THE QUEEN v ALICE FAYE BATT [2000] NZCA 151 (3 August 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 47/00

THE QUEEN

V

ALICE FAYE BATT

Hearing:	27 June 2000
Coram:	Tipping J Heron J Williams J
Appearances:	R M Lithgow and N B Taylor for Appellant J C Pike for Crown
Judgment:	3 August 2000

judgment of the court

[1] This is an appeal against conviction and sentence on seven charges brought under S.127 of the Social Security Act 1964 and S.229A(b) of the Crimes Act 1961.Two counts charged the appellant with wilfully omitting to tell an officer that she was living in a relationship in the nature of marriage, and five charged her with fraudulently using a document capable of being used to obtain a benefit.The appellant was sentenced to nine months imprisonment.

Background

[2] The charges cover a period between 1985 and 1998.During this time it was the Crown case that the appellant had lived with David Vercoe in a relationship in the nature of marriage, whilst they were residing at Signal Station Road in Westport.The defence was that David Vercoe was a long term boarder and platonic friend and that no relationship in the nature of marriage existed between them.Four grounds of appeal are advanced.

(1) That the trial Judge erred in law in exercising his discretion to allow the deposition of Alexander David Patterson to be read as evidence at the trial.

(2) That the verdict was unreasonable or could not be supported by the evidence, and in particular having regard to the definition of a relationship in the nature of marriage set out in Ruka v Department of Social Welfare [1997] 1 NZLR 154.

(3) That there were errors in the Judge's summing up and in particular in his direction on the elements of the offence required to be proved by the Crown. In that regard, particular attention was paid to the Judge's direction that certain elements had been proved by virtue of an answer given by the appellant in cross-examination.

(4) That there was a miscarriage of justice due to conduct of counsel, in not following the appellant's wish to introduce evidence as to her sexual orientation and in particular in not calling David Vercoe.

Reading of Mr Patterson's Evidence

[3] The Judge allowed the evidence of Mr Patterson to be read indicating he would give his reasons later.He did so, after the trial had concluded.The circumstances were that Mr Patterson gave evidence viva voce at the preliminary hearing at Westport on 18 May 1999.Mr Patterson said he knew the appellant through a friendship with the appellant's daughter since he was in his fourth form year at school in about 1985 - 1986.They remained boyfriend and girlfriend for about seven years, a period which covered part of the relevant time alleged in the indictment.He was a regular visitor to the address and he described the contested relationship.

[4] At the time of giving his evidence he said he had had little contact with them both in the last two years, but still regarded them as friends, and had no animosity towards them.At one point he had boarded at the address and described seeing them not only at the address but socially at pubs and different places around town.He had seen them in bed together and he believed they slept together.He described his relationship with the appellant's daughter as ending in 1991 but he continued contact, and again boarded at the address.He spoke of occasions when the appellant and David Vercoe went away together.His evidence was capable of establishing they were living in a relationship in the nature of marriage, or at the very least, were presenting such a picture to this witness who had reason to have a relatively intimate knowledge of the workings of the household.He was undoubtedly an important witness for the Crown, albeit the Crown's case did not rest entirely on his evidence.

[5] It was put to him at depositions that he had never boarded with the appellant and he was cross-examined on a number of peripheral matters designed to test his credibility and the reliability of his recollections.He was asked about the terms on which he parted from the appellant's daughter.He was firm in saying that he had no improper motive in giving evidence against the appellant or David Vercoe.

[6] When the application to read the deposition was made, the Judge directed himself in terms of R v L [1994] 2 NZLR 54.In this respect the Judge correctly summarised the principles set out in R v L and said:

In summary, my reasons for allowing Mr Paterson's deposition to be read were as follows.

Firstly, it was apparent from the depositions file that, as with the other witnesses who had given evidence at the preliminary hearing, Mr Taffs [defence counsel] had cross-examined Mr Paterson relatively extensively at the hearing.In those circumstances, not only was there an opportunity for cross-examination, but the opportunity was exercised.

Secondly, and this is related to the first point, when he gave evidence at the preliminary hearing Mr Paterson was living in Brisbane and was in employment there as a fisherman, and it was known that he was to return to Brisbane, and to that employment, following the preliminary hearing.In those circumstances, there was clearly a risk that, irrespective of the apparent understanding when the December trial date was vacated that Mr Paterson would be a witness at the trial, and notwithstanding his willingness to do so, he might not be able to return to New Zealand for the trial itself.

