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The Queen v Beer [1999] NZCA 46; (1999) 16 CRNZ 390 (13 April 1999)

Last Updated: 5 December 2011

THE QUEEN

V

NIGEL LOWRY BEER

[1] This is an appeal against twenty convictions entered following a jury trial in the District Court at Auckland between 10 August 1998 and 19 September 1998. All were charges of using a document to obtain a pecuniary advantage contrary to s 229A of the Crimes Act.
[2] The appeal is advanced on the basis of :

• Misconduct by a member of the jury who was discharged having tainted the jury as a whole and that the Judge erred in law and in fact in not discharging the entire jury as a result;

• error of law and fact by the Judge in refusing to permit the defence to call evidence of two witnesses; and the effect and consequences of this refusal in the Crown closing and the summing up by the Judge.

[3] Mr Beer is a 47 year old dentist who has been practising in Pukekohe for many years. A search warrant was executed on his dental practice and at his home address on 18 November 1994.
[4] Subsequently in November 1995 he was arrested and charged with an initial charge of using a document with an attempt to obtain a pecuniary advantage. He elected trial by jury. After a depositions hearing an indictment was presented in the District Court which contained 20 counts under s 229A of the Crimes Act 1961.
[5] A first trial took place over a period of six weeks in 1997. Mr Beer was acquitted on three counts while the jury was unable to reach unanimous verdicts on the remaining 17.
[6] A second indictment was subsequently prepared by the Crown. This included the 17 charges on which the jury had failed to reach verdicts at the first trial and five new charges, viz 22 charges in the indictment covering a period between 1991 and 1994.
[7] The appellant who had no previous criminal convictions, operated a busy and successful dental practice in South Auckland which had three surgeries operating full time with four dentists. He estimated at trial that about 20% of his practice work involved dental benefit patients and this provided between 10 and 15% of the overall income for the practice. There had been a history of difficulty between the appellant and the governmental authorities responsible for the payment of dental benefits.

Jury misconduct

[8] The jury was empanelled on 10 August 1998. The jury list described one of the jurors (we shall refer to him as “G”) as “retired”. On Tuesday 18 August it was brought to Crown Counsel’s attention that this juror was a retired sergeant of police. Defence counsel were immediately advised and the Judge subsequently informed. The defence did not seek a discharge of the juror at the time.
[9] Later on the same day this juror was observed to acknowledge junior counsel for the Crown and to “wink” at him. The trial Judge was informed of this incident and he was advised that the appellant and his counsel were uncomfortable about what had occurred but there was no application for a discharge.
[10] On 20 August counsel for the Crown advised defence counsel that a police prosecutor had been approached by G seeking a copy of s 229A of the Crimes Act and the commentary from Adams on Criminal Law defining intent to defraud. The Judge was again informed of the development.
[11] Later on that day defence counsel made an application for the discharge of the jury. The Judge indicated that he intended to speak to the foreman. The Court was closed and an interview conducted in Court for Chambers with counsel and the appellant present. The following questions were asked of the jury foreman:

• Were the jury aware of G’s previous occupation?
• Were the jury aware of any enquiry as to the sources of police investigation?
• Were the jury aware of G’s attempts to obtain information as to intent to defraud?
• Had G expressed any view as to factors needed for intent to defraud?
• Had G expressed any view as to the strength of the Crown case?
• Did the jury know why the trial was a retrial?

