RENES v R [2021] NZCA 188

RENES v R [2021] NZCA 188 [14 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA268/2020[2021] NZCA 188BETWEEN SKYE AMBER RENESAppellantAND THE QUEENRespondentHearing: 23 March 2021Court: Collins, Ellis and Muir JJCounsel: S Brickell for AppellantS A H Bishop and J L Garden for RespondentJudgment: 14 May 2021 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Ms Skye Renes is a physiotherapist and a registered treatment provider for thepurposes of the accident compensation scheme. She was charged with a number offrauds said to have been perpetrated by her on the Accident Compensation Corporation(ACC).[2] Following a month-long trial in the Whangārei District Court in 2019, she wasconvicted of two charges of obtaining a pecuniary advantage by deception (charges 13and 21 on the charge list) and a charge of dishonestly using a document with intent toobtain a pecuniary advantage (charge 37).1 At the end of the Crown case, 11 othercharges were dismissed under s 147 of the Criminal Procedure Act 2011 (the CPA).The jury returned not guilty verdicts on 21 further charges and could not reach averdict on three other charges. Ms Renes was sentenced to 200 hours' communitywork.2[3] Ms Renes now appeals her three convictions.BACKGROUNDPayment of accident treatment costs by ACC[4] ACC provides no-fault comprehensive insurance cover for all people inNew Zealand who suffer a personal injury arising from an accident.[5] The comprehensive cover not only includes weekly compensation paymentsbased on the pre-accident income of earners, but also includes paying medical andtreatment costs to providers and suppliers such as general practitioners,physiotherapists, dentists, surgeons, and psychologists.[6] There are 50 provider groups in total and approximately 25,000 individualproviders registered with ACC. All ACC providers must hold an annual practisingcertificate, certifying that the health provider is competent to practice their profession.An ACC identification number is assigned to both the "vendor" organisation and theindividual provider providing the service.[7] All ACC's registered treatment providers are permitted to invoice ACC fortreating individuals who have suffered a personal injury by accident. ACC'sobligation to meet the cost of such treatment is governed by cl 2 of the First Scheduleto the Accident Compensation Act 2001, which provides that:1 Crimes Act 1961, ss 240 and 228 (maximum penalties of seven years' imprisonment).2 R v Renes [2020] NZDC 8784.2 When Corporation is liable to pay cost of treatment(1) The Corporation is liable to pay the cost of the claimant's treatment ifthe treatment is for the purpose of restoring the claimant's health tothe maximum extent practicable, and the treatment—(a) is necessary and appropriate, and of the quality required, forthat purpose; and(b) has been, or will be, performed only on the number ofoccasions necessary for that purpose; and(c) has been, or will be, given at a time or place appropriate forthat purpose; and(d) is of a type normally provided by a treatment provider; and(e) is provided by a treatment provider of a type who is qualifiedto provide that treatment and who normally provides thattreatment; and(f) has been provided after the Corporation has agreed to thetreatment, unless clause 4(2) applies.[8] ACC makes it clear to treatment providers that they must have personallyprovided the treatment for which a claim is made. While a vendor organisation ispermitted to have other providers working for it under its vendor number, vendors arerequired to identify the provider who provided the treatment by using his or her ownprovider number when invoicing ACC for treatments.[9] When a patient sees an ACC provider for the first time for an accident relatedinjury, the provider will have the patient fill out an ACC45 form. This form comprisessix parts:(a) Part A: Personal Details – completed by the patient, covering theirpersonal details;(b) Part B: Accident and Employment Details – completed by the patient,outlining how the injury occurred and where it happened;(c) Part C: Patient Authorisation and Declaration – completed by thepatient, declaring they have read and understood the patientauthorisation and declaration information;(d) Part D: Injury Diagnosis and Assistance – completed by the treatmentprovider, confirming injury diagnosis and indicating if assistance isrequired;(e) Part E: Ability to Work – completed by the treatment provider, detailingcapacity and fitness for work; and(f) Part F: Treatment Provider Declaration – completed by the treatmentprovider, certifying that they have personally examined the patient andconfirming that the injury is as a result of an accident. The declarationreads:I certify that, on the date shown, I have personally examinedthe patient and that in my opinion the condition is the resultof an accident. I also certify that the patient (or theirrepresentative) has signed the Patient Authorisation andDeclaration and has authorised me to lodge the claim on theirbehalf.[10] The ACC45 form is submitted to ACC by the provider and a decision based onthe legislative cover criteria is then made. If the treatment claim is accepted, ACCmakes the payment to the vendor's bank account. Claims for subsequent treatmentsare made on an ACC47 form.[11] Because ACC provides compensation for treatments of injuries caused byaccidents or specified medical conditions, preventative treatments, such as strappingor massage to athletes before a competition, are not eligible for ACC payments.Ms Renes and Fizeo Works Ltd[12] Ms Renes manages and part-owns a company known as Fizeo Works Ltd(Fizeo). Fizeo is an ACC "vendor", providing physiotherapy, massage and similarservices to patients. Fizeo had an agreement with ACC to supply treatment for coveredinjuries to the public at ACC's expense. The company employed registeredphysiotherapists and a range of other staff, including non-New Zealand registeredphysiotherapists, student physiotherapists, massage therapists, personal trainers, andadministration staff. As well as those physiotherapists who were, individually,registered ACC providers, Fizeo itself had an ACC registration number. The companywas only entitled to invoice ACC for work provided by New Zealand registeredphysiotherapists.[13] Fizeo used a practice management system called Houston, which allowed thecompany to transmit data from ACC45 and ACC47 forms directly to ACC. In effect,this enabled Fizeo to invoice ACC for treatments without sending in the physicalforms.The charges[14] In essence, ACC alleged that Ms Renes dishonestly submitted multipleineligible claims for payment. The claims were made using provider IDs belongingto her or to other registered physiotherapists employed by Fizeo, but (ACC said) therelevant treatments were either ineligible for payment or had been provided by otherstaff who were not New Zealand registered physiotherapists.[15] As well, Ms Renes completed an ACC24 (provider registration) form in thename of Timothy Whale, who was employed as a graduate physiotherapist by thecompany for one week in early 2016. Mr Whale said that this registration form hadbeen filled out and signed on his behalf by Ms Renes, without his knowledge orconsent. His evidence was that Ms Renes had forged his signature on the application.[16] We replicate the three relevant charges (charges 13, 21 and 37) as theyappeared on the charge list below.