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Accident Compensation Cases

NGUYEN v ACCIDENT COMPENSATION CORPORATION (HC, 19/09/00)

Judgment Text

RESERVED JUDGMENT OF PENLINGTON J 
Penlington J
[1]
This is an appeal against the dismissal of an application for costs under the Costs in Criminal Cases Act 1967 following the withdrawal of a prosecution against the appellant for two alleged breaches of s 166(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992. 
BACKGROUND 
[2]
The appellant is an Asian. She immigrated from Vietnam to New Zealand. She is a sewing machinist by trade. On 30 April 1998, the appellant was diagnosed with tendonitis of her right shoulder and hip. On 25 June 1998, the ACC accepted her claim as a work injury caused by a gradual process. She was granted earnings related compensation from ACC. In late July 1998 ACC received information to the effect that the appellant was working from home as a seamstress while receiving compensation and not disclosing the same to the Corporation. Enquiries were then commenced. ACC instructed a private investigator. He reported on the appellant from time to time. On 21 September 1998 a letter was sent to the appellant inviting her to attend an interview on 5 October 1998. A reply was received from the appellant's solicitor at that time advising that the appellant would not be attending the interview. Another letter was sent to the appellant again inviting her to attend an interview. No reply was received by the Corporation. The examining officer in charge of the case subsequently recommended that the matter be referred to the Crown Solicitor at Wellington for prosecution. 
[3]
On 12 January 1999, the Crown Solicitor was instructed to prosecute the appellant. 
[4]
At this stage there was an enquiry by the Crown Solicitor of ACC as to whether the appellant had an understanding of her obligations given that English was not her first language. The Crown Solicitor's enquiry was referred to the appellant's case manager, one Julie Brunton. She asserted that she had thoroughly explained to the appellant her obligations while she was on earnings-related compensation. This response was passed on to the Crown Solicitor. 
[5]
On 22 February 1999, two informations were sworn out of the District Court at Wellington. The appellant was charged as follows: 
[a]
That between 26 June and 7 October 1998, contrary to s 166(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992, she willfully omitted to say anything, namely that she was working as a contract sewer for Sandy Jeffs trading as Resurgence while in receipt of compensation for loss of earnings for the purpose of misleading or attempting to mislead any person concerned in the administration of the Accident Rehabilitation and Compensation Insurance Act 1992 for the purpose of continuing to receive compensation under the said Act; and 
[b]
That between 30 June and 1 August 1998, contrary to s 166(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992, she willfully omitted to say anything, narnely that she was working as a contract sewer for Kensington Print Fin Clothing while in receipt of compensation for loss of earnings for the purpose of misleading or attempting to mislead any person concerned in the administration of the Accident Rehabilitation and Compensation Insurance Act 1992 for the purpose of continuing to receive compensation under the said Act. 
[6]
The appellant was summoned to appear in the District Court at Wellington on 3 May 1999. 
[7]
1n the meantime, on 1 April 1999, ACC was advised that the appellant had a new solicitor, Ms Drayton-Glesti. Here I record that Ms Drayton-Glesti acted as the appellant's counsel both in the Court below and on this appeal. Ms Drayton-Glesti then contended that the charges should either be withdrawn or delayed until after a review hearing was arranged. At the same time, Ms Drayton-Glesti made a request for prosecution disclosure. 
[8]
Here it is proper to note that a review hearing had been held on 5 November 1998 as the result of the appellant's employer challenging the fact that ACC had granted cover to the appellant and had accepted her condition as work related. On legal advice by the appellant's solicitor at that time she did not attend this hearing. This was the same solicitor as the one who had advised the appellant not to attend an interview on 5 October 1998. In a decision dated 14 December 1998, the review officer upheld the employer's application and reversed the ACC's decision to grant the appellant cover. On 15 January 1999 ACC wrote to the appellant requiring her to repay as a debt due and owing, $4912.75. 
[9]
On 30 April 1999, His Honour Judge Middleton, on an appeal by the appellant against the decision of the review officer, the Judge ordered the review officer to conduct a further review hearing. 
