The Queen v Hayes

[2007] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/06
[2007] NZCA 6

THE QUEEN

v

NICOLA BRONWYN HAYES

Hearing:12 February 2007

Court:Robertson, Ronald Young and Venning JJ

Counsel:D G Hayes for Appellant

S B Edwards for Crown

Judgment:14 February 2007 at 3.30pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Nicola Bronwyn Hayes was convicted in the District Court at Hamilton following a jury trial presided over by Judge Connell on 24 counts of fraudulently using a document with intent to defraud and five counts of using a document dishonestly.  Ms Hayes appeals against conviction on the basis that there was a miscarriage of justice caused by non-directions or misdirections by the Judge in his summing up.  In particular, it is asserted that the Judge failed to direct the jury to determine whether the appellant was incapacitated during the period of offending and to explain to the jury the relevant ACC legislation.

Background

[2]       In 1997 Ms Hayes suffered an injury to her neck in a car accident.  At the time of the accident she was employed as a primary school teacher.  Ms Hayes successfully applied to ACC for compensation for loss of earnings.  For a period of seven years Ms Hayes received weekly compensation payments on the basis of medical certificates and signed claimant declarations provided to the ACC declaring that she was unfit to return to work.

[3]       The certificates included a Claimant Declaration which provided:

… I understand that I must notify ACC of any employment (part-time, full-time, paid or unpaid) that I undertake and of any income that I receive over the time I am receiving compensation.

[4]       From October 1997 the appellant was involved successively in running two companies which were in the business of emptying effluent ponds on dairy farms.  The appellant took an active physical role in assisting her partner with work on the farms and effectively ran the first business after her partner suffered injuries in a car accident in 2001.  From October 2002, after the appellant separated from her partner, Ms Hayes ran her own effluent removal business.  During this period the appellant continued to provide declarations to the ACC in the above form.

Did the Judge err by failing to give directions on the relevant ACC legislation in the course of summing up?

[5]       Mr Hayes, on behalf of the appellant, asserted that the Judge erred in failing to direct the jury in accordance with R v Thomas CA71/00 7 June 2001 and R v Donaldson CA80/04 8 December 2004.  He contended that these cases required a jury to be directed to determine whether, in ACC terms, the accused’s incapacity had in fact ended thereby ending his/her entitlement to compensation.  Accordingly, he argued that the jury needed to be directed as to the applicable ACC legislation and its relevance to the charges.

Definition of pecuniary advantage

[6]       Section 229A(b) of the Crimes Act 1961, as applicable at the relevant time, provides:

229A   Taking or dealing with certain documents with intent to defraud

Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to defraud,—

(b)Uses or attempts to use any such document for the purpose of obtaining, for himself or for any other person, any privilege, benefit, pecuniary advantage, or valuable consideration.

[7]       Section 228 provides:

228Dishonestly taking or using document

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.

[8]       As accurately stated by the Judge in summing up, there are four essential elements to establish the alleged offending:

(a)       the appellant used a document;

(b)       the document was capable of procuring a pecuniary advantage;

(c)the appellant used the document to procure a pecuniary advantage; and,

(d)      the appellant did so with the intent to defraud. 

[9]       This appeal centres on the definition of “pecuniary advantage”.  There are two possible approaches:

(a)pecuniary advantage requires that an appellant obtains compensation that he/she would not otherwise have been entitled to; or,

(b)pecuniary advantage includes the situation where the appellant avoids the risk of loosing compensation.

[10]     If pecuniary advantage is conceptualised in the ACC context as getting compensation that the appellant would not otherwise have been entitled to then it follows that establishing the appellant’s entitlement to compensation under the relevant ACC legislation was an essential part of the offence that needed to be proved beyond reasonable doubt by the prosecution.  If this view is taken, the jury, as fact finder, would have to decide whether the appellant was not entitled to the compensation.  In such circumstances it would have been an error for the Judge not to direct the jury as to the relevant ACC legislation. 

