Urquhart-Barrett v Accident Compensation Corporation [2014] NZHC 1585 (8 July 2014)

Last Updated: 1 August 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000020 [2014] NZHC 1585

BETWEEN	LESLIE WAYNE URQUHART- BARRETT Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	3 July 2014
Appearances:	R J Burnside for Mr Urquhart-Barrett K B Bell for the Crown
Judgment:	8 July 2014

_{JUDGMENT OF GENDALL J}

Introduction

Conviction

[1] On 11 July 2013 the appellant (Mr Urquhart-Barrett) was convicted by Judge Farish in the District Court of obtaining a pecuniary advantage by deception in contravention of s 240 Crimes Act 1961.¹ The conviction related to offending which extended over an eight month period. It did not relate to the 16 month full period of offending originally alleged by the respondent (ACC), (being April 2009 to 31

August 2010), but rather for a reduced period of offending “from Christmas 2009 through to August 2010”.²

[2] In her judgment of 11 July 2013, Judge Farish deferred sentencing until

_{14 August 2013 and also called for a full pre-sentence report.}³

¹ _{ACC v Urquhart-Barrett DC Christchurch CRI-2012-003-549, 11 July 2013.}

² _{At [25].}

³ _{At [25] – [27].}

URQUHART-BARRETT v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 1585 [8 July 2014]

Sentence

[3] Ultimately Mr Urquhart-Barrett was not sentenced by Judge Farish until

12 February 2014, when she imposed a sentence of seven months home detention with orders for payment of reparation and costs.⁴ In sentencing, Judge Farish took a starting point of 18 months imprisonment, for the obtaining by deception charge and another wilful omission charge that is unrelated to this appeal.⁵ That was uplifted modestly by three months for previous convictions,⁶ and then the total 21 month starting point was discounted by an averaged 15 percent credit across all offending for the early guilty plea in relation to the unrelated offending.⁷ This took the notional sentence down to 18 months.⁸ Mr Urquhart-Barrett’s offer to pay reparation, and the fact he was already paying some, resulted in a further reduction down to 15 months imprisonment.⁹

[4] This notional 15 months imprisonment sentence rendered Mr Urquhart- Barrett within a range permitting home detention to be considered as a sentencing option.¹⁰ On this basis, Mr Urquhart-Barrett was finally sentenced as noted above to

home detention of seven months and additionally he was ordered to pay:¹¹

(a) $12,030.39 reparation in relation to the unrelated offending. This is not the subject of consideration on this appeal.

(b) $4,031.21 reparation in relation to the obtaining by deception charge, to be paid at the rate of $30 per week. I note that weekly compensation, calculated to be around $26,956.12, was not sought by ACC as part of the reparation figure.

(c) $2,070 in fees to Dr du Plessis, an expert medical witness in the

_{District Court proceeding, to be added to the reparation order.}

⁴ _{ACC v Urquhart-Barrett DC Christchurch CRI-2012-003-549, 12 February 2014.}

⁵ _{At [17] – [18].}

⁶ _{At [19].}

⁷ _{At [20].}

⁸ _{At [20].}

⁹ _{At [21].}

¹⁰ _{At [22].}

¹¹ At [23] – [26].

(d) $960 towards ACC’s costs in bringing the proceeding against

_{Mr Urquhart-Barrett, again to be added to the reparation order.}

Appeal

[5] On 5 March 2014, a notice of appeal against the decision of the District Court was filed by Ms Burnside, counsel for Mr Urquhart-Barrett. The grounds advanced for this appeal were as follows:

Error of Law: as to admissibility of propensity evidence

Judge misdirected herself with respect to law re deception

Judge erred in dismissing defence counsel submission that

Crown not prove every element of offence

Error of Fact: as to propensity evidence

Relevant findings of facts not supported by unchallenged evidence

Judge failed to consider relevant material

[6] The present appeal is first against conviction and, if unsuccessful in that pursuit, secondly, against part of the sentence, namely the requirement to pay $2,070 in fees to Dr du Plessis as part of the total reparation bill.

