The Queen v Stewart
[2008] NZCA 341
•2 September 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA231/07
[2008] NZCA 341THE 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 charges evolved over time. They all certified the appellant as being unfit for work and, to a greater or lesser extent, gave the reasons for this as well as details of his relevant physical limitations or restrictions.
[8] The first count on which the appellant was found guilty related to the use of an ARC18 form which had been signed by his general practitioner, Dr Bruce Small, on 26 October 1995. This form did not require any certification or declaration by the appellant.
[9] Another ARC18 form (used for the first time on 18 January 1996 and the subject of the second count on which the appellant was found guilty) listed “disability details” by reference to a series of activities which were listed under the heading “restrictions at work”. The certificate was signed not only by the doctor (who certified unfitness for work) but also by the appellant, who executed a declaration in these terms:
I declare this certificate to be an accurate reflection of my fitness for work, and that there is nothing else I need to tell ACC about my circumstances. 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.
[10] A third ARC18 form was used for the first time on 23 April 1999. Under the heading “Work Capacity”, this form provided for “all limitations” to be identified. This form was required to be signed by the doctor (who again certified unfitness for work) with the appellant signing a declaration as follows:
I declare this certificate to be an accurate reflection of my activity restrictions.
[11] A fourth form certifying unfitness for work, known as ACC18, was used for the first time on 20 March 2003. It required a similar declaration but with the additional acknowledgement:
I have read and understood the patient information on the reverse of the patient copy of this form.
[12] It is not entirely clear to us what the “patient information” was, but in the context of the case as a whole we do not see this as material.
[13] The appellant also received a number of other communications from the ACC. These stressed the significance of him notifying the ACC “of any work of any type” which he undertook or of his ability “to do any work at all, paid or unpaid” and warned of the risk of prosecution if he supplied false or misleading information.
[14] Although the charges were necessarily directed to the appellant’s use of the medical certificates he provided to the ACC, the Crown case was presented on a broader front. The Crown case was that the appellant had deliberately misrepresented the extent of his disability in his dealings with the ACC and, more importantly, with his general practitioner (Dr Small) and other doctors who reported to the ACC.
[15] The Crown produced a good deal of evidence about the appellant’s activities (most particularly involving gardening and home maintenance), which appeared to be inconsistent with what the appellant had asserted as to his disabilities. For instance, the evidence showed that the appellant was a most meticulous gardener who took particular pride in his lawns and mowed them with a reel mower up to three times a week. As well, he (and to some extent his wife) maintained vegetable gardens with a total area of approximately 50 square metres. Yet a report from Dr Daniel Ching, of 26 November 1996, stated:
[The appellant] informed me he is only able to weed a small patch of his garden before the pain in his wrists deteriorates. A small patch would be equivalent to an A4 size.
[16] As well, a report from Mr Z J Poplawski, an orthopaedic surgeon, of 24 February 1998 (also based on what the appellant had said) noted:
He cannot carry out handyman activities, gardening or lawn mowing activities as the vibration of the law mower aggravates his pain.
[17] At trial, the Crown sought to portray the appellant as a cynical malingerer who had quite deliberately and dishonestly decided to live off the ACC system. But the legal premise upon which the Crown case depended was more limited and subtle – that he had dishonestly exaggerated the extent of his disability and minimised his capacity; this to avoid the risk that the ACC might terminate or reduce his payments.
[18] This approach to the case was not exactly in accord with the law as subsequently explained by the Supreme Court in R v Hayes [2008] 2 NZLR 321, which took a broad approach to what constitutes pecuniary advantage. In Hayes, the receipt of ACC compensation payments was held to be a pecuniary advantage and this irrespective of any issues as to the claimant’s entitlement to those payments or the risk of termination if the true position were known. So telling lies about medical symptoms and work capacity and submitting medical certificates obtained in this way for the purpose of obtaining ACC payments can result in conviction without the need for findings that either the claimant was not entitled to the payments or that had the truth had been told, there was a risk that the payments would have been terminated.
[19] Since the Hayes approach in this respect is more favourable to the Crown than that adopted at trial, there was no material prejudice to the appellant.
[20] What is important for present purposes, however, is that both on the case as presented and under the law as explained in Hayes, it was not necessary for the Crown to show that the appellant was fit for work and knew it and had therefore obtained benefits to which he knew he was not entitled.
[21] This is a very important point. Although there was ample evidence that the appellant had carried out activities that did not sit easily with what he had told the ACC and doctors about his disabilities, these did not necessarily establish his fitness for work. The evidence was not particularly clear as to the amount of time the appellant spent in his garden. Working for say an hour or two (or perhaps more) in the garden is not necessarily the same as working regular hours in paid employment. But, as we have indicated, the case for the Crown in the end did not turn on the appellant’s fitness or otherwise for work or his associated beliefs. Instead, the Crown case was that his dishonesty as to his symptoms and capacity for physical work enabled him to avoid legitimate inquiry about his entitlements to ACC payments.
