The Queen v Janine Page
[2001] NZCA 195
•25 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA440/00 |
THE QUEEN
V
JANINE PAGE
| Hearing: | 13 June 2001 |
| Coram: | Gault J Anderson J Randerson J |
| Appearances: | Appellant in person K Raftery for Crown |
| Judgment: | 25 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
In October 2000 the appellant was tried before a District Court Judge and jury on an indictment containing five counts of using documents capable of being used to obtain a pecuniary advantage, with intent to defraud, for the purpose of obtaining for herself or another a pecuniary advantage, contrary to s 229A of the Crimes Act 1961. She was acquitted on one count; the jury was unable to reach agreement on another count, the prosecution of which has subsequently been stayed by the Solicitor-General; and she was convicted on three counts, from which convictions she now appeals.
The prosecutions were founded on the appellant’s conduct in relation to claims for reimbursement by the Accident Rehabilitation and Compensation Insurance Corporation (“ARCIC”) for the costs of home help following a motor accident in which she sustained reasonably serious injuries. The ARCIC procedure was to assess the extent of need and authorise the number of hours per week and the hourly rate to fix the maximum amount for which the Corporation was prepared to reimburse an eligible applicant. Over a period of about four months from mid August 1997, the appellant submitted written claims for reimbursement in respect of four home helpers, namely Christine White, Agnes Ratipo, Rachael Dodd, and Kim O’Kane. The Crown case was that in respect of Christine White, Agnes Ratipo, and Rachael Dodd, no such persons existed and the reimbursement claims were fraudulent attempts to obtain money which had not been paid or become due to a home care helper. In relation to Kim O’Kane, the Crown case was that the extent of the home care help for which claims were submitted was fraudulently overstated.
In support of its case that there were no such persons as Christine White, Agnes Ratipo, and Rachael Dodd, witnesses called by the Crown included private detectives as to the extent of the inquiries they made. One of the private investigators acknowledged during cross-examination that as the result of information supplied to him he understood that a Judge had commented that Rachael Dodd was known to her and that such person lived or had lived in Oiva Road. He made no attempt to interview the particular Judge because the information had not been received directly from that source, but he said that he made extensive inquiries sufficient to establish in his mind that the Judge may have been either misreported or may have made a comment which was incorrect. In relation to the Crown case concerning Kim O’Kane, reliance was substantially placed on the evidence of that Crown witness herself.
The defence case at trial was that White, Ratipo, and Dodd were real people and that they and Ms O’Kane had provided home care help to the extent and at the cost indicated in the claim forms. The appellant contended at trial that any fraud would have been on the part of those women in attempting to conceal or understate earnings which might have affected welfare benefits. The extent of inquiries made on behalf of ARCIC, which the prosecution relied on as evidence of the non existence of three of the alleged helpers, was criticised by the defence and the honesty of the helpers whose existence the Crown challenged was also subject to attack.
The appellant gave evidence and was extensively cross-examined. Further defence witnesses were Ms C Curtis and Mrs Yvonne Reid. Ms Curtis testified to having met Christine White and Agnes Ratipo at the appellant’s home and she gave details of her observations of the help they were rendering. She acknowledged that she was the appellant’s best friend. Mrs Reid is the appellant’s mother. She met someone called Christine White at the appellant’s house and saw a woman there engaged in domestic assistance who was introduced to her by the appellant as “Ag”.
Appellant’s submissions
This Court had the benefit of oral submissions from the appellant as well as the written grounds specified in her Notice of Appeal and submissions in writing expanding upon the appeal grounds. Expressed in relevant legal concepts they amount to the following –
[a] There was a miscarriage of justice by reason of alleged deficiencies in her legal representation, particularly with regard to advice about the implications of a jury trial and advice by her counsel not to attempt to lead certain evidence at trial.
[b] Having regard particularly to the appellant’s mental state in consequence of the accident, injuries, and medication, the evidence was insufficient to support a finding of requisite fraudulent intent.
[c] The jury’s convicting on three counts, acquitting on one, and being unable to agree on another count, was unreasonable, rendering the convictions unsafe and amounting to a miscarriage of justice.
It was not appropriate for the Court to examine the first ground mentioned above, as the appellant readily accepted, because she had not provided a written waiver of legal privilege, as this Court’s practice requires when an appellant criticises the conduct of counsel at trial. As to the other two matters, these tend to merge into a general contention that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence for reasons both of alleged inadequacy of evidence and an irrationality having regard to the other two verdicts.
In a case such as the present it must always be a reasonable possibility that a person’s mental state, affected by significant injury and its traumatic consequences, might leave a reasonable doubt whether the specific fraudulent intent was present. In this case the appellant had quite serious injuries and was attempting to cope with domestic and parental responsibilities without much help. One of her young children had to be sent away to her mother’s because the appellant was incapable of caring for her whilst injured. The burden placed on the appellant, in these circumstances, of having to arrange appropriate home help, meet the expense of it and then apply for reimbursement was understandably difficult. Also of course, having been assessed by ARCIC, she was entitled to be reimbursed for assistance to the extent covered by the charges.
However, the defence case was not based on absence of fraudulent intent but on the basis that the named home helpers actually existed and had performed the work in respect of which reimbursement was sought. The appellant so testified at trial, leaving no room then or now for a Court to contemplate that although her evidence about the helpers should be false, nevertheless there might be no fraudulent intent in submitting claims as if such matters were true.
Two of the three convictions related to Agnes Ratipo and one to Kim O’Kane. There was in our view an adequate evidential basis in the Crown case for the jury to be satisfied, beyond reasonable doubt, that as a supposed home helper no such person existed. It was entirely a matter for the jury whether and to what extent it accepted the evidence of the appellant and her supporting witnesses on that issue. It is plain that they rejected, as they were entitled to, the evidence of the appellant and Ms Curtis. They were entitled to conclude that the evidence of Mrs Reid about “Ag” was insufficient on its own or in conjunction with the other defence evidence to leave a reasonable doubt in their mind.
As to the conviction relating to Kim O’Kane, there was a direct conflict of evidence between that witness and the appellant which the jury plainly resolved in favour of Ms O’Kane. The jury was entitled to do so.
We consider that the acquittal of the appellant on the count relating to Rachael Dodd is reasonably explicable having regard to the evidence, elicited in cross-examination from the private investigator, suggesting that a Judge, albeit unnamed, might be able to verify the existence of such a person. Although the way in which the evidence came before the Court limits its actual probative value, it was nevertheless before the jury and may well have left them with a reasonable doubt as to the existence of a relevant Rachael Dodd. This evidence is a distinguishing feature which is sufficient, rationally, to explain the acquittal.
Concerning the count relating to Christine White, we are of the view that the jury may well have been divided in its appreciation of the reliability of the appellant’s evidence having regard to the testimony of her mother which was somewhat more detailed in relation to “Christine” than to “Ag”.
In the course of her thoughtful submissions to this Court, the appellant said she could not understand how the jury could reasonably come to different verdicts on the counts. Yet an almost invariable judicial direction to juries contemplating indictments with more than one count is that they should examine the relevant law and evidence count by count, and they have plainly followed that process in this case.
For the reasons given, we perceive both an adequacy of evidence to support the convictions and a rational explanation for the counts where the jury either acquitted or could not agree. The extenuating circumstances of the appellant’s serious injuries, domestic and parental disruption, the effect of medication and the absence of sufficient support, provide some insight into and understanding of the appellant’s regrettable lapse in conduct, but these matters do not bear on the safety of the convictions and the appeals must therefore be dismissed.
Solicitors
Crown Solicitor, Auckland
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