judge’s directions. The summing up was a careful one which at an earlier stage contained a clear direction about onus and standard of proof. While later directions about the accused’s not giving evidence might have been expressed more felicitously we are not left with any unease that the trial has miscarried.
The appeal against conviction fails
[28] The appeal against conviction therefore fails and is dismissed.
The appeal against sentence
[29] The close examination in argument of the evidence of Dr Barry-Walsh has been important on the appeal against sentence. The Judge was acutely conscious of the Court’s responsibility to deter benefit fraud. We fully agree that normally those who are tempted to engage in such offending must know that, because it is so easy to commit and usually so difficult to uncover, those who are found out are likely to face imprisonment.
[30] But there is a competing principle which must be applied on this appeal. In R v Bridger [2003] 1 NZLR 636, 648 at [42] a Full Court of this Court has endorsed the proposition that “reduced culpability is a factor which ought to receive specific acknowledgement; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires recognition”. There a reduction of sentence was made to recognise the appellant’s diminished responsibility, and hence lesser culpability, as a result of his mental illness.
[31] Here at sentence the Judge found that the offending was “certainly in a muddled fashion, certainly in a confused way”. He accepted the submission of defence counsel that there was reason to have significant concern for Ms Smith’s mental health if she were to be imprisoned and that her capacity to deal with the stresses of prison would be reduced by reason of her brain injury. He accepted that humanitarian considerations required to be taken into account in his decision to defer the operation of the prison terms following the grant of leave to apply for home detention.
[32] The probation report recommended a sentence of community work coupled with supervision and the imposition of suitable conditions.
[33] We are satisfied that while the appellant’s mental state provided no defence to the charges, the effects of Ms Smith’s brain injury contributed to her offending so significantly that the sentence imposed was disproportionate to her moral responsibility. We note she has now experienced nearly seven weeks imprisonment.
Sentence appeal allowed
[34] As we announced on 25 November, we have decided that justice will be done by quashing the sentence imposed by the District Court and substituting a sentence of 12 months supervision, subject to the following special conditions:
(a)The appellant is to undertake any counselling as directed by the Probation Officer;
(b) The appellant is to attend any psychological and/or psychiatric counselling, as directed by the Probation Officer.
Solicitors:
Crown Law Office, Wellington
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