Williams v Housing New Zealand Corporation
[2014] NZHC 1087
•21 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-001 [2014] NZHC 1087
BETWEEN DEIDRE WILLIAMS
Appellant
AND
HOUSING NEW ZEALAND CORPORATION
Respondent
Hearing: 14 April 2014 (final submission received 6 May 2014) Counsel:
I Jayanandan for Appellant
W Fotherby for RespondentJudgment:
21 May 2014
JUDGMENT OF KATZ J
This judgment was delivered by me on 21 May 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Crown Solicitor, Auckland
Counsel: I Jayanandan, Auckland
WILLIAMS v HOUSING NEW ZEALAND CORPORATION [2014] NZHC 1087 [21 May 2014]
Introduction
[1] Ms Deidre Williams appeals against six convictions for using a document dishonestly without claim of right, with intent to obtain a pecuniary advantage, under s 228(b) of the Crimes Act 1961. The charges relate to a series of application forms submitted by Ms Williams to Housing New Zealand Corporation (“Housing New Zealand”) on six occasions between 2006 and 2011.
[2] Following a defended hearing in the Manukau District Court, Judge J P Gittos found that Ms Williams had falsely declared to Housing New Zealand that Mr Anthony Major was her boarder or caregiver, when he was in reality her de facto partner. Mr Major’s income was accordingly not taken into account in setting Ms Williams’ income related rental. Ms Williams paid rent of $80 per week. If Mr Major’s income had been taken into account, the rent payable would have been in excess of $300 per week. As a result of her false declarations, Ms Williams dishonestly obtained the sum of $48,841.43.
[3] Judge Gittos sentenced Ms Williams to nine months’ home detention, 200 hours’ community work and $3,120 reparation. That sentence has been suspended pending the outcome of this conviction appeal by Ms Williams.
Issues on appeal
[4] The primary ground of appeal is that a miscarriage of justice1 has arisen as a result of defence counsel incompetence. Ms Williams has sworn an affidavit in support of her appeal and also provided a waiver of privilege. Her trial counsel, Mr Victor Heather also provided an affidavit, on which he was cross-examined.
[5] The key failures alleged by Ms Williams are that:
(a) trial counsel failed to summons four witnesses who could have given
evidence in support of Ms Williams’ claim that she was not in a de facto relationship with Mr Major;
1 Criminal Procedure Act 2011, s 232(i)(c).
(b) no briefs of evidence were prepared for the two defence witnesses
(Mr Major and Mr Harlick);
(c) trial counsel failed to adequately cross-examine on various issues, including in relation to:
(i) a vehicle and television purchased by Mr Major but registered
in Ms Williams’ name; and
(ii)the defence theory that the three main prosecution witnesses were in collusion;
(iii)the evidence of Mr Jason Lamont, who had interviewed Mr Major, including whether the transcript of the relevant interview was accurate.
Trial counsel incompetence – the law
[6] The leading authority as to the circumstances in which trial counsel incompetence may give rise to a miscarriage of justice is the Supreme Court’s decision in Sungsuwan v R.2 The majority in that case observed that:3
In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[7] In a separate concurring judgment, Tipping J said:4
…First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that
2 Sungsuwan v R [2005] NASC 57, [2006] 1 NZLR 730.
3 At [70].
4 At [110].
a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of real risk that this is so will suffice.
[Footnotes omitted]
[8] There is thus no threshold enquiry into the seriousness of the alleged misconduct on the part of counsel. Rather, the issue is whether there is a real risk that the alleged mistake or irregularity affected the outcome, in which case there will have been a miscarriage of justice.
[9] Further, in Sungsuwan the Supreme Court expressly affirmed this quotation from then Cooke J in R v Pointon:5
A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial. This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel’s advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account. R v McLoughlin does not entrench on that long-standing position ....
But it is established that rare cases do arise in which it becomes necessary to hold that in the conduct of the defence there have been mistakes so radical that the ground (miscarriage of justice) specified in s 385(1)(c) of the Crimes Act 1961 is made out.. ..
[10] The respondent submitted that there is little evidence in this case of trial counsel incompetence and that, in any event, no miscarriage of justice has arisen.
