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Accident Compensation Cases

Lutomski v Accident Compensation Corporation (HC, 02/07/02)

Judgment Text

ORAL JUDGMENT OF HAMMOND J 
Hammond J
[1]
Regina Lutomski is aged 71. Her niece Aniela Mackiewicz is aged 42. In 1987, Ms Lutomski suffered an injury. ACC granted her earnings related compensation. In 1990 a further grant was made for “home help”
[2]
That home help was in fact provided by Ms Mackiewicz. During the time the home help was provided, Ms Lutomski and Ms Mackiewicz were both living at the same address. This is not permitted by the ACC rules. Ms Lutomski and Ms Mackiewicz were dishonest, in that they did not disclose the true position to ACC. The subterfuge was not only of omission. In particular, false addresses were supplied so that ACC did not become aware of the true position. The total monies so obtained were $30,294.85. 
[3]
Both women were charged with using documents with intent to defraud, under s 229A(b) of the Crimes Act 1961. It is to their credit that they pleaded guilty. Each was convicted; fined $500; court costs $130; and solicitors fees $100. 
[4]
Counsel for both women, who is not counsel who has appeared on this appeal, made applications for name suppression. Watson DCJ declined to grant name suppression in both of their cases. His given reasons were: 
“I am aware of the application counsel has made for suppressing publication of your name. I accept the distress that you obviously feel about this matter and the steps you have taken ‘to put it right’ as it were, but it is a fraud against a department which requires trust from those people with whom it deals. I do not think it is any different than a large number of other similar type frauds that appear before this court and one of the greatest deterrents that the court is able to impose in relation to this type of offending is in fact name publication. Deterrence in my view is the most important aspect in relation to these types of charges in order to try and stop people taking advantage of a system which requires them to be scrupulously honest if they wish to receive the benefits that they are entitled to. 
In the circumstances, in this case, I do not believe it is appropriate for me to order suppression of name and there will be no order suppressing publication of your name. ”
[5]
Both Ms Lutomski and Ms Mackiewicz now appeal to this court against that refusal of name suppression. 
[6]
Ms Gould has filed (without objection on the part of the Crown), two affidavits which were of course not before the District Court Judge. 
[7]
The first is an affidavit sworn by Susanne Earl, a Wellington barrister. She deposes at paragraphs 3 and 4 of her affidavit: 
“That as the elder Appellant, whom I understand to be Ms Lutomski, left the dock [in the District Court] she collapsed onto the Courtroom floor where she remained motionless for a period of several minutes, while I and several others in the room went to her assistance. 
The Appellant remained on the floor until the ambulance officers arrived when she was carried away on a stretcher. ”
[8]
The second affidavit is from Dr Helen Rodenburg. She deposes that she has been the attending physician to these two women for 12 years. In paragraphs 3, 4 and 5 of that affidavit the doctor deposes as follows: 
“THAT both Appellants suffer from medical conditions and both have been hugely traumatised by the experience of being brought before the Court: it is not exaggerating to say that they appear to have been overwhelmed by the ordeal; 
THAT Ms Mackiewicz suffers from diabetes from clinical depression: she has been repeatedly stating in the clearest possible terms that both she and her aunt would not be able to survive the humiliation of name publication and would take their own lives and I have grave fears about this; 
THAT I am attempting to deal with the situation by appropriate medical help and psychiatric referral but remain extremely concerned about them both. ”
[9]
A number of references were also handed up to the court without objection, for Ms Mackiewicz. 
[10]
The relevant statutory provisions for suppression are in s 140 of the Criminal Justice Act 1985. As has often been said, those provisions provide an unfettered discretion, but nevertheless it is one which must be exercised on proper judicial principles. 
[11]
Ms Gould helpfully referred me to a number of authorities: R v Liddell [1995] 1 NZLR 538; R v Russell, 16/5/96, CA133/96; R v Proctor [1997] 1 NZLR 295; R v McDonald, 11/8/98, 24/8/98, CA84/98; A v Police, AP240/00, High Court Wellington, 21/11/00, McGechan J; Lewis v Wilson & Horton Ltd 18 CRNZ 55; R v Kealey 18 CRNZ 602
[12]
Ms Gould accepted that when considering an application for suppression of name, the starting point must always be the importance in a democracy of freedom of speech, openness of judicial proceedings, and the right of the media to report the latter fairly and accurately as surrogates of the public. She further accepted, as held in Liddell, that the presumption of open justice requires that the jurisdiction to suppress names of accused's persons convicted of serious crimes, should be exercised with the utmost caution. 
[13]
Ms Gould further submitted that the sort of factors which required to be considered, are those outlined in Lewis (supra) at page 68, para 42, namely: 
“•
Whether the person whose name is suppressed is acquitted or convicted; 
The seriousness of the offending; 
The adverse impact upon the prospects for rehabilitation of a person convicted; 
The public interest in knowing the character of the person seeking name suppression; 
The personal circumstances of the person appearing before the court, his family or those who work with him and the impact upon financial professional or health interests. ”
[14]
In this particular case, Ms Gould said that: 
“The learned Judge did not fully consider these relevant factors, and in particular did not properly weigh the consequences of publicity on the lives of these two women as against the public interest in knowing their identities. ”
[15]
Ms Gould further submitted that the learned Judge “placed too much emphasis on the issue of general deterrence for this type of crime, without sufficiently considering the particular instance before him, as the law required him to do”
[16]
