REASONS
(Given by Wilson J)
Introduction
[1]       Mr Stewart appeals against his conviction on charges of defrauding the Accident Compensation Corporation. He alleges that prosecuting counsel, in his closing address, attacked a defence expert witness in intemperate and unjustified language and claimed that the appellant and other defence witnesses were motivated to lie by their wish to avoid the conviction of the appellant. As a consequence of either or both of these matters, it is claimed, the trial was not fair and a miscarriage of justice resulted.
[2]       Upon conviction, the appellant was sentenced to three years’ imprisonment. On appeal, the Court of Appeal reduced the term of imprisonment to 18 months, which was effectively the time Mr Stewart had already served.[1] The Crown therefore accepts that there should not be an order for a new trial if the present appeal succeeds.
The trial
[1]R v Stewart [2009] NZCA 89 (CA 802/2008, 25 March 2009, William Young P, Chisholm and Heath JJ).
[3]       At trial in the District Court at Timaru before Judge Abbott and a jury the appellant faced 59 counts of using a document dishonestly to obtain a pecuniary advantage. Each count was founded on a certificate which was completed by Mr Stewart’s general practitioner, Dr Small, based in part on what Mr Stewart told him. The certificates specified certain activities which Mr Stewart was said to be unable to perform as a consequence of accidental injury. The form of the certificates required the appellant to sign them and in doing so to certify that the document stated accurately the activities which he was unable to perform. Mr Stewart did so and gave the certificates to the Corporation. In reliance on them, the Corporation continued to pay weekly compensation to Mr Stewart in the belief that he was unfit to return to his former employment as a butcher.
[4]       The certificates related to dates between April 1992 and February 2004, for most of which time the appellant was not in paid employment and was receiving weekly compensation. Mr Stewart was acquitted on the first 25 counts, which related to periods up to August 1995, but was found guilty and convicted of
the subsequent 34 counts. Mr Stewart was also charged with, but acquitted on, a further count of attempting to pervert the course of justice by applying improper pressure on a witness.
[5]       The prosecution called extensive evidence from witnesses who claimed to have seen the appellant carrying out activities of a nature which, according to the certificates, he was incapable of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v R

Details

AGLC: Stewart v R [2009] NZSC 53
Case: [2009] NZSC 53
Decision Date: 28 May 2009

CaseChat Overview and Summary

Eric Barry Stewart appeals against his conviction for defrauding the Accident Compensation Corporation. The appeal concerns comments made by the prosecutor during his closing address to the jury and the suggestion that the appellant and other defence witnesses were motivated to lie to avoid the appellant's conviction. The appellant argues that these comments created substantial prejudice and resulted in an unfair trial and a miscarriage of justice. The Court of Appeal dismissed the appeal, but the Supreme Court allows the appeal and sets aside the convictions.

The Supreme Court first considered the obligations of prosecutors, emphasising that they must act with dignity and fairness and avoid intemperate or inflammatory language. The prosecutor's comments about the defence expert witness, Dr Davis, were deemed a serious breach of these obligations. The Supreme Court rejected the Court of Appeal's view that the evidence of Dr Davis was irrelevant, finding instead that it was crucial to the issue of whether the appellant was a malingerer. The Court also held that the prosecutor's submission that the appellant and his witnesses had a motive to lie was unjustified and prejudicial, subverting the presumption of innocence.

The Supreme Court found that the prosecutor's conduct created substantial prejudice and rendered the trial unfair. The trial judge did not counteract this prejudice, and in fact appeared to endorse the prosecutor's comments. The Court concluded that the appellant's entitlement to a fair trial was breached and that a miscarriage of justice resulted. The convictions are therefore set aside, although the Crown does not seek a new trial.

Orders