R v Shar CA239/04

[2006] NZCA 380

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [34]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAWDIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA239/04

THE QUEEN

v

ERIC SHAR

Hearing:         15 February 2006

Court:            William Young P, Potter and Rodney Hansen JJ Counsel:      R A Harrison for Appellant

A R Burns for Crown

Judgment:      28 February 2006

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The conviction is set aside. C  A new trial is ordered.

R V SHAR CA CA239/04  28 February 2006

DOrder prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [34]) in news media or on internet or other publicly available database until final disposition of trial.  Publication in Law Report or Law Digest permitted.

REASONS

(Given by William Young P)

Introduction

[1]      The appellant was found guilty by jury in the Auckland High Court on a charge of importing cocaine into New Zealand on 25 September 2003.   He was subsequently sentenced to 13 years imprisonment with a minimum non-parole period of five and a half years.

[2]      He now appeals against conviction.

Background

[3]      The appellant is a 44 year old Australian citizen.

[4]      In September 2003 the appellant travelled from Australia to Lima, Peru.  He arrived there on 9 September.  His alleged co-offender, Jean Jacques Nieuwoudt, a South African, travelled from South Africa to South America in the same month and, on 15 September, arrived in Lima too.   On 16 September bookings for both the appellant and Nieuwoudt were made to travel from Lima to Sao Paulo (Brazil), Santiago (Chile), Papeete (Tahiti), Rarotonga and, finally, on to Auckland.   These varied bookings were made through the same travel agency.

[5]      The appellant and Nieuwoudt duly travelled from Lima to New Zealand on the same aeroplanes but were not seated adjacent to each other.  In the result they

landed at Auckland on Air New Zealand flight NZ53 at around 9.00am on Friday

25 September.

[6]      On arrival, Nieuwoudt was found by Customs officers to be in possession of a suitcase which contained approximately seven kilograms of cocaine concealed in the lid and base.

[7]      The appellant was spoken to at the airport and admitted that he had had some interaction with Nieuwoudt during the journey from Lima to Auckland but claimed not to have known him prior to that.   He denied any involvement in Nieuwoudt’s offending.  He asserted that he had travelled to South America to see his sister and for business purposes associated with jewellery and leatherware.

[8]      Nieuwoudt  pleaded  guilty  to  a  charge  of  importing  cocaine  and  was subsequently sentenced to seven years imprisonment. This sentence involved a substantial discount for his plea of guilty and co-operation with the police in relation to the appellant.

The evidence at trial

[9]      Nieuwoudt  was  the  principal  witness  against  the  appellant  at  his  trial. Broadly,  his  evidence  was  that  he  was  the  courier  of  the  cocaine  and  that  the appellant was his supervisor.  He said that he had never seen or met the appellant before he arrived at Lima.

[10]     The appellant gave evidence.   He claimed to have travelled to Lima for innocent purposes, to develop business opportunities associated with jewellery and leather accessories and to meet Nieuwoudt (whom he knew as Gregory Williams and had previously met in Thailand).  The appellant said that he and Nieuwoudt had had a brief sexual relationship in Thailand.  He asserted that the travel arrangements for the trip back to New Zealand were made by “Gregory Williams”, in other words Nieuwoudt.  His evidence as to the reasons for his trip to Lima, what he did there and his interactions with the appellant (both in Lima and earlier in Thailand) were at a high level of generality and devoid of the sort of circumstantial support (in terms of

telephone records, emails, credit card statements, details of business contacts in South America and so on) which might have been expected if his account of events were true.  His evidence was also inconsistent with what he had told the Customs officials and the police on his arrival in New Zealand (in the course of which he had denied having previously met Nieuwoudt other than in the course of the journey from Lima to New Zealand).

