Renes v R [2021] NZCA 188 (14 May 2021)

Last Updated: 18 May 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA268/2020 [2021] NZCA 188

	BETWEEN	SKYE AMBER RENES Appellant
	AND	THE QUEEN Respondent

Hearing:	23 March 2021
Court:	Collins, Ellis and Muir JJ
Counsel:	S Brickell for Appellant S A H Bishop and J L Garden for Respondent
Judgment:	14 May 2021 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

• [1] Ms Skye Renes is a physiotherapist and a registered treatment provider for the purposes of the accident compensation scheme. She was charged with a number of frauds said to have been perpetrated by her on the Accident Compensation Corporation (ACC).
• [2] Following a month-long trial in the Whangārei District Court in 2019, she was convicted of two charges of obtaining a pecuniary advantage by deception (charges 13 and 21 on the charge list) and a charge of dishonestly using a document with intent to obtain a pecuniary advantage (charge 37).^[1] At the end of the Crown case, 11 other charges were dismissed under s 147 of the Criminal Procedure Act 2011 (the CPA). The jury returned not guilty verdicts on 21 further charges and could not reach a verdict on three other charges. Ms Renes was sentenced to 200 hours’ community work.^[2]
• [3] Ms Renes now appeals her three convictions.

BACKGROUND

Payment of accident treatment costs by ACC

• [4] ACC provides no-fault comprehensive insurance cover for all people in New Zealand who suffer a personal injury arising from an accident.
• [5] The comprehensive cover not only includes weekly compensation payments based on the pre-accident income of earners, but also includes paying medical and treatment costs to providers and suppliers such as general practitioners, physiotherapists, dentists, surgeons, and psychologists.
• [6] There are 50 provider groups in total and approximately 25,000 individual providers registered with ACC. All ACC providers must hold an annual practising certificate, certifying that the health provider is competent to practice their profession. An ACC identification number is assigned to both the “vendor” organisation and the individual provider providing the service.
• [7] All ACC’s registered treatment providers are permitted to invoice ACC for treating individuals who have suffered a personal injury by accident. ACC’s obligation to meet the cost of such treatment is governed by cl 2 of the First Schedule to the Accident Compensation Act 2001, which provides that:
  2. When Corporation is liable to pay cost of treatment

(1) The Corporation is liable to pay the cost of the claimant’s treatment if the treatment is for the purpose of restoring the claimant’s health to the maximum extent practicable, and the treatment—

(a) is necessary and appropriate, and of the quality required, for that purpose; and

(b) has been, or will be, performed only on the number of occasions necessary for that purpose; and

(c) has been, or will be, given at a time or place appropriate for that purpose; and

(d) is of a type normally provided by a treatment provider; and

(e) is provided by a treatment provider of a type who is qualified to provide that treatment and who normally provides that treatment; and

(f) has been provided after the Corporation has agreed to the treatment, unless clause 4(2) applies.

• [8] ACC makes it clear to treatment providers that they must have personally provided the treatment for which a claim is made. While a vendor organisation is permitted to have other providers working for it under its vendor number, vendors are required to identify the provider who provided the treatment by using his or her own provider number when invoicing ACC for treatments.
• [9] When a patient sees an ACC provider for the first time for an accident related injury, the provider will have the patient fill out an ACC45 form. This form comprises six parts:

(a) Part A: Personal Details – completed by the patient, covering their personal details;

(b) Part B: Accident and Employment Details – completed by the patient, outlining how the injury occurred and where it happened;

(c) Part C: Patient Authorisation and Declaration – completed by the patient, declaring they have read and understood the patient authorisation and declaration information;

(d) Part D: Injury Diagnosis and Assistance – completed by the treatment provider, confirming injury diagnosis and indicating if assistance is required;

(e) Part E: Ability to Work – completed by the treatment provider, detailing capacity and fitness for work; and

(f) Part F: Treatment Provider Declaration – completed by the treatment provider, certifying that they have personally examined the patient and confirming that the injury is as a result of an accident. The declaration reads:

I certify that, on the date shown, I have personally examined the patient and that in my opinion the condition is the result of an accident. I also certify that the patient (or their representative) has signed the Patient Authorisation and Declaration and has authorised me to lodge the claim on their behalf.

• [10] The ACC45 form is submitted to ACC by the provider and a decision based on the legislative cover criteria is then made. If the treatment claim is accepted, ACC makes the payment to the vendor’s bank account. Claims for subsequent treatments are made on an ACC47 form.
• [11] Because ACC provides compensation for treatments of injuries caused by accidents or specified medical conditions, preventative treatments, such as strapping or massage to athletes before a competition, are not eligible for ACC payments.

Ms Renes and Fizeo Works Ltd

• [12] Ms Renes manages and part-owns a company known as Fizeo Works Ltd (Fizeo). Fizeo is an ACC “vendor”, providing physiotherapy, massage and similar services to patients. Fizeo had an agreement with ACC to supply treatment for covered injuries to the public at ACC’s expense. The company employed registered physiotherapists and a range of other staff, including non-New Zealand registered physiotherapists, student physiotherapists, massage therapists, personal trainers, and administration staff. As well as those physiotherapists who were, individually, registered ACC providers, Fizeo itself had an ACC registration number. The company was only entitled to invoice ACC for work provided by New Zealand registered physiotherapists.
• [13] Fizeo used a practice management system called Houston, which allowed the company to transmit data from ACC45 and ACC47 forms directly to ACC. In effect, this enabled Fizeo to invoice ACC for treatments without sending in the physical forms.

