Dianne Joy Gibson v The Queen
| Jurisdiction | New Zealand |
| Judge | Chambers J |
| Judgment Date | 17 August 2010 |
| Neutral Citation | [2010] NZCA 378 |
| Docket Number | CA767/2009 |
| Court | Court of Appeal |
| Date | 17 August 2010 |
[2010] NZCA 378
IN THE COURT OF APPEAL OF NEW ZEALAND
Chambers, Rodney Hansen and Heath JJ
CA767/2009
C W J Stevenson for Appellant
M D Downs for Respondent
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A The appeal is allowed..
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B The convictions on counts 1- 8 and 10 and 11 are quashed.
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C A new trial is ordered on those counts..
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D The sentence of two months’ home detention on count 9 is confirmed and the appellant must start serving that sentence at 10 am on 18 August 2010..
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E An order is made that the reasons for judgment are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law report or law digest is, however, permitted..
(Given by Chambers J)
On 20 November 1999, Dianne Gibson was badly injured in a car crash. At the time of the crash, she was in receipt of a widow's benefit. She had also, just six weeks before, started her own clothing business, Sew Inspired, but she had not, by the time of the accident, been in a position to take any drawings from it.
Following the crash, she was contacted by people from the Accident Compensation Corporation. ACC granted her cover under the Accident Insurance Act 1998. Although Ms Gibson had had no earnings in the 12 months prior to the crash (apart from what she received on a widow's benefit), she was entitled to and did start receiving weekly compensation from ACC of $224. That was at that time the minimum entitlement available to self-employed who had been incapacitated by a motor vehicle injury. Ms Gibson also received other non-monetary entitlements from ACC.
On 1 June 2000, Ms Gibson went into the Palmerston North office of Work and Income New Zealand, a division of the Ministry of Social Development. There she completed an application form for an invalid's benefit to replace her widow's benefit. In completing that form, she did not reveal that she was receiving earnings-related compensation from ACC. WINZ certified her for the invalid's benefit. Ms Gibson's receipt of ACC compensation did not, as a matter of law, render her ineligible for an invalid's benefit. But had WINZ realised she was receiving compensation, the amount of her invalid's benefit would have been reduced.
On a number of occasions thereafter, Ms Gibson, when completing Work and Income review forms, continued to fail to disclose that she was receiving ACC compensation. It was not until 2007 that WINZ became aware of that fact.
The Crown laid 11 charges against Ms Gibson. Eight of them related to dishonestly using documents between 2000 and 2006. As a matter of form, four of them were laid under s 229A(b) of the Crimes Act 1961, as it was prior to the substitution of a new Part 10 by s 15 of the Crimes Amendment Act 2003. The remaining four were under the new s 228(b), which was the equivalent section. Counts 9 to 11 were all laid under s 127(a) of the Social Security Act 1964. Ms Gibson pleaded guilty to one of the charges under the Social Security Act (count 9) and not guilty to all the other counts. Ms Gibson's defence to all the contested charges was that she had misunderstood the various forms which were alleged to have misled WINZ. She had not knowingly been dishonest. At least in part, she pleaded by way of defence that her mental faculties had been impaired by medication she was on following the crash.
Following a trial before Judge Atkins QC and a jury, Ms Gibson was found guilty on all charges. Judge Atkins sentenced her to eight months' home detention on each of the Crimes Act charges and two months' home detention on each of the Social Security Act charges. All sentences were concurrent.
Ms Gibson has appealed against her convictions on all counts other than count 9 on the basis of an unfortunate slip-up which occurred during her trial. The prosecutor made a mistake in the interpretation of an exhibit. It had significant consequences for the trial.
Mr Stevenson, for Ms Gibson, said there was only one issue on the appeal. The prosecutor, Esme Killeen, put to Ms Gibson in cross-examination an Inland Revenue Department form which, the prosecutor submitted, showed that Ms Gibson had been working as an employee of Manawatu Pet Centre, and hence earning, in 1999. If that was right, then Ms Gibson had, Ms Killeen said, misled WINZ when completing the original application for an invalid's benefit by not disclosing that employment. Ms Gibson thought she had stopped working for Manawatu Pet Centre in 1998, but, faced with the prosecutor's interpretation of the IRD form, she eventually conceded, “on the basis of the IRD form”, that indeed she had been working for the centre in 1999. This supposed non-disclosure became a significant feature of the prosecutor's final address. Indeed, the Judge eventually saw the need to give a lies direction.