[22] When the appellant gave evidence, he:
(a)Minimised the extent to which he had carried out physical activities associated with gardening and home maintenance and, associated with this, contended that some of the heavier work that he had carried out was at a time when he was not on ACC;
(b)Suggested that it was possible that the medical reports on which the Crown relied had omitted statements that he may have made as to the extent of his gardening and maintenance activities; and
(c)Claimed that he had been particularly affected by his condition at the times he was spoken to by the doctors and that what he told them was thus true at those points in time even though he had been able to engage in gardening and home maintenance at other times.
[23] The fundamental problem the appellant faced at trial, however, was that there could be no doubt that what he told the ACC and the doctors as to his lack of capacity for physical activity could not be reconciled with the physical activities which even he acknowledged (still less those alleged by the Crown). Further, in relation to the latter part of the period covered by the charges, there was increasing evidence of the appellant deliberately exaggerating his symptoms. The doctors who examined him could find no physiological reason for the pain he claimed to be suffering. And a number of those with whom he dealt believed that he was faking at least some of his symptoms.
[24] The appellant’s trial counsel sought to explain his failure to disclose full and accurate information by reference to chronic pain disorder and its effect on his personal assessment of his fitness to work. Dr Mark Davis, a psychiatrist, gave evidence in support of this theory. We will refer to this evidence shortly.
[25] The trial threw up some particular problems for counsel and the Judge. We will mention some of these now, as they provide background to the complaints we must address later.
[26] There was a good deal of bitterness between the appellant and the other primary protagonists in the case. Mr Burt White, who is the appellant’s brother-in-law, was an important Crown witness. He gave evidence of both the physical work carried out, and admissions he claimed were made to him, by the appellant. By the time of trial, there was no love lost between these two men. The appellant was also resentful about the evidence a number of his neighbours gave as to the work they said they saw him carry out around his property. His position at trial was that they had colluded to give evidence against him. There is no doubt that the apparent incongruity between the work that the appellant carried out on his house and property and his status as an ACC beneficiary had caused resentment in the neighbourhood, as evidenced by some anonymous letters or pamphlets which had been circulated. Additionally, the appellant considered that he had been treated badly by the ACC whose representatives in turn took a very dim view of him.
[27] This background seemed to affect the atmosphere of the trial. Counsel for the defence spent a good deal of time trying to show that the ACC investigation and preparation of the case had not been fair. Counsel for the Crown persistently interrupted defence counsel’s cross-examination with objections. There was plenty of scope for objections. The case turned largely on written exhibits and there was much disagreement as to the extent to which the witnesses should be permitted to speak to, or could be cross-examined about, other people’s documents. As well, there was something of a problem in that defence counsel sought to run the defence on the basis that the case turned on whether the appellant thought he was unfit to work.
[28] Further, a close perusal of the transcript shows that the appellant’s own behaviour throughout the trial was unusual. He seems to have given every appearance of feigning pain and discomfort in a way which could hardly have impressed the jury and may have irritated the Judge. As well, when giving evidence he complained more than once about the Judge not granting him bail over the luncheon adjournment, complaints which the Judge, understandably, was not prepared to entertain, especially in front of the jury.
[29] The jury found the appellant guilty of the fraud charges that spanned the period between 26 October 1995 and 20 February 2004, and not guilty of the other 25 counts laid under s 229A (covering the period from April 1992 until August 1995).
[30] This pattern of verdicts suggests that the evolving form of the medical certificates was not of critical significance to the jury. We say this because the first of the counts on which the appellant was found guilty related to use of the earliest (and simplest) version of the ARC18 certificate. Instead, the pattern of verdicts is broadly consistent with the general drift of the evidence, which pointed to the appellant initially being willing to go into paid work in the early part of the period covered by the charges. The appellant also underwent surgery in July 1995 from which he was presumably still convalescing until the Spring of that year. As well, the strongest evidence of exaggeration of symptoms related to the period covered by the charges on which he was found guilty.
The challenge to the Judge’s directions as to fraud
The challenges to the summing up
[31] For the appellant, Mr Shamy made the following challenges to the summing up:
(a)The Judge in effect told the jury that the appellant had misrepresented his condition;
(b)The Judge wrongly directed attention away from the particular certificates that were the subject of the charges; and
(c)The Judge wrongly directed the jury that a possible belief by the appellant that he was unfit to work was not determinative.
