THE QUEEN v CAROL LYNETTE MANN [2000] NZCA 383 (13 December 2000)

IN THE court of appeal of new zealand

ca 314/00

THE QUEEN

V

CAROL LYNETTE MANN

Hearing:	30 November 2000
Coram:	Gault J Robertson J Penlington J
Appearances:	SM Henderson and TG Tetitaha for appellant NM Crutchley for Respondent
Judgment:	13 December 2000

judgment of the court DELIVERED BY penlington j

[1] In May 2000, the appellant stood her trial before a Judge and jury in the District Court at Kaikohe on one charge, that between September 1993 and September 1997 she wilfully omitted to say to an officer concerned in the administration of the Social Security Act 1964, for the purpose of misleading such officer, that she was living with one David Ross O'Brien (Mr O'Brien) in a relationship in the nature of marriage and that such omission resulted in her continuing to receive an unemployment benefit.

[2] At the trial the appellant gave evidence and, as well, called a number of witnesses.

[3] The appellant was found guilty.On 21 August 2000 she was sentenced to six months periodic detention.She made reparation in the sum of $19,675.She now appeals against both the conviction and sentence (in respect of the reparation).We first set out the background.

BACKGROUND

[4] There were a number of conflicts between the evidence for the Crown and the evidence for the defence.Credibility was a central issue as will become apparent.

[5] The Crown case was that the appellant and Mr O'Brien lived at a property at 6 Seaview Road, Paihia in the Bay of Islands, in a relationship in the nature of marriage and that this fact was deliberately not disclosed so that the unemployment benefit being paid to the appellant was not reduced or cancelled.

[6] The appellant's case on the other hand was that she and Mr O'Brien never lived together in a relationship in the nature of marriage and that they were merely `good friends', `flatmates' and `business partners'.

[7] On 2 November 1992, the appellant, who was then living in Wellington, applied for an unemployment benefit.That benefit was granted on 16 November 1992.

[8] In the following year, 1993, the appellant moved to Whangarei and the benefit was renewed.

[9] The Crown case was that Mr O'Brien had commenced to board with the appellant in Wellington and that they then decided to go to Whangarei where they lived for a short time in 1993.

[10] On 15 November 1993, the appellant completed a change of address form stating that she had now moved to live at the Seaview Road property.In that form she made no reference to a partner.On the following day, 16 November 1993, she completed an application for the continuation of the unemployment benefit which was credited to an ASB account.

[11] The appellant deposed that she called at the Kawakawa office of Income Support Service in November 1993.She said that she told the Departmental official during the interview (which the interviewer noted down) about the house purchase at Paihia, shortly to be referred to.The appellant claimed that at the time she believed that she was not in a relationship in the nature of marriage and that she made it clear to the official that she was not in such a relationship.It was common groundthat the official who interviewed the appellant left New Zealand in 1994 and that at the time of the trialher whereabouts was unknown.

[12] Some of the Departmental records at this time have since been destroyed and that the interview entries in the computer for this time have been obliterated.The non availability of these records was the subject of an unsuccessful pre-trial application for a discharge on the ground that the non-availability amounted to an abuse of process.This ruling was the subject of one of the appellant's grounds of appeal to which we will return.

[13] There was evidence that the appellant and Mr O'Brien purchased the Seaview Road house property; that the appellant provided between $25,000 and $30,000 for the purchase;that they were registered as the owners as joint tenants; that they gave a first mortgage to the ANZ Bank; and that they opened a joint account with that bank.This account was used for the payment of the interest on the mortgage, rates and food.

[14] The Crown further alleged that the house was deliberately put into ownership as a joint tenancy knowing that the appellant would receive the property in the event of the prior death of Mr O'Brien.

[15] The appellant on the other hand deposed that the purchase of the house was only a business partners' venture for five years after which it was to be sold and the appellant was to return to Wellington.As to the ownership the appellant further deposed that she had asked her lawyer to put the Seaview Road property into the names of herself and Mr O'Brien as tenants in common and that she believed that that was the form of ownership of the property until she discovered otherwise after Mr O'Brien's death when she claimed to be `horrified'.

