Walker v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA248/2016
[2017] NZCA 188

BETWEEN	JANICE WALKER Appellant
AND	THE QUEEN Respondent

Hearing:	6 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	R A Harrison and K D Arnott for Appellant M J Lillico for Respondent
Judgment:	19 May 2017 at 9 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal against conviction is dismissed.
CThe application for permanent name suppression is declined and the interim order is now discharged.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mrs Walker was convicted on 7 January 2016 of two charges of using a document to obtain a pecuniary advantage and seven of dishonestly using a document.[1] The central issue at her trial before Judge Ruth was whether she lied about not being in a relationship in the nature of marriage while receiving an Accident Compensation Corporation (ACC) benefit. The Judge found her guilty on all charges. She was sentenced to 12 months’ home detention and 150 hours of community work, with an order for full reparation amounting to $373,000.[2]
[1]R v Walker [2016] NZDC 45 [District Court judgment].
[2]R v Walker [2016] NZDC 6415.
Mrs Walker appeals against the convictions on the basis that there has been a miscarriage of justice in her case, because, at the time of trial, she had undiagnosed Asperger syndrome, professionally termed an autism spectrum disorder (ASD). Her counsel, Mr Harrison, submits this materially affected her ability to respond to interviews, instruct counsel and present herself in court.

Leave to adduce evidence

Mr Harrison seeks leave to adduce two pieces of additional evidence: an affidavit of Ms Tanya Breen, a psychologist, and Mrs Walker’s Will.
Ms Breen details Mrs Walker’s ASD diagnosis and how it may have affected her prior to and during the trial process. Ms Breen’s evidence is fresh and cogent. Mrs Walker was diagnosed with ASD after the trial process had been completed and Ms Breen’s report is relevant to fair trial issues.
Mrs Walker could not recall the existence of her Will during the trial. At sentencing, Judge Ruth acknowledged that one of the factors that influenced him was that there was no will nor deed to pass on Mrs Walker’s trusteeship of her properties after her death. The Judge also noted he found it incredible that the Will, which by then had been located, was not disclosed at the trial.[3] While not fresh, the Will is relevant in two respects. First, to the Judge’s assessment of Mrs Walker’s intention insofar as it tends to show that she did not leave unfettered control of her property to an allegedly de facto partner. Second, Mr Harrison submits that Mrs Walker’s failure to refer to the Will earlier is an example of the effect of her ASD.
[3]At [14].
Leave is therefore granted to adduce both additional pieces of evidence.

The questions on appeal

Given Mrs Walker’s undiagnosed ASD, the questions on appeal are:
(a)Should Mrs Walker’s interview statements have been excluded?
(b)Was the trial process unfair? and
(c)Is the mens rea finding unsafe?

The charges

Mrs Walker was charged with nine charges of defrauding the ACC:
(a)Charges one and two relate to use of continuing dependency forms on 9 September 2002 and 8 August 2003 to obtain a pecuniary advantage, namely weekly compensation, having at that time an intention to defraud; and
(b)Charges three to nine relate to the dishonest use of subsequent continuing dependency forms with the intention to obtain a pecuniary advantage, on 29 July 2004, 17 August 2005, 24 August 2006, 21 August 2007, 8 June 2008, 23 March 2012 and 7 March 2013.

Background

Mrs Walker’s husband died in a work accident in 1989. As a result she became eligible for an earnings-related continuing dependency benefit, which she received as weekly compensation until 2013. After her husband’s death, Mrs Walker developed a relationship with a Mr Beach. They, together with Mrs Walker’s three children, Lisa, Jennifer and Paul, moved into a 400-acre property in Onamalutu (Blenheim) in the early 1990’s which Mrs Walker had purchased. Mr Beach built the family home there with the help of his uncle. In 1992 Mrs Walker and Mr Beach had a son, Michael.
Mrs Walker said her relationship with Mr Beach was not close after Michael’s birth. She said she could not stand him, but wanted Michael to have his father in his life. Mr Beach wanted more, but described their living arrangements as more like a flatmate situation. This view of their relationship was largely shared by Lisa, Jennifer and Paul. Lisa also said that she did not have an affectionate relationship with Mr Beach growing up, and Jennifer recalled hostility between them and noted that her mother carried out the parenting duties.
But their lives were closely interconnected. Mr Beach did maintenance work on the property, while Mrs Walker managed the finances, kept the house in good order and parented the children. At some stage a joint credit card account was opened in the name of Mrs Walker and Mr Beach, with each receiving a card. While it is not clear that they financially supported each other, the joint account was used by both of them for day-to-day expenses, including household spending.
They are also named as the trustees of two family trusts, the Walker Family Trust established in 1996 and the Beach/Walker Property Trust established in 2003. The children are beneficiaries and Mrs Walker and Mr Beach are the final beneficiaries of the 1996 Trust. They are noted as primary beneficiaries, with the four children listed as final beneficiaries, in the 2003 Trust. They are recorded as the joint owners of 12 properties. The loans for and rental income from these properties went into one of the Trust accounts. They also held shares together.
Prior to settling a Havelock property into the 2003 Trust, Mr Beach allowed it to be used a security for Paul’s first home. Later, in 2009, Mr Beach contributed a sum to paying off Paul’s mortgage. He was also noted as Mrs Walker’s mother’s son‑in-law in her death notice. Mr Beach also attended the weddings of both of Mrs Walker’s daughters, and Paul’s “mock wedding”[4] in Australia in 2011. In 2012 he walked Jennifer down the aisle.