First challenge: The Judge in effect told the jury that the appellant had misrepresented his condition
[32] This challenge focused on the Judge’s summing up of the key issues for the jury to consider in relation to the fraud charges. The first such issue was whether the appellant had misrepresented his condition:
[83] The first issue is whether, in providing any of the medical certificates to the Accident Compensation Corporation, Mr Stewart failed to disclose the extent of the activities which he was then undertaking.
[84] Although it is a matter for you, I suggest that the answer to that question is self-evident. However, if you are not sure that the answer in respect of that issue is “yes”, the verdict on the charge or charges in question must be not guilty.
…
[94] The crucial issues in the present context are therefore whether inaccurate information was provided to the Corporation, and, if so, whether that inaccurate information was provided dishonestly.
[33] It was effectively common ground (and in any event was obvious) that the appellant had not disclosed to the ACC and the doctors the physical activities which he was undertaking around his property. Viewed in isolation, [84] was plainly correct. The more important issue, however, which was not addressed with complete precision in the summing up, was whether the appellant had misrepresented his condition to the ACC and the doctors. The Judge dealt with both non-disclosure (see [84]) and active misrepresentation (see [94]) but slipped from one concept to the other in a way which at first sight might seem a little confusing.
[34] References to non-disclosure (or failure to disclose), while not erroneous, may have introduced ideas that were more complex than were required by the case. What has to be remembered is that the Crown case was not that the appellant was necessarily fit for work at the time any particular certificate was signed or used, but rather that he had dishonestly misrepresented his condition to the ACC and the doctors. In the context of this case, there was no real distinction between non-disclosure and misrepresentation. The appellant had, from the very outset, made representations as to his inability to carry out physical activities. Some of these representations were in general terms but many were very specific to gardening and home maintenance (eg the references to weeding and lawn mowing set out above). It is crystal clear from all the evidence, including his own, that his primary physical activities involved gardening and home maintenance. His representations as to his incapacity in which he did not mention what he was actually doing were necessarily untrue.
[35] As is often the case in fraud prosecutions, the evidence became increasingly telling as time went on. This was recognised by the appellant’s trial counsel. In his address to the jury he acknowledged that the appellant had been exaggerating his symptoms in relation to a time that at least broadly corresponded to the period covered by the charges on which the appellant was convicted. This acknowledgement was practically inevitable given the evidence as a whole. Indeed before us, Mr Shamy acknowledged that the appellant had not disclosed the full extent of the physical activities that he was undertaking.
[36] In light of the totality of the evidence and the way the case was run, we see no risk of prejudice to the appellant in the remarks made by the Judge in [84]. Indeed we think the Judge’s concise summary of the crucial issues at [94] was exactly right.
Second contention: The Judge wrongly directed attention away from the particular certificates which were the subject of the charges
[37] Mr Shamy took particular issue with the following passage of the summing up, which commenced with the Judge turning to discuss the “issue” of dishonesty:
[86] That issue is whether, if Mr Stewart failed to disclose to the Accident Compensation Corporation the full extent of the activities which he was undertaking when a medical certificate was provided, that failure to disclose was deliberate and was dishonest.
[87] In determining those issues, and in particular the second issue, you must take into account not only the contents of the medical certificates themselves, in which the maker certified that Mr Stewart was unfit for work, but also the other information which had been or was provided to the Accident Compensation Corporation, either directly by Mr Stewart himself or through the medical experts and others to whom Mr Stewart was referred at particular times or during particular periods.
[88] In other words, the medical certificates must not be viewed in isolation or in a vacuum, but by reference to the other information which was provided to the Corporation at the time or during the period in question, or which had been provided to the Corporation at an earlier date and which still remained current, i.e. had not been varied.
[89] I make those comments because in his final address yesterday Mr Hix began by saying that the issue of intent in this case relates to particular times and to specific documents, i.e. the medical certificates which were supplied to the Corporation, and because later in his address Mr Hix asked, as a rhetorical question, what Mr Stewart thought “fitness for work” meant.
[90] However, that is not the relevant question when assessing the issue of dishonesty in this case. Mr Stewart’s belief or otherwise in his fitness to work is irrelevant in that context, because the crucial issue relates to his honesty regarding the information which he provided to his doctor and to the other medical specialists who saw him, and then, both directly and through his doctor and the other medical specialists, to the Corporation.
To provide context, we should refer briefly to other directions that preceded this passage.