[16] Mr O'Brien was a plumber by trade.He commenced a plumbing business in Paihia and the surrounding area.The evidence showed that both the appellant and Mr O'Brien operated the joint bank account and that most ofthe bankings were carried out by the appellant.

[17] On 10 July 1994, the appellant and Mr O'Brien jointly applied to the ANZ Bank for a loan of $5000, to be secured by the mortgage on the house, to enable a vehicle to be purchased for the plumbing business.They both signed the application.The bank officer who took the application deposed that the appellant did not volunteer that she was on an unemployment benefit.The application form showed that the box concerning "Living with Partner" had been ticked.

[18] The prosecution led evidence to show that the appellant and Mr O'Brien were regular patrons of a local tavern where they were often seen together. The ANZ bank officer deposed that when he saw them there he had the impression that `they were together'.Another witness said that they spoke to one another `like husband and wife'; and yet another witness deposed that they behaved as a couple "Carol and Dave O'Brien".

[19] Darts was a popular pastime at the tavern patronised by the appellant and Mr O'Brien.A number of the tavern customers including the appellant and Mr O'Brien, would, as well as playing darts there, go to other places to compete with similar groups.They would stay away for the night.There was evidence that the appellant and Mr O'Brien went on about eight such trips.The appellant asserted that on these trips she and Mr O'Brien slept in single beds.

[20] Another Crown witness, a Ms Douglas, produced a photograph taken on her birthday in 1994 which showed the appellant and Mr O'Brien in an affectionate pose with their arms around one another.She also deposed that they used terms of endearment to one another.The appellant denied the latter.

[21] There was evidence of a barbeque at the Seaview Road property.Ms Douglas deposed that Mr O'Brien showed her through the house.She said there were two bedrooms; one at the end of the house which Mr O'Brien said was `their bedroom', and the other in the middle of the house where `Carol did her hairdressing'.(The appellant did some casual hairdressing work at home on a part time basis.)Ms Douglas said that there were no beds in that room.She placed the barbeque and the walk around the Seaview Road house as being within the first two years of the time when the appellant and Mr O'Brien came to Paihia to live.

[22] The appellant and a man called Mr Dawson gave a different version.They said the room at the end of the house was Mr O'Brien's room and that the appellant's bedroom was the other room.

[23] Yet another Crown witness, a Ms Sutton, a registered nurse by profession, deposed that she initially met Mr O'Brien professionally in 1995 in connection with his illness to which we shall shortly refer.She said that she subsequently met Mr O'Brien on a social basis at the local RSA where he introduced the appellant as "his good lady".The appellant denied that this was said.At the time of the meeting Ms Sutton was friendly with Mr Dawson. She later went into a relationship with him.Mr Dawson was a builder.He too was friendly with Mr O'Brien and they worked together on a number of jobs. There was evidence of the appellant bringing Mr O'Brienhis lunch on building sites and doing errands for him.

[24] Ms Sutton deposed that in one bedroom at the Seaview Road house there was a double bed and that the other bedroom did not contain a bed.She also deposed as to discussions with the appellant in which she expressed her deep feelings for Mr O'Brien and in which she described her sex life with Mr O'Brien as "incredible" until he became unwell.Ms Sutton also said that the appellant had indicated to her that she had `taken a lover', but he was not named.

[25] In 1995 Mr O'Brien was found to have a cancerous condition.A Dr Phillips deposed that as at April 1995 Mr O'Brien had a "poor prognosis".Surgery and chemotherapy followed.As the result of the surgery Mr O'Brien had a colostomy.While Mr O'Brien was in hospital there was evidence of the appellant being seen lying in Mr O'Brien's bed and kissing his forehead.This incident was denied by the appellant.For a time Mr O'Brien was in remission. He returned to his plumbing work.In 1997, however, his condition worsened once again.

[26] By mid 1997 Mr O'Brien was terminally ill.There was further surgery in the middle of that year.Mr O'Brien had previously been married.There were two children ofthat marriage.He wanted to find his children if possible before he died.They lived Australia.As the result, in August 1997 the appellant and Mr O'Brien travelled to Australia.While they were away, Ms Sutton and Mr Dawson renovated the Seaview Road property.