Is there a real risk that the alleged mistakes or irregularities could have affected the outcome of the trial?
[11] In his affidavit, Mr Heather denied any errors or incompetence in the conduct of the trial. He said that the relevant witnesses were reluctant to appear at the hearing. He advised that an application to admit their evidence as hearsay could be made, but that it would likely be opposed. His recollection is that five hearsay applications were served on Crown Law, who opposed them all. Ultimately no
hearsay evidence was admitted at trial.
5 At [45], R v Pointon [1985] 1 NZLR 109 (CA) at 114.
[12] As noted by the majority in Sungsuwan, if the matters complained of could not have affected the outcome in any event, any further scrutiny of counsel’s conduct will be unnecessary. I therefore propose to first consider whether the alleged “errors” on the part of trial counsel could have given rise to a miscarriage of justice in all the circumstances of this case.
The District Court hearing
[13] The evidence in the District Court was that Mr Major and Ms Williams moved into the tenanted property together. They had previously lived together for some years, in several different locations.
[14] Ms Williams, Mr Major, and Ms Williams’ son, Mr Harlick, gave evidence at trial that the relationship between Ms Williams and Mr Major was platonic. Mr Major was her boarder or, at times, her caregiver.
[15] Three friends or acquaintances of Ms Williams, namely Mrs Herekiuha, Mrs Martin, and Ms Wright, gave evidence for the Crown that they had observed Ms Williams and Mr Major to behave in a way typical of a married or de facto couple. For example, they saw Ms Williams and Mr Major kissing and gave evidence of Mr Major occupying the master bedroom with Ms Williams.
[16] Mrs Herekiuha gave evidence that Ms Williams told her that she was “brassed off” at having to pay $300 a week rent and having Mr Major shown as a tenant on the lease, and had rearranged the tenancy showing Mr Major as a boarder in order to get the benefit of a lower rental. Ms Williams told Mrs Herekiuha that the bedroom that was purportedly occupied by Mr Major was only for show and the benefit of Housing New Zealand. In addition, Ms Williams had confided in the both Mrs Herekiuha and Mrs Martin about aspects of her sex life with Mr Major. Ms Wright had observed Ms Williams kissing Mr Major on the lips and said that Ms Williams had introduced him to her as “my partner”.
[17] Other relevant evidence related to visits from Mr Major’s mother, who resided overseas and would come to visit for some weeks at a time. The Judge was sceptical of Ms Williams’ claim that when Mr Major’s mother came to visit she had
slept with Ms Williams in her double bed (while Mr Major occupied the single bedroom), given Ms Williams “quite emphatic antipathy towards Mr Major’s mother, which she expressed quite vehemently in the interview conducted by Mr Lamont [the Housing New Zealand investigator]”.
[18] Ms O’Connor, a tenancy manager for Housing New Zealand, gave evidence that the room that was claimed to be occupied by Mr Major appeared to be a “staged room”, something that in her experience was not uncommon with Housing New Zealand tenants.
[19] Further evidence that supported a finding of a de facto relationship included that:
(a) Ms Williams and Mr Major were registered as joint owners of a pet dog at the house;
(b)Mr Major had a motor car, a Pajero and a boat and trailer registered or re-registered in Ms Williams’ name; and
(c) Ms Williams and Mr Major travelled overseas together for a holiday for two or three weeks to Perth to visit Ms Williams’ mother.
[20] Judge Gittos found that Ms Williams and Mr Major had given untruthful and “rehearsed” evidence about the nature of their relationship. He squarely rejected their claim that their relationship was platonic. He instead preferred the evidence of three key Crown witnesses, who gave evidence that Ms Williams and Mr Major were in an intimate relationship.
[21] Taking into account all of the evidence before him, Judge Gittos was satisfied beyond reasonable doubt that Ms Williams and Mr Major were a de facto couple and that Ms Williams’ various statements to Housing New Zealand stating otherwise were false.
[22] I now turn to consider the specific allegations of defence counsel incompetence made by Ms Williams.