Thirdly, although it was suggested by Mrs Batt that Mr Patterson had indicated a reluctance to return to New Zealand for the trial and to co-operate with the Department in that respect, that being in the context of the comment which he had apparently made to Ms Wilson while he was in New Zealand over the Christmas period, there appeared to me to be no foundation for any conclusion to that effect.Indeed, the contact between the Department and Mr Paterson's uncle and his employer appeared to suggest to the contrary, the wedding card being of some significance in that respect.

Finally, although Mrs Currie [counsel for the Crown] conceded that Mr Paterson was an important witness, in that he allegedly had more opportunities than any other prosecution witness to observe conduct between Mrs Batt and Mr Vercoe from which the inference could be drawn that their relationship was intimate in nature, his evidence was corroborated or confirmed by the evidence of other witnesses who by then had already given evidence, in particular Mr Martin, Mrs Bennett, and Mr Daryn Rea.In those circumstances, it seemed to me that Mr Paterson's evidence was likely to be credible and reliable.

I therefore ruled that Mr Paterson's deposition could be read as evidence for the Crown at the trial, but accompanied by a caution from me (which was repeated in the summing-up) as to the basis on which the jury should consider his evidence.

[7] The Judge rejected a suggestion that Mr Patterson had not returned because he wished to avoid giving evidence at the trial.He heard evidence on a voir dire from an officer of the Department, as to the whereabouts of Mr Patterson and inferentially his willingness or otherwise to return for the trial.He was in fact, as the Judge found, out of New Zealand, and then on a fishing vessel off the coast of Queensland.In our view the Judge was entitled to reach the view that there was nothing untoward in the absence of Mr Patterson.He did that after hearing relevant evidence both at the trial and on the voir dire.The Judge too noted the fact that Mr Patterson had been cross-examined relatively extensively at the preliminary hearing.It was known to the appellant and her counsel that there was a possibility of his returning to Brisbane and a consequent risk that he may not be able to return to New Zealand and that the opportunity to cross-examine should be fully realised.

[8] Finally the Judge thought that whilst Mr Patterson's evidence was important, having regard to the extent of his contact with the appellant and David Vercoe, his evidence was corroborated or confirmed by other witnesses who had already then given evidence.The Judge thought that, as a result, Mr Patterson's evidence was likely to be credible and reliable.

[9] On appeal the question is whether the admission of such evidence might have led to a miscarriage of justice.The principal complaint made is that there was not one question in cross-examination relating to the financial inter-dependence element of a relationship in the nature of marriage, as set out in Ruka.The suggestion is that the cross-examination was intended as a warning shot rather than as questions seeking answers.The appellant complained that she had several pages of questions that she wanted counsel to ask.In cross-examination she said:

a.I asked my counsel to xxd Mr Paterson further when he was on the stand but he didn't show so the xxd was not able to take place and I feel that that has disadvantaged me and the questions you are going to be asking me about Mr Paterson.I didn't get a chance at the deposition hearing to get this done and it was going to be saved for this trial.q. he was xxd though at depositions. a.briefly.q. We heard that read out.a.Briefly but my counsel did not come back to me for further clarification to ask him further questions.I had a list of several pages that I wanted my counsel to seek clarification on from what Mr Paterson said in his statement.

[10] The appellant now complains that the risk of Mr Patterson not attending the trial was not reasonably foreseeable to her and that the Crown knew that the witness lived in Australia, and that his occupation was sea fishing, yet counsel was notified of his prospective non-attendance only days before the trial.

[11] In the end it was open to the Judge to determine on the facts as he found them, including the contact made by the departmental witness and employer, and others, that Mr Patterson was otherwise seen as a co-operative witness.

[12] Complaint is made of the Judge's conclusion that Mr Patterson's evidence was corroborated or confirmed by other evidence and that Mr Patterson's evidence was likely to be credible and reliable.We have looked at the evidence in so far as the factual assertions made by Mr Patterson were concerned, putting aside the inferences that may be available from them.His evidence is confirmed in material respects by other witnesses, depending on what the jury made of them.We accept the Judge's assessment of this matter because he heard the evidence of Sandra Bennett, and Daryn Rea, who had seen the appellant and David Vercoe in bed together on one or more occasions.