[27] After the appellant and Mr O'Brien returned, the latter's condition quickly deteriorated.Mr O'Brien applied for an Invalid's Benefit.He described himself as "single".A hospital bed was established in the lounge at the Seaview Road home. There was evidence that the appellant gave constant nursing attention to Mr O'Brien and that she was very emotional in Mr O'Brien's last days.He died on 17 September 1997.He did not leave a will.

[28] Ms Sutton, who had assisted the appellant in the nursing of Mr O'Brien, provided her with moral support immediately after Mr O'Brien's death.She accompanied the appellant to the undertaker.In the application for cremation Mr O'Brien was recorded as the appellant's partner.The information was obtained from her.The death notice was worded by the appellant.She deposed, on the other hand, that the wording of the notice was a mistake or an invention by the funeral director.

[29] A funeral service was conducted by a clergyman who spoke of the appellant and Mr O'Brien as man and wife.

[30] Following Mr O'Brien's death, the Seaview Road property was transmitted into the appellant's name by right of survivorship.Some outstanding debts were collected by Ms Sutton and Mr Dawson and the monies recovered were paid to the appellant.As well, the assets of the plumbing business were sold and the proceeds were paid to the appellant.

[31] After Mr O'Brien's death, there were Departmental enquiries as to the nature of the relationship between the appellant and Mr O'Brien.

[32] On 20 November 1997, a Miss Kaio interviewed the appellant.Initially, the appellant said that she was not in a relationship with Mr O'Brien.She was then handed a document entitled "Are you in a relationship?" which she answered in part. In one of her answers she stated that Mr O'Brien was unable to have sex after the onset of his illness.Ms Kaio deposed that after the appellant had answered the questions in the pamphlet she, that is the appellant, said that she was "unsure" if she was in a relationship.During the interview the appellant did not mention Mr Dawson.

[33] Later on the day of the interview between the appellant and Ms Kaio, the Crown case was that the appellant had a discussion with Ms Sutton during which she admitted that she had deliberately misled the Department as to where she was working in Wellington; that she had given the interviewer an incorrect name for her former employer; and that she had denied that there was any relationship between her and Mr O'Brien.Ms Sutton deposed that she advised the appellant to come clean with the Department.Ms Sutton also said that she tackled the appellant as to why she had not told her about receiving the unemployment benefit and that the appellant responded that she had not done so because she did not want to run the risk of being potted; that she needed the money because Mr O'Brien was not able to provide everything for her and that she had only had a part time job.

[34] Here it is proper to note that on the evening of the same day, 20 November 1997, Ms Sutton's relationship with Mr Dawson came to an end.She walked out on Mr Dawson.This followed a verbal altercation between the appellant and Ms Sutton when she found the appellant and Mr Dawson in a drunken state together.

[35] According to the Crown case, a relationship later developed between Mr Dawson and the appellant.On the other hand, the appellant's case was that it had already developed as early as May 1996.Both the appellant and Mr Dawson gave evidence to this effect for the defence.

[36] Sometime after the conversation between Ms Sutton and the appellant there was another telephone conversation which, in the event (according to Telecom records) lasted 76 minutes 18 seconds between Ms Sutton and the appellant. Both Ms Sutton and Ms Douglas gave evidence of this call.It was between a telephone at the manager's flat at the Mid North Motor Inn and the appellant. Ms Douglas heard the conversation because the speaker phone was activated by her.Ms Sutton told the appellant that she was prepared to make a statement but that she would not lie.

[37] In the course of the telephone discussion, according to both Ms Sutton and Ms Douglas, the appellant asked Ms Sutton to say that the appellant, and Mr O'Brien were not a couple "because nobody could prove it because nobody saw us in bed together".As well, it was said that the appellant said that she was going to fight any charges and to deny any allegations which were made against her.

[38] A further interview with the appellant took place on 19 January 1998 in the presence of her solicitor.Twenty-seven questions were put to her. She variously described the nature of the relationship between herself and Mr O'Brien as `a brotherly thing' and `a business deal'.The appellant denied that it was a sexual marriage type relationship.At this interview, the appellant asserted that she had been seeing someone else for the last eighteen months and that Mr O'Brien was aware of this matter.