[17] Charge 13 was expressed as follows:The said Crown Solicitor further charges that SKYE RENES, between the 27thday of December 2013 and the 11th day of January 2015 at Whangarei, bydeception and without claim of right, obtained a pecuniary advantage.Particulars: Fees for around 629 treatments invoiced under Skye Renes' ACCprovider ID that were provided by Chelsee Peita [sic], a non-registeredprovider.REPRESENTATIVE CHARGE[18] Charge 21 was expressed as follows:The said Crown Solicitor further charges that SKYE RENES, between the 5thday of December 2012 and the 9th day of November 2014 at Whangarei, bydeception and without claim of right, obtained a pecuniary advantage.Particulars: Fees for around 294 treatments invoiced under KatherineSpence's ACC provider ID that were not provided by Katherine Spence.REPRESENTATIVE CHARGE[19] Charge 37 stated:The said Crown Solicitor further charges that SKYE RENES on or around the11th day of January 2016, at Whangarei, dishonestly and without claim ofright, used a document with intent to obtain a pecuniary advantage.Particulars: ACC24 form in Timothy Whale's name.THE TRIALThe jury booklet[20] At the beginning of the trial, the Judge told the jury:Each of you will be provided with a booklet prepared by the Crown whichsummarises the evidence relating to each of the 34 charges of obtaining apecuniary advantage by deception.The important point about this document is that the document itself is notevidence. It is simply a summary of the evidence that the Crown proposes tolead in respect of each of these 34 charges. It is designed to assist you infollowing the evidence as it relates to each of the charges. But it does notconstitute evidence on its own, and should not be used as evidence by you inassessing the charges.However, you may use it to follow the evidence in relation to each of these 34charges and you may use it to make your own notes.[21] The booklet referred to by the Judge was distributed by the prosecutor duringhis opening address. We are told that defence counsel was consulted about its contents,although the booklet also seems to have developed iteratively — by the jury insertingspreadsheets provided to them — during the trial.[22] By the end of the trial, the jury booklet contained a spreadsheet thatparticularised the 629 treatments (said to have been provided by Ms Pieta) underlyingcharge 13 in tabular form. The table divided the 629 treatments by reference to 27separate events (mainly rodeos) between December 2013 and February 2015. Thetable began by recording the first 20 of those treatments in some detail, by referenceto:(a) the names of the patients treated;(b) the relevant ACC45 claim number;(c) the treatment date;(d) the amount claimed from ACC;(e) the name of the consulting provider (Ms Renes);(f) the date the claim was signed;(g) the date the claim was received by ACC; and(h) the date the claim was paid by ACC.[23] The remainder of the 629 treatments were recorded in summary form, byreference to the names and dates of the relevant events, the number of treatments givenon each day of the event, and the amounts claimed from ACC.[24] The booklet particularised the 294 treatments referred to in charge 21 in asimilar way.ACC's evidence[25] During the trial, evidence was given by Ms Fiona Taylor and Mr Allan Levettabout ACC's audit of Fizeo, the interviewing of staff, and the filtering of ACC's rawclaims data, which ultimately led to the creation of the spreadsheets. Put briefly, overthe six-year period spanned by the audit, ACC's computer system containedapproximately 42,000 separate claim records relating to Fizeo's providers. Interviewswith staff assisted ACC to identify particular date ranges or claims relating toparticular providers that were of interest. This filtering process ultimately led ACC toconclude that approximately 3,400 of the claim records were, in some way, fraudulent.These are the records summarised in the jury spreadsheets for each charge. Thespreadsheets reflected the various filters used.The evidence relating to charge 13[26] As noted earlier, charge 13 relates to work allegedly done by Chelsea Pieta butcharged under Ms Renes' name. Ms Pieta was a student massage therapist employedby Fizeo. She was neither a qualified physiotherapist nor an ACC registered providerwho was eligible to submit ACC45s. She said that although initially her duties mainlyinvolved providing massage therapy to clients, after her graduation as a massagetherapist she began to take on more responsibility. From 2012 she began to attendrodeos and sports tournaments throughout the country to care for attendees. Sheremembered attending these events sometimes alone, sometimes with ShannonEdmonds-Tito (another massage therapist ineligible for registration with ACC), andsometimes in groups that included Ms Renes.[27] Ms Pieta's evidence was that her work at sports tournaments sometimesinvolved treating players, including strapping and diagnosing acute injuries. AtMs Renes' direction, she would then sign ACC45 forms, using Ms Renes' name andprovider number. The forms would later be entered into the practice managementsystem and so sent to ACC.[28] Ms Pieta said that she became more involved in physiotherapy work afterMs Renes herself suffered an injury in July 2014. She would see patients, completean ACC45 form with them, and then complete treatment ranging from preventativestrappings to addressing acute injuries. She would complete diary entries, patientnotes, and other paperwork all under Ms Renes' name. After the tournament, Ms Pietawould return with "piles" of forms, which Ms Renes would later sign.[29] During her examination in chief, Ms Pieta said very little about the specificevents or claim records referred to in the jury spreadsheet for charge 13. There wereonly two even vaguely relevant exchanges.[30] The first was as follows:Q. Can you remember when that was, when you started doing the rodeos?A. Oh, rodeo, yeah, Keita left in 2012, so I started doing rodeo kind ofwith her in 2012 I started, yeah, I started, and then, yeah, we used todo down, all the way down to, like, Rotorua and stuff, and then we'dmake our way all the up, up to Kaitaia, and then all the way down toSouth Island.Q. So who would be on these trips following the rodeo?A. Um, well, Skye would be there on some of them and then near, like,the end in 2015, '14, there was a couple of times that me and ShannonTito, Edmonds-Tito, we went away to South Island and did about threerodeos down there.[31] Beyond referring to them being in the South Island, she did not specify whereor when these "about three" rodeos occurred. The second relevant exchange wasslightly more specific. Ms Pieta referred to being at Wellsford Sevens with Shannon,but not Ms Renes:Q. Now, still back, we're still concentrating on the rugby and the sportingtournaments–A. Mhm.Q. – who would go and work these tournaments?A. Um, there would be probably, like – oh, on specific times there wouldbe all of us going, so there would be at the time whoever was working,there were some times – and sometimes there would be either just meand/or me and Shannon a lot of times some of the rodeo and sevenstournaments, in particular one of the Wellsford Sevens tournamentswhen Shannon went and that was a bit – I remember that because Igot in trouble for that one in that we had set up outside the clubroomsat Wellsford and one of the boys, he had got an acute injury thenso I strapped it and I diagnosed it, which I'm not supposed todiagnose, and gave him the ACC 45, he filled it out Q. All right, we won't worry about what they said but there's – about thattreatment you've described and the ACC 45 form, can you remembernow in whose name, what provider number was used?A. Yeah, Katherine Spence, yeah, [32] It can usefully be interpolated at this point that although the particulars forcharge 13 did refer to treatments given by Ms Pieta at the Wellsford Sevens, theunifying allegation was that the treatments had been charged under Ms Renes' — notMs Spence's — name.