[10]
As the result of the request for prosecution disclosure and given the outcome of the review hearing in November 1998, ACC decided that another opportunity should be given to the appellant to present her version of events. As the result, another interview was set up. 
[11]
On 9 June 1999, that interview took place. It was attended by the appellant, her new solicitor Ms Drayton-Glesti and a Vietnamese interpreter. The appellant's case manager, Ms Brunton, did not attend the interview. Instead, another case manager represented the ACC. There were no admissions against interest at this interview. 
[12]
Following that interview the file was again considered. ACC decided to proceed with the prosecution. On 28 June 1999, the ACC so advised Ms DraytonGlesti of the Corporation's decision. 
[13]
On 5 July 1999, the case was called before the Registrar in the Wellington District Court. The appellant indicated that there would be not guilty pleas to the two charges. She was remanded until 6 August for a pre trial conference. At the hearing on 5 July, Ms Drayton-Glesti made a further request for prosecution disclosure. That request was confirmed in writing. 
[14]
On 12 July 1999, the appellant's counsel received a copy of the prosecution file. She then examined the file and found that a number of documents were not on it. They were a transcript of the investigation interview on 9 June 1999 and notes of interviews with the appellant's employers. Ms Drayton-Glesti thereupon made a request for disclosure of the missing documents. 
[15]
On 19 July 1999, the prosecution undertook to disclose in writing the information requested by Ms Drayton-Glesti together with its briefs of evidence. The promised disclosure did not, however, take place. At the pretrial conference on 6 August 1999 a second pre trial conference was set for 1 September 1999. 
[16]
On 25 August 1999, it was discovered that Ms Brunton, the appellant's case manager referred to earlier, was then on vacation in Greece. Further enquiries were made as to her whereabouts and availability. 
[17]
On the morning of 1 September 1999, Ms Drayton-Glesti received the prosecution's briefs of evidence (including a brief for Ms Brunton) and a letter from the Crown Solicitor's Office in Wellington which stated:: 
“As you aware, the above matter will next be called in the Wellington District Court on Wednesday, 1 September 1999 for a pre-trial conference. 
Please find enclosed draft briefs of evidence in relation to the above matter. You will see that there is no brief of evidence in relation to the Investigator, Sean Parkes. The reason for this is that the interview that your client attended with Mr Parkes was taped, but the sound quality of that tape is poor with a number of people trying to talk overtop of one another. Accordingly, there is simply no point in attempting to transcribe it. Nevertheless, a copy will of course be made available to you. 
The delay in providing the briefs of evidence has been caused by the fact that Julie Brunton, the ACC case manager, is now overseas. Enquiries have established where she is living, but it has not been ascertained when she will return to New Zealand. ”
[18]
Notwithstanding the contents of paragraph 2 of the Crown Solicitor's letter of 1 September 1999, Ms Drayton-Glesti on the same day wrote to the prosecutor. She again sought disclosure. The prosecution was then stood over until 13 October 1999 for a third pre trial conference. 
[19]
On 1 October 1999, it was ascertained by the Crown Solicitor that Ms Brunton was to remain overseas for the foreseeable future. 
[20]
The deponent for ACC, one Ruth Claire Robertson, in her affidavit in opposition to the application for costs, then deposed as to the situation which existed following the discovery of Ms Brunton's non availability: 
“19.
This prosecution was brought against the applicant on the basis that while she was in receipt of compensation, she was also working and that she failed to advice ACC of this fact. As English is the applicant's second language, it was obviously going to necessary for ACC to show that the applicant knew and understood her obligations while she was receiving compensation. Due to this, I consider that Julie Brunton was an essential prosecution witness. 
20.
I then discussed the situation with the Crown Prosecutor and with my Manager. Eventually, it was decided that this prosecution did not warrant the time and expense involved in flying Ms Brunton back from London to give evidence at a defended hearing. Other options such as video link were also explored, but the cost for the use of this technology was also high. As with all prosecutions, I had to make a decision whether the interests of the public in continuing with this prosecution outweighed the additional expenditure involved. On balance, I decided that it didn't. 
