DRAFT

CRUICKSHANK V R CA300/2014 [2014] NZCA 574 [28 November 2014]

IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/2014

[2014] NZCA 574

BETWEEN

MICHAEL CHRISTOPHER

CRUICKSHANK

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 application for an extension of time to appeal the conviction is

dismissed.

B The application for an extension of time to appeal the sentence is

dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

[1] Michael Christopher Cruickshank seeks extensions of time to appeal against

his conviction and sentence for dishonestly and without claim of right using a

medical certificate to obtain benefits under the Accident Compensation Act 2001.1

1 R v Cruickshank DC Auckland CRI-2007-044-4958, 21 July 2010 [Sentencing notes].

Background

[2] In 1995 Mr Cruickshank fell from a ladder while working. He suffered

injuries to his hands, arms and neck, some of which were serious. Since then, he has

received weekly payments from the Accident Compensation Corporation (ACC) on

the basis that he has been unfit for work.

[3] In order to claim the weekly payments from ACC, Mr Cruickshank provided

ACC with medical certificates every 90 days or so, stating that he was unfit for

work. We will refer to the terms of the medical certificates later.

[4] One of those certificates was dated 28 October 2005. ACC later obtained

information alleging that despite stating he was unfit to work Mr Cruickshank had

carried out interior renovation work at a food court and at a residential property in

Northcote between August and December 2005, for a Ms Parsons. As a result of this

information, Mr Cruickshank was charged with one count of obtaining ownership or

possession of benefits by deception and without claim of right,2 and one count of

dishonestly and without claim of right using a document, namely a medical

certificate, with intent to obtain a pecuniary advantage or valuable consideration,

being those benefits.3

The trial

[5] Mr Cruickshank was tried by a jury in the Auckland District Court in April

2010. At the trial the Crown adduced evidence from eight witnesses to the effect that

Mr Cruickshank had carried out interior renovation work for Ms Parsons at both the

food court and at the residential property in Northcote. Ms Parsons gave evidence

that Mr Cruickshank had done that work for her and that she paid him between

$14,000 and $18,000.

[6] Mr Cruickshank accepted that he had assisted Ms Parsons by picking up

materials for her, cashing cheques and doing small amounts of work and giving her

advice. However, he denied other aspects of the evidence, in particular receiving

2 Crimes Act 1961, s 240(1)(a).

3 Crimes Act, s 228(b).

any money from her. He called five witnesses, all of whom in one way or another

supported his claim that he did not receive payments and was not working for money

for Ms Parsons.

[7] At the end of the trial, on 19 April 2010, the jury found Mr Cruickshank

guilty on the second count of dishonestly using a document and, by a majority, not

guilty on the first count of obtaining by deception.

[8] On 21 July 2010, Judge Perkins convicted and sentenced Mr Cruickshank to

four months home detention and ordered him to pay reparation of $5,000. The Judge

proceeded on the basis that Mr Cruickshank had caused loss of $8,826 to ACC,

being the compensation he had received during the period between August and

December 2005. The Judge rejected the Crown’s reparation figure as “unrealistic”

but considered that some reparation should be imposed.4

Subsequent events

[9] Following the trial, ACC sought repayment from Mr Cruickshank of money

which it claimed Mr Cruickshank was not entitled to have received, including some

of the money Mr Cruickshank received in reliance on the medical certificate dated

28 October 2005. Mr Cruickshank contested ACC’s decision and invoked the ACC

review process in pt 5 of the Accident Compensation Act.

[10] At the end of the ACC review process, on 21 March 2011, the District Court

allowed an appeal against ACC’s decision to seek repayment of $3,700 paid to

Mr Cruickshank, in part for payment made during the period covered in the

indictment.5 The Judge held that the doctor had never been asked to give evidence in

relation to the relevant certificate, and that ACC had failed to undertake the

necessary procedures.6 As a consequence, the Judge concluded that Mr Cruickshank

was entitled to the compensation during the period in respect of which he had been

4 At [18].

5 Cruickshank v Accident Compensation Corporation [2011] NZACC 130.

6 At [10].

convicted of dishonestly using the medical certificate to receive compensation from

ACC.7

[11] Relying on that decision, Mr Cruickshank now wishes to appeal against his

conviction and sentence.

