The Queen v Cooley

[2008] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND

CA85/07
[2008] NZCA 149

THE QUEEN

v

LINDA JAY COOLEY

Hearing:24 April 2008

Court:Glazebrook, Hammond and Ellen France JJ

Counsel:S G Vidal for Appellant

S B Edwards for Crown

Judgment:5 June 2008 at 11 am 

JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe question on the appeal is:

In order to prove that the appellant has acted without a claim of right, does the Crown have to prove that the appellant was not entitled to the payment sought?

The answer is: “No”.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       The appellant was convicted of one charge of using a document with intent to defraud contrary to s 229A(b) of the Crimes Act 1961 and four charges of using a document with intent to obtain a pecuniary advantage dishonestly and without claim of right under s 228 of the Crimes Act.

[2]       The charges related to applications made by the appellant to Work and Income New Zealand (WINZ) for social welfare assistance.  In making these applications, the appellant did not accurately state her gross income because she omitted income received from secondary employment.

[3]       The appellant’s primary defence was that she had no dishonest intent.  She said she did not realise she had to declare her secondary income and that she was entitled to some assistance.

[4]       In a decision delivered on 17 November 2005, Judge Erber found the charges were proved, convicted the appellant and sentenced her to a term of 60 hours community work:  DC QUN CRN 509500036-40.  John Hansen J dismissed her appeal against conviction on 3 May 2006: HC INV CRI 2005-425-000025.  In the High Court on 18 December 2006, the appellant obtained leave to appeal under s 144 of the Summary Proceedings Act 1957 to this Court on a question of law.  

[5]       The focus in the High Court was on what the Crown had to prove to show that the appellant was attempting to obtain a pecuniary advantage.  In particular, John Hansen J considered the relevance of the appellant’s belief as to entitlement in establishing that element of the offence.  It appears that this was the question of law the Judge saw as warranting leave to appeal.   That question has since been addressed by the Supreme Court in Hayes v R [2008] NZSC 3. The focus of the present appeal has accordingly shifted and the question now put before the Court is as follows:

In order to prove that the appellant has acted without a claim of right, does the Crown have to prove that the appellant was not entitled to the payment sought?

Factual background

[6]       The appellant sought assistance from WINZ in May 2002 shortly after her arrival in New Zealand from Australia.  A fire had destroyed all of her and her dependent daughter’s possessions.

[7]       The appellant was in full-time employment so she was not entitled to a “core” benefit.  She applied for and obtained an accommodation supplement as a non-beneficiary from 16 May 2002.  At the time she applied for the accommodation supplement, the appellant was made aware she had to tell WINZ about any changes in her income or financial circumstances.  The appellant was paid the accommodation supplement over the period covered by the charges (7 August 2003 to 25 February 2004).  On 24 July 2002, WINZ approved payment of a special needs grant, recoverable from her accommodation supplement payments on a weekly basis.

[8]       In order to continue receiving the accommodation supplement, the appellant had to submit an Income Support Review form 12 months after the benefit was first granted and provide proof of her income over the preceding year.  The appellant did not disclose income she received from secondary employment although she signed the form which included a statement that the information was true and that nothing had been left out.  This led to the charge under s 229A(b).

[9]       The other charges under s 228 related to applications made by the appellant for special needs grants in November 2003, December 2003 and February 2004 and for a special benefit in December 2003.  In all of these applications she understated her gross weekly income.

The decision in the District Court

[10]     The Judge first identified the elements of the offence noting at [6] that the prosecution had to prove that:

(a)       The appellant intended to obtain a particular pecuniary advantage;

(b)To that end she used a document which in the case of the charge under s 229A had to be a document capable of being used to obtain the pecuniary advantage; and

(c)When she did so she did so dishonestly and without claim of right or, in relation to the charge under s 229A, she did so with intent to defraud.

[11]     In concluding that those elements had all been satisfied, Judge Erber considered that the inquiry in this case was as to the appellant’s honesty and purpose where her declarations of income were incorrectly stated (at [7]).  The Judge considered that whether the use actually resulted in the receipt of a benefit was not an ingredient of the crime which needed to be proved.

[12]     Judge Erber found at [12] that it was clear from the evidence that true disclosure would “significantly” have affected entitlement to or the amount of the grant or benefit to which the appellant was applying and that the appellant knew that the declared income figures were not accurate.  The Judge also noted that the appellant had accepted that she knew that a grant or benefit would be affected by increases and decreases in her income (at [14]).

[13]     Judge Erber observed that the appellant said that she had no dishonest intent.  The Judge acknowledged that if this claim was true or if it might reasonably be true, then the appellant must be found not guilty (at [15]).  However, the Judge did not accept that this was even a reasonable possibility.  In that context, Judge Erber noted  at [18] that the relevant forms were in plain English, the appellant was a fluent English speaker and a woman of “ordinary intelligence and understanding”.  The Judge referred to the fact that there were consistent considerable understatements which he found were not inadvertent but deliberate (at [20]).  The Judge concluded at [21]:

I have no doubt that she knew that if she made full disclosure WINZ would not cover all or part of her financial shortfall so as I say she decided dishonestly to get the money squaring her conscience with the knowledge that as far as the special grants were concerned she would be repaying them.