The charges

• [14] In essence, ACC alleged that Ms Renes dishonestly submitted multiple ineligible claims for payment. The claims were made using provider IDs belonging to her or to other registered physiotherapists employed by Fizeo, but (ACC said) the relevant treatments were either ineligible for payment or had been provided by other staff who were not New Zealand registered physiotherapists.
• [15] As well, Ms Renes completed an ACC24 (provider registration) form in the name of Timothy Whale, who was employed as a graduate physiotherapist by the company for one week in early 2016. Mr Whale said that this registration form had been filled out and signed on his behalf by Ms Renes, without his knowledge or consent. His evidence was that Ms Renes had forged his signature on the application.
• [16] We replicate the three relevant charges (charges 13, 21 and 37) as they appeared on the charge list below.
• [17] Charge 13 was expressed as follows:

The said Crown Solicitor further charges that SKYE RENES, between the 27^th day of December 2013 and the 11^th day of January 2015 at Whangarei, by deception and without claim of right, obtained a pecuniary advantage.

Particulars: Fees for around 629 treatments invoiced under Skye Renes’ ACC provider ID that were provided by Chelsee Peita [sic], a non-registered provider.

REPRESENTATIVE CHARGE

• [18] Charge 21 was expressed as follows:

The said Crown Solicitor further charges that SKYE RENES, between the 5^th day of December 2012 and the 9^th day of November 2014 at Whangarei, by deception and without claim of right, obtained a pecuniary advantage.

Particulars: Fees for around 294 treatments invoiced under Katherine Spence’s ACC provider ID that were not provided by Katherine Spence.

REPRESENTATIVE CHARGE

• [19] Charge 37 stated:

The said Crown Solicitor further charges that SKYE RENES on or around the 11^th day of January 2016, at Whangarei, dishonestly and without claim of right, used a document with intent to obtain a pecuniary advantage.

Particulars: ACC24 form in Timothy Whale’s name.

THE TRIAL

The jury booklet

• [20] At the beginning of the trial, the Judge told the jury:

Each of you will be provided with a booklet prepared by the Crown which summarises the evidence relating to each of the 34 charges of obtaining a pecuniary advantage by deception.

The important point about this document is that the document itself is not evidence. It is simply a summary of the evidence that the Crown proposes to lead in respect of each of these 34 charges. It is designed to assist you in following the evidence as it relates to each of the charges. But it does not constitute evidence on its own, and should not be used as evidence by you in assessing the charges.

However, you may use it to follow the evidence in relation to each of these 34 charges and you may use it to make your own notes.

• [21] The booklet referred to by the Judge was distributed by the prosecutor during his opening address. We are told that defence counsel was consulted about its contents, although the booklet also seems to have developed iteratively — by the jury inserting spreadsheets provided to them — during the trial.
• [22] By the end of the trial, the jury booklet contained a spreadsheet that particularised the 629 treatments (said to have been provided by Ms Pieta) underlying charge 13 in tabular form. The table divided the 629 treatments by reference to 27 separate events (mainly rodeos) between December 2013 and February 2015. The table began by recording the first 20 of those treatments in some detail, by reference to:

(a) the names of the patients treated;

(b) the relevant ACC45 claim number;

(c) the treatment date;

(d) the amount claimed from ACC;

(e) the name of the consulting provider (Ms Renes);

(f) the date the claim was signed;

(g) the date the claim was received by ACC; and

(h) the date the claim was paid by ACC.

• [23] The remainder of the 629 treatments were recorded in summary form, by reference to the names and dates of the relevant events, the number of treatments given on each day of the event, and the amounts claimed from ACC.
• [24] The booklet particularised the 294 treatments referred to in charge 21 in a similar way.

ACC’s evidence

• [25] During the trial, evidence was given by Ms Fiona Taylor and Mr Allan Levett about ACC’s audit of Fizeo, the interviewing of staff, and the filtering of ACC’s raw claims data, which ultimately led to the creation of the spreadsheets. Put briefly, over the six-year period spanned by the audit, ACC’s computer system contained approximately 42,000 separate claim records relating to Fizeo’s providers. Interviews with staff assisted ACC to identify particular date ranges or claims relating to particular providers that were of interest. This filtering process ultimately led ACC to conclude that approximately 3,400 of the claim records were, in some way, fraudulent. These are the records summarised in the jury spreadsheets for each charge. The spreadsheets reflected the various filters used.

The evidence relating to charge 13

• [26] As noted earlier, charge 13 relates to work allegedly done by Chelsea Pieta but charged under Ms Renes’ name. Ms Pieta was a student massage therapist employed by Fizeo. She was neither a qualified physiotherapist nor an ACC registered provider who was eligible to submit ACC45s. She said that although initially her duties mainly involved providing massage therapy to clients, after her graduation as a massage therapist she began to take on more responsibility. From 2012 she began to attend rodeos and sports tournaments throughout the country to care for attendees. She remembered attending these events sometimes alone, sometimes with Shannon Edmonds-Tito (another massage therapist ineligible for registration with ACC), and sometimes in groups that included Ms Renes.
• [27] Ms Pieta’s evidence was that her work at sports tournaments sometimes involved treating players, including strapping and diagnosing acute injuries. At Ms Renes’ direction, she would then sign ACC45 forms, using Ms Renes’ name and provider number. The forms would later be entered into the practice management system and so sent to ACC.
• [28] Ms Pieta said that she became more involved in physiotherapy work after Ms Renes herself suffered an injury in July 2014. She would see patients, complete an ACC45 form with them, and then complete treatment ranging from preventative strappings to addressing acute injuries. She would complete diary entries, patient notes, and other paperwork all under Ms Renes’ name. After the tournament, Ms Pieta would return with “piles” of forms, which Ms Renes would later sign.
• [29] During her examination in chief, Ms Pieta said very little about the specific events or claim records referred to in the jury spreadsheet for charge 13. There were only two even vaguely relevant exchanges.
• [30] The first was as follows:

Q. Can you remember when that was, when you started doing the rodeos?

1. Oh, rodeo, yeah, Keita left in 2012, so I started doing rodeo kind of with her in 2012 I started, yeah, I started, and then, yeah, we used to do down, all the way down to, like, Rotorua and stuff, and then we’d make our way all the up, up to Kaitaia, and then all the way down to South Island.

Q. So who would be on these trips following the rodeo?

1. Um, well, Skye would be there on some of them and then near, like, the end in 2015, ’14, there was a couple of times that me and Shannon Tito, Edmonds-Tito, we went away to South Island and did about three rodeos down there.

