Wendy Maree Whitehead v The Queen - [2015] NZSC 29

IN THE SUPREME COURT OF NEW ZEALAND

SC 136/2014
[2015] NZSC 29

BETWEEN	WENDY MAREE WHITEHEAD Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O'Regan JJ
Counsel:	E J Forster for the Applicant P D Marshall for the Respondent
Judgment:	30 March 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

Introduction

The applicant was convicted of one count of using a document with intent to defraud and seven counts of using a document dishonestly and without claim of right with intent to obtain a pecuniary advantage. Her appeal against conviction and sentence was dismissed by the Court of Appeal.[1] She seeks leave to appeal against that Court’s decision to dismiss her appeal against conviction.

Background

[1]Whitehead v R [2014] NZCA 573 (Harrison, Asher and Lang JJ) (Court of Appeal Judgment).

The background to the offending was as follows. The applicant became entitled to weekly compensation from the Accident Compensation Corporation after the death of her husband in 1987. Under the relevant legislation, her entitlement to the compensation ceased two years after her entering into a relationship in the nature of marriage.[2]
[2]Accident Insurance Act 1998, s 446(5)(b). That provision continued to apply notwithstanding the repeal of the Accident Insurance Act: Accident Compensation Act 2001, s 384.
In 1998 a man (whom we will call M) came to live on the applicant’s property. He began a sexual relationship with the applicant, which continued over the next 12 years. The applicant and M lived in the house on the applicant’s property until 2010, when the property was sold. Thereafter, they moved to another property where they built a new home and continued to live on that property, albeit in separate accommodation.
In each year between 2003 and 2010, the applicant completed an ACC form which included a question “Have you entered into a relationship with a person which is in the nature of marriage (for example, de facto marriage, living together)? If yes, please give the date the relationship began.” The applicant answered this question in the negative and completed a declaration at the foot of the form to the effect that the information given was “complete, true and correct”.
ACC investigated the applicant’s living arrangements in 2010 and formed the view that the applicant and M were in a de facto relationship which had commenced by 2003, contrary to the declarations that the applicant had made. This led to the charges against the applicant on which she was convicted.

Leave application - grounds

The application for leave is advanced on two grounds. The first is that the trial judge did not give sufficient direction to the jury as to what constituted a de facto relationship. The second is that it was unfair to the applicant that her criminal trial preceded the resolution of her application to review the decision of the ACC to terminate her entitlement to compensation.

First ground – jury direction

As to the first ground, the essential argument…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wendy Maree Whitehead v The Queen

Details

AGLC: Wendy Maree Whitehead v The Queen [2015] NZSC 29
Case: [2015] NZSC 29
Decision Date: 30 March 2015

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Wendy Maree Whitehead, the applicant, sought leave to appeal against her conviction for using a document with intent to defraud and using a document dishonestly without claim of right with intent to obtain a pecuniary advantage. The applicant's appeal against her conviction and sentence was dismissed by the Court of Appeal, and she now seeks leave to appeal against that dismissal. The legal issues before the court were whether the trial judge provided adequate direction to the jury regarding the definition of a de facto relationship, and whether it was an abuse of process for the criminal trial to proceed before the resolution of the applicant's application to review the decision of the Accident Compensation Corporation (ACC) to terminate her entitlement to compensation.

The court considered the first ground of appeal, which argued that the trial judge did not sufficiently direct the jury on the definition of a de facto relationship, specifically the factor of sharing costs and financial responsibilities. The Court of Appeal had reviewed this issue and concluded that the summing up gave considerable emphasis to the financial interdependence of the applicant and the man with whom she had a relationship. The Supreme Court saw no basis for concern that the Court of Appeal erred in its assessment, and therefore dismissed the appeal on this ground.

The second ground of appeal argued that it was an abuse of process for the criminal trial to proceed before the resolution of the applicant's application to review the decision of the ACC to terminate her entitlement to compensation. The court found that there would have been significant practical difficulties in dealing with the review proceedings first, particularly in light of the privilege against self-incrimination, and that it would also have been problematic as to whether the outcome of the review proceedings would have been admissible evidence in a criminal trial. The court saw no error in proceeding with the criminal trial first, let alone any indication that an abuse of process arose because that occurred.

The application for leave to appeal is dismissed. The court did not find any indication of a miscarriage of justice or any matter of public importance in the case, and therefore saw no basis for granting leave to appeal. The court's decision is final, and the applicant's appeal against her conviction and sentence will not be heard.

Orders