[11]     The appellant also called Joseph Samoa as a defence witness.   Samoa is a prison inmate at Paremoremo Prison.   He said that when he and Nieuwoudt were travelling in a prison escort vehicle, the two men had a discussion in which Nieuwoudt told him that he was helping the police out by falsely implicating the appellant in the importation of cocaine.   Samoa was at that time on trial on two counts of murder, one count of attempted murder and nine counts of aggravated robbery in respect of which he was eventually found guilty and sentenced to life imprisonment with a minimum non-parole period of 22 years.   Why Nieuwoudt would have spoken to Samoa in this way is unclear.  The principal witness against Samoa at his trial was a co-offender.  So Samoa could be expected to be particularly antagonistic towards anything in the nature of “narking”.   Nieuwoudt’s account of this discussion was rather different; in effect that Samoa was, at least by implication, warning him against co-operating with the police in relation to the appellant.

[12]     The  jury  duly  found  the  appellant  guilty  but  only  after  a  retirement  of

12 hours.  Mr Burns for the Crown suggested that some of the jury’s difficulties may have been associated with false character evidence which the appellant gave in the form of an assertion that he had no previous convictions for drug offending, an assertion which was untrue as he does have previous drugs convictions in Australia of which the police, at the time of his trial, were unaware.

Overview of appeal

[13]     The appeal against conviction is presented on three bases.  First the Judge did not give, but should have given, a warning under s 12C of the Evidence Act 1908; secondly the Judge’s directions as to parties were inadequate; and thirdly that there is fresh evidence from Carl John McKay which warrants a retrial.

Section 12C of the Evidence Act 1908

[14]     This section provides:

12C     Witnesses having some purpose of their own to serve

Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.

[15]     In  his  summing up  the Judge (Miller  J)  did  not  give  a  s  12C  warning. Instead, this is what he said:

[28]      Mr Nieuwoudt says he was an accomplice of the accused and he gave evidence.  He has been convicted and sentenced.  The fact that he has been convicted and sentenced is not evidence against Mr Shar.

[29]     However, he gave evidence implicating Mr Shar and Mr Shar says that Nieuwoudt lied

[30]     What I say about the impact of a lie on your assessment of the credibility  of  the  accused  applies  equally  to  other  witnesses,  including Mr Nieuwoudt.  If you are satisfied that any witness told a deliberate lie, you may regard that as a relevant factor in assessing that witness’s credibility. Again, that is a matter for you to assess.

[31]      You have been told that Mr Nieuwoudt was sentenced for importing the cocaine, and that he received a discount on his sentence for co-operation. Mr Shar says that that fact gives him an incentive to lie.  It is over to you to decide what weight you attach to the discount that Mr Nieuwoudt obtained. I can say to you that it is normal practice for Judges to reduce sentences for a plea of guilty and for co-operation with the police.  Mr Samoa gave evidence that  Mr  Nieuwoudt  said  that  Shar  was  innocent  and  that  he,  that  is Mr Nieuwoudt,    would    admit    the    truth    after    he    was    sentenced. Mr Nieuwoudt denies that.   You will need to consider whether Mr Samoa told the truth.

[32]      I  must  say  one  other  thing  to  you  about  this.     That  is  that Mr Nieuwoudt  has  been  sentenced  now,  and  his  sentence  cannot  be increased.   Mr Kaye suggested to you that he might get more favourable consideration for parole if Mr Shar is convicted.  There is no foundation for that suggestion.   You should put it out of your minds when you are considering your verdict.

[33]     Clearly there is a direct conflict between Mr N’s [sic] version of events and Mr Shar’s. It is over to you to decide which is the truth.

[34]      It is sensible for you, when dealing with a conflict of evidence of this  sort,  to  look  for  other  evidence,  particularly  evidence  from  an independent source, that tends to prove or disprove either version of events.

[16]     The Judge also, however, did address the defence position when he came to summarise the case presented for the appellant.  In particular the Judge said:

[62]     [Mr Shar] says Crown case relies on Nieuwoudt, and Nieuwoudt is lying.  He asks you to note Nieuwoudt’s history of travel to South America. Then  there  is  the  false  passport,  and  the  rather  vague  evidence  that Mr Nieuwoudt gave regarding his associates.  He says it is unclear still who Nieuwoudt is.   You may well conclude that Nieuwoudt is or was a professional drugs courier.