• [31] Beyond referring to them being in the South Island, she did not specify where or when these “about three” rodeos occurred. The second relevant exchange was slightly more specific. Ms Pieta referred to being at Wellsford Sevens with Shannon, but not Ms Renes:
  17. Now, still back, we’re still concentrating on the rugby and the sporting tournaments–

A. Mhm.

Q. – who would go and work these tournaments?

1. Um, there would be probably, like – oh, on specific times there would be all of us going, so there would be at the time whoever was working, there were some times – and sometimes there would be either just me and/or me and Shannon a lot of times some of the rodeo and sevens tournaments, in particular one of the Wellsford Sevens tournaments when Shannon went and that was a bit – I remember that because I got in trouble for that one in that we had set up outside the clubrooms at Wellsford and one of the boys, he had got an acute injury ... then so I strapped it and I diagnosed it, which I’m not supposed to diagnose, and gave him the ACC 45, he filled it out ...
17. All right, we won’t worry about what they said but there’s – about that treatment you’ve described and the ACC 45 form, can you remember now in whose name, what provider number was used?
1. Yeah, Katherine Spence, yeah, ...

• [32] It can usefully be interpolated at this point that although the particulars for charge 13 did refer to treatments given by Ms Pieta at the Wellsford Sevens, the unifying allegation was that the treatments had been charged under Ms Renes’ — not Ms Spence’s — name.
• [33] When the different events underlying charge 13 were put to Ms Pieta in cross-examination, she accepted that she was either not herself present at a number of them, or that Ms Renes was also present (and so the claim records for that event could have related to treatments provided by her). On our reading of her cross-examination, she only had a clear recollection of two events that she had attended and Ms Renes had not:^[3]

(a) The Wellsford Sevens, which took place on 8 November 2014. Ms Pieta again said that she attended the event with Ms Edmonds-Tito and accepted that her work (including strapping work) had been billed under Katherine Spence’s provider number. The jury spreadsheet records that 15 treatments, with a value of $569.38, were given at that event.

(b) The Lawrence and Waikouaiti Rodeos on 31 January 2015 and 1 February 2015. Ms Pieta said that these South Island events were attended by herself and Shannon Edmonds-Tito (who was also not an ACC registered provider) and that Ms Renes was working with the Kiwi Ferns (the New Zealand women’s rugby league team) at the Auckland Nines competition. The jury spreadsheet recorded that a total of 28 treatments was provided at these two rodeos, with a combined value of $960.40.

• [34] Ms Pieta’s evidence about the Wellsford Sevens was supported by the evidence of Ms Edmonds-Tito, with whom defence counsel had the following exchange:

Q. So, first of all, did you go to the Wellsford Sevens tournament?

A. Yes.

Q. Who with?

A. Chelsea.

Q. Any physio with you?

A. No.

17. So in terms of the documentation and the processing, if you like, what slots did you use?

A. Ah, Skye’s and Kaitlyn’s. Oh, Katherine’s. Whatever her name is.

• [35] Ms Renes herself also accepted in her evidence that she was not present at either the Wellsford Sevens or the Lawrence and Waikouaiti Rodeos.

The evidence relating to charge 21

• [36] As noted earlier, charge 21 was said to relate to fees for around 294 treatments invoiced under Katherine Spence’s ACC provider ID that were not provided by Ms Spence between December 2012 and November 2014.
• [37] Ms Spence gave evidence of the specific dates she believed Fizeo had billed under her provider ID when she was not working. But some of this evidence was undermined during cross-examination, when Ms Spence conceded that ACC45 forms she had filled out suggested that she had, in fact, worked on two of the relevant days. Ms Spence did not accept that it was possible there were other instances where she might have been mistaken. Her evidence that she had not attended the Wellsford Sevens tournament between 7 and 9 November 2014 was corroborated by both Ms Pieta and Ms Edmonds-Tito, discussed above.

The evidence relating to charge 37

• [38] Timothy Whale gave evidence at trial that his ACC24 registration form had been completed, signed and filled in before his first day as a Fizeo employee and that his signature had been forged by Ms Renes. When shown the ACC24 form in question, he confirmed the signature was not his and was “not even close”.
• [39] He rejected the suggestion, put to him in cross-examination, that he gave Ms Renes permission to sign the form on his behalf.

The Crown’s closing address

• [40] In his closing address, the prosecutor (Mr Smith) addressed the issue of representative charges in the following way:

Representative charges are appropriate in those cases where a specific date in time may not be able to be identified particularly given the passage of time, and particularly when you’re talking about a method, if you like, “This is how it was.” You’re not proving the individual instance, if you like. You’re proving the system, and that’s what it is in many of these charges.

So the key there and what must be proved is that it occurred at least once. “Are you sure that it occurred in relation to that charge on at least one occasion?” So you will see when we go through the different particulars and schedules that there on some, a witness has indicated, “Well maybe those three, but those two I was away.” I’m just using that as an example.

So as a representative charge, it’s not a requirement that every single line is proved to any particular standard. What you have to be sure about for a representative charge is that it occurred at least once, the dishonesty, the deception.

• [41] We observe that these comments were at odds both with the framing of the charges (which alleged 629 and 294 discrete offences) and with the particulars contained in the jury booklet, which were, in fact, specific as to dates and individual instances.

The Judge’s summing-up

• [42] In his summing-up, the Judge dealt with the representative charges only once, and briefly. He said:

[14] As you know all charges except charges 3 and 4 are representative charges. What that means is that the Crown alleges that the offending happened at least once during the period specified in the charge. In respect of each of those representative charges, in order to find Ms Renes guilty you must be satisfied that during the dates alleged the offending happened at least once.

• [43] The summing-up and the Judge’s question trail treated all the 26 obtaining by deception charges generically — neither referred to the particulars of the various charges and no distinction was drawn between those charges that were representative and those that were not. The Judge was, in fact, mistaken in saying that only the third and fourth charges were not representative.^[4] And the question trail did not refer to representative charges at all.