[38] At [74], the Judge turned to the requirement on the Crown to prove in relation to each count that the appellant had used the specified medical certificate to obtain a pecuniary advantage. At [75] he explained that “pecuniary advantage” included avoiding the risk that payments of accident compensation might be terminated or suspended. (As we have already noted, in terms of Hayes, avoidance of a known risk of termination of payments in this situation in not an element of pecuniary advantage. But this error was in favour of the appellant). The Judge then went on (at [75] and [76]) to note that it was not necessary for the Crown to prove that, at the time when each certificate was provided, the appellant was not entitled to accident compensation. He likewise made it clear that it was not necessary for the jury to make any determination as to the appellant’s actual fitness for work or any related medical issue over the relevant period. The Judge then stated (at [77]) that the Crown had to prove that, if the appellant had disclosed the true level or extent of his activities during the relevant period, his case might have been reviewed by the ACC and that, as a result, his payments might have been terminated or suspended. Again this was in error but in a way which was favourable to the appellant.
[39] Next, the Judge dealt with the “crucial issue” of the mental element of the offences (which he did primarily by reference to non-disclosure) in this way:
[81] … If a person knows that he or she is obliged to provide certain information, and if that person deliberately fails to provide that information or conceals it with the intention of misleading the person to whom the information should be given, he or she acts dishonestly.
The Judge could have added that someone who tells lies in the situation postulated is also acting dishonestly but this might be thought to be implicit in what he did say. In [85], the Judge made it clear that the jury had to address the case on a count by count basis.
[40] As Ms Edwards submitted, all of the forms used required the doctor (not the patient) to certify fitness for work or otherwise. The obligation on the appellant was to be truthful in his dealings with the ACC and his doctors. It seems to us to be obvious that the Judge was entitled to tell the jury to look at the medical certificates in context. Likewise it was appropriate for the Judge to sum up on the basis that the underlying falsity was not so much in the certificates themselves but rather related to what the appellant had told (or not told) Dr Small (who gave the certificates), the other doctors who reported to the ACC and the ACC about his condition.
[41] So we conclude that the jury was entitled to decide the case on the basis that it was satisfied beyond reasonable doubt that from October 1995 the appellant was intentionally misleading the ACC as to the extent of his medical symptoms, including his ability to do physical work.
Third challenge: The Judge wrongly directed the jury that a possible belief by the appellant that he was unfit to work was not determinative
[42] In [89] and [90] of the summing up (quoted above at [37]), the Judge addressed the contention that the case turned on whether the appellant considered himself fit for work. In [91] and [92], the Judge referred to some of the documentation as to disclosure obligations that the appellant had signed and then went on:
[93] It was therefore wrong for Mr Hix to suggest in effect yesterday that the relevant issue in this context reflects what Mr Stewart thought the term “fitness for work” meant. That is because, on the evidence which has not been challenged, Mr Stewart was under an obligation to disclose all relevant information relating to his medical condition to the Corporation.
[43] Looked at in isolation, the language used in [90] and [93] may seem over-broad. For instance, in Hayes (at [12]) it was noted that:
The statutory purpose is to criminalise the use of dishonest means directed to gaining the advantage even if the accused is otherwise entitled to it. Questions of actual entitlement may well be relevant to sentence, but they are not relevant to guilt, save that a belief in entitlement will, of course, be relevant to mens rea.
(Emphasis added)
It is important to recognise, however, that dishonesty in this context is concerned with whether the claimant believed that he or she was legally entitled to make the relevant representations or withhold the relevant information from the ACC. When the Court in Hayes discussed mens rea, it stated (at [32]) that:
… if Ms Hayes believed that what she was doing was in accordance with her legal rights and obligations she would have a defence.
In the context of the judgment in Hayes as a whole, this does not mean that it would be a defence for the appellant if he believed that he was entitled to weekly ACC payments. Instead, the entitlement issue comes down to whether he believed that he was entitled to take the stance he did as to what he told to (or withheld from) the ACC and his doctors. This was the point the Judge was making in [90] of the summing up (set out in [37]above).
[44] Obviously a belief by a claimant that he or she is unfit for work may well be associated with, or imply, a general honesty in that claimant’s dealings with (including what was said to) the ACC and the relevant doctors. For instance, if the statements made by a claimant are confined to general assertions of unfitness for work, and nothing material is withheld, a belief by the claimant that he or she is unfit for work would negative mens rea. In the context of the summing up as a whole (and particularly its focus on whether the appellant was honest with the ACC and the doctors as to his medical condition and physical capacity), we do not see the Judge’s remarks as seeking to detract from that. Instead, the point the Judge was making was that the information the appellant supplied to (and withheld from) the doctors and the ACC was specific and went well beyond a simple assertion of unfitness for work. So a belief by the appellant that he was unfit for work was not inconsistent with a conclusion that he was relevantly dishonest. The Judge made it clear to the jury that it could only find the appellant guilty if satisfied beyond reasonable doubt that the appellant had intentionally misled the ACC (and the doctors) as to his medical condition (and ability to do physical work). On the basis that this is what the appellant did (which is implicit in the guilty verdicts), a belief on his part that he was unfit for work would not have been a defence.