The “missing” defence witnesses
[23] As I have noted above, trial counsel, Mr Heather, has sworn an affidavit in which he gives evidence that his impression was that the four potential defence witnesses who were not summonsed to give evidence were reluctant to appear at the hearing. He did, however, concede under cross-examination that he possibly should have made more efforts to obtain their evidence. I will therefore consider whether the evidence of those four witnesses would have potentially made a difference to the trial outcome.
[24] Ms Williams’ affidavit summarises the evidence that she believes those witnesses could have given. No affidavits have been provided from the witnesses themselves as to what evidence they might have been able to give. I have however, been provided with a draft unsworn affidavit of Ms Patricia Goulden, prepared by Mr Heather prior to the District Court hearing.
[25] The first “missing” witness is Melissa Sherwood. Mr Heather’s evidence was that he contacted Ms Sherwood but did not hear back from her. Ms Williams says in her affidavit that Ms Sherwood is a friend and former neighbour would be “readily capable” of rejecting the allegation that Mr Major and Ms Williams were in an intimate relationship. In particular, she had “stood in” as a caretaker for Ms Williams and her son when Ms Williams had surgery. Ms Williams asserts that:
The relevance of this evidence is that I chose her care over that of my alleged partner, Major. I believe that this evidence would add to a reasonable doubt as to whether or not Major was my partner, or that we were in an intimate relationship.
[26] The somewhat puzzling feature of this evidence is that Ms Williams is appealing her convictions for falsely declaring to Housing New Zealand that Mr Anthony Major was her boarder or caregiver, when he was in reality her de facto partner. In that context it is somewhat unusual that she now seeks to adduce evidence to the effect that Mr Major was not her caregiver and that she preferred the care of others. Such evidence also sits uneasily with the WINZ Review Report (produced as Exhibit A at the District Court trial) which shows that Ms Williams represented to WINZ, in a benefit review context, that Mr Major was her caregiver
or support person. WINZ accepted that submission and adjusted her benefit accordingly. In that context any evidence that Mr Major was not Ms Williams caregiver or support person during the relevant period would have potentially raised more questions at trial than it answered.
[27] Further, Ms Sherwood’s interaction with Ms Williams and Mr Major was at a previous address, significantly prior to the period of contention.
[28] In my view Ms Sherwood’s evidence would have been of little probative value in the overall context of the case. She may have been able to give evidence that, when she was their neighbour, Ms Williams and Mr Major did not appear to be a couple. Even if that evidence were accepted, it does not preclude the possibility that they subsequently became a couple.
[29] The next relevant witness is said to be Ms Janet Strode-Penny. Ms Williams deposed that:
Ms Strode-Penny was my landlord at the Hattaway Road address and as such, she bore a duty to know who she was leasing her property to. I believe that she had made her own assessment regarding the relationship I had with Major.
[30] Ms Strode-Penny was initially a prosecution witness, but she was not called to give evidence for the prosecution. Mr Heather was reluctant to call her as a defence witness. Initially this appears to have been because she was listed as a prosecution witness. In addition, he saw her evidence as peripheral, as it would have been in relation to a time prior to the period of contention.
[31] In my view Mr Heather was correct to conclude that this evidence would be of minimal probative value. To call a landlord from a period prior to the period in contention would have added very little to the evidence before the Court. Further, a landlord will not necessarily know whether their tenants are in an intimate relationship. Ms Williams did not point to any specific evidence Ms Strode-Penny would be able to give in this respect, simply that she had a “duty” to know who was leasing her property.
[32] The third relevant witness was said to be Ms Susan Morrison, who Ms Williams’ deposed was Mr Major’s “previous girlfriend for a period of at least six (6) months”. Ms Williams said that since she was in such a close relationship with Mr Major “she would have been reliable and would have cast reasonable doubt regarding my alleged relationship with Major”. Unfortunately Ms Morrison was also reluctant to give evidence at trial, purportedly due to health issues. She expressed a preference to give evidence by way of affidavit. Not surprisingly, this was unacceptable to the Crown.
[33] Unfortunately Ms Williams’ affidavit is light on detail as to Ms Morrison’s alleged relationship with Mr Major. Further, no affidavits have been provided by either Mr Major or Ms Morrison regarding their alleged relationship. There is simply no evidence that any relationship between Ms Morrison and Mr Major occurred during the period of the offending (2006 to 2011). I note that neither Mr Major, Ms Williams nor Mr Harlick gave evidence at trial to the effect that Ms Morrison was in a relationship with Mr Major during the relevant period. Again, it is my view that the failure to call Ms Morrison has not given rise to a real risk of a miscarriage of justice.