21.
Ultimately, I decided the only fair and reasonable course was to withdraw both informations against the applicant. ”
[21]
On 11 October 1999, Ms Drayton-Glesti received a letter from the Crown Solicitor's Office advising that the prosecution was to be withdrawn. The letter stated inter alia
“It has now been ascertained that Ms Brunton is in London and not expected to return to New Zealand in the foreseeable fixture. As she is an essential witness for the prosecution, ACC has decided, after some degree of consideration, that their only option is to withdraw the charges against your client. ”
[22]
On 13 October 1999, the prosecution against the appellant was withdrawn. Ms Drayton-Glesti conceded that at this point full preparation for trial had not taken place although the appellant had already been interviewed with the assistance of interpreters. 
[23]
The appellant then made an application for costs. The application was opposed by ACC on 14 December 1999. Her Honour Judge Henwood heard full argument on the application. In a reserved judgment delivered on 27 March 2000, the application was dismissed. 
[24]
The appellant now appeals against that judgment. 
SECTION 5 OF THE COSTS IN CRIMINAL CASES ACT 1967. 
[25]
Here it is convenient to set out the terms of s 5 of the Costs in Criminal Cases Act 1967 which is directly in point. Section 5 provides: 
“5 COSTS OF SUCCESSFUL DEFENDANT-- 
(1)
Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under [section 167] of the Summary Proceedings Act 1957 the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence. 
(2)
Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to- 
(a)
Whether the prosecution acted in good faith in bringing and continuing the proceedings: 
(b)
Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence: 
(c)
Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty: 
(d)
Whether generally the investigation into the offence was conducted in a reasonable and proper manner: 
(e)
Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point: 
(f)
Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that lie was not guilty: 
(g)
Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence. 
(3)
There shall be no presumption for or against the granting of costs in any case. 
(4)
No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn. 
(5)
No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued. ”
THE JUDGMENT UNDER APPEAL 
[26]
In the judgment under appeal, the Judge summarised the competing submissions which had been placed before her. 
[27]
The essential case for the appellant was that the prosecution was not reasonably or properly pursued. In support of this submission in the District Court, Ms Drayton-Glesti contended that ACC knew or reasonably ought to have known that Ms Brunton was unlikely to return to New Zealand when she left in April 1999; that had the likely continuing absence of Ms Brunton been properly considered at the time of the investigator's interview on 9 June 1999, the Corporation could have made a decision as to the prosecution at that time; that it was plain that Ms Brunton's evidence was essential to the success of the prosecution; that the appellant's counsel was not made aware of Ms Brunton's non availability until October 1999; that in the meantime the appellant's advisors had continued her preparation for trial and the appellant had thereby incurred costs and expenses. 
[28]
There was also a complaint by the appellant as to the inadequacy of the Corporation's disclosure. 
[29]
And finally, as to the case itself, the appellant's counsel contended that it was not a case where the evidence as a whole supported a finding of guilt in that there were doubts at the outset as to whether the prosecution could establish mens rea due to the appellant's limited knowledge of English. 
[30]
The respondent, on the other hand, contended that the case was not one where the appellant had established her innocence; that she had been given the opportunity of attending an interview which on legal advice she had declined to attend. The respondent further contended that the respondent had agreed to an adjournment of the prosecution to enable the appellant to explain her side of the story at the interview on 9 June 1999; that it was only when the appellant decided to plead not guilty and when the case was being readied for trial by the respondent that it was discovered that Ms Brunton intended to remain overseas for the foreseeable future; and that ultimately the withdrawal of the prosecution was “the only realistic option in the circumstances”
[31]
The reasons for the refusal of the application were encapsulated by the Judge in the following findings: 
“The Court has considered matters raised by the applicant and by the respondent and is not prepared to make an order for costs in this case. The original informations were laid in May 1999 and finally withdrawn in October 1999. This is not an inordinate delay. It has been unfortunate that the principal witness was not available to attend the trial and therefore the charges have been withdrawn which is a good outcome for the applicant as on the face of the file it would seem that a prima facie case was made out against her. She had an opportunity earlier to attend an interview before the charges were laid which she elected not to do after taking legal advice so part of the delay was caused by her own behaviour, and the prosecution has acted in good faith throughout. 
