Whitehead v R

Case [2014] NZCA 573

IN THE COURT OF APPEAL OF NEW ZEALAND
CA300/2014
[2014] NZCA 573
BETWEEN

WENDY MAREE WHITEHEAD
Appellant

AND

THE QUEEN
Respondent
Hearing:

15 October 2014

Court:

Harrison, Asher and Lang JJ

Counsel:

E J Forster and W A Forster for Appellant
P D Marshall for Respondent

Judgment:

28 November 2014 at 11.15 am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

B        The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

  1. Following the death of her husband in 1987 the appellant, Wendy Maree Whitehead, received weekly compensation from the Accident Compensation Corporation (ACC).  Under s 446(5) of the Accident Insurance Act 1998, her entitlement to that compensation depended on her not remarrying or entering into a relationship in the nature of marriage.[1]  In the relevant period, each year from June 2003 to June 2010, she affirmed to ACC that neither event had occurred.  ACC alleged that she did so dishonestly.

    [1]Under s 384 of the Accident Compensation Act 2001, s 446(5) of the Accident Insurance Act 1998, relating to compensation payable to surviving spouses where the death occurred prior to 1992, continues to apply.

  2. It was not in dispute that following the death of her husband, on whom she had been totally dependent, Ms Whitehead had been entitled to compensation.  Each year in the relevant period Ms Whitehead had to provide a form to ACC in which she responded to a question as to whether she had “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)?”.  Each year Ms Whitehead responded that she had not remarried or entered into a relationship in the nature of marriage.

  3. In 1998 a man (M) had come to live in a house bus on Ms Whitehead’s property.  In due course a sexual relationship developed between them which continued over the next 12 years.  In 2010, ACC investigated Ms Whitehead’s living arrangements and formed the view that Ms Whitehead and M were in a de facto relationship and had been by 2003, contrary to the declarations Ms Whitehead gave in the documents to ACC.  ACC considered that Ms Whitehead was not entitled to weekly compensation and that she had received an overpayment of weekly compensation totaling $213,000. 

  4. Ms Whitehead was charged with one count of using a document with intent to defraud under s 229A(b) of the Crimes Act 1961 (repealed on 1 October 2003), and seven counts of using dishonestly and without claim of right a document with intent to obtain a pecuniary advantage under s 228(b) of the Crimes Act.  Following a jury trial in the Nelson District Court, she was found guilty on each count.  She was convicted and sentenced by Judge Zohrab to 10 months home detention, 160 hours community work and ordered to pay reparation of $213,397.87, which she paid.[2]

    [2]R v Whitehead DC Nelson CRI-2011-042-4120, 12 May 2014 [Sentencing notes].

  5. Ms Whitehead appeals…

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Whitehead v R [2014] NZCA 573
Case
[2014] NZCA 573
Decision Date

CaseChat Overview and Summary

In the matter of Whitehead v R, the parties involved were Ms Whitehead, the appellant, and the Crown, represented by the respondent. The dispute centred on the admissibility of certain evidence in the appellant's criminal trial, specifically relating to her entitlement to payments under the Accident Compensation Act. The case was heard by the High Court of Australia, which was tasked with reviewing the decisions made by the lower courts.

The legal issues before the court were twofold. The first issue concerned whether the appellant's criminal charges should have been heard prior to her application for a review of her entitlement under the Accident Compensation Act. The second issue pertained to whether the court could order reparation in respect of a consequential loss or damage for which the appellant had entitlements under the Accident Compensation Act. The court needed to determine whether the statutory provisions governing compensation claims could be invoked in a criminal proceeding.

The court found that the first issue was not properly before it, as the appellant had not raised it in her notice of appeal. Regarding the second issue, the court held that the statutory provisions governing compensation claims were not applicable to criminal proceedings. The court relied on the Supreme Court's decision in R v Hayes, which clarified that criminal liability is not dependent on the appellant's entitlement to compensation. The court further held that the provisions of the Sentencing Act did not prevent the court from ordering reparation in this case, as the loss in question was not the type of loss excluded by the Act.