[13] Undoubtedly Mr Patterson's deposition evidence on this topic was more comprehensive than other witnesses.It is no doubt correct that Mr Patterson's evidence as to the sleeping arrangements, probably carried more weight than the isolated and individual sightings of them in or on a bed together, as given by other witnesses.The appellant denied that she had ever had a regular sleeping arrangement or any arrangement with David Vercoe and she said she slept in the open plan lounge and he slept in the side room.In answer to suggestions about Mr Patterson's observations, she said that he was mistaken and she could not say anything more about that.She went on to describe a possible motive for adverse evidence, namely the relationship that he had with her daughter which had broken up.

[14] Although Mr Lithgow took exception to the general statement that the evidence was corroborated or confirmed, and pointed out the qualified or limited nature of that evidence, we think this was very much a matter for the Judge to assess, and in our view he was entitled to find that the criteria required for the admission of such evidence had been established on the facts as he found them.

[15] We are satisfied in the circumstances that the Judge has committed no error of law in his approach to this matter and no miscarriage of justice occurred in his allowing the evidence to be read.

Verdict unreasonable or could not be supported having regard to the evidence

[16] The second ground of appeal was that the verdict of the jury was unreasonable or could not be supported having regard to the evidence.This ground relies entirely on the absence of evidence of any financial inter-dependence which goes to a relationship in the nature of marriage, as discussed in Ruka.It should be noted, however, that in the absence of actual financial support, a willingness to provide such support, should it be necessary, will suffice.The Court in the majority judgment, at 161 said:

In our view a relationship in the nature of marriage for the purpose of the Social Security Act is one in which an essential element is that there is an acceptance by one partner that (to take the stereotypical role) he will support the other partner and any child or children of the relationship if she has no income of her own or to the extent that it is or becomes inadequate.The commitment must go beyond mere sharing of living expenses, as platonic flatmates or siblings living together may do; it must amount to a willingness to support, if the need exists.There must be at least that degree of financial engagement or understanding between the couple.It will not, however, be negated by a refusal to support, or an arrangement that support will not be given, which is motivated by the knowledge that the dependent partner will then be able to claim a benefit.Such a stratagem cannot create a genuine absence of support.

[17] Obviously a willingness to provide support is a state of mind to be inferred from the relationship overall.Mr Lithgow's complaint is that throughout the evidence there was not a single reference to financial inter-dependence and that no witness was asked questions relating to any mutual financial support, contingent or otherwise.

[18] The Judge correctly directed the jury on the test and the appellant acknowledged that David Vercoe paid her board for food, rent, power and telephone, but paid his own toll bills.We think this was very much a matter of fact for the jury.They heard evidence of the fact that David Vercoe was in employment during some of the time that the appellant was receiving the benefit.In the end willingness to provide financial support must be an inference drawn from the inter-dependence of the relationship itself, and the features of it that were drawn to the jury's attention.It cannot be overlooked that in a statement to the Buller District Council, signed by the appellant alongside the words "spouses name", David Vercoe's name was written. It would seem that the document was partly completed by somebody else but the appellant acknowledged by her signature that the details above were correct to the best of her knowledge.The jury were entitled to find that she must have given that information.Although the cross-examination was on the basis that someone else might have formed that view of her relationship and the words were added later, the jury were entitled to find that they were in the document before she signed it.

[19] We consider that there was evidence from which contingent financial inter-dependence of the kind set out in Ruka could be inferred.This ground fails also.

Misdirection on standard of proof

[20] The Judge's direction on the standard of proof was as follows.

You will all be familiar with the phrase "proof beyond reasonable doubt", because it crops up every now and then in the public arena.However, it has no special magic, and it means exactly what it says.Turned around the other way, it means proof beyond a doubt which you as the jury regard as reasonable in the circumstances of the particular case.

However, another way of expressing the test of proof beyond reasonable doubt is to say that it involves being sure of guilt.If you feel sure that Mrs Batt is guilty on one or more of the charges which she faces, it is your duty to find her guilty.On the other hand, if you are unsure as to her guilt, if you have a reasonable doubt, it is equally your duty to find her not guilty.

There are three further points about the standard of proof which I must mention.

The first is to emphasise the word "reasonable".A reasonable doubt must be just that, and a vague or fanciful doubt which is conjured out of nothing to avoid doing an unpleasant duty is not a reasonable doubt.

Put another way, although the standard of proof is a high standard, and rightly so, it does not require the Crown to prove a charge to the point of certainty. Put very shortly, you must be sure of guilt, but you do not have to be certain, absolutely certain of, of guilt.

