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Accident Compensation Cases

Blyth v Accident Rehabilitation and Compensation Insurance Corporation (HC, 24/09/98)

Judgment Text

ORAL JUDGMENT OF GENDALL J 
J W Gendall J
The appellant was convicted in the District Court at Hastings, on 14 May 1998, of an offence against s 166(1)(a) of the Accident Rehabilitation and Compensation Insurance Act 1992. I will refer to the Act and to the Corporation as ARCIC. 
She was found guilty of having made a false statement to the ARCIC in that she presented to it a PAYE time and wages book for the period 19 February 1997-2 May 1997, which document was prepared by her and which stated that over the relevant period gross wages that she received from her from her employer were $100 per week. It was alleged that such statement was false and that she received in fact wages of $250 per week over that period. It was an ingredient of the charge that the statement was false and made for the purpose of the appellant receiving payments under the ARCIC Act. 
The appellant was sentenced to 100 hours community service and ordered to make reparation to ARCIC of $2,032.05. She appeals against the conviction and also against that part of the sentence which related to the order for reparation. 
Her counsel has submitted that the evidence before the District Court Judge did not establish that the statement made by the appellant was used for the purpose of her continuing to receive a benefit from ARCIC. He further submitted that the statement was not false because he said it accurately recorded the “authorised” wages of the appellant and thirdly, he submitted that the payment the appellant received from ARCIC was not a benefit or grant or allowance as described in s 166(1)(a) of the Act. 
Turning to the first submission it is beyond doubt that guilty intent is an ingredient of the offence. A statement which is false must be used with the specific intent of obtaining a payment from ARCIC. The evidence before the learned District Court Judge and accepted as matters of fact by him was that the appellant was in receipt of payments from ARCIC because of a left shoulder injury and because in the work that she undertook with a Hawkes Bay sporting administration body her wages, it was said, were to be reduced from $250 per week to $100 per week. As a consequence of such reduction ARCIC was to pay to her a subsidy of $150 per week. The Corporation was aware the appellant was working and had up until 19 February 1997 received wages in the gross sum of $250 per week. As I have said, thereafter, the Corporation agreed to pay $150 per week in order to supplement what would have been wages of $100 per week payable by her employer. The payment by ARCIC continued over the period 19 February to 2 May 1997. 
However over that period and unbeknown to ARCIC the appellant actually drew $250 per week as wages from her employer and so ended up with a total income of $400 per week. It was submitted on her behalf that such drawings were unauthorised and thus not “wages” but nevertheless they are described as “wages” in the employer's bank statements. They are subject to PAYE deductions and they are described as “gross pay” in the actual wage book of the employers. In order to achieve payment by ARCIC of the $150 per week subsidy the appellant was required to submit the wage records to the Corporation. She did this by preparing and completing a separate wage pages book containing different information. Namely that over the relevant period her total gross pay was $100 per week and her net pay $75.30 per week. She created and submitted this statement to the Corporation and it is that statement in that document which the prosecution said contained false information and was submitted to the Corporation to induce it to make the payments that it did. 
The learned District Court Judge found that there was no dispute that the appellant made the statement contained in the wages book record that she submitted, and she freely acknowledged this. His Honour found that the Corporation continued to make payments to the appellant as a consequence of the particulars that she provided in that document. The learned District Court Judge found as a fact that the appellant acknowledged that the document was false in that it stated that she was receiving $100 per week when in truth she was receiving $250 per week. A finding of fact of the learned District Court Judge was that the appellant knew that she was only entitled to an ultimate benefit of $250 per week, $150 of which would be provided by ARCIC. It was implicit in this finding that the appellant was aware that if her employer was paying her $250 per week then she was not entitled to any further payment from ARCIC. The learned District Court Judge found that the document was provided by the appellant for the purpose of receiving payments under the Act and he drew what he described as an “overwhelming inference” from the evidence that the document was submitted to the Corporation so that the appellant could obtain further funds through declaring to the Corporation that she was receiving a lesser amount from her employer than was in fact the case. 