[39] On 12 February 1998 the unemployment benefit which had been hitherto paid to the appellant was cancelled.An overpayment of $28,051.02 was then alleged.

[40] The appellant rested her appeal against conviction on five grounds.

First Ground: The Destruction of Departmental Records

[41] The appellant contended that the Income Support Service (now known as WINZ) had lost or destroyed relevant records and that it had thereby unfairly and incurably prejudiced her defence so as to cause a miscarriage of justice of such a substantial nature that the conviction was unsafe.

[42] There was a pre trial application for a discharge on this ground.The Judge received both affidavit and oral evidence on the application.At this time, the appellant faced two other counts, both alleging offences on 16 November 1993, the day the appellant called at the Kawakawa Office of the Income Support Service - one charge of fraudulently obtaining a pecuniary advantage by the use of an application to continue the unemployment benefit (count 1); and the other a charge of wilfully omitting to say to an Income Support Service officer for the purpose of misleading such officer that there had been a change of circumstances in that she had income from a joint bank account in the name of the appellant and Mr O'Brien (count 3).

[43] It was clear from the evidence given on the pre trial application that information on the computer for the period pre-August 1994 was intended to be downloaded and archived but instead because of `a problem' was destroyed.As well, from time to time the Department destroyed older documents such as applications for renewal and changes of address.In the case of the appellant these latter documents had however somehow escaped this process.

[44] The Judge in his pre-trial ruling upheld the appellant's application for a discharge on these counts.He said:

I have reached the conclusion that with respect to counts one and three in the indictment, the accused should be discharged from those counts, because the destruction and/or loss of potentially crucial documentary evidence relating to the events in November 1993 constitutes a breach of the accused's right properly to prepare and present a defence, contrary to s24(d) of the New Zealand Bill of Rights Act.

[45] On the count upon which the appellant later stood her trial - count 2 - the Judge said:

With respect to count two, however, I note that on the accused's own account she did not inform ISS at Kawakawa during her visits that she was living in a relationship of marriage with Mr O'Brien - indeed, quite to the contrary, her assertion being that she made it quite clear that she was not.

[46] The Judge later concluded:

The reasoning which led to the discharge from counts one and three does not apply to count two.The accused does not assert that at the November 1993 meeting she informed the Department that she was living in a relationship equivalent to marriage with Mr O'Brien.To the contrary, she maintains that at that time she honestly believed she was not living in a relationship of marriage with him, and for that reason she did not disclose to the Department something which she did not believe.Accordingly, the events of November 1993 are much less central to count two than they were in relation to counts one and three.

Miss Tetitaha endeavoured to argue that the same reasoning did apply because of the accused (sic) subjective and honest belief that she was not in a relationship of marriage then the discussion she had with Ms Bibb were (sic) of importance.I am not persuaded by that submission.

[47] The appellant gave the same evidence at her trial as she gave when the pre-trial application was heard.She told the jury that she had disclosed that she had a business partner when she bought the house:

We were flatmates and were in a business arrangement over the house.That would have been roughly what I said.

[48] Thus before the jury the appellant accepted that she did not disclose that she was in a de facto relationship.

[49] Mr Henderson attacked the Judge's adverse ruling.He contended that the Department had lost or destroyed `the best evidence' of what the appellant actually said to the Departmental official.He contended that she had disclosed in that interview the nature of her relationship with Mr O'Brien.He further contended that the absence of the records precluded her from pointing to them as confirmation of what she had said to the official.Mr Henderson also relied on the fact that Mr O'Brien was now dead and so was not available to confirm the appellant's assertion.

[50] We are unable to accept Mr Henderson's submission.The appellant's evidence before the jury, as it was before the Judge, on the pre-trial application, was that at the November 1993 interview, she made it clear that she was not in a relationship of marriage with Mr O'Brien.Rather it was flatmates/business relationship.It could have been true then but it is equally clear from the jury's verdict that they concluded that either then or later it was not true.The jury disbelieved her.They found that the prosecution had established beyond reasonable doubt that she had in fact been in a relationship in the nature of marriage with Mr O'Brien which she did not disclose.In our view the absence of the documents did not thereby occasion any prejudice to the appellant.Accordingly, we reject the first ground of appeal.