The ACC declarations

[4]Paul’s actual wedding took place in the United States, but Mrs Walker insisted that he also hold a wedding for the family in Australia.

During this time Mrs Walker made regular declarations to the ACC that she was not in a relationship in the nature of marriage and until 2001 she used a Nelson address as her residential address. Relevantly, in the periods subject to charges one to seven (2002 to 2008), Mrs Walker was required to answer the following questions on her continuing dependency forms:
Have you married or remarried?
Have you entered into a relationship with a person which is in the nature of marriage (for example, de facto marriage, living together)?
On each occasion she answered the questions “no”.
Similarly, in the periods subject to charges 8 and 9 (2012 and 2013) Mrs Walker was required to answer the following questions:
Have you married or remarried?
Have you entered into a relationship that is in the nature of marriage, eg a de facto relationship or civil union?
Please see the attached ‘Definition of Spouse or Partner’ if you are unsure.
Mrs Walker again answered “no”. The only deviation occurred in 2012, in which Mrs Walker submitted two forms. In the first, she left the second question blank. In the second form, which forms the basis of charge eight, however, she answered “no” to both.

The ACC interview

Two ACC officers, Ms Kerr and Ms Scully, interviewed Mrs Walker on 16 July 2013. At the time of the interview, written shorthand notes were taken of what was said. Several days later these notes were converted into a typewritten record. The record states:
Statement of Client’s rights is shown to Janice and I read through Section 2 (Client’s Statement). I give the form to Janice who ticks the box that she agrees to continue with the interview. She then signs and dates the form. Heather and I then sign the form also.
The Statement of client’s rights was signed by Mrs Walker and states:
I have been asked to attend an interview at [a WINZ] Office. …
I have been invited to make this statement concerning my … entitlements with ACC.
I am speaking to the investigator named below, who is acting under instructions from ACC to take this statement. I understand that this investigator is not a law enforcement officer.
I understand that this interview may be recorded.
I have been cautioned that I am not obliged to say anything but anything I do say may later be given as evidence.
I have been advised of my right to consult and instruct a solicitor or any other person without delay and advised that I may exercise this right in private.
I am also aware that I may terminate the interview at any stage if I wish to do so and am free to leave at any time.
I have read and completed the above and fully understand my rights.
The interview record includes the following exchanges:
Q.       Going back to the forms in 1991, two in 1992 and 1994, you would        say that it was a de facto relationship then?
A.       Yes looking back.
…
Q.       (Referring to the [form] currently being discussed) You have not entered into a relationship, and you’ve not received support from any    other person.
A.       Yes. I’m really in it now, aren’t I?
Q.       Just to confirm, you agree that that form wasn’t correct?
A.       No, Newall Ave [Stoke, Nelson] wasn’t correct.
Q.       So question one on the form, “Have you married, remarried or entered into a de facto relationship?”, that wouldn’t have been correct?
A.       No.
Q.       Show C37 – 10.7.97. The form has changed.
A.       But I still put Newall Ave. That’s not correct.
Q.       The form has changed and now says, “Have you entered into a relationship with a person of the opposite sex, which is in the nature      of marriage? (For example, de facto marriage, living together.)”
Are you now saying this wasn’t correct? Michael was nearly four         and a half at the time?
A.       Looking back now, what you’ve classed as a de facto, I lied.
…
Q.       (Reads questions on form concerning remarriage and de facto    relationship).
A.       1999 it was all over. We were still living under the same roof, but         there was no intimacy, no sleeping together, no talking. It’s been a      long time.
In other passages of the interview notes Mrs Walker denies Mr Beach has any role in her rental properties.

Judgment in District Court

Mrs Walker elected trial by judge alone. Judge Ruth found Mrs Walker was guilty on all charges. The Judge correctly identified the threshold questions as:
(a)Whether Mrs Walker was at the relevant times in a relationship in the nature of marriage; and
(b)Whether Mrs Walker believed she was entitled to complete the continuing dependency forms in the way that she did.