[34] The final relevant witness was said to be Ms Patricia Goulden, who was employed as a Senior Personal Banker at the National Bank and was a longstanding friend of Ms Williams. Ms Williams’ evidence was that Ms Goulden would take Mr Major along as her “plus one” or “partner” to work functions and gatherings.
[35] Mr Major briefly referred to Ms Goulden in his evidence at trial, describing her as a “long-term” friend of Ms Williams. There was nothing in Mr Major’s evidence to suggest that he had any type of romantic relationship with Ms Goulden, at any stage.
[36] Mr Heather’s explanation for not calling Ms Goulden was that she was reluctant to appear, on the basis that she had a very heavy workload at the time of trial. Mr Heather advised her it would be possible for her to attend at a time which may have enabled her to take less time off work. It appears, however, that she could not be persuaded to attend.
[37] At the hearing before me, reference was made to an affidavit that Ms Goulden may have sworn prior to trial, which was sought to be admitted as a hearsay statement. I asked counsel to attempt to locate that affidavit. No sworn affidavit was located but I was provided (subsequent to the hearing) with an unsworn draft affidavit that Mr Heather had prepared, based on an email exchange he had with Ms Goulden (which I have also seen). Ms Goulden’s email/draft affidavit state that she has been friends with Ms Williams for over 20 years. Of most significance, she says that:
Since this time [when Ms Williams and Mr Major started flatting together many years ago] they have been living together but at all times they have had separate bedrooms. I have never seen them share a bedroom, in fact as Dee’s son has lived with them they have always had to rent either 3 or 4 bedroom houses.
In the course of their relationship they have been out together to pubs and clubs etc normally with groups of other people. They have both been in relationships with other people whilst they have been living together.
[38] I have reservations as to how much weight can be placed on such “evidence” in circumstances where it has not been provided on oath and Ms Goulden was clearly reluctant to make herself available for cross-examination on it. Nor has Ms Goulden sworn an affidavit in support of this appeal, despite her very long term friendship with Ms Williams.
[39] In any event, even if Ms Goulden had given evidence as set out above, it would have been unlikely to have changed the outcome of the trial. It was not in issue that a separate bedroom was maintained for Mr Major. However, the evidence at trial was that this was for appearances sake and that the bedroom was “staged”. Given the very specific evidence of the Crown witnesses to the effect that Ms Williams and Mr Major shared a bed, it seems unlikely that Ms Goulden’s evidence of a separate bedroom would have tipped the balance in Ms Williams’ favour.
[40] That leaves Ms Goulden’s statement that both Ms Williams and Mr Major have been in relationships with other people while living together. Significantly, no detail, including names or dates, is provided. This is important in circumstances where Ms Williams and Mr Major lived together, in various houses, for many years prior to the period of offending. The issue at trial, however, was simply whether
they were a de facto couple during 2006 to 2011. The fact that they may have been flatmates who had relationships with other people prior to 2006 would be of little or no relevance.
[41] I further note that the best evidence as to whether either or both of Ms Williams and Mr Major had relationships with others during the relevant period, would be that of Ms Williams and Mr Major themselves (who both gave evidence). In addition Mrs Major’s son, Mr Harlick, (who also gave evidence) and the relevant third parties could have also given evidence. In the absence of any such evidence, Ms Goulden’s belief that Ms Williams and Mr Major may have had relationships with others, at some time, would likely have carried little weight.
[42] For the reasons I have outlined above, there is no realistic possibility in my view that the evidence of any of the four “missing” witnesses would have altered the outcome of the trial. The two witnesses best placed to comment on whether they were in an intimate relationship were Ms Williams and Mr Major themselves. They both gave evidence and were extensively cross-examined. The Judge found them to be untruthful witnesses. That finding, combined with the strong evidence provided by the three key prosecution witnesses to the effect that Ms Williams and Mr Major were indeed a couple, led inexorably to a finding of guilt.