[33] When the different events underlying charge 13 were put to Ms Pieta in cross-examination, she accepted that she was either not herself present at a number of them,or that Ms Renes was also present (and so the claim records for that event could haverelated to treatments provided by her). On our reading of her cross-examination, sheonly had a clear recollection of two events that she had attended and Ms Renes hadnot:3(a) The Wellsford Sevens, which took place on 8 November 2014.Ms Pieta again said that she attended the event with Ms Edmonds-Titoand accepted that her work (including strapping work) had been billedunder Katherine Spence's provider number. The jury spreadsheetrecords that 15 treatments, with a value of $569.38, were given at thatevent.(b) The Lawrence and Waikouaiti Rodeos on 31 January 2015 and1 February 2015. Ms Pieta said that these South Island events wereattended by herself and Shannon Edmonds-Tito (who was also not anACC registered provider) and that Ms Renes was working with theKiwi Ferns (the New Zealand women's rugby league team) at theAuckland Nines competition. The jury spreadsheet recorded that a totalof 28 treatments was provided at these two rodeos, with a combinedvalue of $960.40.[34] Ms Pieta's evidence about the Wellsford Sevens was supported by the evidenceof Ms Edmonds-Tito, with whom defence counsel had the following exchange:Q. So, first of all, did you go to the Wellsford Sevens tournament?A. Yes.Q. Who with?3 Ms Pieta was also clear that Ms Renes was absent for the first part of the Southland Rodeo on9 February 2015 but arrived later.A. Chelsea.Q. Any physio with you?A. No.Q. So in terms of the documentation and the processing, if you like, whatslots did you use?A. Ah, Skye's and Kaitlyn's. Oh, Katherine's. Whatever her name is.[35] Ms Renes herself also accepted in her evidence that she was not present ateither the Wellsford Sevens or the Lawrence and Waikouaiti Rodeos.The evidence relating to charge 21[36] As noted earlier, charge 21 was said to relate to fees for around 294 treatmentsinvoiced under Katherine Spence's ACC provider ID that were not provided byMs Spence between December 2012 and November 2014.[37] Ms Spence gave evidence of the specific dates she believed Fizeo had billedunder her provider ID when she was not working. But some of this evidence wasundermined during cross-examination, when Ms Spence conceded that ACC45 formsshe had filled out suggested that she had, in fact, worked on two of the relevant days.Ms Spence did not accept that it was possible there were other instances where shemight have been mistaken. Her evidence that she had not attended the WellsfordSevens tournament between 7 and 9 November 2014 was corroborated by bothMs Pieta and Ms Edmonds-Tito, discussed above.The evidence relating to charge 37[38] Timothy Whale gave evidence at trial that his ACC24 registration form hadbeen completed, signed and filled in before his first day as a Fizeo employee and thathis signature had been forged by Ms Renes. When shown the ACC24 form in question,he confirmed the signature was not his and was "not even close".[39] He rejected the suggestion, put to him in cross-examination, that he gaveMs Renes permission to sign the form on his behalf.The Crown's closing address[40] In his closing address, the prosecutor (Mr Smith) addressed the issue ofrepresentative charges in the following way:Representative charges are appropriate in those cases where a specific date intime may not be able to be identified particularly given the passage of time,and particularly when you're talking about a method, if you like, "This is howit was." You're not proving the individual instance, if you like. You'reproving the system, and that's what it is in many of these charges.So the key there and what must be proved is that it occurred at least once."Are you sure that it occurred in relation to that charge on at least oneoccasion?" So you will see when we go through the different particulars andschedules that there on some, a witness has indicated, "Well maybe thosethree, but those two I was away." I'm just using that as an example.So as a representative charge, it's not a requirement that every single line isproved to any particular standard. What you have to be sure about for arepresentative charge is that it occurred at least once, the dishonesty, thedeception.[41] We observe that these comments were at odds both with the framing of thecharges (which alleged 629 and 294 discrete offences) and with the particularscontained in the jury booklet, which were, in fact, specific as to dates and individualinstances.The Judge's summing-up[42] In his summing-up, the Judge dealt with the representative charges only once,and briefly. He said:[14] As you know all charges except charges 3 and 4 are representativecharges. What that means is that the Crown alleges that the offendinghappened at least once during the period specified in the charge. In respect ofeach of those representative charges, in order to find Ms Renes guilty youmust be satisfied that during the dates alleged the offending happened at leastonce.[43] The summing-up and the Judge's question trail treated all the 26 obtaining bydeception charges generically — neither referred to the particulars of the variouscharges and no distinction was drawn between those charges that were representativeand those that were not. The Judge was, in fact, mistaken in saying that only the thirdand fourth charges were not representative.4 And the question trail did not refer torepresentative charges at all.The ninth jury question[44] Both during the trial and during their deliberations, the jury asked a number ofquestions. The ninth such question was in the following terms:• Charge 13. 629 claims• Wellsford 7's, Lawrence & Waikouaiti Rodeo, sky[e] is found not bepresent at the above eventsQ) You mentioned, if one treatment is proven guilty that means sky isguilty for that whole charge?(- out of 629 treatments there are a average of 48 treatment not providedby skye & they were billed)- can you split the number of charges?[45] When the Judge answered the jury's question, he said:I have interpreted your question as centering around the issue of arepresentative charge, which of course this charge that you questioned about,charge 13, along with all of the others except charges 3 and 4, arerepresentative charges. What that means is that the Crown alleges that theoffending happened at least once during the period that is specified in thecharge.So in respect of charge 13 in order to find the defendant guilty, you must besatisfied that during the dates alleged the offending happened at least once.So that is the key issue as I have interpreted your question, so hopefully thatassists in that regard but of course I also stress that very direction applies toall of the charges, except charges 3 and 4 because apart from those two chargesall of the charges are representative. Thank you for that.