[12] It is common ground that as a result of this enquiry it was apparent that the jury knew that G had worked for the police but that he had not discussed with other jurors police methods of investigation. The foreperson was not aware of G having expressed any views on the strength of the current case. He had told the jury he could get a copy of the section and the jurors had concurred in this expressly or tacitly.
[13] The Judge concluded that there had not been any general tainting of the jury but indicated that he wished to speak to the particular juror. G was interviewed by the trial Judge in closed Court in the presence of counsel and the appellant. He confirmed that he had retired from the police 4 years prior with a rank of senior sergeant, that he had sought a copy of s 229A and excerpts from Adams on Criminal Law relating to the definition of intent to defraud.
[14] The trial Judge advised the particular juror that although he was positive that the juror would be objective, the Judge was concerned about perception and accordingly discharged him from the jury. Thereafter counsel for the appellant renewed the application for the discharge of the balance of the jury on the basis that the most important factor was the appearance of justice and this had been compromised by what had occurred.
[15] It was submitted that clearly relationships had already formed between the jurors and the fact that the discharge of G would leave uncertainty. It was further submitted that the acquiescence of the rest of the jury in G's plan to go outside the evidence before the Court and make his own enquiry showed misconduct by the remaining jurors.
[16] The following morning 21 August the trial Judge gave an oral ruling that the jury would not be discharged and that the trial would continue.
[17] In the appellant’s submissions the issue relating to the discharge of G was linked to the content of writings on the whiteboard in the jury room. Each was reported to the Judge by a court official. The first appeared early in the trial, before the events concerning G. The second report was afterwards, and concerned an alteration in the message, thought to be connected with the juror’s discharge. Both in its original and its altered form the message was present before the jury commenced its formal deliberations. In the course of the appeal hearing we questioned whether the Court ought to receive this information, and this judgment has been delayed to enable counsel to present written submissions on the point.
[18] The jury system occupies a fundamental place in the administration of the criminal law in this country. The courts should be vigilant to preserve it: see Solicitor-General v Radio New Zealand Limited [1994] 1 NZLR 48,53. One of the safeguards for the system is the confidentiality accorded to the proceedings of a jury.
[19] As this Court said in R v Papadopoulos (No 2) [1979] 1 NZLR 621, 626 for centuries the Courts have declined to receive affidavits from jurors purporting to disclose what took place during their deliberations in the jury room or jury box. Mr Davison drew attention to the expression “during their deliberations in the jury room or jury box”. He also pointed to a later passage in the judgment to the effect that the rule of exclusion did not usually apply to evidence, even by jurors themselves, about matters extrinsic to their deliberations. Mr Davison submitted the Court should examine the true nature of the events in question and decide whether they fell within “jury deliberation” or were in fact evidence of juror misconduct. He submitted the statements should be viewed as extrinsic matters concerning misconduct of impropriety at a time prior to the commencement of deliberations of the jury.
[20] For purposes of the issue in R v Papadopoulos No 2 it was unnecessary to say more than that affidavits from jurors regarding events during their deliberations would not be received. However, on an examination of the principles involved, and other authorities, it is apparent the confidentiality rule extends further than events during a jury’s retirement to consider its verdict, or in the jury box itself.
[21] In Solicitor-General v Radio New Zealand Limited, and R v Papadopoulos (No 2) reference was made to three particular features of the jury system requiring protection. They were the finality of jury verdicts, candour and full participation in jury deliberations, and the privacy of jurors. Each of those considerations points in favour of protecting the confidentiality of communications between jurors. As to finality, the process by which juries arrive at verdicts is their own. They are not required to give reasons. The strength of the jury system rests on the force of the collective verdict reached, not the process of reasoning. In all but the clearest cases the ultimate outcome must involve legitimate give and take, as Judges explain to juries in the standard direction derived from the earlier Papadopoulos case, R v Papadopoulos [1979] 1 NZLR 621. In general it is of no relevance that at some stage of deliberations, or earlier in the trial, a juror expressed a point of view which the juror after all was free to change. It is the ultimate decision reached by the jury which is final, subject only to the statutory grounds of appeal. Processes undermining that finality should be withstood except to the extent truly necessary in the interests of justice.
[22] In regard to the need to encourage candour in discussions, similar considerations apply. As the Court said in Papadopoulos (No 2), no jurors should be deterred from taking part in free and frank discussions, and expressing their independent opinion, by any fear of victimisation or undesired publicity that might intrude if the opinion could later be disclosed. Any other course would diminish public confidence in the system and distract jurors from carrying out their duty conscientiously. Further, no encouragement should be given to parties to the case, or the media, to approach jurors for information regarding the jury proceedings. The last factor is also relevant to the third proposition, namely the protection of the privacy of jurors, who having performed a community duty ought to be shielded from attempts to discover how their verdict was reached.
[23] In Re Matthews and Ford [1973] VicRp 18; [1973] VR 199 a Full Court of the Supreme Court of Victoria referred to the possible distinction between evidence as to occurrences among members of the jury while in the jury room or jury box as to their deliberations, on the one hand and as to their conduct in open Court or altogether outside of Court on the other. But the Court continued :