Failure to prepare briefs of evidence for Mr Major and Mr Harlick
[43] Ms Williams also alleged that a risk of miscarriage of justice has occurred due to the failure of Mr Heather to prepare written briefs of evidence for Mr Major and Mr Harlick (Ms Williams’ son).
[44] The mere failure to prepare written briefs, in itself, will not automatically give rise to a real risk of a miscarriage of justice. Although it may be best practice, it would be a counsel of perfection to require defence counsel to routinely prepare written briefs for all defence witnesses, in every case. Obviously, a miscarriage of justice could arise as a result of incompetent witness briefing in some circumstances, An example would be where incompetent briefing resulted in counsel failing to
adduce critical evidence from a witness that would have been apparent if the witness had been properly briefed and that could have altered the outcome of the case.
[45] In this case, however, neither Mr Major nor Mr Harlick have provided an affidavit in support of the appeal, setting out what additional evidence they could have provided which might have been significant. Nor did counsel for Ms Williams point to any significant areas of omission that could have altered the outcome of the trial.
[46] Mr Major gave clear and unequivocal evidence that he was not in a relationship with Ms Williams. The Judge simply did not believe him. This ground of appeal does not give rise to a real risk that a miscarriage of justice has occurred.
Alleged failure of trial counsel to raise “collusion” issue
[47] Ms Williams also alleges a failure by defence counsel to cross-examine the three key prosecution witnesses on whether they were colluding in their evidence.
[48] Again, in my view, there is nothing in this allegation that may have given rise to a miscarriage of justice in this case. His Honour rejected as “contrived” Ms Williams and Mr Major’s explanation that the three key witnesses for the prosecution had “maliciously conspired to tell lies about them and perjured themselves in Court”.
[49] Neither Ms Williams nor Mr Major were able to explain why the three key prosecution witnesses might have had a motive to lie. Judge Gittos concluded that there was no reason why the evidence of those witnesses should not be accepted. He assessed each of those witnesses as appearing to be forthright in what they had to say and giving evidence which “appeared to me to have the ring of truth”. He was well placed to make that assessment.
Remaining appeal issues
[50] Other, more minor, failings on the part of trial counsel were alleged. These included such things as trial counsel failed to adequately cross-examine on various
issues, for example in relation to a vehicle and television purchased by Mr Major but
registered in Ms Williams’ name.
[51] In my view, further cross-examination on such issues would have been highly unlikely to alter the outcome of the case. In any event, the witnesses best placed to offer any “innocent” explanation for such events were Ms Williams and Mr Major. They both gave evidence. Anything other witnesses might have to say on the topic would be largely peripheral in nature.
[52] It is accordingly my view that nothing in the remaining appeal grounds has substance. They would not have changed the outcome of the trial.
Conclusion
[53] There is no substance in any of the appeal points raised on behalf of Ms Williams. There is no real risk that the conduct of trial counsel in this case has given rise to a miscarriage of justice.
[54] Ms Williams faced the formidable obstacle on appeal that both she and Mr Major gave evidence at trial, but were found to be untruthful. The prosecution witnesses, on the other hand, were found to have given consistent and credible evidence. That evidence directly contradicted the evidence of Ms Williams and Mr Major. The evidence that Ms Williams says should have been called was largely peripheral in nature. It would not have been sufficient to counter the strong prosecution case at trial.
[55] I accordingly accept the respondent’s submission that this would appear to be a case of the type envisaged by Cooke J in Pointon when he observed that the Court should be on guard against the tendency of accused persons to “put the result down, not to the crime committed, but to the incompetence of counsel”.
Result
[56] The appeal is dismissed.
[57] As the appeal has been unsuccessful, the sentence imposed by Judge Gittos (nine months’ home detention, 200 hours’ community work and $3,120 reparation) stands. Ms Williams’ sentence of home detention is to commence on Thursday
22 May 2014, at the address specified in the Judge’s Sentencing Notes. On that date Ms Williams is to await the attendance of the probation officer and security personnel, who will fit the necessary electronic devices. The sentence is otherwise
subject to the terms and conditions set out in Judge Gittos’ Sentencing Notes.
Katz J
0
0
1