[46] This answer repeated the error made by the Judge in his summing up, as to thenumber of representative charges. The error was, however, corrected by him shortlyafterwards, when he made it clear that charges 35, 36 and 37 were also notrepresentative.4 This mistake was eventually corrected, as discussed below.Sentencing[47] As noted earlier, Ms Renes was, eventually, only convicted of charges 13, 21and 37. In later sentencing her, the Judge was required to consider the question ofreparation (which had been sought by ACC). In that respect he said:[12] The next issue which, as I have already commented on to some extent,is the more difficult issue, that is the issue of reparation. That, of course, issubject to specific provision in the Sentencing Act 2002 which essentially saysthat where the Court is satisfied of loss then, except in circumstances wherethere might be financial hardship, the Court must order reparation, but ofcourse the Court has to be satisfied as to the actual loss and in that respect, ofcourse, these are representative charges which means that the jury only haveto be satisfied that there was one instance of such behaviour in order toconvict, which simply means, of course, that unless there was clear evidenceon which a logical conclusion can be drawn, then it is simply speculative asto what amount or what number of occasions the jury was satisfied wereinvolved.[13] As for the Crown, I cannot discern clearly the basis for the calculationwhich is around about $11,000 in total, as I understand it, but equally, in myview, the submissions made for you about the amount involved, which issomething over $2000, is likewise difficult to calculate and it is not clear as tohow that figure is reached and certainly I am of the view that it is entirelyspeculative as to what the jury might have reached and I do not accept theconclusions as suggested by Mr Wall based on the acquittals on other charges.That is a possibility but no higher than that, certainly not to the point where Ican be satisfied as to an exact amount, so I am left in a situation where theamount involved could be something between, I think, $2700 to somethingapproaching $13,000, I think it might be, in fact, for the Crown. Where withinthat range the amount fits I cannot simply determine and, as I have said,especially seeing these were representative charges.THE APPEAL[48] The appeal in relation to Ms Renes' convictions on charges 13 and 21 centreson their representative nature. More specifically, it is said that:(a) Both charges particularised a very high number of alleged frauds (629and 294 respectively), but the prosecutor led very little (in someoccasions no) evidence that the fraud was at the level being representedto the jury. This placed the appellant at a considerable disadvantageand effectively reversed the onus of proof, putting her in a positionwhere she had to attempt to prove her innocence by attempting tochallenge each of the alleged treatments that she was alleged to haveinvoiced for fraudulently.(b) The charges were defective because there were distinguishing featureswithin the charges that meant they should have been broken up intoseparate representative charges. This court cannot be satisfied thatthere is was a common foundation for the verdicts on those charges andso the trial miscarried.[49] The appeal in relation to charge 37 is based on the proposition that the juryverdict is unreasonable because, as a matter of law, Ms Renes could not be guilty ofusing the ACC24 form with intent to obtain a pecuniary advantage. Even if she acteddishonestly and without a claim of right, that document could never have provided herwith a pecuniary advantage. It is also submitted that the judge misdirected the jury inrelation to the elements of the offence.[50] It is convenient to deal with the challenge to Ms Renes' convictions on charges13 and 21 together, and then to address the challenge to her conviction on charge 37.CHARGES 13 AND 21Representative charges: the law[51] Section 20 of the CPA provides:20 Charge may be representative(1) A charge may be representative if—(a) multiple offences of the same type are alleged; and(b) the offences are alleged to have been committed in similarcircumstances over a period of time; and(c) the nature and circumstances of the offences are such that thecomplainant cannot reasonably be expected to particularisedates or other details of the offences.(2) A charge may also be representative if—(a) multiple offences of the same type are alleged; and(b) the offences are alleged to have been committed in similarcircumstances such that it is likely that the same plea wouldbe entered by the defendant in relation to all the offences ifthey were charged separately; and(c) because of the number of offences alleged, if the offenceswere to be charged separately but tried together it would beunduly difficult for the court (including, in any jury trial, thejury) to manage the separate charges.[52] Section 17(6) of the CPA requires the prosecutor to provide additionalparticulars if the charge is a representative charge. The particulars are the minimumthat the prosecution must establish to prove the charge.[53] There are important differences between representative charges laid unders 20(1) and those laid under s 20(2). A representative charge should not be filed unders 20(1) if the evidence supporting that charge discloses identifiable, discrete instancesof offending.5 But this principle does not apply in s 20(2) cases because thatsubsection is predicated on the existence of multiple discrete, but very similar,offences.[54] The legislative history makes it clear that s 20(2) (an equivalent of which didnot exist prior to the enactment of the CPA) was a response to judicial criticisms ofindictments — particularly in fraud cases of the present kind — containing very largenumbers of separate charges.6 As the explanatory note to the Criminal Procedure(Reform and Modernisation) Bill 2010 stated:Representative chargesWhile a charge should normally relate to a single offence, the Bill allows forrepresentative charges in 2 circumstances. The first circumstance is wherethere has been repeated conduct over a period of time but it is not possible tofully particularise the individual charges. This largely codifies currentpractice and the common law that has developed since the issuing of aPractice Note that permitted the use of representative charges in sexual cases(Practice Note—Form of indictment—particulars of sexual offending(21 November 1994)).The second circumstance is new. It is aimed at addressing difficulties that arisefor Judges and juries where there are a very large number of charges of thesame type (for example, fraud or other dishonesty charges) and the5 R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [8].6 See for example the comments in Tuckerman v R CA280/86, 31 October 1986 (55 counts) andR v Staples CA215/04, 30 August 2004 (421 counts).circumstances are such that the defence on 1 charge is likely to be the samefor the other charges. Representative charges will be available where there isrepetitive or multiple offending in circumstances where particulars areavailable but the number of charges makes separate charges unmanageableand the verdict on 1 charge is likely to be the same as the verdict on all charges.