[11]     In Thomas, this Court held at [31]:

To the extent that the absence of entitlement forms a necessary element of the pecuniary advantage in such cases it can be established as a fact that the contingency has ended the entitlement, that is, in the present context, that the incapacity of the recipient of compensation has ended. (Emphasis added)

[12]     Thomas is authority only to the effect that if absence of entitlement is an essential component of “pecuniary advantage” then an accused’s entitlement to ACC compensation must be established as a fact. The Court expressly left open the situation where pecuniary advantage could be established without reference to the absence of entitlement to compensation: see [29].

[13]     If, however, pecuniary advantage is defined broadly so as to include avoiding the risk of losing compensation then a different outcome results.  If this approach is taken, ss 228 and 229A are breached where the prosecution establishes that the appellant was dishonest or made wilful non-disclosure (without the claim of right in the case of s 228) so as to avoid investigation which may have resulted in the termination of payments: Donaldson at [76] and [85].  In such circumstances the prosecution need only establish that:

(a)       there was an obligation to make a relevant disclosure; and,

(b)the appellant was dishonest or made false representations or wilful non-disclosures. 

The appellant’s actual entitlement to compensation is not in issue.

[14]     The second approach is consistent with both Thomas (at [29]) and Donaldson (at [85]).  These cases provide that where a person, who is receiving compensation, withholds from ACC relevant information which the recipient has been required to supply, the withholding may provide a pecuniary advantage by inhibiting the ACC from reassessing the recipient’s entitlement.  Where the recipient is conscious of the misrepresentation, then it is open to the jury to find that the recipient has been consciously dishonest and has the relevant intention to defraud.  Such reasoning applies squarely to the present case. 

[15]     The second approach also fits with the approach taken to s 229A in non-welfare related contexts.  In R v Johnson [2003] 3 NZLR 491, this Court said at [17]:

We see no reason to read down the section to the intent that "capable of being used" should mean "lawfully capable of being redeemed or exchanged for". In short, the words in question embrace both inherent capability and situational capability. That is how they have been understood by the courts in the past and it is how the words themselves read.

[16]     Nothing advanced in this appeal suggests that approach should not be maintained.

Intention to defraud

[17]     At trial, the defence argued that the appellant lacked an intent to defraud as she had an honestly held belief that she was only obliged to tell ACC about work if it related to teaching.  In evidence Ms Hayes gave a number of reasons for her complete failure to declare her work for the two effluent removal companies she was involved in.  These include:

(a)she thought that the only employment she had to declare was teaching jobs;

(b)she thought that she only had to make a declaration if she was “employed” and she did not consider herself to be employed by the company as she was not receiving an income.  In fact she did draw down cheques occasionally from the company account for personal reasons, and received a number of fringe benefits from the company including use of a car, fuel card and mortgage payments on her behalf;

(c)she thought that ACC was aware of the work she was doing for the company. 

[18]     The claimant declaration signed by the appellant on various occasions and set out in [3] above is simple and unambiguous.  Given the straight forward language of the form (and the breadth of the disclosure requirements) it was proper for the Judge to give directions to the jury of what amounted to “work” in a similar plain English style.  All the jury was required to be satisfied about was whether the appellant knew she ought to have declared the work she was doing for the companies and, if so, whether they could draw an inference that in signing the declarations of no work the appellant had an intent to defraud. 

[19]     The Judge, in summing up, directed the jury to consider the disclosure requirement set out in the client declaration and determine whether the appellant deliberately withheld information she was obliged to disclose to ACC. 

[20]     On this basis the Judge’s summing up adequately addressed all the necessary directions and cannot be faulted.  The fundamental issue was squarely before the jury and there was no miscarriage of justice.

Other grounds of appeal

[21]     On this approach to the legal analysis, other specified grounds of appeal are redundant.  The essential issue was whether the appellant dishonestly failed to disclose any work in which she was engaged.  It mattered not that the Judge did not give specific directions regarding the:

·     effect of company income on entitlements;

·     legal requirements of medical certificates; and,

·     difference between work and employment. 

Such technical directions as to the operation of the relevant ACC legislation were not relevant and thus not required.

Result

[22]     It was not necessary for the Judge to direct the jury on ACC legislative provisions about incapacity and entitlement to compensation.  The summing up set out all of the elements of the offences and appropriately related them to the circumstances of the case.  The appeal is dismissed.

Solicitors:
Ryan Law, Hamilton, for Appellant
Crown Law Office, Wellington