Lawson v R [2012] NZCA 426 (19 September 2012)

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Lawson v R [2012] NZCA 426 (19 September 2012)

Last Updated: 26 September 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA593/2011 [2012] NZCA 426

BETWEEN SONJA MARIE LAWSON Appellant

AND THE QUEEN Respondent

Hearing: 13 September 2012

Court: Harrison, French and Simon France JJ

Counsel: Appellant in person M J Lillico for the Respondent

Judgment: 19 September 2012 at 2.15 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Sonja Lawson appeals against her conviction on 15 charges of using a document with intent to obtain a pecuniary advantage, dishonestly and without claim of right, following a trial before Judge Roberts in the District Court at New Plymouth.[1] Miss Lawson does not appeal against her suspended sentence of nine months imprisonment.
[2] The charges arose from Miss Lawson’s receipt of state benefits. The Crown allege that she misused benefit forms submitted to Work and Income New Zealand (WINZ) between January 2006 and August 2009 by failing in all 15 cases to disclose that she had bonus bonds available to her as income and, additionally, in eight cases by failing to provide accurate information about her rental obligations.
[3] Miss Lawson was represented at trial by Ms Hughes QC. She represents herself on this appeal. She advances about 20 grounds in support. A common theme runs through many of them and a number overlap. Another five are not appeal points. Included within that latter category are an allegation of a failure to ensure that the prosecution was heard in what Miss Lawson calls a closed court; breach of a name suppression order; and WINZ disclosure of Miss Lawson’s prosecution to third parties.
[4] In the interests of giving focus to Miss Lawson’s appeal we have distilled her arguments into what appear to be her primary grounds. Before addressing each we shall summarise the material findings made by Judge Roberts. We add that in argument on appeal Miss Lawson referred to a large number of additional documents which were not produced at the trial.

District Court

[5] The trial in the District Court occupied three days of hearing. The Crown called 11 witnesses. Miss Lawson gave evidence in her defence but did not call additional witnesses. All witnesses read briefs of evidence. Some were cross-examined. Ms Deirdre Fell, the WINZ Service Centre Manager at Hawera, was the principal Crown witness.
[6] The factual element of each charge was not in dispute at trial. Miss Lawson was in receipt of a state invalid benefit throughout the period covered by the charges. The charges were generated by her application for a special benefit on 10 January 2006. Subsequently she signed and submitted a number of other forms for special needs grants and benefit reviews. She obtained a pecuniary advantage in the form of new or additional benefits to a cumulative value of more than $18,000.
[7] The primary area of dispute at trial related to the mental element of each charge. Miss Lawson’s state of mind when signing the forms was squarely in issue. Each document signed by her was in standard form and contained boxed sections for completion of relevant information. After provision for the applicant’s address and date of birth, the form specifically asked whether the applicant had any cash assets. Examples of cash assets were listed in the margin as including “money in bonus bonds”. Miss Lawson answered this question in the negative on each form. The form also asked the applicant to list usual living expenses and commitments, concluding with the applicant’s recital that he or she had completed all questions and “the information I have given is true and complete”.
[8] All charges were based upon Miss Lawson’s failure to disclose her ownership of bonus bonds. Judge Roberts made these three unchallenged findings about Miss Lawson’s ownership of the bonds: (a) she held the bonds from July 1998 through until May 2010 including the period covered by the charges; (b) as at 31 January 2006 the value equivalent of the bonds was $2,030, progressively increasing to about $21,000 by August 2009; and (c) she did not disclose these assets in any of the forms which she signed. However, Miss Lawson, as we shall explain, asserted at trial and again on appeal that she had made separate disclosure of ownership to WINZ.
[9] Judge Roberts specifically referred to the prosecution’s obligation to prove beyond reasonable doubt that when Miss Lawson used the documents specified in the individual charges she did so dishonestly and without claim of right, intending to obtain the particular benefit.[2] In finding that the Crown had discharged that burden on Miss Lawson’s failure to disclose ownership of the bonus bonds the Judge set out his reasons fully as follows:[3]

(a) Miss Lawson has been in conflict with the department over a period, now, well in excess of 10 years. She otherwise presents as an intelligent, articulate and alert woman. I have difficulty in those circumstances accepting that she is a beneficiary and a long-term beneficiary, that she was not aware of her obligation to make full and open disclosure.

(b) The documents – the Work and Income forms are crafted in simple and unequivocal terms. Question, “Do you have any cash assets”. There is assistance for the person completing that form in the margin nominating bonus bonds as a cash asset. The negative answer is tendered by Miss Lawson on a repeat basis. At no point is there any documentary evidence contemporaneous with the various dated Work and Income forms to indicate or suggest that the issue of cash assets in the form of bonus bonds or the like has been raised or addressed. The accused claims and demonstrates a meticulous and detailed approach in all her dealings with the department yet there is no documentary material, nor is there any supporting witness proffered to provide support to her claims of disclosure. The assertion by the advocate Howatson is outside the span of the time covered by these various charges.