[45] In those circumstances we do not see the Judge’s comments on this topic as warranting the allowing of the appeal.
The Judge’s interventions during the trial
[46] Mr Shamy complained that the Judge had on no less than 174 occasions intervened during the trial. He made specific submissions about a number of the particular interventions of the Judge.
[47] In assessing Mr Shamy’s submissions, it is important to recognise that:
(a)This was a lengthy trial, occupying some three weeks.
(b)There were some inherent difficulties associated with the case which were not of the judge’s making, see [27] above. Of particular significance in this context was the frequency of disputes as to relevance and whether the case was about fitness/unfitness to work or dishonest exaggeration of symptoms.
(c)The appellant’s own conduct during the trial, and particularly when he gave evidence, was unusual and while perhaps indicative of chronic pain syndrome (as described by Dr Davis) would have proved irritating to any Judge, as was his repeated and related tendency to lapse into irrelevant and self-serving asides.
(d)The Judge was sceptical from the outset as to the relevance of evidence about a psychological overlay to the appellant’s disability and thus the relevance of evidence (or lack of evidence) as to his psychological assessment and chronic pain syndrome. In the end, however, Dr Davis was permitted to give evidence on these topics, which were thoroughly ventilated before the jury.
(e)Many of the judge’s interventions were prompted by objections by the prosecutor to cross-examination which, for better or worse, did require a judicial response.
[48] With this background in mind, we have addressed each of the particular complaints made by Mr Shamy. In doing so, we have had regard to the comments of Purchas LJ in R v Matthews (1983) 78 Cr App R 23 at 32 (CA):
Whilst a large number of interruptions must put this Court on notice of the possibility of a denial of justice, mere statistics are not of themselves decisive …
[49] Of most concern in the present context are:
(a)Two pages of questions addressed to Dr Small (whose evidence occupied 36 pages of transcript together with a nine page brief that was read). These questions addressed changes in the format of the medical certificates that he signed and also drew attention to his view at the times he signed the certificates that it would not have been practicable for Mr Stewart to work in paid employment either with more breaks than usual or for less than a full day.
(b)When the appellant was being cross-examined in relation to the incident in which he was alleged to have attempted to persuade a Crown witness to change his evidence, the prosecutor put it to him that he had tried to “intimidate” that witness. That witness had not, in as many words, alleged that the appellant had attempted to intimidate him. On the other hand, the witness had given evidence that the appellant had told him that as a result of the case his (ie the appellant’s) wife would be put out on the street and that the appellant had considered committing suicide. When defence counsel complained to the Judge that the witness had not alleged that he was intimidated, the Judge allowed the prosecutor to persist with the question.
(c)When the appellant was being cross-examined, the Judge intervened to ask two pages of questions about the report written by Dr Ching to which we have already referred. In the course of these questions the Judge did challenge, effectively by way of cross-examination, the appellant’s contention that such a remark (about his difficulty with weeding) would only have been referable to his ability (or disability) at or around the time of his discussions with Dr Ching, rather than as representing his general ability in the garden.
(d)When the appellant was later being cross-examined as to the report written by Mr Poplawski, there was a broadly similar intervention. Again this was effectively by way of cross-examination and occupied about two-thirds of a page of transcript.
(e)Later on still there was a further intervention (occupying about a page and a third of transcript) where the Judge questioned the appellant, again effectively by way of cross-examination, on a report from Dr Ching of 10 October 2003.
(f)When the appellant’s wife was giving evidence the Judge asked her what the appellant used to tell her, when she got home from work, as to what he had been doing during the day. This was perhaps by way of cross-examination. We note in passing that Mr Shamy also complained about what subsequently happened. The Judge permitted Mrs Stewart to explain that the appellant, on the occasions where he told her that he had been doing work, would also say, “I’ve flared up my hands again, I’ve done too much” and as to what the appellant would then do, but eventually intervened about the continuing line of questions. We see nothing in Mr Shamy’s complaint as to this latter intervention.
[50] In dealing with what we regard as the most significant of Mr Shamy’s complaints, we do not overlook the reality that there were a great many interventions by the Judge and that most of them could probably be seen as being, to a greater or lesser extent, adverse to the appellant or the line of argument which was being advanced on behalf of the appellant. In saying this, we accept, as counsel for the Crown stressed, that many of the Judge’s interventions were in favour of the defence. One such intervention appears below at [60].
