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…

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 The Queen v Hayes

Details

AGLC: The Queen v Hayes [2007] NZCA 6
Case: [2007] NZCA 6
Decision Date: 14 February 2007

CaseChat Overview and Summary

Nicola Bronwyn Hayes was convicted in the District Court at Hamilton of fraudulently using a document with intent to defraud and using a document dishonestly. Hayes appeals against her conviction, arguing that there was a miscarriage of justice due to the trial judge's failure to direct the jury on the relevant Accident Compensation Corporation (ACC) legislation and whether she was incapacitated during the period of offending. The appeal was heard by the Court of Appeal of New Zealand, with Robertson, Ronald Young, and Venning JJ presiding.

The central legal issue was whether the trial judge erred in failing to direct the jury on the relevant ACC legislation and the concept of incapacity in relation to the charges. The Court examined whether the appellant's entitlement to compensation under the ACC legislation was an essential part of the offence that needed to be proved beyond reasonable doubt. The Court also considered whether the definition of "pecuniary advantage" required the appellant to obtain compensation she would not otherwise have been entitled to, or if it included avoiding the risk of losing compensation. The Court concluded that the second approach was consistent with previous cases and that the prosecution only needed to establish the obligation to make a relevant disclosure and that the appellant was dishonest or made false representations or wilful non-disclosures.

The Court found that the trial judge's summing up adequately addressed all the necessary directions and that there was no miscarriage of justice. The fundamental issue was whether the appellant dishonestly failed to disclose any work in which she was engaged, and the trial judge's summing up appropriately related the elements of the offences to the circumstances of the case. The appeal was dismissed.

The final orders were that the appeal is dismissed.

Orders