Reed v R [2014] NZCA 525 (30 October 2014)

Last Updated: 5 November 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA228/2014 [2014] NZCA 525
BETWEEN	JILLIAN CLARE REED Appellant
AND	THE QUEEN Respondent

Hearing:	3 September 2014
Court:	Ellen France P, Asher and Clifford JJ
Counsel:	W D McKean for Appellant M D Downs for Respondent
Judgment:	30 October 2014 at 11.45 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

[1] The appellant was convicted after a jury trial of five dishonesty charges relating to the receipt of social welfare benefits. She was sentenced by the trial Judge, Judge Duncan Harvey, to six months home detention.^[1] The appellant appeals against conviction and sentence.
[2] The conviction appeal is brought on the basis that statements elicited from the appellant in the series of interviews with an officer of the Ministry of Social Development were wrongly admitted into evidence. That was because the interviews are said to have involved her being detained but not appropriately cautioned. The sentence is said to be manifestly excessive essentially because of the effect it will have on her wish to pursue a career as a nurse.
[3] We need to first set out the background before dealing with the appeal against conviction and then that against sentence.

Enquiries undertaken into the appellant’s benefit

[4] Following separation from her husband in October 2008 the appellant went on the Domestic Purposes Benefit (DPB). At the same time she also sought and was granted an accommodation supplement. The latter benefit supplemented her DPB by an addition of a weekly sum to help her pay her mortgage and other accommodation costs. The accommodation supplement ended in 2010 when the appellant sold her home.
[5] In February 2012 the Ministry wrote to the appellant saying that information had been received about her circumstances that the Ministry needed to check. In particular, the letter, dated 20 February, stated:

The information received is that Ian Thorburn and you are living in a relationship in the nature of marriage. We have to look into your past and present entitlement to benefit.

[6] The letter referred to the need to review the benefit to make sure that the appellant was getting the correct payments. The letter recorded that the authority for this review was s 81(1) of the Social Security Act 1964, a copy of which was attached to the letter. Section 81(1) deals with the Chief Executive’s entitlement to review a benefit to ascertain whether the beneficiary is receiving his or her entitlement or whether the beneficiary may not be, or may not have been, entitled to receive that particular benefit or the rate of benefit that is or was payable. The section provides also that for these purposes the Chief Executive may require the beneficiary or his or her spouse to provide any information or to answer any relevant questions. If the beneficiary or his or her spouse does not comply with such a requirement within such reasonable period as the Chief Executive specifies, the section makes it clear that the benefit may be suspended, terminated or the rate of benefit varied.
[7] The letter then asked the appellant to supply information for the period from 1 November 2009 to the present regarding herself and Mr Thorburn “to assist the Ministry with its enquiries”. The letter also said that the information was requested under the authority of s 11 of the Social Security Act. Section 11 sets out the Ministry’s power to obtain information.
[8] The appellant was asked to supply the relevant information within 10 days at the specified office of the Ministry of Social Development, namely, the National Fraud Investigation Unit. The letter also stated:

Soon an Investigation Officer in your area will contact you to arrange an appointment to discuss your situation. If you do not attend it may result in your benefit being stopped.

You are welcome to bring a support person with you to the interview if you would like to.

[9] The letter then explained that the request was made in compliance with the Code of Conduct for Obtaining Information under s 11. The explanation noted that collection of the information was not required under law and its supply was voluntary. The letter recorded that if “you do not supply it the Ministry will be able to issue notices under section 11 ... to other persons requiring them to provide the information”.
[10] The next event we need to note is a letter of 3 July 2012 to the appellant from Moetu Speight. Ms Speight described herself as an “Investigator, National Fraud Investigation Unit”. Ms Speight’s letter said that she had received information that the appellant’s circumstances may have changed, namely, that the appellant was living in a marriage type relationship with Mr Thorburn. Because of that, the letter explained the appellant’s benefit was being reviewed under the authority of s 81(1) of the Social Security Act. Ms Speight said: “We need to meet to discuss the information regarding this matter so please telephone me ... before 11 July 2012 to arrange a time and place to meet.” The ability to bring a support person was again noted.
[11] Following on from this letter, the appellant attended at the Ministry’s offices for her first interview on 3 August 2012. This interview was recorded. The appellant’s details were noted. Then Ms Speight asked whether the appellant was prepared to continue the interview without a support person to which the appellant answered “yes”. Ms Speight then stated:

Just give you your rights. This is a caution -- sorry, it went under the table. This is a voluntary interview, you are not being detained and you are free to leave this interview at any time. You do not have to how -- do not have to answer my questions, but anything you do say may be given in evidence. To ensure that you understand what is being said to you, could you please explain it back to me? If you just read that caution back.