The ninth jury question

• [44] Both during the trial and during their deliberations, the jury asked a number of questions. The ninth such question was in the following terms:
  • Charge 13. 629 claims
  • Wellsford 7’s, Lawrence & Waikouaiti Rodeo, sky[e] is found not be present at the above events
  17. You mentioned, if one treatment is proven guilty that means sky is guilty for that whole charge?

(- out of 629 treatments there are a average of 48 treatment not provided by skye & they were billed)

- can you split the number of charges?

• [45] When the Judge answered the jury’s question, he said:

I have interpreted your question as centering around the issue of a representative charge, which of course this charge that you questioned about, charge 13, along with all of the others except charges 3 and 4, are representative charges. What that means is that the Crown alleges that the offending happened at least once during the period that is specified in the charge.

So in respect of charge 13 in order to find the defendant guilty, you must be satisfied that during the dates alleged the offending happened at least once. So that is the key issue as I have interpreted your question, so hopefully that assists in that regard but of course I also stress that very direction applies to all of the charges, except charges 3 and 4 because apart from those two charges all of the charges are representative. Thank you for that.

• [46] This answer repeated the error made by the Judge in his summing up, as to the number of representative charges. The error was, however, corrected by him shortly afterwards, when he made it clear that charges 35, 36 and 37 were also not representative.

Sentencing

• [47] As noted earlier, Ms Renes was, eventually, only convicted of charges 13, 21 and 37. In later sentencing her, the Judge was required to consider the question of reparation (which had been sought by ACC). In that respect he said:

[12] The next issue which, as I have already commented on to some extent, is the more difficult issue, that is the issue of reparation. That, of course, is subject to specific provision in the Sentencing Act 2002 which essentially says that where the Court is satisfied of loss then, except in circumstances where there might be financial hardship, the Court must order reparation, but of course the Court has to be satisfied as to the actual loss and in that respect, of course, these are representative charges which means that the jury only have to be satisfied that there was one instance of such behaviour in order to convict, which simply means, of course, that unless there was clear evidence on which a logical conclusion can be drawn, then it is simply speculative as to what amount or what number of occasions the jury was satisfied were involved.

[13] As for the Crown, I cannot discern clearly the basis for the calculation which is around about $11,000 in total, as I understand it, but equally, in my view, the submissions made for you about the amount involved, which is something over $2000, is likewise difficult to calculate and it is not clear as to how that figure is reached and certainly I am of the view that it is entirely speculative as to what the jury might have reached and I do not accept the conclusions as suggested by Mr Wall based on the acquittals on other charges. That is a possibility but no higher than that, certainly not to the point where I can be satisfied as to an exact amount, so I am left in a situation where the amount involved could be something between, I think, $2700 to something approaching $13,000, I think it might be, in fact, for the Crown. Where within that range the amount fits I cannot simply determine and, as I have said, especially seeing these were representative charges.

THE APPEAL

• [48] The appeal in relation to Ms Renes’ convictions on charges 13 and 21 centres on their representative nature. More specifically, it is said that:

(a) Both charges particularised a very high number of alleged frauds (629 and 294 respectively), but the prosecutor led very little (in some occasions no) evidence that the fraud was at the level being represented to the jury. This placed the appellant at a considerable disadvantage and effectively reversed the onus of proof, putting her in a position where she had to attempt to prove her innocence by attempting to challenge each of the alleged treatments that she was alleged to have invoiced for fraudulently.

(b) The charges were defective because there were distinguishing features within the charges that meant they should have been broken up into separate representative charges. This court cannot be satisfied that there is was a common foundation for the verdicts on those charges and so the trial miscarried.

• [49] The appeal in relation to charge 37 is based on the proposition that the jury verdict is unreasonable because, as a matter of law, Ms Renes could not be guilty of using the ACC24 form with intent to obtain a pecuniary advantage. Even if she acted dishonestly and without a claim of right, that document could never have provided her with a pecuniary advantage. It is also submitted that the judge misdirected the jury in relation to the elements of the offence.
• [50] It is convenient to deal with the challenge to Ms Renes’ convictions on charges 13 and 21 together, and then to address the challenge to her conviction on charge 37.

CHARGES 13 AND 21

Representative charges: the law

• [51] Section 20 of the CPA provides:

20 Charge may be representative

(1) A charge may be representative if—

(a) multiple offences of the same type are alleged; and

(b) the offences are alleged to have been committed in similar circumstances over a period of time; and

(c) the nature and circumstances of the offences are such that the complainant cannot reasonably be expected to particularise dates or other details of the offences.

(2) A charge may also be representative if—

(a) multiple offences of the same type are alleged; and

(b) the offences are alleged to have been committed in similar circumstances such that it is likely that the same plea would be entered by the defendant in relation to all the offences if they were charged separately; and

(c) because of the number of offences alleged, if the offences were to be charged separately but tried together it would be unduly difficult for the court (including, in any jury trial, the jury) to manage the separate charges.

• [52] Section 17(6) of the CPA requires the prosecutor to provide additional particulars if the charge is a representative charge. The particulars are the minimum that the prosecution must establish to prove the charge.
• [53] There are important differences between representative charges laid under s 20(1) and those laid under s 20(2). A representative charge should not be filed under s 20(1) if the evidence supporting that charge discloses identifiable, discrete instances of offending.^[5] But this principle does not apply in s 20(2) cases because that subsection is predicated on the existence of multiple discrete, but very similar, offences.
• [54] The legislative history makes it clear that s 20(2) (an equivalent of which did not exist prior to the enactment of the CPA) was a response to judicial criticisms of indictments — particularly in fraud cases of the present kind — containing very large numbers of separate charges.^[6] As the explanatory note to the Criminal Procedure (Reform and Modernisation) Bill 2010 stated:

Representative charges

While a charge should normally relate to a single offence, the Bill allows for representative charges in 2 circumstances. The first circumstance is where there has been repeated conduct over a period of time but it is not possible to fully particularise the individual charges. This largely codifies current practice and the common law that has developed since the issuing of a Practice Note that permitted the use of representative charges in sexual cases (Practice Note—Form of indictment—particulars of sexual offending (21 November 1994)).