[51] Like the Judge we consider it extraordinary that a policy of widespread destruction of departmental records existed.Though in this case the records destroyed were not crucial evidence, there will no doubt be many cases in which the Department cannot expect to mount successful prosecutions for non-disclosure if the documents upon which the prosecutions are based are no longer in existence.

Second Ground: The acceptance of a late indictment.

[52] The second ground of appeal was a complaint that the Judge wrongly granted the Crown leave to file the indictment out of time under s.345B(1) of the Crimes Act 1961.Section 345B(1) provides:

(1) If, upon application, it appears to a Trial Judge that it is in the interests of justice to extend the 42-day period referred to in section 345A of this Act for filing an indictment, he or she may order that the time be extended for such further period or periods as he or she thinks fit.

[53] The relevant chronology was as follows:

DateEvent

10 February 199942 day period expires

12 February 1999indictment "filed" and served by letter.

15 February 1999application for leave and memorandum in

support filed; service overlooked.

16 March 1999application for leave and supporting

memorandum served.

[54] Thus, the application for leave was five days late.

[55] The Judge held that there was "no possible prejudice" to the appellant from the indictment being filed out of time.

[56] Mr Henderson conceded, as he had to do, that five days' delay amounted to "minor lateness".He argued however that the Judge ought to have brought into the scales in the exercise of his discretion the earlier delays which had occurred.

[57] In our view, it was clearly in the interests of justice that leave be granted.The delay did not occasion any prejudice to the appellant.We are unable to accept Mr Henderson's argument that the earlier delays were a relevant consideration on this application.The second ground of appeal must therefore fail.

Third Ground: The admission of a hospital pre-admission form relating to Mr O'Brien.

[58] The third ground of appeal concerned the admission into evidence of a hospital pre-admission form relating to Mr O'Brien.In it the appellant is described as Mr O'Brien's "spouse".As part of its case the Crown desired to produce under s.3(1)(a) of the Evidence Amendment Act (No.2)1980 this hospital document called a "preadmission form" relating to Mr O'Brien when he went into hospital for surgery.The appellant contested the admissibility of the document.

[59] Section 3(1)(a) provides

(1) Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if --

(a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or ...

[60] It was common ground between the Crown and the appellant:

[a] That if Mr O'Brien had been available to give evidence he could have given evidence of the facts recorded in the document;

[b] That Mr O'Brien had personal knowledge of the matters dealt within the statement;

[c] That Mr O'Brien was, by virtue of his being dead, unavailable to give evidence;

[d] That Mr O'Brien was, at the time the document was created, seriously ill and did go into hospital.

[61] Before the Judge the appellant argued that there was inadequate proof on the balance of the probabilities that Mr O'Brien was "the maker of the statement" and, alternatively, that the Court in the exercise of its overriding exclusionary discretion under s.18 should rule the document as inadmissible because Mr O'Brien was dead and therefore not available for cross-examination.

[62] The Crown adduced evidence on a voir dire from a Ms Smith of the practice of requiring patients, if at all possible, on admission to complete a pre-admission form.Ms Smith however was not present when Mr O'Brien signed the form and she did not have any independent knowledge of Mr O'Brien's signature.

[63] The Judge concluded that in the light of the circumstances in which the pre-admission form was completed, the only reasonable inference available was that Mr O'Brien was the maker of the statement.He found that the document on its face appeared to have been completed and signed by Mr O'Brien; that his signature was clearly legible; that there was no basis for the contention that someone else signed as Mr O'Brien or that the document was created without his participation; and that Ms Smith's evidence, whilst not specifically relating to the document, suggested that it was more likely than not that Mr O'Brien would have completed a pre-admission form when he was admitted to hospital.

[64] Before us, Mr Henderson repeated the argument which was advanced in the District Court.He contended that the Crown evidence did not establish that Mr O'Brien signed the form and that Mr O'Brien's doctor or a handwriting expert could have been, but in the event was not, called to verify the signature.