[63]      … He points out that plainly Nieuwoudt is a person who is willing to commit serious crime, and to deceive the authorities and invites you to conclude that he is lying now.

[64]      He also says, as I have explained to you already, that Nieuwoudt was motivated  to  lie  by  getting  a  sentence  discount,  and  you  have  heard Mr Samoa’s evidence about that.   Mr Samoa says Nieuwoudt told him he was lying to get a lesser sentence but would tell the truth later, after he had been  sentenced.    Nieuwoudt  denies  that  he  told  Samoa  that  Shar  was innocent, and the Crown says Mr Samoa is not to be believed.  Again, it is for you to assess the evidence.

[17]     Section 12C of the Evidence Act was enacted to replace the old rules of evidence as to corroboration warnings in relation to the evidence of accomplices. The section creates a discretion (in that the Judge is required to consider “whether or not it would be appropriate to instruct the jury on the need for special caution …”). But plainly a failure by a trial Judge to give such a warning is subject to appellate review, see for instance R v Atkinson & Ors CA546/99 19 April 2000 at [7].

[18]     Most Judges would have given a warning under s 12C and the absence of such a warning is troubling. Further and more importantly, in [32] of the summing up the Judge in effect told the jury that Nieuwoudt did not have a motive to lie.  He did so by addressing the two obvious motives for lying which Nieuwoudt may have had (or at least the only motives which would appear to have been raised at trial). The Judge’s assertion that Nieuwoudt’s sentence could not be increased was, at least in substance, true (as it is unlikely that the Solicitor-General would have sought leave to appeal against sentence so far out of time if Nieuwoudt had reneged on what would appear to have been his undertaking to co-operate with the Crown).   More difficult, however, is the Judge’s direction to the jurors that they should put out of

their mind the suggestion that there might be a connection between the evidence given by Nieuwoudt and his prospects of release on parole.

[19]     In  considering  the  release  of  an  offender  on  parole,  the  paramount consideration for the parole board is the safety of the community (see s 7(1) of the Parole Act 2002).  But within that umbrella the board is to be guided by all relevant information available to the board at that time (see s 7(2)(c)).  Obviously material is the likelihood of re-offending (see s 7(3)).

[20]     In that context we think that Nieuwoudt’s evidence at trial might be relevant to later consideration of his case by the parole board.  That he had co-operated with the police and then later lived up to his bargain by giving evidence against the appellant might support a contention before the parole board that he had separated himself from his former life of crime. This would have obvious relevance to the board’s assessment of the likelihood of his re-offending.  On the other hand, if he had declined to implicate the appellant at his trial, this might later have been taken by the parole board as indicating that Nieuwoudt was again thinking and acting as a criminal.  It is difficult to see why that too would not be relevant to his likelihood of re-offending and thus to whether or not he should be released on parole.  Given these considerations, the Judge was wrong when he directed the jury that there was “no foundation for [the] suggestion” that Nieuwoudt might “get more favourable consideration for parole if Mr Shar is convicted”.

[21]     R v Dora CA380/04 23 June 2005 concerned circumstances which were very similar  to  those  involved  in  the  present  case.     There  the  trial  Judge  gave s 12C warning in  the following terms:

Care is obviously necessary in relation to your assessment of Mr Callies’ evidence. He was caught in the act of importing a very substantial quantity of Ecstasy. He confessed to the fact because he had no choice but to do so, to admit that he was a courier of that drug, and it could well be the case that a person who is caught in possession having just imported such a quantity of controlled drugs could have a powerful reason to lie. Is that why he has implicated the accused, as Mr Hart has argued to you. So it is obviously important that you approach Mr Callies’ evidence with particular care. It is only common sense when somebody has been caught in this situation that we would approach what he says with particular caution. There will be a number of important questions that you will want to consider in that regard. He has already been sentenced. Is there a continuing reason for him to lie

and to implicate Mr Dora? Mr Hart said there was because he was still awaiting parole.