The second circumstance is new. It is aimed at addressing difficulties that arise for Judges and juries where there are a very large number of charges of the same type (for example, fraud or other dishonesty charges) and the circumstances are such that the defence on 1 charge is likely to be the same for the other charges. Representative charges will be available where there is repetitive or multiple offending in circumstances where particulars are available but the number of charges makes separate charges unmanageable and the verdict on 1 charge is likely to be the same as the verdict on all charges.

• [55] Before the enactment of s 20, the Courts had made it clear that where the evidence relating to a representative charge (which, at that time, was necessarily of the s 20(1) variety) disclosed discrete and distinguishable incidents of offending of the relevant kind, a jury must unanimously agree on the specific facts (essential elements) on which any guilty verdict relies. For example, in R v P (CA184/99), this Court said:^[7]

[19] It had not been suggested in any interlocutory proceeding or at trial that the Judge should not have permitted the representative charges to go to the jury. Except in respect of the alleged conduct of the appellant when C was indisposed through suspected cyanide poisoning, we see no basis for concern about the representative charges. R v Accused [1993] 1 NZLR 385 reviews the justification for representative counts where there has been a continuing pattern of criminality rendering repetitive acts incapable of being defined with the particularity generally required by virtue of s 329(6) of the Crimes Act 1961. The practice has occurred in New Zealand for at least 15 years and is the subject of a Practice Note issued by the Chief Justice and the Chief District Court Judge on 7 December 1994.

...

[21] In the present case the alleged conduct of the appellant following the suspected accidental cyanide poisoning was distinguishable in the context of a period of otherwise repetitive and undistinguishable events. The distinguishable conduct could properly have been the subject of its own representative count, but it was not. Even in such circumstances the risk of injustice could be adverted by an appropriate direction. When dealing with the representative charge it was open to the Judge to instruct the jury that they must be unanimously satisfied beyond reasonable doubt that all the elements of rape coincided on one or more occasions in the period specified in the charge. If they decided to focus on a particular incident such as, for example, the suspected cyanide poisoning incident, they must be unanimously satisfied that all the elements of rape coincided on at least one occasion during the period when the complainant was indisposed.

...

[24] It is necessary also to mention, for the assistance of the trial Judge on any new trial, how the jury might be instructed if the appellant were again to give evidence of reasonably specific incidents of admitted intercourse. The actual conduct itself was not confirmed by the complainant with any particularity and accordingly there is no requirement on the Crown to allege specific offences conforming with the appellant's evidence at the recent trial. But if the pattern of his evidence should be repeated the jury would have to be instructed that it could not convict on the general representative charge of rape in reliance on any of the specific admitted incidents unless they were unanimously satisfied beyond reasonable doubt that all the elements of rape coincided in respect of any particular incident they found occurred. Specific reference may well then have to be made by the trial Judge to incidents which had been particularly identified, including by the appellant.

(emphasis added).

• [56] As far as we are aware, however, there are no New Zealand cases that discuss a unanimity requirement where the representative charge has been laid under s 20(2). Whether or not that requirement exists is central to this appeal; we discuss it further, below.

Discussion

• [57] To the extent that Ms Renes’ challenge to her convictions on charges 13 and 21 is founded on criticism of the Crown evidence, it is misconceived. We agree that the Crown evidence for many of the individual discrete offences underlying the charges was sparse or non-existent. But that only favoured the defence. And while we also accept that the sheer number of underlying offences placed a heavy burden on defence counsel, that burden would have been no less had they been charged individually or grouped on some other basis. We do not propose to address that aspect of the appeal further.
• [58] Rather, we see Ms Renes’ appeal against her convictions on charges 13 and 21 as involving two key questions:

(a) Were representative charges appropriate?

(b) Was a unanimity direction required?

• [59] The two questions are somewhat related.

Were the representative charges appropriate?

• [60] We begin by noting that, contrary to what the prosecutor seemed to suggest in his closing address,^[8] the representative charges here were — if anything — laid under s 20(2), not s 20(1). This was plainly not a case involving multiple offences of the same type whose nature and circumstances were such that the dates and details could not reasonably be expected to be particularised. And the dates and details of the offences were, in fact, particularised, in the jury booklet.
• [61] So the question is whether the representative charges were of the kind contemplated and authorised by s 20(2), which (to reiterate) requires that:

(a) multiple offences of the same type are alleged; and

(b) the offences are alleged to have been committed in similar circumstances such that it is likely that the same plea would be entered by the defendant in relation to all of them (if charged separately); and

(c) because of the number of offences alleged, if the offences were to be charged separately but tried together, it would be unduly difficult for the jury to manage.

• [62] We have little hesitation in concluding that the first and the third of these prerequisites were met here. But the second is more difficult. Although framed by reference to a defendant’s likely plea, the assumption underlying the second (s 20(2)(b)) requirement must also be that the defences on each of the individual offences (if charged separately) are likely to be the same. That is made clear in the explanatory note set out above, and accords with common sense. It is also, we think, implicit that the verdicts on each of the underlying offences are — by dint of their similarity and the similarity of the circumstances in which they were allegedly committed — likely to be the same. That likelihood is not, however, always borne out, which can present challenges on sentencing, as in the present case.^[9]
• [63] Here, and taking charge 13 as our lead example, what the Crown had to establish was that — on at least one of the 629 occasions referred to in the particulars — Ms Renes obtained a pecuniary advantage by deception. In turn, that required proof that:

(a) she made a false representation in an ACC45 form (namely that the treatment recorded and claimed for was provided by her);

(b) she knew that the representation was false in a material particular;

(c) in making that representation, she intended to deceive ACC; and

(d) by submitting the forms, Ms Renes obtained a pecuniary advantage or caused ACC loss.