[65] We are unable to accept Mr Henderson's argument.Section 16 allows the Court for the purpose of deciding whether or not any statement is admissible as evidence under the Act, to draw any reasonable inference from the circumstances in which the statement was made and in the case of a statement in a document from the form and contents of the document in which it is contained.

[66] In our view, for the reasons given by the Judge, he was entitled to draw the inference that Mr O'Brien was the maker of the form.Likewise, we do not consider that there was any substance in the argument that the Judge ought to have exercised his overriding exclusionary jurisdiction to exclude the document simply because Mr O'Brien was dead and therefore not available to give evidence.To exclude on that account would be to defeat the purpose and intent of the Act.For these reasons we therefore reject the third ground of appeal.

Fourth Ground: Judge's comment as to evidence not being put.

[67] The fourth ground of appeal concerned a comment by the Judge in his summing up that some of the appellant's evidence in relation to her relationship with Mr Dawson was not put to Ms Sutton in cross-examination.

[68] The background to the complaint was as follows.

[69] First, Ms Sutton gave evidence of her relationship with Mr Dawson and the demise of that relationship on 20 November 1997.Secondly, the appellant gave evidence that she was at the time of the trial in a relationship with Mr Dawson and that an on again off again boyfriend/girlfriend relationship between them had arisen before Mr O'Brien's death.In this regard she deposed in evidence in chief:

I'll ask the question again, you referred to some, what was your relationship in 1997 with David O'Brien?I was his caregiver.

What was your relationship with Mike Dawson?On again off again.

When you say on again off again what do you mean?He was having terrible trouble with Dianne Sutton, he wanted the relationship over and she generally didn't.

[70] At this point the Crown objected to the appellant's evidence on the ground that the nature of the relationship between Mr Dawson and Ms Sutton was not put to the latter.The Judge saw counsel in Chambers.

[71] The Judge did not give a formal ruling.He indicated however that the topic would be the subject of comment by him in the summing up.The appellant's counsel was not however denied the right to pursue the topic but that was at the appellant's risk.We were informed from the Bar by Ms Crutchley that by the time the point arose, Ms Sutton had returned to her home in Hamilton to get ready to go overseas, she having delayed her departure on account of the trial.Thus, recalling Ms Sutton was not an available option.

[72] In the Judge's summing up, he said:

I note that some of what was said about the accused's relationship with Mr Dawson, and in particular what Miss Sutton did or did not do in that context, was not put to Miss Sutton when she gave her evidence.So she did not have an opportunity to answer the comments made about her.What you make of the defence evidence concerning this aspect of the case is again solely a matter for you.

[73] And a little later:

It is a matter for you but you may conclude, and Miss Tetitaha invited you to, that Miss Sutton's evidence in particular is coloured by a feeling of animosity by Miss Sutton towards Ms Mann as a result of the break up of Miss Sutton's relationship with Mr Dawson and the ill feeling which resulted when Miss Sutton found out about the earlier relationship between the accused and Mr Dawson. The defence suggest that Ms Douglas' and Miss Sutton's recollection on some of the matters they covered in their evidence are either mistaken or plain wrong.

[74] Mr Henderson argued that the Judge erred in directing the jury as to the appellant's counsel's failure to put her version of her relationship with Mr Dawson to Ms Sutton.Mr Henderson contended that it was unnecessary for the appellant's counsel to put the issue to Ms Sutton as she had volunteered that the appellant had told her that she, that is the appellant, had a lover.

[75] In our view, the Judge was correct in giving the directions which he gave. Ms Sutton was an important witness.The appellant put her credibility in issue for the reasons alluded to by the Judge later in his summing up.Fairness dictated that she be given the opportunity to comment on the appellant's version of her friendship with Mr Dawson and of the deterioration of Ms Sutton's relationship with Mr Dawson.The failure of the appellant's counsel to put the appellant's version denied Ms Sutton that opportunity.See Gutierrez v R [1997] 1 NZLR 192 (CA).For these reasons, the fourth ground of appeal must therefore fail.