[51] When the Judge came to sum up, he said this:
[14] During the trial I’ve intervened on a number of occasions when inadmissible or irrelevant evidence has been given or when questions became unnecessarily repetitive. Please do not take anything from those interventions, which occurred solely to ensure that the evidence that was put before you, as the judges of the facts, was both relevant and admissible and not unnecessarily repetitive.
[52] In assessing the particular interventions that we have mentioned, we make the following additional comments:
(a)The Judge’s examination of Dr Small could be regarded as going not much further than clarification.
(b)The Judge’s interventions when the appellant was giving evidence must be assessed in light of the very lengthy period of time the appellant spent in the witness box (his evidence occupies 185 pages of transcript). They must also be assessed in light of the appellant’s own behaviour. He frequently accused Crown witnesses of having intimidated him, and it may well be that the Judge thought that the appellant’s counsel was drawing rather an artificial line between what the Crown witness, referred to above at [49](b), had actually said and intimidation. It should also be remembered that the appellant was acquitted on the charge to which this cross-examination related.
(c)The appellant’s explanation that what he had told doctors as to his disabilities was referable only to his particular condition at the time of the consultations was highly implausible and, without seeking to defend the interventions which involved cross-examination on this point, it is perhaps not surprising that this evidence evoked a reaction from the Judge.
(d)The question asked of Mrs Stewart, while perhaps in the nature of cross-examination, was a natural enough enquiry.
(e)Most importantly, the judicial interventions did not serve to prevent the defence case being advanced. And the passages of cross-examination which have troubled us the most were primarily addressed to aspects of the case which, in the end, on the basis upon which defence counsel closed to the jury, were not really in dispute, namely the defendant’s tendency, at least from the latter part of 1995, to exaggerate the extent of his disability.
[53] Before expressing a conclusion on the impact of the Judge’s interventions, we think it appropriate to discuss the conduct of the prosecutor.
The conduct of the prosecutor
The complaints
[54] Two complaints are made about the conduct of the prosecutor and both relate to his closing address. The first concerns comments made about Dr Davis and the second is a comment on the motive that the appellant and his witnesses had for lying.
The comments made about Dr Davis
[55] Dr Davis gave lengthy evidence addressed primarily to his view that the appellant suffered from chronic pain disorder and associated abnormal mental processes. If the Crown had to prove beyond reasonable doubt that the appellant was fit for work and knew it, the evidence of Dr Davis would have been extremely relevant. It tended to support the view that the appellant had persuaded himself that he was entitled to ACC compensation. But his evidence did not serve to explain in an innocent way the features of the case on which the Crown relied.
[56] Mr Shamy was very critical of the prosecutor’s conduct in relation to Dr Davis. To put these criticisms in context, it is necessary to discuss briefly the way the evidence came out.
[57] Towards the end of his evidence in chief, Dr Davis said:
While I was impressed by that [the appellant’s obsessive personality style], my own findings from examining him was that I confirmed that he does have quite a considerable number of personality features. They were evident, like he was an hour ahead of time, he was really keen to help at all times, his payment of invoices is within hours and days, I mean he’s so fastidious …
[58] Quite unnecessarily and tendentiously, the prosecutor started off his cross-examination on this topic. He obtained from Dr Davis an acknowledgement that his first contact with the appellant was a month before the start of the trial. The following exchange then took place:
Question:And he was coming to you to obtain information and a report from you to help him in his defence, wasn’t he?
Answer:That would have been his intention I’m sure.
Question:And you’re instructed by him to prepare a report and that’s why he was paying your bills, is that right?
Answer:He was, well, I was interpreting that he was paying me for my professional expertise, my independent professional expertise to provide an opinion on whether or not he had a disorder, and to answer questions in relation to that.
Question:So because he was trying to get information from you to help out his defence, that might explain why he was paying your bills so quickly, do you think perhaps?
Answer:Not necessarily, no, no, I’ve been consulted many times by people who are very keen to consult my professional opinion and have been extremely tardy in paying my bill.
[59] Although we are not particularly impressed by the line of questions, fairness to the prosecutor requires us to acknowledge that the proposition put to Dr Davis was plausible and, not for the last time in his evidence, Dr Davis was reluctant to accept what might be thought to have been obvious.
[60] This reluctance was manifested on a number of other occasions, two of which we should record.
(a)There had been evidence at the trial that the appellant had explained to a Crown witness that “old timers” (ie those who had been on ACC for a long time) had told him that the way to get through medical examinations was to say that pain was moving around his body. This was discussed with Dr Davis in this way:
Question:There was evidence that you should say that your pain was starting to move around your body so you could remain on ACC. That would be a classic type of a malingering situation where you’re giving false symptoms to remain on ACC, wouldn’t it?
Answer:If they are false. It could be, if they are false.