[55] Before the enactment of s 20, the Courts had made it clear that where theevidence relating to a representative charge (which, at that time, was necessarily of thes 20(1) variety) disclosed discrete and distinguishable incidents of offending of therelevant kind, a jury must unanimously agree on the specific facts (essential elements)on which any guilty verdict relies. For example, in R v P (CA184/99), this Court said:7[19] It had not been suggested in any interlocutory proceeding or at trialthat the Judge should not have permitted the representative charges to go tothe jury. Except in respect of the alleged conduct of the appellant when C wasindisposed through suspected cyanide poisoning, we see no basis for concernabout the representative charges. R v Accused [1993] 1 NZLR 385 reviewsthe justification for representative counts where there has been a continuingpattern of criminality rendering repetitive acts incapable of being defined withthe particularity generally required by virtue of s 329(6) of the Crimes Act1961. The practice has occurred in New Zealand for at least 15 years and isthe subject of a Practice Note issued by the Chief Justice and the Chief DistrictCourt Judge on 7 December 1994.[21] In the present case the alleged conduct of the appellant following thesuspected accidental cyanide poisoning was distinguishable in the context ofa period of otherwise repetitive and undistinguishable events. Thedistinguishable conduct could properly have been the subject of its ownrepresentative count, but it was not. Even in such circumstances the risk ofinjustice could be adverted by an appropriate direction. When dealing withthe representative charge it was open to the Judge to instruct the jury that theymust be unanimously satisfied beyond reasonable doubt that all the elementsof rape coincided on one or more occasions in the period specified in thecharge. If they decided to focus on a particular incident such as, for example,the suspected cyanide poisoning incident, they must be unanimously satisfiedthat all the elements of rape coincided on at least one occasion during theperiod when the complainant was indisposed.[24] It is necessary also to mention, for the assistance of the trial Judge onany new trial, how the jury might be instructed if the appellant were again togive evidence of reasonably specific incidents of admitted intercourse. Theactual conduct itself was not confirmed by the complainant with anyparticularity and accordingly there is no requirement on the Crown to allegespecific offences conforming with the appellant's evidence at the recent trial.But if the pattern of his evidence should be repeated the jury would have to be7 R v P (CA184/99) CA184/99, 2 September 1999.instructed that it could not convict on the general representative charge ofrape in reliance on any of the specific admitted incidents unless they wereunanimously satisfied beyond reasonable doubt that all the elements of rapecoincided in respect of any particular incident they found occurred. Specificreference may well then have to be made by the trial Judge to incidents whichhad been particularly identified, including by the appellant.(emphasis added).[56] As far as we are aware, however, there are no New Zealand cases that discussa unanimity requirement where the representative charge has been laid under s 20(2).Whether or not that requirement exists is central to this appeal; we discuss it further,below.Discussion[57] To the extent that Ms Renes' challenge to her convictions on charges 13 and21 is founded on criticism of the Crown evidence, it is misconceived. We agree thatthe Crown evidence for many of the individual discrete offences underlying thecharges was sparse or non-existent. But that only favoured the defence. And whilewe also accept that the sheer number of underlying offences placed a heavy burden ondefence counsel, that burden would have been no less had they been chargedindividually or grouped on some other basis. We do not propose to address that aspectof the appeal further.[58] Rather, we see Ms Renes' appeal against her convictions on charges 13 and 21as involving two key questions:(a) Were representative charges appropriate?(b) Was a unanimity direction required?[59] The two questions are somewhat related.Were the representative charges appropriate?[60] We begin by noting that, contrary to what the prosecutor seemed to suggest inhis closing address,8 the representative charges here were — if anything — laid unders 20(2), not s 20(1). This was plainly not a case involving multiple offences of thesame type whose nature and circumstances were such that the dates and details couldnot reasonably be expected to be particularised. And the dates and details of theoffences were, in fact, particularised, in the jury booklet.[61] So the question is whether the representative charges were of the kindcontemplated and authorised by s 20(2), which (to reiterate) requires that:(a) multiple offences of the same type are alleged; and(b) the offences are alleged to have been committed in similarcircumstances such that it is likely that the same plea would be enteredby the defendant in relation to all of them (if charged separately); and(c) because of the number of offences alleged, if the offences were to becharged separately but tried together, it would be unduly difficult forthe jury to manage.[62] We have little hesitation in concluding that the first and the third of theseprerequisites were met here. But the second is more difficult. Although framed byreference to a defendant's likely plea, the assumption underlying the second (s20(2)(b)) requirement must also be that the defences on each of the individual offences(if charged separately) are likely to be the same. That is made clear in the explanatorynote set out above, and accords with common sense. It is also, we think, implicit thatthe verdicts on each of the underlying offences are — by dint of their similarity andthe similarity of the circumstances in which they were allegedly committed — likely8 Set out at [40] above.to be the same. That likelihood is not, however, always borne out, which can presentchallenges on sentencing, as in the present case.9[63] Here, and taking charge 13 as our lead example, what the Crown had toestablish was that — on at least one of the 629 occasions referred to in the particulars— Ms Renes obtained a pecuniary advantage by deception. In turn, that required proofthat:(a) she made a false representation in an ACC45 form (namely that thetreatment recorded and claimed for was provided by her);(b) she knew that the representation was false in a material particular;(c) in making that representation, she intended to deceive ACC; and(d) by submitting the forms, Ms Renes obtained a pecuniary advantage orcaused ACC loss.[64] It seems clear that the way in which the Crown sought to prove charge 13 wasby establishing (primarily through the evidence of Ms Pieta) that Ms Renes was notpresent at any of the events to which the 629 ACC45 forms related. If that was so,then each of the forms falsely represented that it was she who had given the relevanttreatment. Knowledge and intention would then largely be a matter of inference, basedon the sheer number of forms submitted, and their necessary consequence (namely,payment of the amounts claimed by ACC).