Ms Gould emphasised that both these appellants have hitherto led exemplary lives. They are devout Catholics and normally honest hardworking citizens. In relation to Ms Mackiewicz' employment, she said it was by no means certain that she would remain in it, should her disgrace “be made public”. Her own perspective is that she cannot entertain the prospect of continuing with her employment, or for that matter anything else, if this matter is publicised. 
[17]
But in particular, it is now said on the basis of the doctors affidavit to which I have referred, and what I allowed Ms Gould to say from the bar, that there is an overwhelming risk of suicide in this case, which she submitted outweighs the usual interest in declining name suppression. 
[18]
Mr Gilbert submitted that there were here positive acts of dishonesty (and some 111 of them at that); that a serious breach of trust was involved; that this was serious offending; and that the sentence itself was lenient, precisely because the sentencing Judge recognised that the refusal of name suppression would fall heavily on these two women. 
[19]
As to the concern of suicide, Mr Gilbert directed my attention in particular to McDonald. He noted that in that case there were specialist psychiatric reports which indicated that the implications of publicity on the appellant, were such that he might act out suicidal despair. It was put to the Court of Appeal that, if name suppression could not be granted in such a case, when can it be granted? 
[20]
For the court, Thomas J said: 
“This Court has declined to be definitive about the factors which may justify name suppression. In every case, the sentencing Judge must determine in his or her discretion whether the detrimental effect of publication upon the accused would be disproportionate to the gravity of the offending and outweigh the public's general right to know of the activities of the Courts. ”
The Judge also said: 
“The Court must be sensitive to the possibility that publication will lead to an offender taking his or her life. But the fact that a psychiatrist is of the opinion that there is a risk that he or she will commit suicide does not mean that name suppression will automatically follow. ”
[21]
I proceed therefore on the footing that the risk of suicide is always a matter for analysis in the instant case. It is relevant, indeed highly relevant, but not necessarily dispositive. 
[22]
But for that factor, in my view this would be a straightforward case. On the one side there are the public policy considerations for non-suppression; the character of the offending was here serious; it was dishonesty on a relatively large scale against a body dispersing public monies; and the usual principle of publication would come into play. On the other side, these women lived otherwise blameless lives and it has to be acknowledged that publication will fall more heavily on them than on perhaps most other persons. But all of that said, in those kinds of circumstances, publication would normally follow. 
[23]
The factor which might make a difference here is precisely the concern over possible suicide. Ms Gould warned me, and in the particular circumstances I did not attempt to stop her, that what has to be of concern here is some kind of pact between these two women. The general practitioner has deposed that she has “grave fears” about the likely actions of these women. The evidence is not from a psychiatric expert, and it does not appear to go so far as the evidence went in the McDonald case. 
[24]
However it is put, in a case like this, the Court is faced with the very real difficulties of the evaluating that the most difficult of all things, the mysteries of given human psyches and how they will react to a given event. Judges have to struggle with this problem all the time, and it is one of the very real burdens of office that sometimes the Judges appreciation later turns out to be incorrect. 
[25]
All of that said, a Judge has to do the best he or she can with the particular risk. In the end I am not persuaded, on what is in front of me, and despite all that Ms Gould has ably said on behalf of her clients, that name suppression should be continued in this case. 
[26]
The evidence goes no further than that there is a risk; but it is based on what is said to have been said by one or more of these women. The GP is concerned, but I have no psychiatric assistance, and nothing solid to evaluate. 
[27]
However I do consider that an additional process safeguard can be put in place, without doing undue violence to the general principle of open justice. I propose therefore to continue name suppression in this case, for a further 48 hours only from noon today. Thereafter the name suppression will expire. The purpose of this deferment is to enable the professional advisors to these two women to take any steps they consider to be appropriate to better support these two appellants. There are for instance various provisions under the mental health legislation to which resort could conceivably be had, and counselling in one form or another is very likely available. 
[28]
The appeal will accordingly be dismissed, but on the terms I have just indicated - that the name suppression will not expire for the stated period. 
Addendum 
[29]
After I had delivered the foregoing judgment, Ms Gould quite properly rose and indicated to the court that, in the period between the hearing this morning and my delivering this judgment (after lunch) she has made further enquiries. Those enquiries suggest that these two women are presently in a motor vehicle somewhere in the Wellington area with a cell phone. She does not know where they are. Her instructions from her client, which sensibly (and for the protection of Ms Gould, I say I think to be entirely appropriate), she does not propose to follow at this stage, are to call them when the outcome of this appeal is known. She fears this instruction is to enable these women to “disappear”, or worse. In the circumstances she has thought it appropriate to ask that the suppression continue until 5 pm this coming Friday, to allow for more time, if necessary with the assistance of the police, to locate these two women. 
[30]
I heard further from counsel on this subject. In the end I varied the judgment as delivered by providing that name suppression will expire now at 5 pm on Friday next. 

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