The ‘not guilty’ plea was not entered until 6 August by the defendant and charges withdrawn some two months later. The Court cannot take the view that this is a case where costs should be properly granted to the defendant. The prosecution acted in good faith in continuing the proceedings. As soon as they were aware the witness was not returning to New Zealand they took steps to withdraw. 
This is not a situation where they had that knowledge and deliberately kept the prosecution going in order to disadvantage the defendant. At the time they commence the proceedings they had sufficient evidence to support the conviction of the defendant in the absence of any contrary evidence and the investigation into the offence was conducted in a reasonable and proper manner. It has been unfortunate that one of their employees left New Zealand and has decided not to return. ”
[32]
In the passage just cited the Judge stated that the informations were laid in May 1999. This was an obvious error. That date should have been February 1999. No point was taken on the appeal on that mistake. 
THE LAW 
[33]
This is an appeal from the exercise of a discretion. To succeed the appellant must demonstrate that the Judge proceeded on a wrong principle or that she gave undue weight to some factor or insufficient weight to another factor or that she was plainly wrong. It is not open to this Court simply to substitute its own view of the proper outcome for that of the District Court Judge. 
[34]
1 pause here to remind myself of the relevant principles in relation to the Costs in Criminal Cases Act 1908. The Court's general discretion is contained in s 5(1). The sum to be paid, if at all, is such as the Court thinks “just and reasonable”. Section 5(1) provides: 
“(1)
Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under [section 167] of the Summary Proceedings Act 1957 the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence. ”
[35]
The approach which the Court should adopt was considered by Somers J in R v CD [1976] 1 NZLR 436 at p 437. 
“The first question … is what is meant by the words ‘shall have regard to’. I do not think they are synonymous with `shall take into account'. If the appropriate matters had to be taken into account they must necessarily in my view affect the discretion under s 5(1) and it is clear from s 5(2) that the matters to be regarded are not to limit or affect that discretion. I think the legislative intent is that the Court has a complete discretion but that the seven matters, or as many as are appropriate, are to be considered. In any particular case all or any of the appropriate matters may be rejected or given such weight as the case suggests is suitable. ”
[36]
In R v Reed, [1980] 1 NZLR 758, Mahon J at p 766 said: 
“Section 5(2) sets out a number of criteria to which the Court must have regard in deciding whether to grant costs, and if so, the amount to be granted, but the subsection also makes it clear that the establishment of such criteria is not to limit or affect the overall discretion approved by s 5(1). ”
[37]
In R v Margaritis (HC Christchurch, T66/88, 14 July 1989) Hardie Boys J said: 
“The section sets out seven considerations to which the Court is to have regard, but it makes it clear that they are not intended to be restrictive of the wide discretion which is given to the Court in respect both of whether costs should be awarded and if so in what sum. It also states that there is no presumption for or against granting costs; that an acquittal is not of itself sufficient reason for an order; nor is the fact that the proceedings were properly brought and continued of itself a ground for refusing one. All this really means that the Court is to do what it thinks right in the particular case. ”
[38]
And later, Hardie Boys J added: 
“The various criteria in s 5 really come down to two questions: was the prosecution reasonably and properly brought and pursued; did the accused bring the charge on his own head? ”
[39]
See also R v AB [1974] 2 NZLR 424, Chilwell J, R v Gillespie 10 CRNZ668, Tompkins J. Long v The Queen [1996] 1 NZLR 377, Hammond J, Egen v R (HC Auckland, T992718, 2 August 2000, Salmon J), R v Accused (T.30/91) 7 CRNZ 686 Penlington J. 
[40]
Ultimately, as Chilwell J said in R v B (supra) each case must be considered on its own facts. 
[41]
The criteria in s 5(2) are relevant not only in deciding whether costs should be granted but also in determining the amount thereof. R v Gillespie (supra) at p 671. 
