The Queen v Stewart

[2008] NZCA 341

IN THE COURT OF APPEAL OF NEW ZEALAND

CA231/07
[2008] NZCA 341

THE QUEEN

v

ERIC BARRY STEWART

Hearing:28 May 2008

Court:William Young  P, Randerson and Harrison JJ

Counsel:S J Shamy for Appellant

S B Edwards and S C Poore for Crown

Judgment:2 September 2008 at 3 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must report to the Timaru Central Police Station by no later than 3 pm tomorrow to recommence his sentence of imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       Following a lengthy trial in the District Court at Timaru before Judge Abbott and a jury, the appellant was found guilty of defrauding the ACC scheme.  He was subsequently sentenced to three years’ imprisonment.  He now appeals against his conviction.

[2]       The appeal was advanced on the basis of challenges to:

(a)The way the Judge summed up as to mens rea;

(b)The interventions by the Judge during the trial; and

(c)The conduct of the prosecutor (Mr I Murray).

[3]       We will discuss the case by reference to those challenges and then address whether there was a miscarriage of justice.  But, before we do so, it is necessary to say something about the background to the case.

Background

[4]       The fraud charges against the appellant covered the period 10 April 1992 to 20 February 2004 and each alleged the fraudulent use of medical certificates on ACC forms.  Counts 1 – 57 were laid under s 229A of the Crimes Act 1961 and counts 58 and 59 under the new and corresponding s 228.  He also faced a further count (count 60) alleging he had attempted to pervert the course of justice by applying improper pressure on a witness to alter evidence that he gave at the depositions hearing.  He was found not guilty on this count and we therefore need not discuss it in any detail (although it will be necessary to mention it later in the judgment).

[5]       Up until late 1989 the appellant had been employed as a butcher.  At that time, he was diagnosed with bilateral tenosynovitis of the wrists.  He was subsequently treated for this condition and returned to work in April 1990.  On 13 December 1991 he was issued with a medical certificate which referred to recurring problems with his tenosynovitis condition and he made a further claim for ACC benefits.  While this claim was being assessed, he left work (on 10 April 1992) and associated with this he submitted a C15 medical certificate, which declared he was fully unfit for work.  With the exception of a brief return to work on a trial basis and a longer period when he operated a doughnut stand, the appellant remained off work for the entire period relevant to the case.

[6]       The appellant’s position throughout was that he suffered chronic pain associated with his wrists to such an extent that he was unfit for work.

[7]       The medical certificates which were the subject of the…