Question:If you’re learning from old timers to say that the pain’s moving around your body when it’s not, that would be a classic malingerer, wouldn’t it?
Answer:Not necessarily, but it could be.
On this point, Dr Davis finally only gave a straight answer when the Judge intervened.
Question:If you’ve been told to say it is moving around the body even when it’s not so that you can fool ACC into continuing to pay you, that would be a classic malingering situation, wouldn’t it?
Answer:It could be, yeah.
THE COURT:
Question:It would be or could be?
Answer:Well, it would be.
(b)In the course of his cross-examination, Dr Davis accepted that the routine misrepresentation of medical symptoms is “not part of the diagnosis of chronic pain disorder”. But then when the prosecutor sought to follow up this acknowledgment, there was more equivocation:
Question:If someone’s routinely misrepresenting the activities that they’re undertaking over a lengthy period of time to the doctors that are treating them, that would be a signal that could point towards them being a malingerer?
Answer:It could present, in my view, a possibility that they’re suffering from a Chronic Pain Disorder that the full disorder that would need to be investigated. Because I mean it depends what the word – I mean if they represent some or all of their pattern of behaviour and what they can and can’t do and all of that, that’s represented and it seems to be variable and inconsistent. I think that any doctor or any person might wonder about what the motivation or what the meaning of all of that was, and I would think based on my experience nowadays, I’d be certainly absolutely thinking is this person suffering from the psychological or suffering from a Chronic Pain Disorder with psychological and behavioural concomitants and/or might there be a malingering aspect. But I mean I would be thinking Chronic Pain Disorder first and foremost. And I’d certainly be going in with an attitude of inquiry and wonder well, if this has got this pattern, what might explain it? I wouldn’t be making pre-emptive assumptions until I’d investigated all of that.
Cross-examination continued on this topic for some time before Dr Davis finally gave the unequivocal answer that the questions required.
[61] When the prosecutor addressed the jury, he said this of Dr Davis:
Then you heard from Dr Davis. What did you make of the psychiatrist that the accused hired just before the trial and paid to try and get a defence to these charges? What did you make of Dr Davis’ psycho babble. At the end of the day the doctor agreed that it was ultimately for you to make the decision about deceit or fraud, that’s not for a doctor to make. You may well think that Dr Davis was a malingerer’s dream who seemed to be able to come up with an explanation for everything the accused did as being consistent with Chronic Pain Disorder. Do you think he came across as an independent and impartial expert or was he someone who was firmly in the accused’s camp bending things around to suit the accused?
Compare the accused’s standing regularly three or four times an hour during his assessment with Dr Davis with how the accused presented in court over the last two and a half weeks where the accused never seemed to need to stand up in the way that he did with Dr Davis every 15 or 20 minutes. Is this another one of the accused’s remarkable recoveries, or was he just putting on a show for the doctor to try and make the doctor think he was in pain?
You may well think at the end of the day Dr Davis’ evidence seemed to say that everything was explainable by Chronic Pain Disorder. Is this just another one of those myriad of modern disorders let loose on the world by the medical profession which means that no-one’s responsible for any of their own actions any more? Remember this about Dr Davis’ evidence, Chronic Pain Disorder is not a defence to these charges. Doctor Davis accepted that a number of the accused’s actions that I put to him could be consistent with deceit or malingering. So it’s up to you, it’s not up to the doctor to decide whether it is or not, you’ve heard all the evidence, I suggest to you really. The doctor’s evidence doesn’t help you, Chronic Pain Disorder doesn’t help you in getting to the real issues in this case, it’s just a smoke screen.
(Emphasis added)
[62] Counsel went distinctly too far in this part of his address. The suggestion that Dr Davis was paid to provide a defence was insulting and completely inappropriate. So too were the references to “psychobabble” and “myriad of modern disorders let loose on the world by the medical profession which means that no-one’s responsible for any of their own actions any more”. On the other hand, the reluctance of Dr Davis to provide direct answers to straight-forward (if perhaps loaded) questions provided some context for the complaint about his apparent lack of impartiality. More importantly, the reality was that the evidence of Dr Davis did not provide an innocent explanation for the conduct of the appellant and, on this point, counsel’s contention was correct.
The prosecutor’s reference to the appellant’s motive to lie
[63] The other complaint about the prosecutor is associated with this passage of his closing address:
The accused in evidence made allegations about other people intimidating him, I think there were five people in his evidence that had apparently intimidated him. He accused others of lying and others of being mistaken, others of being selective. It seemed, you may well think, there’s one beacon of truth in this trial according to the accused, that was himself. Everyone else seemed to be sullied by some form of mistake or dishonesty, but he was the one there telling the truth. Who’s got the motive to intimidate here? Who’s got the motive to lie? Burt White’s got no reason to lie I suggest to you, the neighbours have got no reason to lie. It’s the accused who’s got the reason to lie, he’s got motive to lie, he’s got the motive to go along and hire a psychiatrist and try and get himself off his – out of this trouble. He’s the one on trial, he’s the one with the most to lose, him and his family. That’s why they’ve got the motive to lie in this trial, those other witnesses have got no motive to lie.