... the principle of exclusion does not (as it seems to us) rest finally on the accident of the geographical location of the incident – i.e. as to whether it happened in the jury box or jury room, on the one hand, or in open court or out of court altogether – but rather on the social policy sought to be served by the particular rule of exclusion. (209)

[24] After discussing at length the considerations to which we have referred briefly above the Court concluded it was unnecessary to decide the issue but stated it was “far from certain” that the Court was entitled to receive evidence of remarks made by a juror outside the jury room during the course of the trial.
[25] In R v Coombs [1985] 1 NZLR 318 the trial Judge had received a written message from the foreman, during the jury’s retirement, to the effect that one member was concerned some information she had might prevent her from considering the verdict impartially. The juror had made some limited reference to this information in the presence of other jurors. In its judgment this Court said :

Jurors may not be questioned about discussions between them or any of them whether in retirement or during the course of the trial. This we think has always been understood t be the case: see e.g. R v Box [1964] 1 QB 430, 433. (324)

[26] If as seems the case the disclosure happened while the jury was deliberating the statement we have italicised was unnecessary for the decision. R v Box however, a decision of a strong Court of Criminal Appeal (Lord Parker CJ, Sachs, Salmon, Edmund Davies and Widgery JJ) related to statements made by the foreman of the jury during a lunch adjournment. Giving the judgment of the Court Lord Parker CJ said :

In fairness to [counsel], he has very properly not sought to call evidence as to what happened either in the jury box or in the jury room or in the luncheon adjournment as to conversations between jurors. That the Court will not admit evidence of any such conversations is clear from a long line of cases of which the most recent is that of Reg. v Thompson. (433)

[27] The material sought to be relied on in the present instance, writings on a whiteboard in the jury room, must be regarded as a form of communication between jurors. In terms of both principle and authority we have a clear view that unless the subject-matter falls within one of the recognised exceptions, such communications cannot be received. It would be equally unacceptable to ask the Court to consider notes found in the jury room rubbish tin, or evidence of an eavesdropper standing outside the jury room. In the present case the information reached the Court through being recorded by the Judge after counsel reported the situation to him, but the mode of communication makes no difference. It is the principle which is of paramount importance.
[28] There are a number of cases illustrating exceptions in the interests of justice. In Tuia v R [1994] 3 NZLR 553 this Court said that the evidence of a juror could be put before the Court where it related to an issue extrinsic to the jury’s deliberations, or where there was a sufficiently compelling reason to depart from the normal rule of confidentiality. In that case evidence was received that medical records relating to the appellant had been taken into the jury room by mistake. Illustrations of other situations where evidence has been received are where members of the jury failed to see or hear the announcement of the verdict, Ellis v Deheer [1922] 2 KB 113; a juror did not understand the English language; Ras Behari Lal v King-Emperor (1933) 50 TLR 1; jurors carried out their own experiments or made enquiries, eg, R v Bates [1985] 1 NZLR 326; and a juror had declined to participate in the deliberations; R v Campbell CA 239/89, 4 September 1989. It is unnecessary to multiply examples of the possible exceptions as we are satisfied the present case cannot come within them. In deciding whether, in the particular circumstances, an exception to the general rule ought to be made the following passage from Tuia v R provides this guidance :

It is ultimately a question of balancing competing public interest; the public interest in protecting the confidentiality of jury deliberations as against the public interest in seeking to do justice in an individual case. (681-2)

[29] The argument that the writings on the whiteboard showed any impropriety is weak and the link with G’s discharge, tenuous. We are satisfied that the balance is in favour of upholding the rule of confidentiality. Accordingly we decline to receive the information about the messages on the jury whiteboard.
[30] We should note for completeness that even if we had been persuaded that on balance the information should be received, it could not be sufficient to meet the threshold test enunciated by this Court in R v Bates [1985] 1 NZLR 326 or be considered as sufficiently grave and weighty to give rise to a possible miscarriage of justice. The writings on the board were more colourful than compelling and on either approach there could be no basis for this Court intervening because of them.
[31] We are therefore satisfied that although jurors should always be advised that their task is to sift, analyse and assess what is presented to them, the actions in this case were not of a quality which could lead to any possibility of a miscarriage of justice. Whether it was actually necessary the trial Judge took the cautious step of discharging the juror who had been proactive and that was in the circumstances more than sufficient to deal with the situation. Accordingly we find no substance in this ground of appeal.