[21] Mr Lithgow submitted that to say to a jury "you do not have to be certain, absolutely certain", is wrong and a material misdirection.This Court has been cautious in endorsing any refinements to the standard direction which the Judge in this case largely gave, but for the final paragraph.See R v Manhaas 3/9/98, CA 228/98.Whilst the direction might have made the point more clearly if it had used the adjective "scientific" in describing certainty, the direction has to be looked at in the round.In our view it did not allow the jury to depart from the high standard of proof which was proof beyond reasonable doubt or the requirement that they must be sure of guilt.We do not think that the additional words would have detracted from that requirement in all the circumstances of the case.The jury must have known full well what they were required to do and the proper standard of proof required in a criminal case.We feel constrained to repeat that individual amendments to thestandard direction often cause more problems than they solve.

Misdirection on the test for a relationship in the nature of marriage

[22] The Judge said on this topic:

The phrase "living together in a relationship in the nature of the marriage" highlights the fact that the parties to such a relationship are not legally married.However, apart from that legal status, such a relationship must have the essential hallmarks of a marriage relationship.In particular, the relationship must involve both a financial commitment and an emotional commitment.

A financial commitment does not have to be an actual current financial commitment.In this context it is sufficient if each party to the relationship accepts responsibility to support the other party financially if he or she is unable to do so.That of course involves drawing an inference as to the nature of the relationship from all the evidence as to the circumstances of the relationship.

In this case it appears that Mr Vercoe did not have to support Mrs Batt, because she was of course receiving a benefit.Conversely, it appears that Mrs Batt did not have to support Mr Vercoe, because for most of the period in question he was apparently working.

You must therefore be satisfied that the nature of the relationship was such that, if either party was not able to support himself or herself, the other party would have assumed an obligation to do so.That therefore involves an assessment of the nature of the relationship, which in turn involves an assessment of the evidence which has been put before you.

In that context, it is important to emphasise that the commitment which is required must go beyond the mere sharing of living expenses, as flatmates may do.There must be a willingness to support each other if the need either exists or arises.

As I indicated a few moments ago, there must also be a corresponding emotional commitment to the relationship.A sharing of a common household over a period of time and a sexual relationship are significant indicators in that context, although of course neither is essential.For example, as Mrs Currie mentioned in her final address, an elderly couple may not engage in sexual activity, but they may nevertheless be committed to each other.

In respect of the first point, it is not necessary that a couple in a marriage-type relationship live together all the time.However, if a couple who are not related to each other, for example as brother and sister, live together for an extended period of time, that may more readily support the contention or conclusion that they are living together in a marriage-type relationship.

In this case, as in all such cases, an assessment of the nature of the relationship must therefore be made.If the only conclusion which can be drawn from the evidence is that it was a marriage-type relationship, or, as Mrs Currie put it in her final address, if Mr Vercoe and Mrs Batt had so merged their lives that for practical purposes they were living together as a married couple, then that inference must be drawn.However, if the inference could reasonably possibly be drawn from the evidence that the relationship did not have that quality and may only have been a flatting or boarding arrangement between long-term friends, without any corresponding long-term emotional commitment, then the Crown will not have proved that crucial element.

[23] The Judge then went on to discuss a series of factors which counsel for the Crown had described as useful tests in the ascertainment of the nature of the relationship.

[24] Mr Lithgow's argument is that the Judge in effect did not draw attention to the absence of evidence in respect of the financial test.In that respect the trial Judge said:

In this case it appears that Mr Vercoe did not have to support Mrs Batt, because she was of course receiving a benefit.Conversely, it appears that Mrs Batt did not have to support Mr Vercoe, because for most of the period in question he was apparently working.

[25] Mr Lithgow says by wording the matter in this way the Judge created an inevitable inference that had either party not been able to support themselves an obligation of support from the other would have come into play.We do not see the matter that way.The words are plain and the Judge was simply indicating that there was no occasion in which the support issue was put to practical application or test.In light of the other directions given by the Judge as to the nature of the test, we do not consider this part of the Judge's summing up has caused any miscarriage of justice.

[26] The checklist was described by the Judge as being "only factors and .... not determinative, either individually in or combination".It is said that by treating emotional support and shared financial responsibilities in this way, the Judge effectively invited the jury to consider financial responsibility as not determinative, whereas it was essential under the Ruka test.

[27] We do not consider one item in the checklist, described as sharing financial responsibilities should be equated with financial inter-dependence, as earlier discussed by the Judge.Overall the objections taken under this head are really aimed at the absence of direct evidence of actual or potential financial inter-dependence.That did not however detract from the entitlement of the jury to draw that inference on the information which they had.