• [64] It seems clear that the way in which the Crown sought to prove charge 13 was by establishing (primarily through the evidence of Ms Pieta) that Ms Renes was not present at any of the events to which the 629 ACC45 forms related. If that was so, then each of the forms falsely represented that it was she who had given the relevant treatment. Knowledge and intention would then largely be a matter of inference, based on the sheer number of forms submitted, and their necessary consequence (namely, payment of the amounts claimed by ACC).
• [65] As the evidence unfolded, however, the circumstances in which some of the 629 particularised offences were alleged to have been committed appeared different from the circumstances in which others were said to have been committed. More specifically, the evidence suggested that Ms Renes was present at quite a number of the relevant events. It was therefore a reasonable possibility that the ACC45 forms relating to those events did not contain a false representation at all. But where the underlying offences related to ACC45 forms submitted for events not attended by Ms Renes, the circumstances were necessarily different. In those circumstances, Ms Renes’ defence was that the forms had been filled out as a matter of administrative convenience and then submitted to ACC by accident. So not only were Ms Renes’ defences different, as between certain of the 629 underlying offences, the evidence raised a real prospect that:

(a) the jury might find the first element proved in relation to some of the underlying offences but not in others; and

(b) the jury’s verdicts might not be the same for each of the 629 offences.

• [66] So, too, with charge 21, which was particularised as relating to fees for 294 treatments given between December 2012 to November 2014 and invoiced under Katherine Spence’s provider ID that were alleged not to have been provided by her. The prosecution centrally relied on Ms Spence’s evidence that she had not worked on the relevant dates. Under cross-examination, however, Ms Spence conceded that she had worked on some of those dates. Again, this evidence meant that — in terms of s 20(2) — the underlying offences had been allegedly committed in two different types of “circumstances” (one where Ms Spence had not been working and one in which she had). The prospect of different verdicts relating to some of the underlying offences again arose.
• [67] All that being said, we are disinclined to conclude that charges 13 and 21 were not properly laid under s 20(2). It seems the different circumstances to which we have referred in our analysis were not apparent until the trial, although there may be a question about why the prosecution did not ascertain more clearly prior to trial what Ms Pieta’s evidence (in particular) would be. And the reality is that even if the charges could usefully have been divided into smaller representative groups — most obviously on an event by event basis — the task faced by defence counsel would have been essentially the same.^[10] So while the framing of the charges may not represent best practice, we can see no real prejudice to the defence. We are therefore unable to discern any vitiating error in the way the two charges were laid.

Was a unanimity direction required?

• [68] As the cases discussed above make clear, the laying of a representative charge under s 20(1) is predicated on the evidence establishing a course of similar conduct in which discrete instances of offending are not readily identifiable. It is only where the evidence at trial suggests that certain instances can be separately distinguished — and that a representative charge is therefore inapt — that a unanimity direction is required.
• [69] But a representative charge laid under s 20(2) is different. The laying of such a charge is predicated on the existence of many discrete, identifiable, but similar instances of offending. Unlike in a s 20(1) case, it is the very fact of multiple discrete offences that makes a representative charge apt.
• [70] Based on the authorities discussed earlier, whether or not a unanimity direction is required in a s 20(2) case must depend on whether it is possible that the evidence gave rise to a risk that individual jury members reached their “guilty” verdict by reference to different incidents. Such a problem would arise, for example, if it is possible that some jurors found that a false representation was made by Ms Renes on one of the particularised occasions, but others might have found a false representation on another.
• [71] This point can, we think, be demonstrated by reference to the decision of the English and Welsh Court of Appeal in R v Brown.^[11] Mr Brown was charged with fraudulently inducing four people to acquire shares in a company by making misleading statements. The particulars given in the count identified five statements allegedly made by him in the knowledge that they were misleading, deceptive, or false.^[12] Any one of the statements particularised was sufficient to constitute the necessary inducement. The jury was correctly told that it was not necessary for all jurors to accept all five statements particularised in the count in order for a conviction; it was sufficient if each was satisfied in respect of one. But in the course of his summing-up and in answer to a question from the jury the trial Judge had said:^[13]

It does not matter that some of you are satisfied that one of the various statements is made out, and others of you are satisfied not about that statement being made out but that another is made out. It is sufficient if you are all agreed that there was a dishonest inducement. So if you find some of you are satisfied that representation A was made out, some of you are not satisfied about that but are satisfied that representation B was made out, then it does not matter, provided that you are all satisfied that there was the dishonest inducement made and that it operated upon the mind of the person to whom it was made and caused him to act in the way that he did.

(Emphasis added).

• [72] The Court of Appeal later held that the direction that it was not necessary for the jury to be unanimous as to the relevant representation was wrong. The Court said:^[14]

Counsel for the appellant was correct in his submission that it is a fundamental principle that in arriving at their verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established. The false statement is an essential ingredient.

...

In a case such as that with which we are now dealing, the following principles apply: 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).
2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that anyone of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.

• [73] In the present case, the filing of a representative charge under s 20(2) was, as we have explained earlier, no doubt predicated on the fact that different verdicts on the particularised individual offences were unlikely. In other words, the underlying assumption was that if the jury found that there had been a false representation made on one of the particularised occasions, it would find there had been a false representation made in all of them. If that was so, the risk to which we have referred, and the problem identified in Brown, would not arise.
• [74] But the evidence at trial did not fall in that way. There was plainly room for doubt as to whether the ACC45 forms relating to some or all of the events that the evidence suggested had in fact been attended by Ms Renes, contained a false representation at all. The possibility that the jury might not be unanimous as to the occasions on which a false representation was made did, therefore, arise, and so, we think, a unanimity direction was required.
• [75] It is not disputed that such a direction was not given. So the question becomes whether, in terms of s 232 of the CPA, this error created a real risk that the outcome of the trial was affected.
• [76] In the rather unusual circumstances of this case we consider the answer must be “no”, because of the ninth jury question referred to at [44] above. That question makes it clear that the jury was alive to the issues that have become central to this appeal. Notwithstanding the Judge’s comments at sentencing, we think the question gives as great an insight as conceivably possible into the jury’s reasons for finding Ms Renes guilty on charge 13. The most reasonable inference is that they were agreed as to proof of all the elements of the offences (including the making of a false representation) where ACC45 forms in the name of Ms Renes had been submitted for events at which she had not attended. Importantly — and although it is a matter of good luck, rather than good management by the Crown — we think the question suffices to put to bed any risk of miscarriage on the grounds of a “missing” unanimity direction.^[15]
• [77] While the jury’s question did not refer to charge 21, we think it inconceivable that the jury would not have applied the same logic. As we have said, the Crown’s case was simple; it depended on Ms Spence confirming in her evidence that she had not worked on the days to which the relevant ACC45 forms related. For those instances where she did not confirm that, there would be a reasonable doubt as to whether the representation contained in the form was false.