(c) Within her written brief the departmental witness Deidre Fell details for the relevant period, as between April 2006 and April 2010, a special benefit would not normally be available if cash assets equal to or above varying amounts, as between $869.81 and $970.87 were disclosed. The witness did go on to say that in circumstances where a beneficiary had perhaps sold a house and was in the process of relocating and expecting to spend what generated sums there were, the exception can be there afforded. Disclosure, however, is required.

(d) The value of the bonus bonds is, as I have already indicated, an increasing one. While the accused continues to maintain disclosure was made when the value of those bonds stood at its highest level, that is to say in excess of $21,000, it is difficult in the extreme to contemplate how that amount might avoid enquiry by the department. The accused, I repeat, claims disclosure and the proposition was refuted by the prosecution witnesses. There is not a shred of evidence aside from her own assertions and claims to support her contention of disclosure in this regard.

(e) Her claim that others, unknown and unidentified, deposited funds to her credit for the purchase of bonus bonds is unconvincing in the extreme, as is her claim that she was otherwise unaware of the increasing amounts paid into bonus bonds by way of purchase for her credit. She, after all, was certainly able to access and withdraw monies as she did.

(f) The accused has indeed a convenient form of logic. Within her brief the accused claims she had been given advice that provided the funds were set aside for a specific and established purpose those funds or bonds would not be classified as assets as they were cancelled by debts owed. One of these liabilities was, too, an instructing solicitor, and while the accused might be accommodated with a definition of legal expenses extending to cover the cost of travel and appointments, her assertions are clearly at odds with reality. The department, after all, has a ceiling level that generally applies in relation to cash assets. At no time over a two year period was any anticipated liability elevated to the point of an actuality.

[10] The Judge concluded that each of the 15 documents was completed on the basis that it did not truly recite the nature and extent of Miss Lawson’s assets. He was satisfied that when signing the forms she did not honestly believe she was entitled to the benefits claimed.[4] Accordingly, her claim of right could not be sustained.
[11] The Judge acknowledged that the eight charges which also included an allegation of failure to properly disclose rental obligations provided some difficulties. However, after reviewing the relevant evidence he found that Miss Lawson had deliberately overstated her rental obligations in all cases.[5] We add that proof of this fact was not decisive if Miss Lawson’s conviction on the 15 charges was independently sustainable for dishonest non-disclosure of ownership of the bonus bonds. The allegation of Miss Lawson’s overstatement of her rental obligations was a secondary factor in evaluating her intention at the relevant times.

Decision

(a) Counsel error

[12] Four of Miss Lawson’s remaining 15 appeal points fall into the composite ground of an allegation of trial counsel incompetence leading to a miscarriage of justice. They are Miss Lawson’s primary points of complaint and are particularised as Ms Hughes’ refusal to call witnesses against Miss Lawson’s wishes; a conflict of interest; a failure to produce documents essential to Miss Lawson’s defence; and a failure to advise to elect a trial by jury.
[13] Miss Lawson’s submission encounters a threshold objection. This Court is unlikely to consider an allegation of trial counsel incompetence without an appellant’s waiver of privilege unless the allegation can be made out clearly without allowing counsel to respond.[6] This exception will apply in the absence of a waiver of privilege if the only arguable grounds of appeal are those where there could be no reasonable explanation for counsel’s conduct or where that conduct, even if reasonable, nevertheless resulted in a miscarriage of justice.[7]
[14] Miss Lawson has not signed a waiver of privilege under r 12A(6) of the Court of Appeal (Criminal) Rules 2001. This Court has previously placed her on notice of the importance of taking this step. In a minute issued following Miss Lawson’s earlier appearance on 13 June 2012 the Court specifically noted:[8]

... where an appellant says that his/her trial lawyer did or did not do things they should have done, the usual practice is for the appellant to waive legal privilege. In other words, to file a letter saying he or she agrees that the Crown counsel can talk to his/her trial lawyer about private discussions between the appellant and the lawyer about the trial. Whether [Miss] Lawson did that was up to her but not doing this would limit her in arguing the grounds of appeal relating to what Susan Hughes QC did/did not do at trial.

(Emphasis added.)