The evidence

The evidence is thoroughly canvassed in the judgment. It is unnecessary to refer to it in detail as the factual findings of the Judge are not disputed, save insofar as they might be rendered unsafe in light of the recent diagnosis of ASD. The following is our summary of the evidence which largely coincides with the Judge’s account.
The Crown called evidence from an ACC manager, an ACC analyst, and Ms Kerr and Ms Scully (the ACC investigators). The manager and analyst provided background information, including of joint trustee ownership of multiple properties. The interviewing officers produced an interview record which they confirmed was accurate.
A forensic accountant, Mr David Osborn, also provided evidence about the personal and joint accounts held by Mrs Walker and Mr Beach. He observed that their accounts were intermingled, but he could not be certain that the accounts showed shared contribution to living expenses. Detective Kingston produced numerous records, including multiple bank statements in the name of the Walker/Beach Property Trust.
Mrs Walker, her children Lisa, Jennifer and Paul, and Mr Beach gave defence evidence. Mrs Walker’s evidence was that, in short, while they lived together, Mr Beach never supported her emotionally or financially. She accepted she lied about her address in the early 1990s because she did not want Mr Beach to know about the ACC payments or ACC to know about her large farm in Onamalutu. She denied however that she told the interviewers she lied about their relationship. She also said the joint card was predominantly for household goods, rental purchases and any purchases she and Mr Beach wished to make, and that the trusts were set up for the children.
Mrs Walker accepted that initially she hoped to have a long term relationship with Mr Beach, but that this ended after Michael’s birth. She said she did not realise that Mr Beach was a beneficiary under the trusts or that he would have control of the properties if she died. She did not recall having made a will. She accepted that she did the household chores and created a “family environment” for all the children. But she maintained she and Mr Beach had separate lives. She said that while he lived in the same house, they lived in separate rooms and she also believed a de facto relationship required a sexual element. This explained why she answered the questions “no”.
Lisa described Mrs Walker and Mr Beach’s relationship as uncomfortable, not loving and lacking affection, and said that it got worse over time. She regarded Mr Beach as a friend, and explained that he attended her wedding because of this and because he was Michael’s father. Lisa noted that Mr Beach shared some interests with Paul, there were no zones in the house and the household mechanics were of a family group living together.
Jennifer’s first memory was of Mrs Walker and Mr Beach fighting. She explained that Mr Beach walked her down the aisle because her mother could not do it. She said that she didn’t receive financial or emotional support from him. She accepted, contrary to her evidence at trial, that in her interview with ACC investigators in July 2013 she had described Mr Beach as her stepfather and said that they had a normal family relationship.
Paul could not recall much about Mr Beach growing up, but he said he “was always there” and “taught [him] a few things”, including about machinery. He said it was a big surprise when Mr Beach and the rest of the family turned up to his engagement or mock wedding.
Mr Beach said his relationship with Mrs Walker became sexual around the time he built the Onamalutu property they lived in. He said the relationship was “all right” until Michael was born and from then they had separate lives. He accepted that Mrs Walker did his books and ran the household while he did work around the 400-acre property. On his account, he had a limited involvement in the upbringing of the children and was a trustee on the family trusts because of Michael. But he accepted that they operated like a normal household, he borrowed money as a trustee at various times to buy properties and put his mortgage-free property into one of the trusts, though he stated he did not realise he was a beneficiary of the trusts.
Under cross-examination about what he would do when times got hard with Mrs Walker, he said:
A.        You don’t just pack up and walk away would you if you’re going to        leave your fam –
Q.        Exactly.
A.        (inaudible 11:09:55)
Q.        Exactly Mr Beach you wouldn’t have done that would you?
A.        No I’m not that kind of person.

The legal threshold test

The Judge, correctly in our view, described the legal threshold test for a relationship in the nature of marriage as follows:[5]
[150] What is required is a nuanced analysis of the factors pertaining to the persons in the relationship under scrutiny. The presence or absence of any particular factor as set out in the cases is neither determinative of the presence of a qualifying relationship nor the absence of a qualifying relationship.
[151] However, I do bear in mind the various guidelines that have been set down in the cases where reference has been made to financial interdependence by way of a willingness to support the other and/or the other’s family should the need arise. Questions of shared accommodation, companionship, mutual activities, attitude towards children, either of the couple or of one of them, pooling of resources, holiday arrangements, how they are regarded by the community in which they live and the presence or absence of what in general terms might be described as a romantic attachment.

Key findings

[5]District Court judgment, above n 1, at [147], referring to Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA); Thompson v Department of Social Welfare [1994] 2 NZLR 369 (HC); Whitehead v R [2014] NZCA 573; and Cameron v R [2015] NZCA 363.

Judge Ruth considered the existence of the family trusts to be significant, suggesting a level of trust well beyond an ordinary business relationship. In his view, to suggest that Mrs Walker did not know how the trust was structured “defie[d] commonsense”.[6] He found Mr Beach’s actions toward Mrs Walker’s children were consistent with a relationship in the nature of marriage, observing, among other things, that he allowed his property to be used as security and treated all children equally. He considered that Mr Beach’s support went further than financial aspects, pointing to his attendance at the weddings of both daughters and that he actually walked Jennifer down the aisle at her wedding.
[6]At [200].
Judge Ruth rejected the evidence of the daughters suggesting animosity between them, which he considered contrary to other evidence, especially the evidence of Jennifer noting that Mr Beach walked her down the aisle at her wedding. The Judge also noted there were significant inconsistencies in the evidence, for example between Paul and Mrs Walker about Mr Beach’s presence at his mock wedding in Brisbane. Paul said he was surprised to see him there, while Mrs Walker said Paul wanted him there.
The Judge found the household operated in a normal way that one might expect in a normal marriage, with no zones within the house and some sharing of household chores. The existence of a joint credit card was also considered important because it demonstrated intermingling of the couple’s financial affairs.
The Judge referred to the admissions in the interview, noting that while the handwritten transcript of it was not “pristine”, it was accurate and Ms Kerr, with her experience, would not have recorded an admission of lying without it having occurred. Mrs Walker’s evidence on this matter was rejected.
On the mens rea issue, the Judge also observed:
[211] I regard it as fanciful for the defence to contend that Mrs Walker operated for a number of years without any indication of just what a de facto relationship comprised. While it may be so that a formal indication of those factors was given in 2012, I am satisfied that sufficient information was held by Mrs Walker at all times to indicate that she knew full well what was required.
He added:
[212] I am also influenced in this regard by the earlier activity of Mrs Walker when she provided the Newall Avenue, Stoke address to ACC. By her own admission, this was to protect her entitlement because she had a mistaken belief that if ACC knew of the Onamalutu property this might compromise her entitlement. This gives an indication to me as to the lengths to which Mrs Walker was prepared to go to conceal matters from ACC that she thought might compromise her entitlement.
The Judge also interpreted Mr Beach’s reference to “fam” in cross‑examination as family and concluded that is how Mr Beach viewed the Walkers. The Judge was confident that Mrs Walker would have reciprocated in relation to Mr Beach.