Issues on appeal

[12] This appeal is nearly four years out of time. Consequently, Mr Forster, on

behalf of Mr Cruickshank, seeks an extension of time to appeal.

[13] In the event that the extension is granted, Mr Forster submits that the appeal

against conviction should be allowed on the bases that:

(a) the Crown created a false impression in the evidence about the lack of

Mr Cruickshank’s entitlement to the weekly compensation;

(b) the Judge’s directions on the element of dishonesty were insufficient;

and

(c) it was an abuse of process to proceed to trial prior to obtaining a final

determination as to Mr Cruickshank’s entitlements under pt 5 of the

Accident Compensation Act.

[14] In relation to the appeal against sentence, Mr Forster submits that:

(a) The Judge lacked jurisdiction to order reparation when

Mr Cruickshank’s entitlements had not been determined by ACC; and

(b) The Judge erred in considering the period for which reparation should

be ordered as extending from August to December 2005 when the

medical certificate at issue only had effect from 25 October 2005.

7 At [12]–[13].

[15] We will consider the merits of the grounds of appeal and then turn to the

question of whether to grant leave in relation to the appeal against conviction and

sentence separately.

First ground of appeal – false impression about lack of entitlement to weekly

compensation

[16] Mr Forster submitted that the Crown should have told the jury that even if

Mr Cruickshank had worked, this did not mean he was not entitled to compensation.

He submitted that ACC should have provided evidence about Mr Cruickshank’s

entitlement to compensation, the review process and about the relevant statutory

provisions including s 72 of the Accident Compensation Act which sets out the

responsibilities of a claimant who receives an entitlement under the Act.

[17] There are two problems with this submission. First, whether Mr Cruickshank

received any payments for work, or was or was not entitled to any ACC payments,

are not questions that are directly relevant to the issue of whether he used the

document dishonestly. As the Supreme Court explained in R v Hayes, the lack of

entitlement is not an element of a charge under s 228 of the Crimes Act:8

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.

Consequently, leading evidence about Mr Cruickshank’s entitlements would not be

relevant to determining whether he acted dishonestly in stating that he was unfit to

work and using the medical certificate to obtain payments from ACC.

[18] The second difficulty in Mr Forster’s submission is that it was up to

Mr Cruickshank to adduce evidence to answer the Crown case and to make his case

as to his belief that he was entitled to weekly compensation. If he disagreed with

8 R v Hayes [2008] NZSC 3, [2008] 2 NZLR 321 at [12].

some evidence that had been put forward by the Crown, it was open to him to refute

it. There is no submission of defence counsel incompetence. We cannot see any

merit in Mr Forster’s submission that the Crown should have provided more or

different material. This was not misconduct by the Crown.

Second ground of appeal – was the Judge’s direction on the element of

dishonesty insufficient?

[19] Mr Forster submitted that the Judge should have directed the jury to consider

entitlement and that if Mr Cruickshank was entitled then he could not have

dishonestly used the document. The Crown disagreed and submitted that Mr Forster

confuses the declaration in the medical certificate with the issue of entitlement, and

that the Judge’s directions were correct.

[20] The jury was only required to determine if the statements in the medical

certificate that Mr Cruickshank was unable to undertake sedentary work or other

suitable alternative work tasks or duties were declared by him to be true, knowing

that these statements were incorrect. As this Court in R v Stewart explained:9

So telling lies about medical symptoms and work capacity and submitting

medical certificates obtained in this way for the purpose of obtaining ACC

payments can result in conviction without the need for findings that either

the claimant was not entitled to the payments or that had the truth had been

told, there was a risk that the payments would have been terminated.