It turns out, as everyone now accepts, that Ms Gibson stopped working for the pet centre in June 1998. She received no income from it thereafter. At least in that respect, she had not completed the original application for an invalid's benefit incorrectly.
Mr Downs, for the Crown, responsibly accepted there had been a slip-up. In his view, the issue on this appeal was to be categorised in this way:
This case may turn on how the Supreme Court's definition of a miscarriage of justice as an error that was capable of having affected the verdict is to be understood. 1 In particular, is the enquiry limited to the error or is it contextual so that regard may be had to the evidence, the summing-up and the circumstances of the case more generally?
That is one way of putting the issue. We express it perhaps more simply: did the slip-up cause a substantial miscarriage of justice?
We wish to emphasise that, in what follows, we are not to be taken as suggesting the prosecutor purposely misled Ms Gibson or the jury. Mistakes occurred which were unfortunate, but they were clearly unintended.
The background to the slip-up is this. The principal thrust of the Crown case was that Ms Gibson had repeatedly misled WINZ by failing to disclose that she was receiving accident compensation. But a subsidiary theme the prosecutor developed was that, on the original application form for an invalid's benefit, Ms Gibson had
lied about the work she had been doing prior to the car crash. In particular, she lied in the answers she gave to questions 25 and 37 of the application form.Question 25 read as follows:
Are you working or have been working in the last 52 weeks?
We put to one side the grammatical infelicity. A side-note to that question read as follows:
Paid employment includes employment for which you receive non-monetary benefits eg free board; payments in kind; or drawings from an unprofitable business.
Ms Gibson, when she completed that form on 1 June 2000, answered the question “no”. At trial, it was the Crown case that Ms Gibson had answered that question untruthfully. It seems the Crown was not concerned with her Sew Inspired work, as, so far as the evidence reveals, no drawings from that short-lived business were ever taken. 2 Rather, what the Crown latched onto was the fact (as the Crown put it) that she had worked for the pet centre in that period. So what was the evidence the Crown relied on for its assertion that Ms Gibson had “been working in the last 52 weeks”; that is, since 1 June 1999?
WINZ had obtained on 13 May 2008 an IRD form which ACC had obtained back in February 2000. The relevant parts of that form for current purposes are these: 3
| IR5 | IR3 | |
| Income year ending | ………./………./…..98 | ………./………./…..99 |
| Earnings information | ||
| 1. Salary and wages Employer name (or names) | $ 4,753.10 | $ 1,257.95 |
| FLEURFIELD ENTERPRISES LTD (MANAWATU PET CENTRE) | ||
| … | ||
| Signature 6. Completed by | P Mumford | Date 3/2/00 |
Ms Killeen, like any good prosecutor, began her cross-examination of Ms Gibson with what she thought was a killer point:
Q. Okay, so just below there do you see there's a box with a number 1, “Salary and wages”?
A. Yes.
Q. And, “Employer name or names, Fleurfield Enterprises Limited (Manawatu Pet Centre)”?
A. Yes.
Q. Then going towards the right-hand columns that appear to be in relation to the years ‘98 and ‘99, do you see that?
A. Yes.
Q. There seems to be an entry there that you received some salary or wages?
A. From Fleurfield?
Q. Yes?
A. Yes.
Q. In 1998 and 1999?
A. I can't remember when the business was sold.
In fact, as we now know, Valerie Absolon, the proprietor of Fleurfield Enterprises Limited (Manawatu Pet Centre), closed the business in May 1998, with Ms Gibson receiving her last pay at the beginning of June 1998. The cross-examination then continued:
Q. If there's a notation there in relation to 1999, would you agree that that means that you received some salary or wages in 1999 from that company?
A. Yes.
Q. So could it be then that earlier in the year of 1999, before you started your own business, you'd been working for them?
A. Yes, I had been working for Val part-time.
The first question proceeds on a false premise. It is clear that the IRD form was referring to income tax returns for the financial years ending 31 March 1998 (the IR5 column) and 31 March 1999 (the IR3 column). So the wages of $1,257.95 earned as an employee of the pet centre were earned in the financial year...
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