(Emphasis added)

On appeal this Court concluded that there was nothing omitted or wrongly stated in this direction and the caution was put fairly and clearly

[22]     Mr Burns told us that the Judge’s comments were probably directed to the fact that counsel who appeared for the appellant at trial had not suggested the parole motive to Nieuwoudt when he gave evidence and to the absence of any general evidence to the effect that the evidence given by Nieuwoudt at trial might be relevant to when he might eventually be released on parole. While those factors provide a context which goes some distance towards explaining what the Judge said, they are not determinative in the present context. We think that defence counsel was entitled to stress the existence and significance of a parole motive without having formally called evidence on the point; essentially because the underlying issues turn on considerations of law and common sense.  Indeed we doubt if more could usefully be said beyond what appears in [19] and [20].   Perhaps counsel should have put the motive to Nieuwoudt during cross-examination.  That said, counsel’s failure to do so did not mean that such a motive did not exist and thus did not justify what the Judge said to the jury.

[23]     We  have  given  anxious  consideration  to  whether  the  Judge’s  directions warrant us allowing the appeal.  The evidence given by the appellant at trial was far from plausible.  But, plausible or not, he was entitled to have that defence (and the associated attack on the evidence of Nieuwoudt) addressed fairly by the Judge when he summed up to the jury.   While it is true that the jury must have realised that Nieuwoudt  has  been  a  criminal  and  was  not  of  good  character,  the  appellant’s defence was necessarily severely undermined by the Judge in effect telling the jury that the defence had not been able to come up with a credible motive for Nieuwoudt giving false evidence at trial.

[24]     We are unimpressed by the appellant’s false assertion in his evidence that he did not have previous convictions.   We accept that it is at least possible that the jury’s lengthy retirement may have been associated with that evidence.  But we do

not see how this consideration could warrant us upholding his conviction.   If the Crown remains dissatisfied with that evidence, there is always the option of a prosecution for perjury.

[25]     We add that the Crown did not seek to rely on the proviso.

[26]     In those circumstances we have no choice but to allow the appeal.

The Judge’s directions as to parties

[27]     The Judge’s directions as to the appellant’s alleged liability as a party was said by counsel for the appellant to be “very light”.

[28]     We see no merit in this submission.  The case for the Crown was perfectly clear.  On the Crown case the appellant’s role in the drug importation operation was as a supervisor and, in this role, he engaged in a number of significant actions which were closely related to the eventual importation into New Zealand of the cocaine.

[29]     If the jury accepted the evidence of Nieuwoudt (and they plainly did) then it is perfectly clear that the appellant was guilty of the offence alleged against him. The issue for the jury was very simple.  We see no scope for any confusion as to this on the part of the jury.

[30]     In those circumstances, we think that the Judge’s directions on this aspect of the case were adequate.

New evidence

[31]     The new evidence which the appellant relies on is from Carl John McKay. McKay claims that in September 2003, he met Nieuwoudt in the holding cells at the Auckland District Court and that Nieuwoudt told him that he was contemplating nominating a person with whom he had been travelling as the owner of the drugs which had been found on him when he arrived in New Zealand.   In his affidavit, McKay was not explicit as to whether Nieuwoudt told him that the person with

whom he was travelling was innocent but in his evidence before us McKay said that was indeed the substance of what Nieuwoudt had said.

[32]     This evidence is very similar to the evidence of Samoa which the jury plainly rejected at trial.  McKay has a truly impressive list of convictions for a variety of offences - most for dishonesty but some involving the supply of LSD.  On this aspect of the case, Mr Burns for the Crown maintained that the evidence given by McKay, while relevantly new, was insufficiently cogent and credible to warrant us allowing the appeal.

[33]     Given that there is to be a new trial in any event and that McKay will presumably give evidence at that trial, we see no point (and indeed some disadvantage) in determining whether the appellant’s appeal should be allowed on the basis of new evidence.

Result

[34]     The appeal is allowed.  The appellant’s conviction is set aside.  We direct a new trial.

Solicitors:

Crown Law Office, Wellington