GROUNDS OF APPEAL 
[42]
I next set out the grounds of the appeal. They were as follows: 
[a]
That the Judge failed to properly take into account that the prosecution did not have sufficient evidence to support a conviction. 
[b]
That the Judge failed to properly consider that the investigation was not conducted in a reasonable and proper manner. 
[c]
That the Judge did not properly consider that the prosecution ought to have known that their “essential witness” was unavailable several months prior to the decision to finally withdraw the charges. 
[d]
That the Judge took into account irrelevant matters. 
[43]
I say at once that the appellant accepted that the prosecution acted in good faith in bringing and continuing the proceeding. Likewise, the appellant accepted that s 5(2) (c) and (f) were not applicable in this case. 
[44]
The appellant's complaints centred on s 5(2)(b), (d), (e) and (g). I now refer to the appellant's arguments on these paragraphs and the respondent's responses. 
SECTION 5(2)(b): SUFFICIENCY OR OTHERWISE OF THE EVIDENCE AT THE COMMENCEMENT OF THE PROCEEDING 
[45]
The appellant's complaint was that the Judge did not properly consider and give due weight to this point. She contended that the prosecution did not have sufficient evidence to support a conviction when the prosecution was commenced. Ms Brunton went overseas on April 1999. The essential submission for the appellant was that the prosecution knew, or ought to have known, when Ms Brunton went away that she was unlikely to return to New Zealand in the future. Her unavailability became apparent at the time of the investigation interview on 9 June when another case manager took her place. Once her absence was noted, the appellant contended that as she was an essential prosecution witness, and that as Ms Brunton was unlikely to be available for the trial, the prosecution had to fail. The appellant criticised the decision of the prosecution to continue even although it was known to ACC that Ms Brunton was overseas 
[46]
Under this head, Ms Drayton-Glesti conceded, as she had to do, that the prosecution commenced in February 1999 when the information were sworn. She contended, however, that the prosecution process really commenced after the interview of 9 June 1999. Counsel emphasised the essentiality of Ms Brunton as a witness because of the appellant's indifferent command of the English language and the necessity to prove mens rea. 
[47]
Mr Stone argued: (i) that the prosecution was commenced when the informations were sworn; (ii) that at that time the ACC had sufficient evidence to maintain a prosecution against the appellant; (iii) that that position continued until October 1999 when it was found that Ms Brunton would not be returning to New Zealand in the foreseeable future; and (iv) that at that stage the informations were almost immediately withdrawn. 
[48]
Mr Stone pointed out that normally reliance on the grounds set out in s 5(2)(b) was not possible unless there was a defended hearing. Mr Stone accepted that the appellant was a Vietnamese. He submitted, however, that there was no evidence before the Judge or this Court as to the appellant's lack of understanding of the English language to the extent that she did not understand her obligations in relation to the work related compensation. 
[49]
Mr Stone also contended that it was not until 5 July 1999 that the prosecution knew, that it had to prepare its case for trial following the appellant's intimation of pleas of not guilty. He submitted that thereafter, the respondent acted with promptitude and that its intimation that the prosecution would be withdrawn took place as soon as it knew that Ms Brunton would not be available as a witness. 
[50]
I am unable to accept the appellant's complaint under s 5(2)(b). The prosecution was commenced in February 1999 when the information was sworn. I am satisfied that at that time the respondent had sufficient evidence to commence the proceeding. That finding deals with the complaint. If, however, that view is wrong, and adopting Ms Drayton- Glesti's approach that the matter should be looked at after the interview of 9 June 1999, 1 still reach the same answer. Ms Brunton was certainly known to be overseas as at 9 June. Hence the attendance of someone in her place. Once the pleas of not guilty were known, a proof was evidence was prepared in the name of Ms Brunton. Plainly, at that stage, the prosecution considered that she would be available to give evidence. The matter then developed. It was found that she was in Greece. Again, it seems clear that at that stage the prosecution still believed that she would be available to give evidence at a trial. It was only as the result of further enquiries that it was found that she would not be back in New Zealand in the foreseeable future, that the decision was made that as she was not going to be available and that the informations must be withdrawn. There was a sufficiency of evidence up until that point. Given that this was, in the broad scheme of things, a minor summary prosecution, in my view the respondent acted responsibly in deciding not to incur the expense of either bringing Ms Brunton back to New Zealand for a defended hearing or having her evidence taken by video link between New Zealand and the United Kingdom. 