Misdirection on Elements of the Offence

[29] The Judge directed the jury as follows:

There are four elements of that offence which the Crown must prove beyond reasonable doubt.

Firstly, the Crown must prove that during the period stated in the charge, or during some of that period, because the Crown is not bound to prove that the situation continued for the whole of the period, Mrs Batt was living in a relationship in the nature of marriage with Mr Vercoe.

Secondly, the Crown must prove that Mrs Batt wilfully omitted to inform Work and Income that she was living in a relationship in the nature of marriage.

Thirdly, the Crown must prove that that wilful omission was for the purpose of misleading Work and Income.

Fourthly, the Crown must prove that the misleading was itself for the purpose of continuing to receive a benefit.

The essence of the second, third and fourth elements is that the accused acted dishonestly.In other words, that means that the accused acted deliberately and knowingly in breach of a legal obligation.

The Crown must therefore prove that Mrs Batt deliberately omitted to provide Work and Income New Zealand with information regarding the status of her relationship with Mr Vercoe, knowing that she was under a duty to do so, and knowing that her failure to do so would or could affect her benefit status.In her own evidence Mrs Batt has admitted that she knew that, if she was living with Mr Vercoe in a relationship in the nature of marriage, she was obliged to disclose to Work and Income, and you would therefore be entitled to conclude that Mrs Batt herself has in effect acknowledged the second to fourth elements of the offence.

[30] Mr Lithgow argued that the Judge had missed a vital step and had in effect ascribed to the appellant a concession which she had not made.The Crown had to prove that the omission to inform was wilful.It had to be shown that the appellant was both in a relationship in the nature of marriage, and appreciated that to be so.If she appreciated her relationship was in the nature of marriage, she also had to appreciate she had an obligation to inform the appropriate authorities.The evidence of Mrs Batt, which the Judge took as being an admission of what he described as the second to fourth elements of the offence, was confined to the following exchange in cross-examination:

Q. You would be aware if a relationship in the nature of marriage existed it would be something that you had to tell Social Welfare?

A. Yes I was aware.

[31] The appellant's answer amounted to no more than an acceptance by her that if the disqualifying relationship existed, she had an obligation to tell Social Welfare.It was not a concession that such a relationship did exist; the more so it cannot have been a concession that she knew such a relationship existed. The Judge effectively told the jury that Mrs Batt accepted she knew she was in a relationship in the nature of marriage, when all along her defence was that she was not; and (necessarily) had no knowledge that she was.The important distinction between proof of the fact of the disqualifying relationship, and proof of knowledge by the accused of that fact, was adverted to by Tipping J in Thompson v Department of Social Welfare [1994] 2 NZLR 369, 371 (HC). While in the present case the Judge was obviously trying to assist the jury to focus on what was seen to be the crucial issue, he inadvertently misdirected on the important question of mens rea.He would thereby also have tended to undermine the appellant's primary stance which was that her relationship was not in the nature of marriage.She cannot have known it was, if all along she was saying it was not.Furthermore the problem on this aspect of the case must have infected the jury's approach to the charges under the Crimes Act 1961 which involved proof of an intent to defraud.

[32] The Crown advanced the submission that the Judge's direction should be seen in the light of the fact that no specific defence of lack of awareness was advanced at trial.There are two answers to the proposition that this cures what would otherwise have been a problem.The first is that the lack of awareness issue was necessarily included within the contention that the relationship was not a disqualifying one.It did not have to be discretely advanced, and to do so might not have been helpful to the defence case.The second answer is that unless a point of fact is expressly conceded, which the present point was not, nor indeed could it logically have been conceded, the Judge must direct the jury on it if it constitutes an essential ingredient of the offence.Here there was not simply a lack of direction, but a direction that the appellant had made a concession which on correct analysis she had not made.

[33] For the reasons given in this section of the judgment (paras [29]-[32]) a majority of the Court is of the view that there has been a miscarriage of justice and that the proviso cannot apply.The minority view is that in the light of the way the case was conducted at trial it is not open to the appellant to complain about the way the Judge directed the jury as set out in para [29].On all other issues the Court is unanimous.It is unnecessary in the circumstances to consider the ground of appeal based on the alleged inadequacies of the appellant's representation at trial.In accordance with the opinion of the majority, the appeal is allowed.The convictions are set aside and a new trial is ordered.The sentence appeal does not, in these circumstances, require consideration.

Solicitors

Neville Taylor, Christchurch, for Appellant

Crown Law Office, Wellington