[12] The appellant queried the reference to things being given as evidence noting that “[i]t sounds like it’s in a court of law”. The appellant then said that she understood this was a voluntary interview, she was not being detained and was free to leave the interview at any time. She also said “I do not have to answer [the] questions, however anything I do may be given in evidence but I’m not sure in evidence where, what are you talking about?” Ms Speight then said “[i]f this has to go to court” and the appellant said “oh, okay, yeah”. She then said that she was clear on that point. That interview lasted about an hour. In the course of the interview the appellant denied that she was living in a relationship in the nature of a marriage with Mr Thorburn, rather, she said that theirs was a financial arrangement.
[13] Though what was said is a matter of some debate, there was some discussion at the end of the interview. In the pre-trial decision dealing with the challenge to admissibility of this evidence, Judge de Ridder said:^[2]

[19] The evidence that I heard today was that there was some discussion after the finish of the interview about Ms Reed’s position and whether or not she was in a relationship. Ms Speight gave Ms Reed a document about that and there was some discussion about the need for the two of them to speak again. They expressed that in a neutral fashion although there was some debate between the informant and Ms Reed about the exact nature of that discussion.

[14] The appellant and Ms Speight met again on 16 August 2012. This meeting lasted about one hour and a half. The discussion on this occasion was recorded in handwriting and began with the following:

I am being given the following caution by Moetu Speight Investigator. “We have received information regarding your benefit entitlement and I would like to talk to you about it. You are not being detained and you are free to leave this interview at any time. You do not have to answer my questions. However anything you do say may be written down and used in evidence.

I understand the above caution and I am happy to answer questions and I am happy to continue without a support person.

[15] This caution was signed and dated by the appellant.
[16] In the course of this interview the appellant admitted that she had been living in a relationship in the nature of a marriage with Mr Thorburn from December 2010.
[17] We next refer to a letter from the Ministry of 8 October 2012 to the appellant. That letter commenced by recalling that the Ministry had received information about the appellant’s circumstances that needed to be checked. It continued:

To make sure you are getting the correct payments we need to review your benefit. We are doing this under the authority of s 81(1) of the Social Security Act 1964. A copy of this is attached for your information.

The information received is that you were not paying the mortgage payments for the home .... We have to look into your past and present entitlement to benefit.

[18] The letter went on to ask the appellant to supply the listed items of information to assist the Ministry with its enquiries. Again there was a reference to the authority of s 11.
[19] Then, in a letter dated 29 November 2012 to the appellant from the Ministry, it was noted that the investigation had “established that you failed to advise the Ministry of Social Development that you were not paying the mortgage, for the home”. The letter continued by noting that the benefit had to be reviewed because of this change and that the appellant had been overpaid. The amount of overpayment was noted and it was stated that this had to be repaid. The letter continued:

You can ask for this decision to be reviewed if you don’t agree with it.

...

We are now in the process of considering if you have committed an offence and if so whether we will prosecute you. This process involves us taking legal advice. When we have made a decision about prosecution we will contact you again.

[20] Again there was a request to contact Ms Speight to arrange an interview time to discuss the matter and again it was noted that a support person could be brought to that meeting. That letter attached a copy of s 127 of the Social Security Act setting out offences for making a false statement in relation to a benefit.
[21] There was a further meeting between the appellant and Ms Speight on 17 January 2013. Again, this interview of some one hour 18 minutes was recorded in a handwritten statement. The statement commenced:

I am being given the following caution by Moetu Speight Investigator. “We have received information regarding your benefit entitlement and I would like to talk to you about it. You are not being detained and you are free to leave at any time. You do not have to answer my questions. However anything you do say may be written down and used in evidence.”

Q Do you understand the caution?

A Yes.

Q Do you wish to answer questions put to you?

A Yes.

Q Do you wish to have a support person in this interview?

A No.

[22] The appellant was charged and, prior to trial, challenged the admissibility of the interviews.

Pre-trial challenge to admissibility of interviews

[23] The challenge to the admissibility of this evidence was brought on the basis of non-compliance with s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). That section provides that:

(1) Everyone who is arrested or who is detained under any enactment—

...