[21] The Court continued:

[20] What is important for present purposes, however, is that both on the

case as presented and under the law as explained in Hayes, it was not

necessary for the Crown to show that the appellant was fit for work and

knew it and had therefore obtained benefits to which he knew he was not

entitled.

[21] This is a very important point. Although there was ample evidence

that the appellant had carried out activities that did not sit easily with what

he had told the ACC and doctors about his disabilities, these did not

necessarily establish his fitness for work. The evidence was not particularly

clear as to the amount of time the appellant spent in his garden. Working for

say an hour or two (or perhaps more) in the garden is not necessarily the

same as working regular hours in paid employment. But, as we have

indicated, the case for the Crown in the end did not turn on the appellant’s

fitness or otherwise for work or his associated beliefs. Instead, the Crown

9 R v Stewart [2008] NZCA 341, (2008) 24 CRNZ 161 at [18].

case was that his dishonesty as to his symptoms and capacity for physical

work enabled him to avoid legitimate inquiry about his entitlements to ACC

payments.

[22] The medical certificate at issue dated 28 October 2005 was signed by a

doctor and submitted by Mr Cruickshank.10

It contains these statements with details

of the days and date in the second question filled in by hand:

Current ability to work (refer to Completing the ACC18)

Either: Specify work type possible: О Sedentary О Light О Medium О Heavy О Very heavy

…

Or: the patient will be unable to resume any duties at work for 90 days from 25 / 10 / 05 DAY MONTH YEAR

It contains the following declaration:

I declare this certificate to be an accurate reflection of my activity

restrictions. I authorise ACC to collect information about this injury. I

authorise any health agency which holds health information about this injury

to give that information to ACC. I have read and understood the patient

information on the reverse of the patient copy of this form.

[23] The Judge set out the Crown case in the following terms:11

What the Crown alleges here is that when Mr Cruickshank obtained the

medical certificate, that is exhibit 13 dated 28 October 2005, that he was

unfit to work, and he knew he was fit. That is what the Crown is alleging,

that when he obtained the medical certificate that he was unfit to work, he

knew that he was fit. And the Crown says that that can be easily inferred by

the fact that at the time he was working for Ms Parsons and earning money

from her, he was actually performing physical work. If you accept that then

obviously the statement that he was unfit for work, contained in the

certificate, would not be correct. …

[24] Mr Cruickshank had confirmed on the form that he was “unable to resume

any duties at work”. Mr Cruickshank did not say that he thought he was entitled to a

benefit despite working. His defence was that he did not work, although in his

evidence he admitted doing some minor work but stated that he received no

payments for this work. R v Stewart made it clear that the Crown does not need to

establish that Mr Cruickshank was fit to work and knew this to be the case. The

10

The Crown now accepts the dates in the indictment were too broad, as they preceded the creation

of the medical certificate. We accept, however, there could be no prejudice to Mr Cruickshank

from this error, as the Judge made it clear to the jury it was to determine Mr Cruickshank’s state

of mind when he used the document. 11

R v Cruickshank DC Auckland CRI-2007-044-4958, 16 April 2010 [Summing-up] at [23].

issue was rather whether when he declared that the certificate which contained the

representations was true, he knew the representations were false.

[25] Much of the closings and summing-up focussed on whether Mr Cruickshank

had actually been working. That was because it was Mr Cruickshank’s defence that

he was not, and therefore he had made the declaration as to being unable to work

honestly. This focus was appropriate, not because the charges were about whether

Mr Cruickshank was entitled to a benefit, but because it was his claim that he could

honestly say he was not working.

[26] The Judge in our view made this clear. He stated:12

What the Crown alleges here is that when Mr Cruickshank obtained the

medical certificate, that is exhibit 13 dated 28 October 2005, that he was

unfit to work, and he knew he was fit. That is what the Crown is alleging,

that when he obtained the medical certificate that he was unfit to work, and

he knew that he was fit.