The offence

[7] As I have outlined above, Mr Urquhart-Barrett was charged with obtaining by deception. That offence is constituted by s 240 Crimes Act 1961 which provides:

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

(b) in incurring any debt or liability, obtains credit; or

(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

(d) causes loss to any other person. (2) In this section, deception means—

(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—

(i) knows that it is false in a material particular; or

(ii) is reckless as to whether it is false in a material particular; or

(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or

(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.

[8] The elements of the offence are therefore:

(a) The accused obtained a pecuniary advantage

(b) The advantage was obtained by a deception as defined in s 240(2) (c) The accused acted without claim of right as defined in s 2

[9] I will turn to these elements below after traversing the District Court decision.

The District Court decision

[10] It is not necessary to replicate verbatim passages of Judge Farish’s judgments here. What is important in this appeal is that in the District Court, the issue at the outset was seen to involve a determination as to whether Mr Urquhart-Barrett had “conversion syndrome” or whether he was merely a malingerer.¹² If Mr Urquhart- Barrett was found to be a malingerer, a second issue then arose. This was whether he was acting without claim of right, given his doctors were still providing him with

_{medical certificates up until the point at which he ceased his ACC entitlements.}¹³

¹² _{ACC v Urquhart-Barrett DC Christchurch CRI-2012-003-549, 11 July 2013, at [2]/}

¹³ At [2].

[11] Conversion syndrome is categorised as a psychiatric disorder in DSM-5 and is not an intermittent disorder.¹⁴ This means that a person will not, when afflicted with conversion syndrome, be able to operate normally sometimes, but suffer its effects at other times. On the strength of the evidence before her of various lay- witnesses and the expert opinion she had of various medical professionals, Judge Farish was driven to the conclusion that Mr Urquhart-Barrett did not suffer

from conversion syndrome but that he was a malingerer. She reached this conclusion noting his differential presentation of symptoms, such as being seen walking carrying out ordinary tasks, but always presenting in a wheelchair at medical appointments.¹⁵ I agree with this conclusion.

[12] Having concluded that Mr Urquhart-Barrett obtained a pecuniary advantage by deception, the only question that remained extant was whether Mr Urquhart- Barrett could assert a claim of right. On this, Judge Farish noted that Mr Urquhart- Barrett had chosen to exaggerate his level of incapacitation and was acting without any colour or claim of right in that¹⁶

The evidence that I have heard, and in particular the evidence from Ms Penman, places me in the position where I am satisfied beyond a reasonable doubt that as of Christmas 2009 Mr Urquhart-Barrett was exaggerating his medical condition and he knew at that time that he was legally entitled to ongoing compensation at the level that he was acquiring because of his level of incapacity was not at the level that he was indicating.

Was the offence committed?

Pecuniary advantage

[13] The leading decision on pecuniary advantage is the Supreme Court decision in Hayes v R in which it was stated:¹⁷

We consider the approach taken in Ruka and followed in Firth does not reflect either the text or the purpose of the legislation. In its terms the legislation does not require proof of lack of entitlement. The concept of entitlement can arise, if at all, only by implication from the word advantage. But if a person seeking to obtain a pecuniary advantage uses a document with intent to defraud (s 229A), or dishonestly and without claim of right

¹⁴ _{At [7].}

¹⁵ _{At [3] – [21].}

¹⁶ _{At [23].}

¹⁷ Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321 at [12].

(s 228), we do not consider it is any defence to say that the user of the document was entitled to the advantage. The statutory purpose is to criminalise the use of dishonest means directed to gaining the advantage even if the accused is otherwise entitled to it. Questions of actual entitlement may well be relevant to sentence, but they are not relevant to guilt, save that a belief in entitlement will, of course, be relevant to mens rea.

(emphasis added)

[14] The starting point under this head is that there can be no doubt here that Mr Urquhart-Barrett received a pecuniary advantage. His presentation to various medical professionals rendered him eligible to receive ACC payments and other benefits. This pecuniary advantage consisted of some $4,031.21 in contributions by ACC towards the cost of attended home care, taxi charges, wheelchair costs and the construction of a ramp. In addition, a further figure of some $26,000 (approximately) represented an un-quantified weekly compensation figure to which Mr Urquhart-Barrett was not entitled, but this was an amount which he was not required to repay in reparation.