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right;

[24] Judge de Ridder decided that the appellant had not been detained.^[3] Rather, she made a conscious decision to cooperate and did so because she was determined to explain her situation. The Judge said this:

[62] In my view what has happened here is that Ms Reed has made a conscious decision to co-operate and the reason that she did so is that she was determined to explain her situation. She had an explanation to make both in respect of what she thought were the circumstances of her living relationship and she had an explanation to make in relation to the accommodation supplement. She was free to either go to the offices or not go as she saw fit. There was no suggestion that someone was going to come and get her if she did not.

[25] Further, the Judge said that having read the interview notes he was clear that the appellant had “a significant interest in staying and explaining her view about these two matters and indeed she confirmed that in evidence before me today”.^[4] He continued:^[5]

She was significantly concerned about the potential impact on her nursing career and she wished to explain her position in full.

[26] In addition, the Judge said that even if he was wrong in his conclusion, he would have admitted the evidence under s 30 of the Evidence Act 2006.

The conviction appeal

[27] The appellant made two primary submissions. First, at the time that the interviews were conducted the appellant was required to provide the information under an enactment and was detained. Accordingly, it is submitted that she should have been advised of her right to consult and instruct a lawyer. Secondly, it is said that the interviews were unfair because the appellant was not told that their purpose was a criminal investigation. In these circumstances, the detention was arbitrary and therefore involved a breach of s 22 of the Bill of Rights Act.^[6]
[28] In response, Mr Downs for the respondent submits that there was no power under s 81 of the Social Security Act to detain so there could be no question of any detention “under any enactment” as contemplated by s 23(1) of the Bill of Rights Act. Nor, he submits, was there any question of unfairness and so no arbitrary detention under s 22 of the Bill of Rights Act.
[29] We consider the short answer to the questions raised by the appeal is that Judge de Ridder was right to conclude, as a matter of fact, that the appellant was not detained. Having reviewed the evidence the Judge heard, it is plain that the appellant was concerned to explain her position because she appreciated that there would otherwise be consequences for her, namely, that her benefit would be cut. Accordingly, she accepted that she “need[ed] to tell [Ms Speight] my side of the story” and to do so to “make sure that there were no further consequences”. She was free to go at any time and she knew that.
[30] We add that the Judge’s assessment of the factual position is consistent with Ms Speight’s observation in her evidence that there was no right to detain or arrest the appellant. It is also, obviously, consistent with the caution given to the appellant at the start of each interview which she relayed back to Ms Speight. There is no issue about the appellant’s understanding of her position. At one point in her evidence before Judge de Ridder she expressed some concern about Ms Speight’s “aggressive” attitude as one of the interviews progressed but when her evidence is viewed as a whole, it is clear the constraint on her was the wish to explain her position.^[7] The Judge was right to conclude that she was not detained.
[31] On this analysis, it is not strictly necessary for us to consider the submission based on s 23(1)(b) of the Bill of Rights Act or whether the detention was arbitrary, but we do so because these matters were addressed in argument.

Detention under an enactment?

[32] The relevant statutory provisions relied on are ss 11 and 81 of the Social Security Act. Section 11 deals with the power to obtain information. The section gives the Chief Executive power by notice in writing to require any person to provide the department or a specified employee of the department with such information as the Chief Executive requires, or to produce any document, or to furnish any copies or extracts from any document or record within a period (not less than five working days after the notice is given) and in the manner specified in the notice and without charge.
[33] The relevant purposes for which information may be required include determining whether a person who is receiving, or who has received, a benefit is or was entitled to receive that benefit or payment or determining the rate of benefit or payment that is or was applicable.^[8]
[34] Section 11(3) makes it plain that a person who refuses or fails without reasonable excuse to comply with a notice under this section or in purported compliance knowingly or recklessly furnishes false or misleading information commits an offence. Section 11(4) states that the section does not require any person to provide any information or produce any document that will be privileged in a court of law except as provided in subs (5). Subsection (5) deals with claims for privilege and there is an ability under subs (6) to apply to the District Court for an order determining the validity of a claim to privilege.
[35] Under s 11B, the Chief Executive must issue a code of conduct dealing with obtaining information under s 11. The matters to be included in the code of conduct are set out in s 11C.
[36] As we have foreshadowed, s 81 provides a power to review benefits. Section 81(1) provides as follows:

(1) The chief executive may from time to time review any benefit in order to ascertain—

(a) whether the beneficiary remains entitled to receive it; or

(b) whether the beneficiary may not be, or may not have been, entitled to receive that benefit or the rate of benefit that is or was payable to the beneficiary—

and for that purpose may require the beneficiary or his or her spouse or partner to provide any information or to answer any relevant question orally or in writing, and in the manner specified by the chief executive. If the beneficiary or his or her spouse or partner fails to comply with such a requirement within such reasonable period as the chief executive specifies, the chief executive may suspend, terminate, or vary the rate of benefit from such date as the chief executive determines.