[65] As the evidence unfolded, however, the circumstances in which some of the629 particularised offences were alleged to have been committed appeared differentfrom the circumstances in which others were said to have been committed. Morespecifically, the evidence suggested that Ms Renes was present at quite a number of9 As this Court said in Dryden v R [2013] NZCA 232 at [19]:The use of representative charges may present problems when the offender is sentenced. Averdict delivered on a representative charge may not provide the sentencing Judge with anyreal indication of the jury's assessment of the offender's overall culpability. In such cases,the Judge will be required to reach his or her own conclusion regarding that issue whendetermining the sentence to be imposed. The use of separate charges in respect of discreteevents obviously avoids this problem.the relevant events. It was therefore a reasonable possibility that the ACC45 formsrelating to those events did not contain a false representation at all. But where theunderlying offences related to ACC45 forms submitted for events not attended byMs Renes, the circumstances were necessarily different. In those circumstances,Ms Renes' defence was that the forms had been filled out as a matter of administrativeconvenience and then submitted to ACC by accident. So not only were Ms Renes'defences different, as between certain of the 629 underlying offences, the evidenceraised a real prospect that:(a) the jury might find the first element proved in relation to some of theunderlying offences but not in others; and(b) the jury's verdicts might not be the same for each of the 629 offences.[66] So, too, with charge 21, which was particularised as relating to fees for 294treatments given between December 2012 to November 2014 and invoiced underKatherine Spence's provider ID that were alleged not to have been provided by her.The prosecution centrally relied on Ms Spence's evidence that she had not worked onthe relevant dates. Under cross-examination, however, Ms Spence conceded that shehad worked on some of those dates. Again, this evidence meant that — in terms ofs 20(2) — the underlying offences had been allegedly committed in two different typesof "circumstances" (one where Ms Spence had not been working and one in which shehad). The prospect of different verdicts relating to some of the underlying offencesagain arose.[67] All that being said, we are disinclined to conclude that charges 13 and 21 werenot properly laid under s 20(2). It seems the different circumstances to which we havereferred in our analysis were not apparent until the trial, although there may be aquestion about why the prosecution did not ascertain more clearly prior to trial whatMs Pieta's evidence (in particular) would be. And the reality is that even if the chargescould usefully have been divided into smaller representative groups — most obviouslyon an event by event basis — the task faced by defence counsel would have beenessentially the same.10 So while the framing of the charges may not represent bestpractice, we can see no real prejudice to the defence. We are therefore unable todiscern any vitiating error in the way the two charges were laid.Was a unanimity direction required?[68] As the cases discussed above make clear, the laying of a representative chargeunder s 20(1) is predicated on the evidence establishing a course of similar conduct inwhich discrete instances of offending are not readily identifiable. It is only where theevidence at trial suggests that certain instances can be separately distinguished — andthat a representative charge is therefore inapt — that a unanimity direction is required.[69] But a representative charge laid under s 20(2) is different. The laying of sucha charge is predicated on the existence of many discrete, identifiable, but similarinstances of offending. Unlike in a s 20(1) case, it is the very fact of multiple discreteoffences that makes a representative charge apt.[70] Based on the authorities discussed earlier, whether or not a unanimity directionis required in a s 20(2) case must depend on whether it is possible that the evidencegave rise to a risk that individual jury members reached their "guilty" verdict byreference to different incidents. Such a problem would arise, for example, if it ispossible that some jurors found that a false representation was made by Ms Renes onone of the particularised occasions, but others might have found a false representationon another.[71] This point can, we think, be demonstrated by reference to the decision of theEnglish and Welsh Court of Appeal in R v Brown.11 Mr Brown was charged withfraudulently inducing four people to acquire shares in a company by makingmisleading statements. The particulars given in the count identified five statements10 We tend to agree with Mr Brickell that it would have been preferable if the Crown had providedthe particularisation contained in the jury booklet as a schedule to the charges themselves. But itis not clear to us that its failure to do so caused prejudice to Ms Renes; the cross-examination ofMs Pieta makes it clear that defence counsel was aware of the relevant particulars and was able tomake considerable headway in refuting them. The cross-examination of Ms Spence also indicatesthat defence counsel was prepared to canvas the specific underlying offences alleged by focussingon specific dates.11 R v Brown (Kevin) (1984) 79 Cr App R 115 (CA).allegedly made by him in the knowledge that they were misleading, deceptive, orfalse.12 Any one of the statements particularised was sufficient to constitute thenecessary inducement. The jury was correctly told that it was not necessary for alljurors to accept all five statements particularised in the count in order for a conviction;it was sufficient if each was satisfied in respect of one. But in the course of hissumming-up and in answer to a question from the jury the trial Judge had said:13It does not matter that some of you are satisfied that one of the variousstatements is made out, and others of you are satisfied not about that statementbeing made out but that another is made out. It is sufficient if you are allagreed that there was a dishonest inducement. So if you find some of you aresatisfied that representation A was made out, some of you are not satisfiedabout that but are satisfied that representation B was made out, then it doesnot matter, provided that you are all satisfied that there was the dishonestinducement made and that it operated upon the mind of the person to whom itwas made and caused him to act in the way that he did.(Emphasis added).[72] The Court of Appeal later held that the direction that it was not necessary forthe jury to be unanimous as to the relevant representation was wrong. The Courtsaid:14Counsel for the appellant was correct in his submission that it is a fundamentalprinciple that in arriving at their verdict the jury must be agreed that everysingle ingredient necessary to constitute the offence has been established. Thefalse statement is an essential ingredient.In a case such as that with which we are now dealing, the following principlesapply: 1. Each ingredient of the offence must be proved to the satisfaction ofeach and every member of the jury (subject to the majority direction).2. However, where a number of matters are specified in the charge as togetherconstituting one ingredient in the offence, and any one of them is capable ofdoing so, then it is enough to establish the ingredient that anyone of them isproved; but (because of the first principle above) any such matter must beproved to the satisfaction of the whole jury. The jury should be directedaccordingly, and it should be made clear to them as well that they should allbe satisfied that the statement upon which they are agreed was an inducementas alleged.12 The charge was not, however, a representative one.13 At 117.14 At 117 and 119.