The first submission of counsel for the appellant, namely that the statement was not used for the purpose of continuing to receive the benefit, involved the argument that the correct inference to be drawn from the evidence was that the appellant used the statement to conceal from her employer the fact that she was drawing unauthorised wages and not for the purpose of deceiving ARCIC. It is not for this Court to substitute its conclusions on matters of fact which involve the drawing of inferences from the evidence before the District Court, but in any event I am not able to accept this submission. The actual evidence is that the appellant took no steps to conceal her unauthorised drawing of wages from her employer. The actual wage book records that she was receiving $250 gross per week. The employer's own bank statements confirm that. The document that was created and sent to ARCIC was created for the purpose of obtaining the benefit from ARCIC and did not form part of the formal records of the employer. The fact that the appellant may have been deceiving her employer does not aid her in the defence of the charge which relates to deception of ARCIC. There is no doubt that the documents submitted by the appellant were completed by her and incorrectly showed the weekly amount that she was receiving. Counsel submitted that that amount nevertheless was accurate as it referred only to the “authorised” wages and that any additional amount that she was receiving did not comprise wages and therefore, he submitted, did not need to be recorded as such. That submission is fatuous given that the actual wage book records the wages that she was drawing as $250 per week. As I have said whether or not her employer had authorised her to pay herself $250 per week over the relevant period does not assist her. One cannot avoid responsibility for submitting false documents for the purpose of receiving additional payments by ARCIC by any claim that the employer was also being misled. In her own statement to the investigator the appellant said: 
“I sent in a photocopy of my wages I should have been getting, but wasn't. In other words, I lied, about what I was getting. ”
And the following exchange then occurred in the interview: 
“Q. You realise, by declaring a lesser amount, affected how much you were paid by the ACC? 
A. I did, very aware of it. 
Q. So you realised you were being paid more than you should have been, by ACC? 
A. Yes. ”
The appellant in her statement says she knew she was making a mistake when she submitted the form to ARCIC and acknowledged she received overpayment because of the incorrect forms that she submitted. 
It is beyond doubt that the evidence established that the purpose for which the statement was made and the document submitted was to receive a benefit or payment for ARCIC. 
Counsel's second submission was that the statement was not proved to be false. I have really already dealt with that. False simply means incorrect, untrue or wrong. The appellant herself acknowledged that the statement was wrong. It is abundantly clear that the statement to ARCIC that her “total gross pay” was $100, and PAYE was deducted of $25.70 was inaccurate, untrue and incorrect. But for that incorrect statement being received ARCIC would not have paid the $150 per week to her. The evidence makes it clear beyond doubt that the statement the appellant made was false and known by her to be false and made for the purpose of receiving the payments which in fact she did receive. It is immaterial how those moneys received by the appellant from her employer are now described given that she herself describes them as wages. 
As to counsel's third submission. Section 166(1)(a) was amended in 1992 to provide that it is an offence to knowingly make a false statement for the purpose of continuing to receive “any payment, treatment, service, rehabilitation related transport, compensation, grant or allowance (for that person or any other person)”. The word “payment” was added to the subsection. Counsel submitted that the payment made by ARCIC did not fall within that section. I have no doubt at all that it does. It is a payment and probably is also a grant or allowance. There is no merit in that submission. 
The evidence before the learned District Court Judge overwhelmingly established the essential ingredients of the charge. There is simply no merit at all in the submission that the statement was not given for the purpose of receiving a payment under the Act or that the statement was not false or that what the appellant received was in fact not a payment. 
The ingredients of the offence were clearly established and the conviction was properly entered. The appeal against conviction has no merit and must be dismissed. 
In relation to the appeal against sentence the appellant was ordered to make reparation in the sum of $2,032.05. It was submitted on behalf of the appellant that ARCIC did not lose property or suffer emotional harm as is required by s 22(1) of the Criminal Justice Act 1985. The submission was that any loss arose to the employer and not to ARCIC. The true position is that loss occurred to both employer and ARCIC. The appellant obtained through a false pretence, which is simply to deprive by deceit, an extra payment from ARCIC. That she may also have obtained an extra payment said to be unauthorised from her employer assists her not one iota. But for the false statement ARCIC would not have paid the $150 per week that it did. To that extent it was deprived because of the deception of the appellant. That squarely falls within the provisions of s 22(1) of the Criminal Justice Act 1985. If I can give an example. A lending institution who lends money to a mortgagor, or borrower, on the strength of a false statement made by that borrower as to their equity in the property or their ability to service such payment may suffer a loss if the borrower cannot repay. The loss arises out of the lender being induced to do something, that is advance moneys, that it would not otherwise have done had it been told the truth. The situation in this case is no different and the order for reparation (which I note is being complied with in any event) was properly made. The appeal against sentence must also be dismissed. 
I do not make any order for costs. 

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