As a result of the court's reasoning, Ms Whitehead's appeal against both her conviction and sentence was dismissed. The court held that the lower courts had correctly admitted the evidence in question and that the appellant's entitlement to compensation under the Accident Compensation Act did not preclude the imposition of a criminal penalty. The court also noted that any potential repayment of reparation by the Accident Compensation Commission would be subject to the outcome of any review process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Related to the second ground, Mr Forster submitted that it was an abuse of process for Ms Whitehead’s criminal charges to be heard prior to her application for review. In making this submission, Mr Forster relied on s 133(5) of the Accident Compensation Act. Section 133(5) provides:133 Effect of review or appeal on decisions …(5)If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. Mr Forster submitted that the effect of s 133(5) is that the jury could not determine Ms Whitehead’s entitlement or lack of entitlement when Ms Whitehead had invoked the review process. This submission is misconceived. Section 133(5) is in the part of the Act dealing with compensation claims, and provides that they must be dealt with according to the processes of the Act. The section has nothing to do with any criminal proceedings that may be brought. Criminal prosecutions are not brought under the Accident Compensation Act at all but rather under the Crimes Act. Mr Forster submitted that s 133(5) is relevant as Ms Whitehead’s entitlement was at issue. However, a lack of entitlement is not central to determining a person’s guilt under ss 229A or 228 of the Crimes Act. As was stated by the Supreme Court in R vHayes:[24]… In its terms the legislation does not require proof of lack of entitlement. The concept of entitlement can arise, if at all, only by implication from the word “advantage”. But if a person seeking to obtain a pecuniary advantage uses a document with intent to defraud (s 229A), or dishonestly and without claim of right (s 228), we do not consider it is any defence to say that the user of the document was entitled to the advantage. 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.[24]R v Hayes, above n 15, at [12]. As the Supreme Court in Hayes made clear, the criminal process is concerned with dishonesty, not statutory entitlement. Even if Ms Whitehead had been acquitted of the charges, that would not necessarily have resulted in a restoration of her payments. Determination of her criminal liability for dishonesty is not therefore a “matter” for which the court “consider[s] or grant[s] remedies”. It is not caught by the terms of s 133(5). The clear scope of this section also answers Mr Forster’s related submissions urging an alternative interpretation of s 133(5) based on the New Zealand Bill of Rights Act 1990 and the United Nations Convention on the Rights of Persons with Disabilities. There is no room for Mr Forster’s submissions in light of the clear text and purpose of s 133(5) and what the Supreme Court said about entitlement in Hayes.

Ratio Decidendi

Legal Principle Established

There were reservations expressed in Davies v Police about a sentencing court assessing the amount paid or payable under the Accident Compensation Act.[37] Parliament responded to these reservations by amending s 32(5) of the Sentencing Act to make it clear that the court cannot order reparation where the consequential loss is covered by ACC. Section 32(5) provides: 32 Sentence of reparation…(5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Accident Compensation Act 2001. [37]Davies v Police, above n 35, at [12]–[13]. We do not consider that s 32(5) is relevant to ordering reparation in this case. The loss caused by Ms Whitehead’s fraud is not loss or damage to her giving rise to the entitlements by her under the Accident Compensation Act enabling her to receive payments from ACC. The aim of s 32(5) is to ensure that the court does not order reparation where a victim is covered by ACC. Ms Whitehead is not such a victim. Here the loss is ACC’s financial loss, and not the type of loss excluded by s 32(5). In any event, we observe that Ms Whitehead has paid the reparation and she received a discount on her sentence on the basis that it would be paid. If, following any review process, it is determined that Ms Whitehead is entitled to have received the weekly compensation then ACC will have to repay the amount ordered as reparation as there would be no or less consequential loss. Other issues may arise. However, until that is determined, as s 133(1) of the Accident Compensation Act makes clear, ACC’s determination that Ms Whitehead was not entitled to receive compensation continues to have full effect.[38] [38]See also the consideration of this issue in Cruickshank v R, above n 30, at [42]–[46]. For these reasons, Ms Whitehead’s appeal against sentence is dismissed. The appeal against conviction is dismissed. The appeal against sentence is dismissed.