Exclusion of defence evidence and its consequences

[32] It is accepted by both counsel that the starting point for any inquiry into the admissibility of evidence is relevance. The first essential step is to identify whether the contested evidence could be relevant to facts which were in issue.
[33] The principles were discussed by Fisher J in R v Wilson (1991) 2 NZLR 707. He said at 711 :

I do not think that in its primary sense relevance is concerned with degrees of likelihood. For most people a fact is relevant if to even a minute degree its existence would make the fact in issue more or less likely. Whether its effect is strong or weak is more usually referred to as the ‘weight’, or ‘probative force’, of the evidence rather than its relevance. However, to understand the authorities it is important to appreciate that ‘relevant’ is often given the secondary meaning of ‘of significant weight’. Weight is a matter of degree. It is concerned with the strength with which the evidence bears upon the likelihood or unlikelihood of a fact in issue.

[34] Mr Davison submits that the evidence which was excluded from Dr Reeves and Dr Workman was highly relevant because it related to the appellant’s mental approach in completing the claims in the way that he did, particularly as it demonstrated an external standard of reasonableness for what Mr Beer believed. Counsel submitted that the status and attention given to the South Auckland general maximum of four half-hours was elevated in the course of evidence lead by the Crown, the Crown submissions and in the summing up so as to give it a significance which it did not in reality deserve. The exclusion resulted in powerful and probative evidence as to the state of Mr Beer’s mind not being available for the jury to consider. It was submitted that as a result the case went to the jury in an unfair way with an unbalanced effect being projected which accordingly caused a miscarriage of justice.
[35] To appreciate the argument it is necessary to consider the nature of the allegation of the Crown case and the manner in which it was presented. Each charge related to a claim form lodged with the Health Department (or with Health Benefits Limited after 1 July 1993) for dental services which Mr Beer had provided to adolescents under the Dental Benefit Scheme. The form required a claimant to summarise the treatment provided to named patients, set out the fee claimed and include a statement signed by the claimant that the details of the treatment provided were true and correct. If the claim was for a scheduled treatment then it was made directly to the Health Department (or subsequently Health Benefits Limited) and processed. Some treatments (which were referred to as non scheduled treatments) required prior approval of a principal dental officer in South Auckland on a form called an H497. If an H497 was attached to the claim form and sent in the normal way then the fees would be met.
[36] There was no argument before us but that claim forms were sent in by the appellant which were inaccurate. They claimed that work had been done at different times and in different ways than was the historical reality. It is now contended by the respondent that Mr Beer’s admitted behaviour in making claims which he knew to be untrue, avoiding obtaining prior approval and dividing up work which had been done as a whole so as to avoid the strictures and requirements of the principal dental officers in South Auckland were all dishonest actions and a means of obtaining pecuniary benefit to which Mr Beer well knew he was not entitled.
[37] It was accepted that in opening the Crown alleged dishonesty in :

• claiming in a way to which he was not entitled;
• having treatment cards which did not accurately record what historically had occurred;
• certifying as correct claim forms when he knew they were not correct;
• making claims outside the 3 month period required;
• treating and claiming for treatment in a way which was different from that claimed for; and
• being deceptive in the H497 by including misleading information.

