Friday, February 15, 2008

You can't always get what you want ...

Where dishonesty offences involve the obtaining of a pecuniary advantage or valuable consideration, does that include getting what one is entitled to?

And, do such offences require, to negative the elements of dishonesty and absence of claim of right, a belief in entitlement to be reasonable?

In Hayes v R [2008] NZSC 3 (15 February 2008) these questions were answered yes and no respectively.

An example of this sort of offence, and one considered in Hayes, is s 228 of the Crimes Act 1961[NZ]:

“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,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.”

The first thing a lawyer does is ascertain what is the actus reus of each of these offences. Here, the verbs takes, obtains, uses, attempts to use are the proscribed acts, done in relation to any document. No other act is required to be proved by the prosecution, and in particular there is no reference to pecuniary advantage or valuable consideration as part of the actus reus. It is the mens rea to which those matters are relevant.

Secondly, a lawyer will ask what constitutes mens rea for these offences. The mental elements are indicated by the words “with intent to obtain” any of the specified things. In Hayes it was held that pecuniary advantage includes the obtaining of something that one does not already have, even if one is entitled to have it. Anything that enhances the defendant’s financial position is a pecuniary advantage (para 16). This interpretation of pecuniary advantage followed that in Attorney-General’s Reference (No 1 of 2001) [2003] 1 WLR 395. Other elements of mens rea for these offences are dishonesty and absence of a claim of right. It is in relation to these that a belief in entitlement will be relevant.

As to whether the belief in entitlement has to be a reasonable belief, the Supreme Court held that it does not. A subjective belief is sufficient to negative mens rea (para 34, 35). The Court indicated that in directing a jury on this issue the judge should not refer to an honest belief, but instead should refer to the accused’s belief (para 34).

The Court examined the Crown’s submission that if there was no reasonableness requirement for absence of mens rea the law in New Zealand would be out of step with that elsewhere. This was rejected after considering the position in England, Australia, and Canada.

Strange as it seems, this aspect of the appeal had not been argued in the Court of Appeal. In R v Hayes [2007] NZCA 6 (14 February 2007) the appellant had argued that the Crown had to prove that the accused was not entitled to the pecuniary advantage in question. This was on the assumption that entitlement would negate advantage. The Court of Appeal, applying its earlier decisions, held (para 14 – 16) that there would be a pecuniary advantage if the accused had used a document in a way that avoided disclosing information that would have led to a reduction in payment, and that the accused’s actual entitlement was not in issue. In the Supreme Court the same result was reached, but it was the newly taken point on the subjectiveness of mens rea that required the appeal to be allowed (para 37):

“The Judge was thereby treating the reasonableness of the accused’s belief as a necessary ingredient rather than as simply having evidentiary significance on the question whether it was or was not held. On conventional principles this was a material misdirection which gave rise to a substantial miscarriage to which it would not be appropriate to apply the proviso to s 385(1) [of the Crimes Act 1961]. There must be a real risk that the jury, or at least some members, might have thought that Ms Hayes actually held the belief she asserted but that it was not reasonable for her to do so.”

In terms of the approach to the proviso preferred in these blogs, this was an example of the kind of substantial miscarriage of justice that arises when a misdirection results in a real risk that the law has not been applied by the jury. There was no attempt to assess the strength of the evidence and the chance of a different verdict, because the trial was fundamentally flawed.

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