[27] The Judge reiterated the point:

[24] So you can only find the accused guilty on count 2 if you are sure

that the accused used the medical certificate, that he did so dishonestly, that

is without an honest belief that he was unfit for work, that he did so without

claim of right, in other words he knew he did not have the right to receive

the benefit because he could work, and finally, that he did so with the

intention of obtaining a pecuniary advantage, namely continuation of the

ACC benefit.

[28] In the next paragraph the Judge required the jury to focus specifically on the

issue of Mr Cruickshank’s intention in using the certificate:13

[Defence counsel] is right about this count. Even though we know that

Mr Cruickshank got a continuation of his benefit by using the certificate, that

is not relevant to this particular charge. The issue is whether it was his

intention when he used the certificate to obtain that benefit, so it does not

matter whether or not he got it, it is what his intention was.

[29] We cannot see any basis for criticising the Judge’s summing-up. It was

focussed on the issue of belief. The jury had heard Mr Cruickshank give evidence.

The effect of that evidence was that he was acting honestly and that he had never

12

Summing-up, above n 11, at [23]. 13

At [25].

done significant work and never been paid for any work. Given the Judge’s

direction, if the jury had reasonable doubt as to whether Mr Cruickshank had

dishonestly declared the medical certificate to be correct the jury would have,

following the Judge’s directions, found him to be not guilty. The core issue was

whether he was saying he was not fit to do any work when he knew that he was. The

jury were accurately directed on this.

[30] The Judge referred to the statutory definition in the Crimes Act 1961 of

“dishonestly”. He said:

[18] “Dishonestly” means that the use must be without a belief that there

was express or implied consent to or authority for the act from a person

entitled to give such consent or authority. It is not a defence that the accused

honestly believed that he was entitled to breach his strict legal obligation.

There is no evidence here of the accused, Mr Cruickshank, believing that

there was an express or implied consent.

[31] This was unnecessary as that definition refers to a belief in express or implied

consent from a third person, which was not an issue that arose in the trial. However,

the Judge pointed that out to the jury, removing the possibility of any confusion.14

Third ground – was conducting a criminal trial prior to a review determination

under pt 5 of the Accident Compensation Act an abuse of process?

[32] Mr Cruickshank is pursuing a review, although it has not yet been heard.

Mr Forster submitted that it was an abuse of process for the criminal case to proceed

prior to the ACC review process. He relied on s 133(5) of the Accident

Compensation Act which 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.

14

At [18].

He submitted that this section prevents the Crown from bringing criminal

proceedings until after any challenge to ACC’s decision as to entitlement has been

determined. He submitted that it is an abuse of process for a criminal trial to be used

to determine entitlements.

[33] This submission is misconceived. Section 133(5) is located in part of the Act

dealing with reviews or appeals of decisions made by ACC in relation to a claim, and

provides that any review or appeal 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 under the Crimes Act, rather than under the Accident Compensation Act.

Indeed, the submission can be seen as continuing the confusion that was evident in

Mr Forster’s submissions referred to above between a person’s right to claim

compensation, and the dishonest use of a document to obtain a pecuniary advantage.

They are different issues.

[34] We do not accept the suggestion that as a matter of fairness or good practice

criminal proceedings should be postponed until the ACC review process is

completed, nor that the New Zealand Bill of Rights Act 1990 or the United Nations

Convention on the Rights of Persons with Disabilities require or enable that course

of action. A criminal proceeding addresses an issue that is irrelevant to the ACC

process, namely the dishonest use of a document.

[35] When a serious crime is alleged the trial should proceed without delay. There

are good reasons for the criminal proceeding to take priority over any civil claim.

We agree with the comment of Batt J in Australian Securities Commission v

Kavanagh:15

Ordinarily it is, I think, the deep-rooted ethos of the common law system that

a criminal proceeding, involving, as it does, the risk to personal liberty and

allegations of a more serious nature, should be dealt with first. That is not

simply in the interests of an accused person but is in the interests of the

community, in that its criminal laws may be vindicated as soon as possible if

in truth there has been an offence committed.