[15] Some of Miss Lawson’s allegations of trial counsel error cannot be determined without a waiver and an affidavit in answer from Ms Hughes. For example, we have no reliable evidential basis for deciding whether Miss Lawson acted on Ms Hughes’ advice not to call certain witnesses, not to produce certain documents or to elect trial by Judge alone rather than jury. Normally a client would give instructions on these issues after receiving measured advice and guidance from an experienced counsel. In the absence of an affidavit from Ms Hughes we cannot determine whether that course was followed here.
[16] We can say, however, that Miss Lawson’s summaries of the proposed evidence of numerous witnesses whom she said should have been called do not materially assist her appeal. Moreover, without sworn affidavits from the particular proposed witness or witnesses we cannot evaluate whether that evidence would have assisted Miss Lawson’s defence within the ultimate enquiry into whether there has been a miscarriage of justice.
[17] Miss Lawson’s allegation of a failure to produce documents is similarly problematic. Judge Roberts recited that Miss Lawson had been in constant conflict with WINZ throughout the period covered by the charges. A similarly constant theme of her submissions on appeal is that WINZ staff members had destroyed or removed critical documents from departmental files. On this basis she alleges prosecutorial perjury and perverting the course of justice. At trial she referred to her own personal file containing at least 10,000 pages of documents and another 10,000 receipts, invoices and the like. She brought many volumes of documents with her when arguing her appeal.
[18] In these circumstances Ms Hughes would have faced significant difficulties in identifying what documents, if any, were truly relevant to Miss Lawson’s defence and evaluating their evidentiary value. As it was, a large bundle of documents was produced by consent through Ms Fell. While she did not apply for leave to adduce fresh evidence, in argument on appeal Miss Lawson placed some emphasis on documents which she said supported her evidence at trial that she discussed her possession of bonus bonds with WINZ officers when submitting her benefit forms.
[19] One such document was a bonus bond certificate (awarding a prize), apparently stamped by a WINZ officer as a copy of an original on 10 January 2006. Mr Lillico points out that the bonus bond certificate allegedly date stamped by WINZ on 10 January 2006 was for $40. The uncontested prosecution evidence is that Miss Lawson then owned bonus bonds of $1,670. Once viewed in that context Miss Lawson’s stamped certificate has little relevance. While it potentially provides evidence that WINZ saw one or two certificates, it does not take Miss Lawson very far in establishing disclosure of all. This is particularly so given the total bonds she held at various times (over $20,000) and the very small sample it represents. The evidence establishes that if WINZ had known of the total value of Miss Lawson’s bonds at any relevant time it would have resisted her entitlement to the particular special benefit in issue.
[20] At trial Miss Lawson had asserted that she physically attached applications for bonus bonds to benefits forms submitted to WINZ. Her assertion was inconsistent with the WINZ evidence. It is also inconsistent with the special benefit application form signed on 10 January 2006 where Miss Lawson specifically answered the question of whether she had any cash assets in the negative. As already noted, the application form identified money in bonus bonds as an example of cash assets. Mr Lillico emphasises that Miss Lawson’s obligation was to give full and accurate disclosure, especially in a situation where disclosure of assets of more than $870 would have disentitled her to a special benefit.
[21] What must be kept in mind throughout consideration of Miss Lawson’s appeal is that each charge alleged that she dishonestly and without claim of right used a specific form to gain a pecuniary advantage – whether a special benefit application form, a special benefit review form, a WINZ review form, or a special needs grant or advance on benefit. Thus the trial focus was on her state of mind when signing the particular form, which was the primary documentary evidence on each charge. The additional documents to which Miss Lawson extensively refers have no relevance, direct or indirect, to any particular charge or the charges in general.
[22] Miss Lawson’s allegation of conflict of interest is unarguable. It is based upon an assertion that Ms Hughes has or has had professional relationships with the Stratford Racing Club and the Taranaki District Health Board. Lawyers have professional associations with a wide range of bodies and individuals. We cannot see how Ms Hughes’ associations with the racing club or a health board might in any way have adversely affected her independence or performance in discharging her professional obligations to Miss Lawson when defending a prosecution by the state.
[23] Miss Lawson’s primary ground of appeal of trial counsel error is unsustainable.

(b) Prosecution misconduct

[24] In general terms Miss Lawson alleges that the Crown was guilty of misconduct when prosecuting the charges by refusing to provide her with full disclosure, falsifying signatures on documents produced in evidence, interfering with witnesses, calling witnesses who perjured themselves, allowing Crown witnesses to be present in court when evidence was given by the other witnesses, altering documents and removing evidence, breaching suppression orders, discussing the case with third parties and threatening to damage Miss Lawson’s property and assaulting her.
[25] These wide-ranging allegations are without apparent foundation and we cannot determine them in the absence of findings at trial or a formal application to adduce further evidence. As noted, once the factual element of each charge was made out, the sole issue for determination was Miss Lawson’s state of mind when signing each document. The various particulars raised by Miss Lawson are irrelevant to this critical aspect of the prosecution.
[26] This ground of appeal is also unsustainable.