The High Court judgment

[14]     In the High Court, the focus was on whether the District Court Judge was correct to find that entitlement to a benefit or special needs grant was irrelevant in determining whether or not the appellant had used a document to obtain a pecuniary advantage.  John Hansen J considered that it was necessary for the Crown to prove the appellant was attempting to obtain a pecuniary advantage and “[i]n that regard her belief as to entitlement or otherwise must be a relevant consideration in establishing that limb of the offence” (at [28]).  However, because of the specific factual findings Judge Erber made against the appellant, John Hansen J considered that even if the Judge had taken a different approach and considered the entitlement, or belief in it, it would have made no difference to the outcome (at [28] – [31]).

[15]     In the High Court, the Judge noted that the prosecution was not required to prove the appellant actually obtained a pecuniary advantage, and in relation to the offences under s 228, there was no longer any requirement that the document was capable of obtaining a pecuniary advantage.  While John Hansen J considered that Judge Erber ought to have treated the charge under s 229A distinctly from the others on the basis of this requirement, he was satisfied that the Judge’s conclusion that the appellant received a pecuniary advantage from the use of the Income Support Review form could be upheld on the evidence (at [33] – [35]).

The appeal

[16]     The appellant’s submission is that she raised the issue of her belief that she was entitled to the grant she was seeking.  Her argument is that it was necessary then for the Crown to prove she was not entitled to the assistance because she otherwise had a claim of right.  As the Crown did not prove this element, the appellant submits that the case against her was not proved. 

[17]     The appellant emphasises that the assistance she sought by way of a special needs grant or benefit is discretionary and based on need.  She says that her application forms looked at as a whole showed that she was in need.  Hence, in the written submissions counsel for the appellant asks whether, if an individual is filling in a form for something she is entitled to, “can she be said to have an intent to obtain a pecuniary advantage?”  And, further, the submissions ask:   “Can there be an intent to obtain an advantage when there is a discretionary entitlement to what is sought?”

Discussion

[18]     As we have said, in the lower courts the appellant’s primary focus was on the relevance of a belief in entitlement to the assistance she sought in the context of proof of pecuniary advantage.  The effect of Hayes is that this belief is not relevant to proof of that element of the charge.  Blanchard J delivering the judgment of the Court in Hayes at [16] dealt with the matter this way:

The preferable construction treats the expression “pecuniary advantage” as meaning simply anything that enhances the accused’s financial position.  It is that enhancement which constitutes the element of advantage.  If what the accused person is seeking to obtain is of that kind, it does not matter whether he or she is entitled to it, or may be trying to avoid the risk of not continuing to receive it.  It follows that even if the person from whom the pecuniary advantage is sought has an obligation to supply it to the recipient, that will not prevent the use of dishonest means to procure the advantage from being an offence.

[19]     As to the relevance of  her beliefs as to entitlement in the context of a claim of right, that argument is relevant only to the charges under s 228 because there is no defence of claim of right in relation to s 229A.

[20]     Section 228 makes it an offence to dishonestly take or use a document.  In particular, s 228 relevantly provides that:

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage or valuable consideration, –

(a)dishonestly and without claim of right, takes or obtains any document; or

(b)dishonestly and without claim of right, uses or attempts to use any document.

[21]      “Claim of right’ is defined in s 2 of the Crimes Act in this way:

claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[22]     We agree with the Crown’s submission that the essence of the defence is that the accused must believe that the act in issue was lawful.  The appellant’s argument in this respect is that the relevant act was applying for the special needs grant or benefit.  Her case is that she thought she was entitled to the payments sought because she was in need of financial assistance.  However, for the purposes of claim of right, the relevant conduct is understating her income on the relevant forms.  Any other approach is both artificial and inconsistent with the statutory definition.

[23]     As the Crown submits, the assertion of a claim of right in this case can only have been based on a belief on the appellant’s part that it was lawful for her to understate her true income when she made her applications.  On this aspect, Judge Erber rejected the appellant’s claim that she did not know that her entitlement depended in part on her income or that she believed that WINZ would check the income figures she gave before paying her any grant or benefit.

[24]     If the appellant says, in effect, that her need justified what she did that too does not amount to a claim of right.  The Supreme Court in Hayes at [57] – [58] discussed the legislative history of the “claim of right” and in particular the change from “colour of right” which required a belief that the act was justifiable to “claim of right” necessitating a “lawful” belief. The Supreme Court observed that this was intended to exclude the possibility of an accused raising the defence based on an idiosyncratic moral claim that their actions were justifiable though unlawful (the “Robin Hood” defence). The belief must be as to a legal rather than a moral right.

[25]     Finally, even if the appellant was right that the Crown was required to proved that the appellant was not entitled to the assistance she sought, that was done.  As we have noted, there was evidence, accepted by Judge Erber at [12], that true disclosure would have affected entitlement to or the amount of the grant or benefit sought.

Result

[26]     For these reasons the appeal is dismissed and we answer the question set out in [5] above in the negative.

Solicitors:

Crown Law Office, Wellington