[51]
For these reasons, this ground of complaint must therefore fail. 
AS TO s 5(2)(d): WHETHER THE INVESTIGATION WAS CONDUCTED IN A REASONABLE AND PROPER MANNER. 
[52]
The appellant contended that the Judge failed to properly consider “the non disclosure of vital documents”. The appellant pointed to the repeated requests for disclosure and what were described as the partial response on 12 July 1999, the non disclosure of the transcript of the interview of 9 June 1999, the non disclosure of the interviews with the appellant's employees and the late disclosure of the briefs of evidence on 1 September 1999 on the morning of the second pre trial conference. 
[53]
The appellant contended that as the result of the delays in disclosure and the inadequacy thereof the defence was seriously hampered in its efforts to prepare a defence. 
[54]
Very fairly, Mr Stone met the argument as advanced by Ms Drayton-Glesti which was directed exclusively at disclosure under this head. First of all, Mr Stone answered the point relating to the alleged non disclosure of the transcript of the investigation interview of 9 June 1999. He pointed to the fact that while that interview was taped the sound quality of the tape was poor and that, as the result, it had not been transcribed. It was therefore erroneous so Mr Stone contended for the appellant to submit that there had been non disclosure of the transcript, when in fact to attempt to transcribe the interview would have been a useless exercise. Mr Stone also pointed out that the appellant's counsel was present at the interview and therefore had a first hand knowledge of what had passed between the appellant via the interpreter and the interviewer. 
[55]
Mr Stone then dealt with the alleged non disclosure of the notes of interview with the appellant's employers. The fact was that there were no formal interviews and so there were no notes of interview to disclose. 
[56]
On this ground I first of all must point out that it was directed at the investigatory phase, that is before the prosecution was commenced, although of course I recognise that that phase can continue after the initiation of the prosecution. I do not regard disclosure as a part of the investigation carried out by the prosecution. Having made this point, I accept that the adequacy or otherwise, and the timeliness of the prosecution's disclosure can be relevant considerations when the Court is considering an application for costs under the Costs in Criminal Cases Act. 
[57]
Here, in this case, I am unable to accept that the Judge failed to properly consider “the non disclosure of vital documents” as contended for by the appellant. Mr Stone has effectively answered the two major criticisms of the prosecution's disclosure. The appellant's counsel had the briefs of evidence by 1 September 1999 on the eve of the second pre trial conference. That was just under two months from the time when the pleas of not guilty were indicated. That was a reasonably prompt response. Earlier, the appellant's counsel had received the whole of the respondent's file on 12 July 1999, a matter of only one week after the request had been made. 
[58]
For these reasons I see no substance in the appellant's second complaint, and that must also fail. 
AS TO SECTION 5(21(e): THE NATURE OF THE DISMISSAL 
[59]
The appellant contended that the case was not dismissed on a technical point. Rather, so it was submitted, there were doubts on the evidence as to whether the mens rea element of the offences could be established due to the appellant's limited knowledge of the English language. Counsel pointed to the observations of His Honour Judge Middleton in his minute of 30 April 1999 when he ordered a rehearing of the review sought by the employer to the effect that the appellant had a very limited knowledge of English and to the likely difficulty which the ACC would have encountered in proving that the appellant had the necessary guilty mind because of her inability to understand English. 
[60]
Mr Stone on the other hand contended that this ground had no application where there had not been a defended hearing which would enable a Judge to make an assessment of the evidence. In any event, and quite apart from this point, Mr Stone joined issue with Ms Drayton-Glesti on her submission that there were doubts on the evidence as to whether the mens rea element of the offences could be established due to the appellant's limited knowledge of the English language 

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