Conclusion

• [78] For the reasons we have given we consider that there is no vitiating error in laying charges 13 and 21 as representative charges under s 20(2). While it would have been preferable further to divide the charges by reference to separate events, and to have the particulars of the underlying offences contained in the charge sheet itself (rather than in the jury booklet), we can see no real prejudice to the defence in what occurred. And although we think that after the evidence had concluded it would have been open to the Judge to split charge 13 — as the jury suggested — we do not consider his failure to do so is of any real significance.
• [79] In light of the way in which the evidence unfolded at trial, we consider that a unanimity direction was required. But the contents of the ninth jury question means that the failure to give one in this case did not create a real risk that the outcome of the trial was affected. No miscarriage has occurred.
• [80] Ms Renes’ appeal against conviction on charges 13 and 21 is therefore dismissed.

CHARGE 37

• [81] Charge 37 was not a representative charge. It alleged offending under s 228 of the Crimes Act, which relevantly provides:

228 Dishonestly taking or using document

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—

...

(b) dishonestly and without claim of right, uses or attempts to use any document.

• [82] More specifically (and as noted earlier), the charge alleged that Ms Renes dishonestly completed an ACC24 registration form in the name of Timothy Whale, who was employed by Fizeo as a graduate physiotherapist for one week in early 2016. He left his employment after expressing dissatisfaction with practices he considered improper. In his de facto resignation letter he complained, “My ACC registration form was filled out and signed on my behalf, using my name, without my knowledge or consent”. He gave evidence at trial that his registration “was completed, signed and filled in before my arrival on [my] first day and had been signed for me by Skye Renes, so she forged my signature, she forged the application”. As mentioned before, Mr Whale confirmed the signature was not his and was “not even close”. Under cross-examination, he rejected the suggestion that he had given Ms Renes permission to sign the form on his behalf. Indeed, it seems Mr Whale was — at that point — ineligible for registration because he did not have a practising certificate.
• [83] Ms Renes appeal in relation to charge 37 has two limbs:

(a) The jury’s verdict was unreasonable because Ms Renes did not obtain and could not have obtained a pecuniary advantage by submitting an ACC24 form in Mr Whale's name (the suggestion being that the act of mere registration could not have amounted to a pecuniary advantage and the jury were not entitled to conclude it did).

(b) The Judge erred in his summing up by not directing the jury that, if Ms Renes’ belief that she was permitted to use the form as she did was honestly held, it did not have to be reasonable.

• [84] We address each in turn.

Discussion

Intent to obtain pecuniary advantage?

• [85] It can usefully be observed at the outset that s 228 (unlike s 240, which was the basis for charges 13 and 21) does not require a defendant to have actually obtained a pecuniary advantage. Rather, it requires dishonest use of a document with pecuniary advantage as the “end game”. So the proper focus is on what it was that Ms Renes intended to achieve by submitting the form which, for the purposes of this first part of the discussion, we assume she did dishonestly and without claim of right.
• [86] On our reading of the charging document, counsel’s addresses and the Judge’s summing-up, there was no focus on what the “pecuniary advantage” was that Ms Renes was said to have intended to obtain by submitting the form.^[16] But there are, we think, two tenable possibilities. The first is that the immediate intended consequence — obtaining Mr Whale’s registration — itself constituted a pecuniary advantage. The second is that the relevant pecuniary advantage was a more distant intended consequence, namely making claims for treatments provided by Mr Whale, once registered. The alternatives really amount to the same thing and, in our view, either suffices. Both are satisfied here.
• [87] As to the act of registration itself being a pecuniary advantage, Ms Bishop referred us to:

(a) Ortmann v United States of America where the Supreme Court was satisfied that retaining digital files on Megasites’ servers represented a pecuniary advantage because it meant the files “remained available for distribution, with the consequent advantage of generating traffic for the Megasites and advertising and subscription income from people accessing the copyrighted material”;^[17] and

(b) the Victorian case of Taylor v R where it was accepted that the submission of a (fraudulent) teacher registration constituted a “financial advantage", because registration enabled the submitter to obtain salaried employment.^[18]

• [88] The alternative analysis is that the submission of the registration form was an administrative act that was a necessary prerequisite to later claims for treatments provided by Mr Whale. And while it was only if and when ACC made payment of those claims that a pecuniary advantage to Ms Renes would accrue, it was enabling those claims and those payments to be made that was her intention. There was no other reason for submitting the form.
• [89] The verdict on this charge was not, accordingly, unreasonable.

Was there an error in the Judge’s summing-up?

• [90] In order to prove its case for charge 37, the Crown was required to demonstrate that Ms Renes used the ACC24 form both dishonestly and without claim of right. Neither criterion requires a belief that must be held reasonably.
• [91] In the present case, the Judge’s explanation of a claim of right was given in the context of the charges of obtaining by deception. He said:

... claim of right means a genuine belief that at the time of being paid the fees by ACC she had a lawful right to the fees. The belief is not required to be reasonable or to be reasonably held and may be based on ignorance or mistake, but you are entitled to consider your view as to the genuineness of the belief and of course you then answer accordingly.

• [92] Ms Bishop said, and we accept, that this direction was plainly based on the definition of “claim of right” in s 2 of the Crimes Act.
• [93] The Judge’s direction about dishonesty was made in the context of the charges of using a document. He said:

Dishonestly means using a document without a belief that there was an express or implied consent to, or authority for using a document from a person entitled to give such consent or authority.