[73] In the present case, the filing of a representative charge under s 20(2) was, aswe have explained earlier, no doubt predicated on the fact that different verdicts onthe particularised individual offences were unlikely. In other words, the underlyingassumption was that if the jury found that there had been a false representation madeon one of the particularised occasions, it would find there had been a falserepresentation made in all of them. If that was so, the risk to which we have referred,and the problem identified in Brown, would not arise.[74] But the evidence at trial did not fall in that way. There was plainly room fordoubt as to whether the ACC45 forms relating to some or all of the events that theevidence suggested had in fact been attended by Ms Renes, contained a falserepresentation at all. The possibility that the jury might not be unanimous as to theoccasions on which a false representation was made did, therefore, arise, and so, wethink, a unanimity direction was required.[75] It is not disputed that such a direction was not given. So the question becomeswhether, in terms of s 232 of the CPA, this error created a real risk that the outcome ofthe trial was affected.[76] In the rather unusual circumstances of this case we consider the answer mustbe "no", because of the ninth jury question referred to at [44] above. That questionmakes it clear that the jury was alive to the issues that have become central to thisappeal. Notwithstanding the Judge's comments at sentencing, we think the questiongives as great an insight as conceivably possible into the jury's reasons for findingMs Renes guilty on charge 13. The most reasonable inference is that they were agreedas to proof of all the elements of the offences (including the making of a falserepresentation) where ACC45 forms in the name of Ms Renes had been submitted forevents at which she had not attended. Importantly — and although it is a matter ofgood luck, rather than good management by the Crown — we think the questionsuffices to put to bed any risk of miscarriage on the grounds of a "missing" unanimitydirection.1515 As can be seen from the recent decision of this Court in Hunter v R [2021] NZCA 75 at [28]–[33],the failure to give a unanimity direction will not always give rise to a risk of inconsistent reasoningand, so of miscarriage — an air of reality must be brought to bear when assessing the jury's likelydeliberative processes.[77] While the jury's question did not refer to charge 21, we think it inconceivablethat the jury would not have applied the same logic. As we have said, the Crown'scase was simple; it depended on Ms Spence confirming in her evidence that she hadnot worked on the days to which the relevant ACC45 forms related. For thoseinstances where she did not confirm that, there would be a reasonable doubt as towhether the representation contained in the form was false.Conclusion[78] For the reasons we have given we consider that there is no vitiating error inlaying charges 13 and 21 as representative charges under s 20(2). While it would havebeen preferable further to divide the charges by reference to separate events, and tohave the particulars of the underlying offences contained in the charge sheet itself(rather than in the jury booklet), we can see no real prejudice to the defence in whatoccurred. And although we think that after the evidence had concluded it would havebeen open to the Judge to split charge 13 — as the jury suggested — we do not considerhis failure to do so is of any real significance.[79] In light of the way in which the evidence unfolded at trial, we consider that aunanimity direction was required. But the contents of the ninth jury question meansthat the failure to give one in this case did not create a real risk that the outcome of thetrial was affected. No miscarriage has occurred.[80] Ms Renes' appeal against conviction on charges 13 and 21 is thereforedismissed.CHARGE 37[81] Charge 37 was not a representative charge. It alleged offending under s 228 ofthe Crimes Act, which relevantly provides:228 Dishonestly taking or using document(1) Every one is liable to imprisonment for a term not exceeding 7 yearswho, with intent to obtain any property, service, pecuniary advantage,or valuable consideration,—(b) dishonestly and without claim of right, uses or attempts to useany document.[82] More specifically (and as noted earlier), the charge alleged that Ms Renesdishonestly completed an ACC24 registration form in the name of Timothy Whale,who was employed by Fizeo as a graduate physiotherapist for one week in early 2016.He left his employment after expressing dissatisfaction with practices he consideredimproper. In his de facto resignation letter he complained, "My ACC registration formwas filled out and signed on my behalf, using my name, without my knowledge orconsent". He gave evidence at trial that his registration "was completed, signed andfilled in before my arrival on [my] first day and had been signed for me by Skye Renes,so she forged my signature, she forged the application". As mentioned before,Mr Whale confirmed the signature was not his and was "not even close". Under cross-examination, he rejected the suggestion that he had given Ms Renes permission to signthe form on his behalf. Indeed, it seems Mr Whale was — at that point — ineligiblefor registration because he did not have a practising certificate.[83] Ms Renes appeal in relation to charge 37 has two limbs:(a) The jury's verdict was unreasonable because Ms Renes did not obtainand could not have obtained a pecuniary advantage by submitting anACC24 form in Mr Whale's name (the suggestion being that the act ofmere registration could not have amounted to a pecuniary advantageand the jury were not entitled to conclude it did).(b) The Judge erred in his summing up by not directing the jury that, ifMs Renes' belief that she was permitted to use the form as she did washonestly held, it did not have to be reasonable.[84] We address each in turn.DiscussionIntent to obtain pecuniary advantage?[85] It can usefully be observed at the outset that s 228 (unlike s 240, which was thebasis for charges 13 and 21) does not require a defendant to have actually obtained apecuniary advantage. Rather, it requires dishonest use of a document with pecuniaryadvantage as the "end game". So the proper focus is on what it was that Ms Renesintended to achieve by submitting the form which, for the purposes of this first part ofthe discussion, we assume she did dishonestly and without claim of right.