The Judge accepted that they did “lead separate lives in many respects”.[7] Nevertheless, he concluded:
[215] I find the existence of a relationship in the nature of a marriage proved, and proved beyond reasonable doubt, during all relevant times. I am satisfied beyond reasonable doubt also that the defendant knew full well about the nature of her relationship and how disclosure of it to ACC would inevitably compromise her entitlement to ACC payments. I view with some scepticism the proposition that for 23 years Mr Beach was unaware that Mrs Walker had an independent source of income. I am not convinced that Mrs Walker’s explanation, i.e. that she told Mr Beach she was in receipt of some allowance from her late husband, is very likely. I view the activities of Mrs Walker and her dealings with the ACC right back to the time when she indicated her address was Newall Avenue, Stoke right through until her entitlement was ceased, as one of deception, and that in all relevant aspects of her life she certainly was in a relationship in the nature of marriage with Mr Beach.

Autism spectrum disorder

[7]At [214].

Ms Breen is an expert on ASD. She produced a report in July 2016 and two affidavits dated 14 December 2016 and 22 March 2017. The affidavits are duplicates based on the July report.
ASD is defined by the New Zealand Autism Spectrum Disorder Guideline (NZASD Guideline) as encompassing:
a number of disorders which are characterised by problems with impairments in understanding and using verbal and non-verbal communication, in social behaviour and in the ability to think and behave flexibly, which may be shown in restricted, obsessional and repetitive activities
Ms Breen explains the risks associated with persons with ASD. Persons with ASD can appear to be more able than they really are, and therefore their problems with understanding verbal communication, body language, facial expressions, the thoughts and feelings of themselves and others and social matters can be overlooked or minimised. Key autistic symptoms include poor social skills, poor understanding of social rules and boundaries, impaired communication, poor comprehension, literal thinking, poor self-awareness, poor understanding of other people’s feelings (theory of mind), and anxiety provoked by unpredictability and changes in routine. Difficulty with problem-solving is also noted. These conditions can predispose them to actions which attract criminal culpability, and make people with ASD particularly vulnerable as they move through the criminal justice system.
In the affidavits, Ms Breen confirms a diagnosis of ASD in respect of Mrs Walker. She concludes that Mrs Walker would have been affected at the time of her interviews and through the trial process. She refers to The Advocate’s Gateway, an organisation which has developed a number of toolkits providing advice to advocates dealing with people with ASD.
Ms Breen says Mrs Walker is a person whose difficulties are hidden due to her intellectual level. She notes that clear communication would have been crucial for the ACC interviews, Mrs Walker’s discussion with her lawyer prior to and during Court, and during the hearing itself. She also observed that in the absence of a communication assessment, it is difficult to have clarity as to what Mrs Walker understood, and there is a risk that Mrs Walker’s communication skills were overestimated by others and that she gave unreliable answers due to the question form.
Ms Breen then identified a number of questions that could produce unreliable answers. We refer to some examples below at [62].
Ms Breen states it is likely Mrs Walker was distressed by the ACC investigators arriving unannounced at her home in the evening of 15 July 2015, being required to meet with her lawyer in the lead-up to trial and attending court. She also notes, in short, that Mrs Walker may have had problems processing questions about what a de facto relationship meant and applying that meaning to the facts, other than in a concrete way. For example, Mrs Walker may not have intentionally concealed her relationship with Mr Beach, and answered honestly as she did not consider herself to be in a relationship with Mr Beach.
She explains that Mrs Walker’s “no” answers in response to questions about her relationship with Mr Beach on the continuing dependency forms can be explained simply as a response based on her understanding of what her relationship with Mr Beach was. She also noted that use of present tense about past matters complicates communication for people with ASD. Furthermore, examples of apparent obfuscation may in fact reflect an impaired theory of mind condition. We return to this aspect below at [60]–[69] and [89]–[92].
Ms Breen concludes that there is a strong likelihood Mrs Walker was disadvantaged due to having ASD but being undiagnosed.
The July 2016 report refers to additional background material, including a technical evaluation of Mrs Walker’s intellectual ability and psychological testing against numerous criteria. It notes her verbal comprehension, perceptual reasoning, working memory and processing speed indices are in the average range. It is also noted that, applying the Ritvo Autism Asperger’s Diagnostic Scale — Revised, assessing social relatedness, circumscribed interests and language, Mrs Walker’s scores were indicative of ASD but her sensory motor functioning score did not fall within the range required for indication of Asperger syndrome and/or high functioning autism. Her Adult Autism Spectrum Quotient outcome fell within the range required for indication of Asperger syndrome and high functioning autism, while her Empathy Quotient score did not. The report concludes that Mrs Walker is a person of average intelligence, who experiences extreme anxiety in social situations, especially if asked questions about herself.