[36] Any determination by a District Court on Mr Cruickshank’s entitlement will

have limited admissibility. Under s 50(1) of the Evidence Act 2006 such evidence is

15

Australian Securities Commission v Kavanagh (1994) 13 ACSR 573 (VSC) at 581.

not admissible in a criminal proceeding to prove the existence of a fact that was at

issue in the proceeding in which the judgment was given. The position of a reviewer

is not so clear and we do not need to determine this, although as the Law

Commission observed in its 2013 review of the Act it would be “odd” if such a

tribunal’s decision were admissible when a Court’s decision was not.16

[37] Other considerations are also relevant. The question of the defendant’s

privilege against self-incrimination being compromised could arise if the ACC case

ran first.17

It is also a basic precept of criminal justice that the longer a trial is

delayed, the greater the possibility that there will not be a fair trial.18

Therefore it

was not an abuse of process to bring the criminal proceedings prior to

Mr Cruickshank’s entitlement being finally determined.19

Conclusion on appeal against conviction

[38] There has been delay of four years in filing the appeal. An application for an

extension of time to appeal should only be granted if it is in the overall interests of

justice.20

[39] We see no merit in any of the grounds put forward in support of extension of

time to appeal. Mr Cruickshank swore an affidavit in support of his application but

we have found his explanations as to the delay unconvincing. He claimed his

financial circumstances prevented him from appealing, but the indications are that

legal aid was available. His claim that his medical condition prevented him from

appealing earlier is also not convincing. He referred to pain in the left forearm and

chronic pain and stress, and other conditions, but nothing that would have prevented

him from instructing counsel or legal aid to pursue an appeal.

[40] We are not satisfied that it is in the overall interests of justice to grant an

extension of time to appeal.

16

New Zealand Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013)

at [9.17]. 17

Evidence Act 2006, s 60. 18

R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [9]. 19

See also the consideration of this issue in Whitehead v R [2014] NZCA 573 at [30]–[37]. 20

Crimes Act, s 388(2) and R v Knight [1998] 1 NZLR 583 (CA) at 587–589.

[41] We decline to grant the application for an extension of time to appeal the

conviction.

The appeal against sentence

[42] Mr Forster submitted that there was no jurisdiction to order reparation, and

that the Judge erred in ordering reparation of $5,000.21

The basis for this submission

was that given the District Court had ultimately quashed ACC’s decision to seek

repayment of monies paid to Mr Cruickshank during the period of his criminal

offending, and finding that he was in fact entitled to ACC payments through that

period, no order for reparation should have been made.

[43] However, the point is moot. Mr Cruickshank has not paid the reparation to

ACC, and ACC is now unable to recover it from him. In addition, following the

District Court’s decision ACC refunded the money and has cleared the amount

outstanding under the sentence of reparation. Allowing the appeal would be of no

financial benefit to Mr Cruickshank.

[44] Nevertheless, Mr Forster raised a jurisdictional point. He argued that the

effect of s 133(5) of the Accident Compensation Act was that a criminal court could

not make a reparation order, or any other order, by way of granting a remedy in

respect of a matter covered by the Accident Compensation Act. However, given the

fact that Mr Cruickshank is not in the end out of pocket as a consequence of the

reparation order and will not be, that point also is moot.22

[45] This appeal was lodged four years after sentencing, and nearly two years after

ACC had cleared the amount owing under the sentence of reparation. As we have

set out earlier,23

no adequate explanation has been given for this delay by

Mr Cruickshank.

[46] The application for an extension of time to appeal the sentence imposed on

Mr Cruickshank is declined.

21

Sentencing notes, above n 1. 22

See also the consideration of reparation in the ACC context in Whitehead v R, above n 19, at

[46]–[51]. 23

Above at [39].

Result

[47] The application for an extension of time to appeal the conviction is

dismissed.

[48] The application for an extension of time to appeal the sentence is dismissed.

Solicitors: Crown Law Office, Wellington for Respondent.