[86] On our reading of the charging document, counsel's addresses and the Judge'ssumming-up, there was no focus on what the "pecuniary advantage" was thatMs Renes was said to have intended to obtain by submitting the form.16 But there are,we think, two tenable possibilities. The first is that the immediate intendedconsequence — obtaining Mr Whale's registration — itself constituted a pecuniaryadvantage. The second is that the relevant pecuniary advantage was a more distantintended consequence, namely making claims for treatments provided by Mr Whale,once registered. The alternatives really amount to the same thing and, in our view,either suffices. Both are satisfied here.[87] As to the act of registration itself being a pecuniary advantage, Ms Bishopreferred us to:(a) Ortmann v United States of America where the Supreme Court wassatisfied that retaining digital files on Megasites' servers represented apecuniary advantage because it meant the files "remained available fordistribution, with the consequent advantage of generating traffic for theMegasites and advertising and subscription income from peopleaccessing the copyrighted material";17 and16 The question trail simply stated that pecuniary advantage "means anything that improvesMs Renes financial position. It does not matter whether the advantage was to Ms Renes personallyor to her company".17 Ortmann v United States of America [2020] NZSC 120 at [484].(b) the Victorian case of Taylor v R where it was accepted that thesubmission of a (fraudulent) teacher registration constituted a"financial advantage", because registration enabled the submitter toobtain salaried employment.18[88] The alternative analysis is that the submission of the registration form was anadministrative act that was a necessary prerequisite to later claims for treatmentsprovided by Mr Whale. And while it was only if and when ACC made payment ofthose claims that a pecuniary advantage to Ms Renes would accrue, it was enablingthose claims and those payments to be made that was her intention. There was noother reason for submitting the form.[89] The verdict on this charge was not, accordingly, unreasonable.Was there an error in the Judge's summing-up?[90] In order to prove its case for charge 37, the Crown was required to demonstratethat Ms Renes used the ACC24 form both dishonestly and without claim of right.Neither criterion requires a belief that must be held reasonably.[91] In the present case, the Judge's explanation of a claim of right was given in thecontext of the charges of obtaining by deception. He said: claim of right means a genuine belief that at the time of being paid the feesby ACC she had a lawful right to the fees. The belief is not required to bereasonable or to be reasonably held and may be based on ignorance or mistake,but you are entitled to consider your view as to the genuineness of the beliefand of course you then answer accordingly.[92] Ms Bishop said, and we accept, that this direction was plainly based on thedefinition of "claim of right" in s 2 of the Crimes Act.[93] The Judge's direction about dishonesty was made in the context of the chargesof using a document. He said:18 Taylor v R [2019] VSCA 162, [2019] VR 163 at [99]-[101] and [108]-[111].Dishonestly means using a document without a belief that there was an expressor implied consent to, or authority for using a document from a person entitledto give such consent or authority.[94] Again, we accept Ms Bishop's submission that this direction was based on theCrimes Act definition, contained in s 217.[95] Both directions were reflected in the question trail relating to charge 37, which(relevantly) was in the following terms:DISHONESTLY USING A DOCUMENTCharges 35-371. Has the Crown made you sure that Ms Renes dishonestly used adocument?Note: "Dishonestly" means using a document "without a belief thatthere was express or implied consent to, or authority for" using adocument from a person entitled to give such consent or authority.2. Has the Crown made you sure that Ms Renes did so without claim ofright?Note: "Claim of right" means Ms Renes had a genuine belief that atthe time of using the document she had [a] lawful right to do so. Thebelief is not required to be reasonable or be reasonably held and maybe based on ignorance or mistake.[96] While it is true that the claim of right direction is specific about the absence ofany reasonableness requirement, there is nothing in the dishonesty direction by and ofitself that suggests that the belief must be reasonable. The ordinary meaning of theword "belief" imports no such requirement. Moreover, the direction was entirelyconsistent with the Supreme Court's decision in Hayes v R.19 There, the Courteschewed any qualification to the word "belief", saying:[34] "Dishonestly" is defined by s 217 in these terms:"dishonestly, in relation to an act or omission, means done or omittedwithout a belief that there was express or implied consent to, orauthority for, the act or omission from a person entitled to give suchconsent or authority"19 Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.Two things have present significance about this statutory definition. The firstis that the word "belief" is not accompanied by the word "honest". The secondis that there is no suggestion that the belief has to be reasonable or based onreasonable grounds. It is the existence of the belief which matters, not itsreasonableness. Of course the word "honest", in the phrase "honest belief",was designed to signify that the belief must actually be held. Despite thetautology, its usage in that sense is unobjectionable. It is preferable, however,to follow the drafting of the definitions of dishonestly and claim of right by notqualifying the word "belief" at all. The potential difficulty with the word"honest" in the phrase "honest belief" is its capacity to be understood assignifying an ability for the accused person to frame their own moral code (theso-called "Robin Hood" defence). That, of course, is not its purpose, but juriescan be confused as to the sense in which the word is used. It is best to avoidthe issue when summing up by using language such as "did the accusedbelieve?" rather than "did the accused have an honest belief" The verb in thiscontext is easier than the noun.(footnotes omitted; emphasis added)[97] And we agree with Ms Bishop that even if the Judge erred in this regard (whichwe do not think he did), no miscarriage has occurred. The defence to charge 37 wasthat Mr Whale gave express permission to Ms Renes for her to sign his ACC24 form,as another employee had in the context of the events giving rise to charge 38.20 Thatwas Ms Renes' evidence and Mr Whale was cross-examined on that basis. Unlike theother employee, Mr Whale was unequivocal that he gave no such permission.Conclusion[98] The short point is that — in light of this defence — Ms Renes would have beenacquitted if the jury thought her evidence gave rise to a reasonable doubt as toMr Whale's lack of consent. But if Mr Whale's evidence that he gave no consent wasaccepted, then there was no basis for her believing in his consent, reasonable orotherwise. And by its verdict, the jury plainly rejected Ms Renes' evidence on thispoint and accepted Mr Whale's. Any failure by the Judge to make the absence of areasonableness requirement explicit would have made no difference to that. Theappeal in relation to Ms Renes conviction on charge 37 must therefore be dismissed.20 Ms Renes was acquitted on this charge.RESULT[99] Ms Renes' appeal against her convictions on charges 13, 21 and 37 aredismissed, for the reasons we have given.Solicitors:Crown Solicitor, Wellington for Respondent