Should Mrs Walker’s interview statements have been excluded?

Mr Harrison submits that had he been aware of the ASD condition, an effective challenge to the reliability of the admissions contained in the interview statement would have been made pursuant to s 28(2) of the Evidence Act 2006.
In light of Ms Breen’s evidence, he submits that clear communication would have been crucial for both the ACC interviews. He contends that a number of answers in the interview record demonstrate that Mrs Walker was confused at the time. Mr Harrison also refers to Mrs Walker’s failure to recall having a will as a further illustration of her mental fragility.
Alternatively, Mr Harrison submits the interview statements were unfairly obtained, because:
(a)Mrs Walker was not told she faced criminal fraud charges;
(b)They are not an accurate record of what was said;
(c)They were unsigned and unchecked by Mrs Walker;
(d)They were “rehydrated” from the original handwritten notes between four and seven days after the actual interview; and
(e)Given Mrs Walker’s condition, she was at a significant disadvantage.
In written submissions Mr Harrison also claimed oppression, but this was not pursued in argument before us.

Assessment

The appellant’s challenge to the admissibility of the interview statements has two components:
(a)The interview statements are unreliable; and/or
(b)The interview statements were unfairly obtained.

Unreliable?

Dealing first with the reliability issue, the threshold test for the admissibility of Mrs Walker’s interview statements is whether the circumstances in which the statements were made were “likely” to have adversely affected their reliability for the purpose of s 28(2) of the Evidence Act.
The Supreme Court in R v Wichman set out the proper frame for a s 28(2) assessment, namely:[8]
We see the s 28(2) inquiry as particular in character. It is addressed to the reliability of “the” statement in issue rather than “a” statement in the abstract. We consider the “circumstances in which the statement was made” encompass the nature and content of the statement and the extent to which those circumstances affected the defendant. We are also of the view that congruence (or the reverse) between what is asserted in the statement and the objective facts and the general plausibility (or otherwise) of the statement are relevant to the s 28(2) decision. …
[8]R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 at [84] (footnotes omitted).
Having regard to the full circumstances in which the statement was made, we are not satisfied that it is unreliable. First, the evidence does not show that Mrs Walker suffered under a mental impairment to such an extent as to render the interview statement inherently unreliable. In this regard, as Mr Lillico submitted, the technical testing showed Mrs Walker’s verbal comprehension, perceptual reasoning, working memory and processing to be in the average range and that overall she was of average intelligence. As Mr Lillico also noted, Mrs Walker raised four children, managed nine or ten properties and was effectively the financial controller of Mr Beach’s business. She also ran her husband’s business for a time after his passing. She is clearly an able person.
Second, the risks identified by Ms Breen are expressed in generalised terms only and there is no clear evidence as to whether Mrs Walker in fact misunderstood the questions put to her in the interview process due to her ASD. In fairness to Ms Breen, she said that she:
… was unable to comment on whether Mrs Walker demonstrated weak listening skills and limited attention during the ACC interviews or trial. To form an opinion on this [she] would have needed to observe Mrs Walker during the ACC interviews and court …
Mrs Walker also said in her evidence that she was flustered at the time. Nevertheless, there is no definitive statement from Ms Breen that Mrs Walker was confused due to her ASD or an affidavit from Mrs Walker asserting that she misunderstood the questions put to her.[9]
[9]Mr Harrison indicated that Mrs Walker had been very difficult to engage with on this. It was suggested that this may be related to her ASD. But in the absence of a supporting affidavit, any conclusion about this or her level of confusion is speculative.
Third, we consider the evidence overall reveals that Mrs Walker was well able to comprehend and respond to complex questions put to her and to proffer largely coherent answers to them. In particular, Ms Breen identifies the following examples (among others) of questions and answers from cross-examination and the ACC interviews as problematic:
(a)Questions in the form of statements:
Q.Picking up where we left off I think the position was that you don’t accept you told the investigators that things were all right between you and Colin until Michael was four, is that fair?
A.My perception of how they have worded things might’ve been a bit different to what it is now, but I was not in a relationship of a de facto.
(b)Forced choice questions:
Q. And did you move straight onto the property at that stage or did you stay somewhere else?
A.No, no, went down to Mum’s. It was convenient to sort of be with her and then I sort of, well, we had a caravan on site while we were building the house in, in the Onamalutu and eventually we, we stayed in the house sort of, we moved into the, the house that I built.
(c)Questions containing negatives:
Q.Why did you never tell ACC that you were living with Colin or living under the same roof? It was first raised yesterday.
A.What was first raised?
Q.That you were living with Colin. Tracey and Pat raised it with you yesterday.
A.I’ve just ticked the boxes and that was it.
Q. So you have never tried to conceal that relationship from us?
A. Not intentionally, no.
(d)Leading questions:
Q.Right. My question is anyway, it’s recorded that Ms Kerr asked, “Would that have been an appropriate time to tell us you had a relationship with Colin?” And your answer was, “In hindsight, yes.” So again, that tends to suggest doesn’t it, that you accepted that you had a relationship with Colin?
A.I had a, that is accepting I had a relationship with him way back in 1992, that is not relating to 1997 onwards, that I’ve had a relationship with him.
(e)Tag questions (statements with short question inviting confirmation):
Q.So it wasn’t just a random decision or a business arrangement to build a house together was it?
A.No.
(f)Questions starting with “Do you remember…?”:
Q.Can you remember how long it was that you were actually in the caravan for?
A.No, I’m sorry not definitively no.
(g)Questions or non-verbal facial expressions or tone suggesting that the witness is lying or confused:
Q.True. True you would not have said that. Well why then did you go on, pages 8, 9, of that interview to essentially agree that what you’d put on the forms in the early to mid-90s was not correct, and that looking back it was a de facto relationship?
A.It was not a de facto relationship.
While it may be that Mrs Walker was affected by her ASD, it is evident to us that the answers to the questions identified by Ms Breen are coherent and logical, bearing in mind that some of the questions were unhelpfully convoluted. Moreover, except in relation to the apparent admissions, Mrs Walker’s responses are mostly exculpatory. Furthermore, there is nothing to proscribe leading questions which do not amount to cross-examination in interviews and in this case there is no evidence of undue pressure or unfair questioning. Her responses show that she did not misunderstand the concept of de facto relationship or a relationship in the nature of marriage.
Fourth, the answer of most concern to Mrs Walker is captured in the following exchange:
Q.The form has changed and now says, “Have you entered into a relationship with a person of the opposite sex, which is in the nature of marriage? (For example, de facto marriage, living together.)”
…
A.Looking back now, what you’ve classed as a de facto, I lied.
In light of the ASD diagnosis, Mrs Walker may have been confused by, for example, the mixing of present and past tenses as suggested by Ms Breen. But, a more plausible explanation is that the answer, in context, was accurate. Relevantly, Mrs Walker was clearly reflecting on something she had said in the past. Furthermore, Mrs Walker goes on to clarify that by “1999 it was all over” and this remained her consistent position in relation to subsequent periods. This suggests a clear appreciation of the timing, subject matter and the context of the question.
Fifth, the “admissions” are plainly congruent with the facts as found by the Judge (which do not rely on the admissions),[10] including shared accommodation and shared management and use of combined resources, including a family home, over the span of 23 years.
[10]See discussion above at [34]–[41].
Sixth, we do not agree that the several examples set out by Mr Harrison, said to suggest lack of clarity or understanding, in fact do so. It is unnecessary to identify and then respond to each of them. In our view, the answers logically relate to the subject matter of the question.
Finally, turning to Mrs Walker’s forgetfulness about the existence of the Will, Mr Harrison’s contention is that it is a key piece of evidence, because in lieu of a will the trusts were the only means by which Mrs Walker could provide for her children upon her death, of which Mr Beach would be the sole remaining trustee. Judge Ruth drew from this fact a strong inference of the level of trust Mrs Walker placed in Mr Beach. In Mr Harrison’s contention, the fact that Mrs Walker left out such a key piece of evidence indicates unusual mental fragility. We disagree. While the Judge may have placed some weight on the absence of the Will, Mrs Walker may have reasonably not placed great significance on it. Notably, she referred to verbal arrangements if either of them died, and presumed she had a will. She also assumed (until shortly before trial) that only the children would benefit from her trusts. The existence of a will may reasonably have been of limited importance to her.
Overall therefore we are not satisfied that the interview statement was unreliable for the purpose of s 28(2).

Unfairness?

Other than a reference to s 30 of the Evidence Act, Mr Harrison did not identify any authority or principle upon which to base the unfairness claim. Nevertheless, it is trite that substantive and procedural fairness is a requirement of criminal justice.[11] Moreover, as the Privy Council reiterated in Pora v R, citing an observation by Elias CJ made in the Supreme Court: “apparently reliable confessional evidence has led to significant miscarriages of justice”.[12] We accept that in the present case the unfairness claim has two aspects. First, unfairness may arise from the risks associated with Mrs Walker’s ASD. We address this aspect below. Second, unfairness may arise from the failure to employ the usual procedural safeguards, exemplified by the Chief Justice’s Practice Note, in the interview process. We turn now to address this aspect.
[11]See R v Secretary of State for the Home Department, (ex parte) Pierson [1998] AC 539 (HL) at 591.
[12]Pora v R [2016] 1 NZLR 277 (PC) at [57], citing Rogers vTelevision New Zealand [2007] NZSC 7, [2008] 2 NZLR 277 at [14] per Elias CJ.
The evidence of Ms Kerr is that she invited Mrs Walker to read over and sign the notes of her interview. Mrs Walker denied this. Ms Scully could not recall if Mrs Walker was invited to read the notes of the interview but she gave evidence that she had read Mrs Walker her rights. While the Judge made no specific finding about these matters, he found the evidence of Ms Kerr and Ms Scully to be accurate and that the records encapsulate the substance of what was said.
That was a conclusion that was clearly available to him on the evidence. We are satisfied therefore that the investigators made Mrs Walker aware of her rights and gave her the opportunity to review the handwritten notes taken during the interview. While ideally the officers would have mentioned the possibility of criminal prosecution, given the very clear issues being explored including whether she lied, the fact she was told that the information supplied by her might be used in evidence was sufficient notice of that prospect.
We also see nothing in the “rehydration” of the notes. First, Mrs Walker elected not to have a contemporaneous recording by dictaphone. While it may be that her ASD affected this decision, there can be no suggestion of impropriety in this regard. Second, both Ms Kerr and Ms Scully were cross-examined on this process. They did not resile from the accuracy of the interview record. Third, given the admissions are congruent with the objective facts, we consider the likelihood of inaccuracy to be very small.
Overall, there being no ongoing suggestion of oppression or bad faith, there was no procedural impropriety for the purpose of s 30.