• [94] Again, we accept Ms Bishop’s submission that this direction was based on the Crimes Act definition, contained in s 217.
• [95] Both directions were reflected in the question trail relating to charge 37, which (relevantly) was in the following terms:

DISHONESTLY USING A DOCUMENT

Charges 35-37

...

1. Has the Crown made you sure that Ms Renes dishonestly used a document?

Note: “Dishonestly” means using a document “without a belief that there was express or implied consent to, or authority for” using a document from a person entitled to give such consent or authority.

...

2. Has the Crown made you sure that Ms Renes did so without claim of right?

Note: “Claim of right” means Ms Renes had a genuine belief that at the time of using the document she had [a] lawful right to do so. The belief is not required to be reasonable or be reasonably held and may be based on ignorance or mistake.

• [96] While it is true that the claim of right direction is specific about the absence of any reasonableness requirement, there is nothing in the dishonesty direction by and of itself that suggests that the belief must be reasonable. The ordinary meaning of the word “belief” imports no such requirement. Moreover, the direction was entirely consistent with the Supreme Court’s decision in Hayes v R.^[19] There, the Court eschewed any qualification to the word “belief”, saying:

[34] “Dishonestly” is defined by s 217 in these terms:

“dishonestly, in relation to an act or omission, means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority”

Two things have present significance about this statutory definition. The first is that the word “belief” is not accompanied by the word “honest”. The second is that there is no suggestion that the belief has to be reasonable or based on reasonable grounds. It is the existence of the belief which matters, not its reasonableness. Of course the word “honest”, in the phrase “honest belief”, was designed to signify that the belief must actually be held. Despite the tautology, its usage in that sense is unobjectionable. It is preferable, however, to follow the drafting of the definitions of dishonestly and claim of right by not qualifying the word “belief” at all. The potential difficulty with the word “honest” in the phrase “honest belief” is its capacity to be understood as signifying an ability for the accused person to frame their own moral code (the so-called “Robin Hood” defence). That, of course, is not its purpose, but juries can be confused as to the sense in which the word is used. It is best to avoid the issue when summing up by using language such as “did the accused believe?” rather than “did the accused have an honest belief” The verb in this context is easier than the noun.

(footnotes omitted; emphasis added)

• [97] And we agree with Ms Bishop that even if the Judge erred in this regard (which we do not think he did), no miscarriage has occurred. The defence to charge 37 was that Mr Whale gave express permission to Ms Renes for her to sign his ACC24 form, as another employee had in the context of the events giving rise to charge 38.^[20] That was Ms Renes’ evidence and Mr Whale was cross-examined on that basis. Unlike the other employee, Mr Whale was unequivocal that he gave no such permission.

Conclusion

• [98] The short point is that — in light of this defence — Ms Renes would have been acquitted if the jury thought her evidence gave rise to a reasonable doubt as to Mr Whale’s lack of consent. But if Mr Whale’s evidence that he gave no consent was accepted, then there was no basis for her believing in his consent, reasonable or otherwise. And by its verdict, the jury plainly rejected Ms Renes’ evidence on this point and accepted Mr Whale’s. Any failure by the Judge to make the absence of a reasonableness requirement explicit would have made no difference to that. The appeal in relation to Ms Renes conviction on charge 37 must therefore be dismissed.

RESULT

• [99] Ms Renes’ appeal against her convictions on charges 13, 21 and 37 are dismissed, for the reasons we have given.

Solicitors:
Crown Solicitor, Wellington for Respondent

---

^[1] Crimes Act 1961, ss 240 and 228 (maximum penalties of seven years’ imprisonment).

^[2] R v Renes [2020] NZDC 8784.

^[3] Ms Pieta was also clear that Ms Renes was absent for the first part of the Southland Rodeo on 9 February 2015 but arrived later.

^[4] This mistake was eventually corrected, as discussed below.

^[5] R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [8].

^[6] See for example the comments in Tuckerman v R CA280/86, 31 October 1986 (55 counts) and R v Staples CA215/04, 30 August 2004 (421 counts).

^[7] R v P (CA184/99) CA184/99, 2 September 1999.

^[8] Set out at [40] above.

^[9] As this Court said in Dryden v R [2013] NZCA 232 at [19]:

The use of representative charges may present problems when the offender is sentenced. A verdict delivered on a representative charge may not provide the sentencing Judge with any real indication of the jury’s assessment of the offender’s overall culpability. In such cases, the Judge will be required to reach his or her own conclusion regarding that issue when determining the sentence to be imposed. The use of separate charges in respect of discrete events obviously avoids this problem.

^[10] We tend to agree with Mr Brickell that it would have been preferable if the Crown had provided the particularisation contained in the jury booklet as a schedule to the charges themselves. But it is not clear to us that its failure to do so caused prejudice to Ms Renes; the cross-examination of Ms Pieta makes it clear that defence counsel was aware of the relevant particulars and was able to make considerable headway in refuting them. The cross-examination of Ms Spence also indicates that defence counsel was prepared to canvas the specific underlying offences alleged by focussing on specific dates.

^[11] R v Brown (Kevin) (1984) 79 Cr App R 115 (CA).

^[12] The charge was not, however, a representative one.

^[13] At 117.

^[14] At 117 and 119.

^[15] As can be seen from the recent decision of this Court in Hunter v R [2021] NZCA 75 at [28]–[33], the failure to give a unanimity direction will not always give rise to a risk of inconsistent reasoning and, so of miscarriage — an air of reality must be brought to bear when assessing the jury’s likely deliberative processes.

^[16] The question trail simply stated that pecuniary advantage “means anything that improves Ms Renes financial position. It does not matter whether the advantage was to Ms Renes personally or to her company”.

^[17] Ortmann v United States of America [2020] NZSC 120 at [484].

^[18] Taylor v R [2019] VSCA 162, [2019] VR 163 at [99]- [101] and [108]-[111].

^[19] Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.

^[20] Ms Renes was acquitted on this charge.