[37] If after reviewing a benefit under subs (1) the Chief Executive is satisfied that the beneficiary is no longer or was not entitled to receive the benefit or was entitled to receive the benefit at a different rate, the benefit may be suspended, terminated or the rate varied.^[9]
[38] The appellant says that the combination of these two sections gives the Chief Executive a power to detain which was exercised here.
[39] We agree with the respondent that the statutory powers do not encompass a power to detain. We acknowledge that there may be an issue about the extent to which various types of statutory examination processes trigger s 23(1)^[10] and about the correct approach to the phrase “detained under any enactment” in s 23(1) of the Bill of Rights Act.^[11] However, on the plain reading of the section, there was no power to detain the appellant.
[40] The appellant relies on Sullivan v Ministry of Fisheries.^[12] This Court in that case referred to the power under the Fisheries Act 1983 to question, the “concomitant implied power to detain for that purpose” and the duty to answer.^[13] Mr Sullivan, a lawyer, was charged with encouraging his client to obstruct a fisheries officer. His client was the person detained.
[41] We accept Mr Downs’ submissions as to the distinguishing features of that case. Section 79 of the Fisheries Act which was in issue in that case expressly preserved the right to protection from self-incrimination and it was an offence under ss 95 and 96 of the Fisheries Act to refuse to answer questions. By contrast, s 81 is a much broader information gathering power and is not as directly linked to the law enforcement process. One of the grounds for exercising the power to question under s 79 of the Fisheries Act was that the fisheries officer believed on reasonable grounds that an offence against the Act was being committed. Further, although s 11 was referred to it was not directly utilised in the context of the three interviews. Finally, the different focus between Sullivan and the present case is apparent from the fact that the appellant was told that if she did not provide the information the Ministry would get that from some other source under s 11.

Arbitrarily detained?

[42] Nothing that occurred might give rise to an arbitrary detention. The appellant was told about the right to silence and that the information she gave might be used in evidence against her. The high point of her evidence in relation to detention was that she did not feel she had “much choice” about continuing to participate in the interviews because of the consequences for her. However, the reality is that she stayed because she wanted to try to explain her position and did so knowing that there might be adverse consequences for her including, potentially, the laying of criminal charges. Moreover, the letters asking her to contact the investigation officers and provide information did not suggest detention or the prospect of detention. Nor was there any statement that she was compelled by legal authority to remain and answer questions during the course of the interviews.

Sentence appeal

[43] We can deal with this aspect shortly. That is because ultimately Mr McKean for the appellant properly did not seek to argue that the sentence was not within range. As Mr Downs said, the argument really is that this Court should reduce the sentence as a matter of clemency because of what is now known about the impact of the convictions on the appellant’s prospective nursing career. However, it is not clear on the information before us that the convictions will necessarily prevent her pursuing a nursing career. But, in any event, it appears that any adverse consequences would flow from the convictions rather than sentence and there is no suggestion that a discharge without conviction was a possibility. Finally, the Judge at the time of sentencing knew there were some difficulties and took them into account. The factual position has not really advanced beyond that.

Result

[44] For these reasons the appeal against conviction and sentence is dismissed.

Solicitors:
Webb Ross McNab Kilpatrick, Whangarei for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Reed DC Whangarei CRI-2013-027-608, 17 April 2014.

^[2] R v Reed DC Kaikohe CRI-2013-027-608, 6 November 2013.

^[3] R v Reed, above n 2, at [80].

^[4] At [66].

^[5] At [66].

^[6] Section 22 provides that: “Everyone has the right not to be arbitrarily arrested or detained.”

^[7] Judge de Ridder noted the appellant gave no examples of this behaviour and that the allegation Ms Speight acted in this way was not put to Ms Speight in crossexamination: at [46].

^[8] Sections 11(2)(a) and 11(2)(b).

^[9] Subsection (2).

^[10] Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [20.5.11]; contrast Police v Smith [1994] 2 NZLR 306 (CA) at 315 per Richardson J.

^[11] See generally Butler, above n 10, at [20.5.1]–[20.5.12].

^[12] Sullivan v Ministry of Fisheries [2002] NZCA 124; [2002] 3 NZLR 721 (CA).

^[13] At [61]; and see at [62] where the Court refers to compulsory detention.