Was the trial process unfair?

Mr Harrison submits that the non-diagnosis of Mrs Walker’s ASD created a real risk that the outcome of the trial was affected and the lack of checks and balances available to her during the course of the trial meant that the trial was unfair.

The risks

We acknowledge Ms Breen’s helpful evidence on the risks in this case. Ms Breen observed there is strong evidence that Mrs Walker was disadvantaged due to having ASD but it being undiagnosed, namely that at various stages of the criminal process the ACC investigators, Mrs Walker’s lawyer and the Court were unaware of strategies needed to accommodate her disability. She concluded:
Mrs Walker’s language skills may have been over-estimated; necessary safeguards for interviews were omitted; Mrs Walker may have inadvertently incriminated herself due to communication problems and misunderstanding the purpose of the interviews; consideration of Mrs Walker’s autistic thinking was not undertaken during charging; and appropriate accommodations designed to make the trial fair for her as a person with autism spectrum disorder were not implemented. Mrs Walker is also at risk of having been perceived negatively during the trial, due to her autistic thinking and behaviour, which could impact on the sentence imposed. I also believe that undiagnosed autism spectrum disorder probably disadvantaged Mrs Walker during discussions with her lawyer at all stages in the criminal justice process.

We also accept that had the interviewers, counsel and the Court known that Mrs Walker had ASD, steps could have been taken to mitigate these risks. But it does not follow from this that the trial process was unfair. We have already commented at [60]–[69] on the generalised nature of the risks and noted that given Mrs Walker’s intellectual capacity, no issue of inherent unfairness arises.
In relation to the trial process, in agreement with Mr Lillico, we are satisfied that the identified risks did not manifest themselves at trial. Mrs Walker presented the only defence available to her in a fulsome way: denial of the existence and/or knowledge of a relationship in the nature of marriage.
The prosecution witnesses were thoroughly tested, exemplified by the concessions made by the forensic accountant that the merged finances did not, in fact, show mutual financial support. In her evidence at trial, Mrs Walker robustly maintained her position. She consistently denied that the she considered she was in a relationship in the nature of marriage in the key periods. She denied she had lied and challenged the reliability of the interview record. She resisted cross-examination, at times incisively. To illustrate, using an example provided by Mr Lillico, when asked about Mr Beach’s contribution to the household, she said:
A. I share my food, he shares his chainsaw skills.
Q. Yes but you say then that he vary really brought any food into the house whatsoever?
A. And I vary really pulled up the, the cord on a chainsaw.
Mrs Walker also produced detailed evidence in support of her position, including the supporting evidence of her children and Mr Beach. They largely corroborated her evidence, namely that the relationship between her and Mr Beach was distant, even hostile at times.
Finally, the objective evidence supporting a finding of a relationship in the nature of marriage was overwhelming. To the extent that there are unfavourable credibility findings, they have an ample basis in objective fact and would have been available to the Judge irrespective of Mrs Walker’s interview admissions. Technically, the admissions were not confessions as they did not directly relate to the alleged offending with which she was charged but they were an important part of the case against Mrs Walker.
Accordingly, we see no substantive unfairness arising from the risks presented by Mrs Walker’s ASD.

Is the mens rea finding unsafe?

Mr Harrison contends that, as Ms Breen observed, Mrs Walker’s ASD may have impaired her understanding of what was required to be in a relationship in the nature of marriage when she completed the ACC forms.
Mr Lillico responds that the ASD evidence would have made no difference. He contends the Judge accepted they led separate lives in many respects, but found the charges proven given the overwhelming evidence of a relationship in the nature of marriage and her admitted deceptions.

Assessment

The factual finding that Mrs Walker and Mr Beach were in a relationship in the nature of marriage is unassailable given the clear incontrovertible evidence of a shared normal family life and interdependency. But the mens rea issue is concerned with Mrs Walker’s subjective intention. The objective facts are relevant but not

determinative of this issue. We must also approach the assessment with care, as the ASD evidence could have affected the trial in the following ways:[13]

(a)It may have enabled the defence to be based on the requirements for mens rea (rather than trying to explain away the clear evidence of interdependency); and
(b)It may have enabled the Judge to view Mrs Walker not solely on the basis of whether what she said was credible, but more importantly on the basis of whether she was honest about what she believed to have been the situation, even if the objective facts were unsupportive.
[13]These are two of three ways the English Court of Appeal in Sultan v R [2008] EWCA Crim 6 at [34] found ASD evidence could have affected trial. The third way in that case was that it might have gone some way to explaining the defendant’s odd behaviour during the trial, including reading a book while evidence was being given.