Fifth Ground: Papadopolous Warning

[76] The fifth ground of appeal concerns the giving of a Papadopolous warning. After the jury had been deliberating for over five hours they asked a question. It was as follows:

Clarification about:

1. They were in a relationship in the nature of marriage.Do we have to agree on this point before we can carry on with the other four points of the charge.

[77] The Judge having stated the question then answered it in this way:

Now members of the jury the factual issue as to whether Ms Mann and Mr O'Brien during the period covered by the indictment were living together in a relationship in the nature of marriage is the central issue which you have to decide.

If you are all agreed for whatever individual reasons that there was not a relationship in the nature of marriage then you do not have to consider the other elements of the charge and your verdict should be one of not guilty.

On the other hand, if you are all agreed that there was a relationship in the nature of marriage and as I indicated each of you can have your individual reasons for reaching that conclusion, but if you get to that point then you should go on to consider the other four elements in the charge.

If, as is possible, you are presently unable to agree on this central issue, namely whether there was in fact a relationship in the nature of marriage, then I would like to say a few points about your inability to agree.

[78] Immediately after giving that direction the Judge gave a Papadopolous direction.

[79] Mr Henderson now contends:

[i] That the Judge did not answer the jury's question;

[ii] That the jury had not indicated that it could not reach a verdict;

[iii] That the question conveyed the message that there were at least some jurors who were of the view that the appellant was not in a relationship in the nature of marriage with Mr O'Brien;

[iv] That the Judge ought to have waited until the jury had considered his further direction before giving a Papadopolous warning; and

[v] That in these circumstances the Judge was therefore wrong to have given it.

[80] In Ms Crutchley's written submission, she argued first that the Judge properly answered the question; and secondly that given the length of the retirement at the time the question was put to the Judge, he was entitled to infer that the jury was having difficulty in agreeing on the central issue in the case and the warning was therefore appropriate.

[81] First, we are unable to accept Mr Henderson's submission that the Judge did not answer the jury's question.Secondly, we are of the opinion that it was open to the Judge to construe from the jury's question that it was having difficulty in agreeing.His answer directed the attention of the jury to the central issue upon which the prosecution case stood or fell.Whether the Judge should have waited for a further period of time was in his discretion.In the event, he decided to give the warning after he had answered the jury's question.We might not have taken that step then but we are not prepared to say the Judge was wrong in the exercise of his discretion.Ultimately, the jury found the appellant guilty.In so doing they must have found each essential ingredient of the charge proved beyond reasonable doubt.It cannot therefore be said that there was a miscarriage of justice.

[82] For these reasons, the fifth ground of appeal must also fail.

Appeal against conviction: Result

[83] All the grounds of the appeal against conviction having failed, the appeal is therefore dismissed.

Appeal against sentence.

[84] The appeal against sentence was directed at the reparation only.

[85] The Judge intimated that if reparation was paid in full then a full time prison sentence would not be imposed.The sentencing was adjourned to enable that to occur.There was then a dispute as to the amount of reparation.The Crown finally sought $22,053.The appellant asserted that the overpayment amounted to $17,297.This was a difference of $4756.At the time of sentencing the dispute was unresolved.The Judge did not hold a fact finding hearing in accordance with R v Bryant [1980] 1 NZLR 264 (CA).Instead, he simply "split the difference" acknowledging that that was a necessarily arbitrary approach "for which there is probably not legal precedent but perhaps biblical precedent".The appellant was required to pay, and has in fact paid $19,675.

[86] Mr Henderson contended that in the absence of a fact finding hearing and a decision thereon, the Judge ought to have adopted the figure most favourable to the appellant.Ms Crutchley readily acknowledged the correctness of this submission.

Appeal against sentence: result

[87] The appeal against sentence is accordingly allowed.We fix the reparation at $17,297 in lieu of $19,675.The Crown is to refund to the appellant the sum of $2,378.For completeness we add that the sentence of six months periodic detention is to remain undisturbed.The appellant is to report on the first Wednesday after the delivery of this judgment to the Kaikohe Work Centre between 4 pm and 6 pm and thereafter as specified by the Warden; the maximum period is to be ten hours.

Solicitors

Henderson Reeves, Whangarei, for Appellant

Crown Law Office, Wellington, for Crown