Ministry of Social Development v Karen Marks [2016] NZDC 1741

Published 11 July 2016

Benefit fraud — obtaining benefit overpayments by deception — failure to disclose a living relationship — Crimes Act 1961, ss, 2, 217, 228, 240 — dishonesty — Evidence Act 2006, s 9. The prosecution alleged that between 2007 and 2014 the defendants were a legally married couple in a committed relationship who falsely stated that they were living apart/single and as a result each received benefits they were not entitled to. The defendants were found guilty on all charges of obtaining benefit overpayments by deception and dishonestly using a document. Pursuant to the Crimes Act, s 240(1)(a) the prosecution had to prove beyond reasonable doubt that there was deception, without claim of right, and that resulted in the defendants obtaining a pecuniary advantage. Section 2(b) defines deception as an omission to disclose when a duty to disclose exists and that there is an intention to deceive. Under s 228(b) of the Crimes Act the prosecution was required to prove beyond reasonable doubt that the defendants had used a document dishonestly without claim of right with the intent to obtain pecuniary advantage. Much of the evidence applied equally to all charges and there was little to distinguish the positions of each of the defendants. Factors that pointed to the committed nature of the relationship were: same principal place of residence; shared parental responsibility; joint directors and shareholders of a business; occasional sexual activity; financial interdependence; outsiders’ perception of the relationship; other MSD applications and terms of endearment seen in text messaging evidence.