[15] I reject the contention by Ms Burnside on behalf of Mr Urquhart-Barrett that the prosecution failed to establish a causal link between Mr Urquhart-Barrett’s deception in exaggerating his medical condition and the obtaining of the various benefits. The reality here is that Mr Urquhart-Barrett was utilising dishonest methods to obtain an advantage. Even if he would have been otherwise entitled to that advantage, which I do not need to determine, the resort to dishonest means to obtain an advantage, through his malingering, places this conduct squarely within the bounds of the statutory prohibition as clarified in Hayes. The fact that Mr Urquhart- Barrett might have otherwise been entitled to the payments and benefits is irrelevant.

Advantage obtained by deception

[16] The meaning of deception is plain on its face. In Re London and Globe

Finance Corporation Ltd, Buckley J described deception in the following terms:¹⁸

To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by

falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.

[17] Having read the decision of Judge Farish and considered all material put before this Court on this appeal, I am of the view that no error was made in the District Court. Mr Urquhart-Barrett was not suffering from conversion syndrome. The evidence in this respect, both expert and lay, is incontrovertible. For example, Dr Lodewicus du Plessis (“Dr du Plessis”) gave evidence that:

It is however clear from a radiological point of view that there is no significant evidence of pathology which would render [Mr Urquhart-Barrett] paralysed in his right lower limb.

...

It is clear that Mr Urquhart-Barrett does not have a paralysis of the right lower limb nor any objective sensory changes and that he is presenting with a conversion order (or alternatively is malingering).

I subsequently was presented with a letter and report from the defendant’s case manager which, after consideration, I believe that the defendant is a malingerer...

(emphasis added)

[18] There is evidence from a multitude of other sources, such as Ms Andrews, Ms Cassidy and Mr Nixon (Mr Urquhart-Barrett’s neighbours), Mr Bruce Houghton (the investigating officer), Ms Katrina Muir (a home assistant), and Ms Fiona Penman (Mr Urquhart-Barrett’s own witness and step sister) which all support this finding by Judge Farish.

[19] It is therefore clear in my view that there can be no doubt here that Mr Urquhart-Barrett was a malingerer. The very definition of a malingerer is to feign illness to escape duty or work. To malinger is to be deceitful. While this alone may not be a crime, in Mr Urquhart-Barrett’s case his deceptive presentation to his medical team and ACC was clearly such that ACC was induced to make compensatory payments to Mr Urquhart-Barrett on a false premise. I am satisfied beyond reasonable doubt that Mr Urquhart-Barrett practised this deception to obtain a pecuniary advantage, and that the deception was furthered with the intent to

deceive ACC via the medical team.¹⁹

Absence of claim of right

[20] Claim of right is, as Judge Farish noted, a somewhat more difficult aspect of this case. Claim of right is defined by s 2 of the Crimes Act 1961, as follows:

claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[21] As I see the position, in this case there is a simple answer to this claim of right assertion. It is to the effect that if Mr Urquhart-Barrett genuinely believed he was entitled to some right to the payments in question, absent his deception, then there seems to be remarkably little sense in his engaging in the deception at all. It was a ruse that required significant effort from Mr Urquhart-Barrett which would have resulted in a corresponding inconvenience to him over a sustained period. I have not heard any compelling argument as to why Mr Urquhart-Barrett would undertake such an endeavour if he would have been entitled to the pecuniary advantage in any event.

[22] I am therefore satisfied that the way Mr Urquhart-Barrett conducted himself in the presence of his medical team, as contrasted with his conduct around others, was of such a nature that Judge Farish, and indeed any reasonable finder of fact, was entitled to draw the inference that Mr Urquhart-Barrett had a dishonest mind. This is borne out by the evidence.