[64] There is ample authority for the view that a Judge should not comment on the obvious reasons why a defendant would wish to give exculpatory evidence, see Robinson v R (No 2) (1991) 180 CLR 531 at 535 (HCA), R v Bentley [2001] 1 Cr App R 307 at 327 (CA) and R v Leef CA14/06 24 August 2006 at [18] – [32] and [57] – [62]. The reasons why this is discouraged are explained in Leef. Such comment is likewise not appropriate for a prosecutor, see R v E(CA308/06) 11 September 2007 at [96]. Where such a comment is made by counsel, it poses something of a problem for the Judge.
[65] In this case the Judge did not make the mistake of repeating the prosecutor’s comment in his analysis of the Crown case. He did not otherwise deal with the comment made by the prosecutor. It is, we think, not entirely easy to see what he could have said. Some of the Crown witnesses resented the contrast between the appellant’s physical activities and his ACC beneficiary status, but such resentments were not easily characterised as being in the nature of a motive to lie. The appellant, however, obviously had a motive to lie and irrespective of what the prosecutor said, this would not have escaped the attention of the jury.
[66] The reasons why judges and counsel should not comment on the motive that a defendant has for lying do not rest on a denial of the reality (which will be obvious to jurors) that a defendant will have such a motive. Unlike Leef and R v E, this was not a “she says: he says” case where focus on the motives (or otherwise) to lie of the protagonists can serve to invert the onus of proof. In this case, the comments of the prosecutor did not, in any real sense, invert the burden of proof.
[67] Further, there was a very real sense in which the conduct of the appellant at his trial – conduct that was not confined to the evidence which he gave – was very similar to the conduct which had given rise to the charges against him: on the Crown case, a continuing pattern of deliberate exaggeration of his symptoms. In the particular circumstances of this case the prosecutor did not, at least to any serious extent, invite the jury to reason by stereotype along the lines that the evidence of a defendant is necessarily more dubious than that of any other witness.
Other issues with the conduct of the prosecutor
[68] We consider that there was an inappropriate lack of restraint by the prosecutor which manifested itself in conduct that went beyond the two aspects of the closing address just discussed.
[69] There were far too many objections to the way defence counsel questioned witnesses and these were often expressed in inappropriately critical language. As well, there was a tendency to engage in tendentious cross-examination. We have already given one illustration of this in relation to the cross-examination of Dr Davis. Another example occurred when one of the appellant’s daughters gave evidence for the defence. In this instance, the prosecutor, seizing on the witness’s occupation as an insurance company employee, took the opportunity to cross-examine her on the duty of disclosure which those who are covered by insurance owe to insurers. This was inappropriate and irrelevant.
Was there a miscarriage of justice?
[70] As is apparent, the number and sometimes the nature of interventions from the Judge along with the excessive zeal of the prosecutor have caused us a good deal of anxiety. Whether these features warrant us allowing the appeal turns on whether their combined effect brings us to the opinion that there was a miscarriage of justice (see s 385(1)(c) of the Crimes Act). In the context of this case, we are required to consider whether what happened (a) had the tendency (or likelihood) of misleading the jury as to its task (ie affecting the verdict) or (b) resulted in an unfair trial.
[71] We do not see any likelihood that the features of the case that trouble us would have adversely affected the way in which the jury went about its task of deciding the case. As noted, the most troubling judicial interventions were in relation to issues which, in the end, were hardly in contention. The adverse comments of the prosecutor about Dr Davis, while inappropriate, can hardly have been material to the jury because his evidence did not provide the appellant with a defence. And the prosecutor’s comment that the appellant had a motive to lie, while inappropriate, was no more than a statement of the obvious. So we have not been persuaded that there was an appreciable risk of a miscarriage of justice.
[72] As to fairness, imperfections in the trial process do not necessarily equate to an unfair trial. It is necessary to bear in mind that the aspects of what happened that have primarily troubled us occupied a comparatively small proportion of a long trial. Further, the case for the appellant was fully presented and fairly put before the jury. In the end, we have not been persuaded that the trial was unfair.
Disposition
[73] The appeal is dismissed. The appellant has been on bail pending disposition of this appeal. He must now recommence his sentence of imprisonment.
Solicitors:
Crown Law Office, Wellington
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