Nevertheless we are not persuaded that the mens rea finding is unsafe for the following reasons.
First, Ms Breen’s opinion about Mrs Walker’s honest belief is only tentatively expressed and is not based on a realistic assessment of Mrs Walker’s credibility. The salient passages of her affidavit, discussing Mrs Walker’s ACC interview, read:
42.It would have been helpful to ascertain Mrs Walker’s understanding of terms like marriage, de facto, relationship, and ‘in the nature of marriage’ at the beginning of the first ACC interview. As it reads in Doc 4.1, Mrs Walker appears to have considered herself not to be in a relationship with Mr Beach because there was no romance, sex, or friendship (p1 &5), and because the sex that had occurred had ended. She admits to having been in a relationship with him after a discussion with the interviewer about what the interviewer classes as a de facto relationship (p 8). Whilst this could be interpreted as deliberate misleading by Mrs Walker, it could also be the application of new knowledge (the interviewer’s definition) to the facts in a concrete way, and Mrs Walker suddenly realising that she has been in a relationship ‘in the nature of marriage’. Hence her apparent honesty (p 8) and admission of lying (p 9, also Doc 4.2, p 3 & 4).
43.Similarly, whilst one interpretation is that Mrs Walker deliberately concealed her relationship with Mr Beach from ACC (e.g., Doc 4.2, p3), it is possible that she was being honest when she denied doing this (“not intentionally, no”, Doc 4.2, p3) because at the time she did not consider herself to be in a relationship with Mr Beach.
44. In another example, whilst deliberate dishonesty could be one interpretation of Mrs Walker ticking “no” in response to the relationship questions on the ACC forms until she received the definition in writing, by mail, in July 2012, another explanation is that it was not until July 2012 that Mrs Walker realised (as a result of reading the definition) that, according to ACC, she was in a relationship with Mr Beach.
But Mrs Walker incontrovertibly lied when giving a wrong residential address because she did not want ACC to know that she had a large farm. She also must have known that she was building a house with Mr Beach, having sexual intercourse with him and having his child while at the same time completing ACC forms declaring that she was not in a relationship in the nature of a de facto marriage. Even on her asserted limited conception of de facto relationship (that is, as requiring sexual intercourse) she must have known this was untruthful.
Second, Mrs Walker also knew that she was living in the same house as Mr Beach, yet ticked the box “no” on ACC forms that specifically sought an answer as to whether they were “living together”. Against the background of her prior deceptions, her explanation for these answers (in short) that she was not “living in a room together” or engaging in sexual intercourse lacks credibility, with or without knowledge of her ASD.
Third, for the reasons already expressed above, Mrs Walker was well able to comprehend complex issues and was well aware that she had created “a family environment” for all her children. The care with which she managed her family’s affairs (including Mr Beach’s), commencing with the family business after her husband’s death and the multiple properties under her joint trustee ownership is simply discordant with the idea that they were not “living together” as an interdependent unit. While she maintained throughout her evidence that she thought a relationship in the nature of marriage required a sexual element, and that she and Mr Beach led separate personal lives, she was plainly aware that they had maintained a family home for the benefit of the entire family together for 23 years. These facts are not sensibly reconcilable with her negative answers to the ACC form questions.
Fourth, Ms Breen surmises that it may not have been until July 2012 that Mrs Walker became aware of ACC’s definition of relationship in the nature of marriage (when she received an explanatory note from ACC). But that does not explain why she continued to answer “no” on subsequent forms. Indeed, her continued denial in the face of the explanatory note reinforces the conclusion that Mrs Walker is not to be believed.
Overall therefore, we are not satisfied that knowledge of Mrs Walker’s ASD would have made or makes a material difference. This is not a case of potential misunderstanding or misinterpretation of a state of affairs that might credibly go to mens rea. Rather this is a clear case of a defendant well able to contrive answers that suit her interests and an overwhelming case of a defendant in a relationship in the nature of marriage over the span of 23 years. In the result, the absence of Mrs Walker’s diagnosis of ASD prior to trial has not created a real risk that the outcome of the trial was affected or resulted in an unfair trial.

Outcome

The application to adduce further evidence on appeal is granted.
The appeal against conviction is dismissed.

Suppression

Mrs Walker was granted interim name suppression at trial. Mr Harrison now seeks permanent name suppression because, he says, publication will cause undue hardship to Mrs Walker because of her ASD and anxiety. Ms Breen identifies that anxiety is a feature of ASD and Dr McAlister, Mrs Walker’s doctor, noted that Mrs Walker was very anxious about the publication of her name, especially in terms of the effect it could have on her family. We are, however, not satisfied that this heightened anxiety amounts to undue hardship for the purpose of s 202(2)(a) of the Criminal Procedure Act 2011. Accordingly, Mrs Walker’s interim name suppression is set aside. The application for permanent name suppression is declined and the interim order is now discharged.

Solicitors:
Crown Law Office, Wellington for Respondent

[2017] NZCA 188

19 May 2017 at 9 am