[23] Without determining the issue, it is my tentative view that a finding that a person is a malingerer, by its very definition, tends to dispel, at least in the majority of cases, the possibility of resort to a claim of right defence. Malingering in a case such as the present, requires the construction of an artificial façade in an attempt to deceive people into believing a concocted reality, namely, that one cannot work when they can. It is difficult to appreciate how a person could genuinely believe that they are entitled to do so in order to receive compensatory payments or other benefits.

Propensity evidence

[24] It seems to me at the outset that in the District Court decision, no significant reliance was placed on the propensity evidence permitted to be adduced earlier by Judge Farish. Equally, I have not needed to resort to it at all to reach the conclusion that Mr Urquhart-Barrett was guilty of the offence with which he was charged.

[25] While I need not determine this propensity issue here, as the present appeal has failed without the need to review those relevant previous convictions, or to place any reliance on them, I need to say that I am not entirely convinced that this evidence should have been admitted at the District Court level. However, for the reasons previously stated, this is not an issue I need engage.

Conclusion on conviction appeal

[26] It will be apparent now that, for all the reasons outlined above, Mr Urquhart-

Barrett’s appeal against conviction fails and it is dismissed.

Appeal against sentence

[27] As the appeal against conviction is unsuccessful, the only outstanding matter that remains to be considered is whether Judge Farish was correct in requiring Mr Urquhart-Barrett to pay the professional fees of Dr du Plessis a neurologist amounting to $2070 as part of the reparation ordered.

[28] Before me, counsel for Mr Urquhart-Barrett made no oral submissions on this costs issue and in her written submissions addressed this in only one paragraph which is of no significance to present issues. Counsel for ACC also made no oral submissions on this issue and again in her written submissions did not address this particular aspect in any detail. The ability of a Court to compel a defendant to pay the costs of an expert to the prosecution would appear to be provided in the Costs in Criminal Cases Act 1967 and the Costs in Criminal Cases Regulations 1987 (the

1987 Regulations). By Schedule 1, Part 2, Subpart C of the 1987 Regulations, there is an argument as I see it that, the fees of witnesses are prohibited from exceeding

those set out in the Witnesses and Interpreters Fees Regulations 1974 (the 1974

Regulations).

[29] The scale costs for witnesses is set out in Schedule 1, Clause 1 of the 1974

Regulations. This sets a maximum of $305 per day for an expert witness for each day that this witness is absent from their ordinary place of employment during the trial. However, by clause 8(2) of the 1974 Regulations the Court has the ability to increase the Schedule amounts where there exist exceptional circumstances that would render it desirable to do so. The total claim here for the professional fees of Dr du Plessis amounting to $2070 would no doubt include his costs involved in providing consultation, a report, advice and evidence as a witness.

[30] In this case there might be an issue arising as to whether the professional fee in question is restricted in some way by the 1974 Regulations and the 1987

Regulations. However, on balance given the circumstances here, I am not satisfied that this is a case where Mr Urquhart-Barrett should not be liable to contribute to the cost of Dr du Plessis’ reasonable professional fees. I therefore decline this appeal to the extent that Mr Urquhart-Barrett’s contribution to Dr du Plessis’ fee is properly seen to be the $2070 ordered by Judge Farish. This amount is to be properly calculated in accordance with the Schedule to the 1974 Regulations and the 1987

Regulations and is to include the costs of his inquiry, tests, investigations and evidence at the hearing, and his reasonable allowances and travelling expenses if these may be appropriate.

[31] As I have had no submissions on quantification and the application of the

1974 Regulations and the 1987 Regulations here, counsel are to have 20 working days to (sequentially) file and serve memoranda on this issue which are to be referred to the Registrar. The appropriate amount is then to be determined and confirmed by the Registrar in terms of Regulation 4 of the 1987 Regulations.

Result

[32] The appeal against conviction is dismissed.

[33] The appeal against sentence is also dismissed subject to paras [30] and [31] above. Mr Urquhart-Barrett is still required to contribute to Dr du Plessis’ professional fee. However, this is to be at the rate determined and confirmed by the Registrar in accordance with para [31] above.

...................................................

Gendall J

Solicitors:

Roz Burnside Law, Christchurch

Raymond Donnelly & Co, Christchurch