(c) Error by trial Judge

[27] Miss Lawson asserts that Judge Roberts incorrectly construed relevant sections of the Social Security Act 1964. However, as Mr Lillico points out, the Crown elected to lay charges under s 228(b) of the Crimes Act 1961. It did not pursue criminal proceedings against her under s 127 of the Social Security Act. Thus the latter statute did not fall for consideration by the Judge.

(d) Failure to consider Miss Lawson’s brief

[28] Miss Lawson alleges that Judge Roberts failed to consider her evidence. However, the generality of this allegation disqualifies it from proper evaluation on appeal. We infer that Miss Lawson is submitting that the Judge was bound to accept what she said on oath. However, it was open to him to accept or reject, wholly or in part, her evidence. It is plain from the face of the judgment that the Judge gave Miss Lawson’s evidence detailed consideration. But having seen and heard Miss Lawson, and weighed her evidence against other evidence given in the case, he rejected it. He was entitled to take this approach.
[29] We should add that, while Miss Lawson does not directly challenge the Judge’s findings of dishonesty or his reasons, we have nevertheless read the trial transcript to determine whether he had a sufficient evidential basis for his conclusions. We are satisfied that such a factual foundation existed. The prosecutor questioned Miss Lawson carefully on each charge. His cross-examination occupies 68 pages of the transcript.
[30] In summary, Miss Lawson’s explanations for the falsities apparent on the face of the forms followed a consistent pattern. She asserted that on each occasion she discussed the form with different WINZ staff members when signing; that each staff member advised it was unnecessary for her to list ownership of the bonus bonds as a cash asset because it was put aside to meet liabilities; that WINZ had destroyed file notes of advice given by its staff; and that WINZ had removed her contemporary correspondence including copies of bonus bonds certificates annexed to forms. In some cases Miss Lawson initially denied purchasing bonus bonds, suggesting others were responsible. There are obvious inconsistencies inherent in Miss Lawson's assertions that, on the one hand, WINZ staff consistently advised her she was not required to disclose her ownership of the bonus bonds in the benefit documents and that, on the other hand, she always attached copies of the bond certificates to the forms. It is not unfair to characterise many of Miss Lawson’s answers as evasive, diversionary and implausible; taken together, they convey an adverse impression of a sustained practice of dishonesty. It was open to the Judge in these circumstances to reject her exculpatory explanations.
[31] We add that we have not considered the evidence relating to Miss Lawson’s overstatement of her rental obligations. As noted, if all the charges are sustainable on proof of dishonest non-disclosure of ownership of the bonus bonds, the rental overstatement issue becomes irrelevant.

(e) Ultra vires

[32] Miss Lawson appears to assume that the prosecution was in effect an appeal against a Benefit Review Committee decision or a Social Security Appeal Authority ruling. The authority is simply a judicial authority for determining appeals against decisions of the Chief Executive of the Ministry of Social Development when administering and granting benefits. A decision in that forum cannot exclude the District Court’s criminal jurisdiction to hear charges laid by WINZ against Miss Lawson within s 28A of the District Courts Act 1947.

(f) Denial of a fair hearing

[33] Miss Lawson’s final apparent ground is that she was denied a fair hearing because the Crown had limited resources and WINZ did not grant financial assistance to aid her defence. We do not need to say more in answer to this ground than to point out that Miss Lawson received legal aid in order to conduct her defence in the District Court and indeed in this Court until 19 April 2012. Not only was Miss Lawson granted legal aid, but the grant extended to retain a senior and experienced criminal lawyer.[9]
[34] Miss Lawson was permitted to read at trial her prepared brief which contained a large quantity of material of marginal admissibility at best. Ms Hughes interrupted the reading at various times to expand or clarify aspects, to provide focus, and to ensure the essence of the defence was exposed. There was also then a lengthy re-examination which carefully brought to the fore key aspects of the defence. We see no basis for complaint about the resources provided or the efforts made to ensure a fair trial.

Result

[35] Miss Lawson’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Lawson DC New Plymouth CRI-2010-021-1078, 26 August 2011.
[2] At [23].
[3] At [25].
[4] At [26].
[5] At [28]–[32].
[6] Patea v R [2010] NZCA 338 at [17].
[7] E (CA113/2009) v R (No 2) [2010] NZCA 280 at [2].
[8] Lawson v R CA593/2011, 14 June 2012 at [3].

[9] We add that an earlier hearing of this appeal was adjourned and we appointed counsel to assist the Court. He was later given leave to withdraw on the ground of a potential or perceived conflict of interest but not before he had made various unsuccessful attempts to contact Miss Lawson.