[38] As the Chief Justice commented during the course of the hearing these various issues may simply be variations on the same central theme of dishonesty, namely, making claims which he knew he was not entitled to make because he knew they were not an accurate reflection of what had actually occurred.
[39] On the other hand Mr Davison contended that the critical issue was whether Mr Beer had obtained (by what was accepted to be an untrue method of claiming) more than what in a fair and reasonable way he was entitled to receive.
[40] We are of the view that the entire case was made more complicated than it needed to be. The fact that it extended over some five weeks arose because the Crown introduced layers of allegation and proof which were at best not essential and at worst very confusing.
[41] Mr Woolford accepted that it was relatively rare for the Crown to oppose the admissibility of defence evidence but in this instance it did so because as a result of what had occurred at the first trial it knew exactly what it was intended to proffer and that it was not relevant.
[42] The appellant wished to call Dr Workman who was the Principal Dental Officer in Northland and Dr Paul Reeves a dentist practising in Kaitaia. Dr Reeve’s evidence was that when he obtained approval for the extraction of wisdom teeth he sought and obtained approval for between 6 and 8 half-hours for the extraction of four wisdom teeth. Dr Workman, the principal dental officer in Northland had given evidence about the situation with the H497 prior approval claim and how he was prepared to deal with the realities of urgency. Further he had not applied a maximum claim time like the four half-hour ceiling which existed in South Auckland.
[43] We agree with Mr Woolford that on an analysis of the applicable academic writing and Court decisions in this country and abroad, the questions to be asked in respect of relevance are :

• What is the evidence trying to show?
• Is that a proper issue in the case?
• Is the evidence helpful for that purpose?

[44] The trial Judge was persuaded that this material from the two defence witnesses could not be of relevance. First because it related to what happened in a different district and there were different procedures in different areas. Secondly, as a matter of law the fact that the appellant did not think the system was proper and that all he was claiming was what he thought was fair and reasonable to him and to his clients could not be a matter which had any effect nor could he create some ex post facto justification for claiming in the way that he did.
[45] We are attracted to the simplicity of this approach but the difficulty in this case is the fact that the Crown advanced the matter on a much less simple basis at trial. The Crown did not simply advance the case on the basis that there was a dishonest gaining of a pecuniary advantage when Mr Beer provided information which he knew to be untrue when he knew that if he had fully and honestly advised the authorities of what he had been doing he would have been precluded from any reimbursement.
[46] We are satisfied that his motives cannot provide any defence if the appellant knew that to have completed the forms correctly (as he constantly certified was the case) would have meant that he would have not been reimbursed. There were not prior approvals. There was not a system in place in which an individual dental practitioner was entitled to make their own assessment of what would be fair, reasonable and a proper recompense for the work undertaken. Mr Beer knew all that and adopted a system to subvert what he knew was required.
[47] Additional layers of material were introduced. It is clear that there were a number of references in the evidence called by the Crown to what were alleged to be losses incurred. This non essential evidence was highlighted in the final address of the Crown and was the subject of direction in the summing up.
[48] On any appeal which relates to issues of admissibility of evidence the test however remains whether there was a miscarriage of justice. We are unable to see how there could have been any resulting miscarriage of justice. Mr Beer maintained treatment cards which did not accurately record what he had done. He filled in claim forms with information which he knew to be incorrect. Mr Beer certified the claim forms as correct when he well knew they were not correct. The appellant made claims outside the three month period but recorded they were within it, knowing if he had truthfully admitted the position he would not have been paid. He made claims for having treated in ways which he knew would have denied him recompense. Mr Beer included untrue information with regard to his H497’s.
[49] The appellant knew as a result of doing all of this (which he acknowledged was untrue and in the circumstances therefore dishonest) was obtaining payments which he would not have otherwise received. Whether there was a two hour cap on claims in South Auckland which did not exist in other parts of the country was not material. The fact that Mr Beer placed a discipline of restraint on himself which was less than existed in some other places does not alter the crucial inescapable reality. Mr Beer was making claims in an incorrect way so that he received payments which otherwise would not have been available.
[50] In those circumstances we are satisfied that the evidence which was excluded could not be of relevance to any fact which was in issue and that the decision to exclude could accordingly not have created a miscarriage of justice. We can appreciate that a sense of grievance can arise where the Crown introduces unnecessary amplification or irrelevant matters, but on an appeal assessment of whether any miscarriage of justice arose, we are required to return to a disciplined analysis of what the case was about and what were the real issues of substance and relevance.
[51] We are not persuaded that any miscarriage of justice arose. The appeal is accordingly dismissed.

Solicitors:
Davenports, Auckland
Crown Solicitor, Auckland