The Queen v Naidu

[2009] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/2008
[2009] NZCA 67

THE QUEEN

v

ANJILA NAIDU

Hearing:2 March 2009

Court:Arnold, Ronald Young and Venning JJ

Counsel:M B Meyrick for Appellant

M D Downs and A C Butler for Crown

Judgment:10 March 2009 at 3.30 pm 

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       In 2007 the Serious Fraud Office (SFO) were investigating an alleged mortgage fraud involving Stephen D’Villiers, Aner Singh, Ranjeet Prasad and others.  The SFO believed the appellant, who was related to some of the main suspects, was somehow involved in the fraudulent conduct.  They gave notice pursuant to s 9 of the Serious Fraud Office Act 1990 (the SFO Act) requiring the appellant’s attendance for interview.  When she failed to attend they charged her with that failure under s 45(d)(i) of the SFO Act (count 1).  When she was interviewed the SFO alleged she gave false and misleading information to the interviewer and charged her accordingly under s 45(e) of the SFO Act (count 2).

[2]       At trial, before Judge Epati sitting without a jury, the appellant was convicted of both charges and fined a total of $2,750.

[3]       The appellant says as to count 1:

(a)the s 9 notice was not validly served on her and she was not, therefore, obliged by law to attend for interview;

(b)the evidence of Ms Sarah Cowdell, the appellant’s then lawyer, should not have been admitted as it was privileged;

(c)the evidence of Ms Kim Murray as to statements made to her by Ms Cowdell were inadmissible hearsay.

And as to count 2:

(a)the indictment was insufficiently specific about how the appellant’s answers were false and misleading;

(b)there was insufficient evidence to support a finding that the appellant’s answers to the SFO’s questions were intended to mislead.

Section 9 notice

[4]       The SFO prepared a notice (the s 9 notice) dated 9 May 2006 which required the appellant to attend at their offices on 22 May and answer their questions.  An SFO investigator, Ms Kim Murray, gave evidence at trial that she had rung Chep New Zealand Limited and had spoken to a woman who worked at Chep who identified herself as the appellant.  Ms Murray told the appellant about the investigation.  She asked the appellant for an address for her and the appellant gave her an Auckland box number.  At a later interview with the SFO the appellant confirmed that she had spoken to Ms Murray by telephone.

[5]       Ms Murray said that the day she spoke to the appellant she faxed a copy of the s 9 notice to the appellant at Chep New Zealand.  Ms Murray also posted a copy of the s 9 notice to the box number the appellant had given as her address.

[6]       Section 52(1) of the SFO Act provides for service of s 9 notices (amongst others):

52       Giving of notices

(1)Where a notice or other document is to be given to a person for the purposes of this Act, it may be given—

(a)       By delivering it personally to the person; or

(b)By delivering it at the usual or last known place of residence or business of the person, including by facsimile; or

(c)By sending it by pre-paid post addressed to the person at the usual or last known place of residence or business of the person.

[7]       The appellant submits that given the introductory words of the subsection refer to a notice being given “to” a person, then delivery by facsimile pursuant to s 52(1)(b) must require the Crown to prove the notice was handed “to” the intended recipient personally.

[8]       We reject this interpretation of s 52(1).  The introductory words to the subsection are designed to identify how, where a notice is to be given to a person, this may be done.  The section allows service in person (paragraph (a)), delivery, including by facsimile, to a last known place of residence or business (paragraph (b)), or sending it by post to a last known residence or business, addressed to that person (paragraph (c)).

[9]       Where service by either (b) or (c) is undertaken then service by handing it to the person is not required.  If the appellant’s interpretation of ss (1) were correct, then ss (b) and (c) would be superfluous.

[10]     We consider s 52 is permissive given the use of the word “may” in the introductory part of subsection (1).  At trial it will be for the judge or jury to decide if they are satisfied, beyond reasonable doubt, that the s 9 notice has been bought to the attention of an intended recipient.  If the SFO have served the s 9 notice in compliance with s 52(1), then in the absence of any other evidence a judge and jury are likely to be satisfied, beyond reasonable doubt, that the s 9 notice has been drawn to the recipient’s attention.  In such circumstances, while the onus of proof remains upon the Crown, an evidential burden would logically be cast on an accused to identify evidence that the notice was not served or bought to their attention.  This could be raised as part of “lawful justification or excuse” as identified in s 45(c) of the SFO Act, which deals with the offence of failing to comply with a s 9 notice.

[11]     In this case there was evidence supporting the s 52(1)(b) service.  Ms Murray faxed the s 9 notice to the facsimile address of the business where she had been talking to the appellant that day.  There was no evidence of any “lawful justification or excuse” for the appellant’s failure to comply with the notice nor any reason to doubt the notice was brought to the appellant’s attention.

[12]     We are satisfied, therefore, that there was ample evidence from which the Judge could infer the s 9 notice was bought to the appellant’s attention and that the prosecution had proved that aspect of their case.  This appeal point, therefore, has no merit.

Privileged evidence and hearsay evidence

[13]     Prior to trial the Crown applied (pursuant to s 344A of the Crimes Act 1961) for an order that the evidence of Ms Cowdell (the appellant’s lawyer in May 2006) be admissible at trial.  The Crown’s evidence was that Ms Cowdell had telephoned Ms Murray and told her she had Ms Naidu in her office with a notice requiring Ms Naidu’s attendance to answer questions from the SFO.  The appellant opposed the application, alleging Ms Cowdell’s evidence was inadmissible as being subject to legal professional privilege (see ss 52‑54 of the Evidence Act 2006).  In addition, the appellant opposed the evidence of Ms Murray, relating to her conversation with Ms Cowdell, as inadmissible hearsay evidence. The purpose of calling the evidence from Ms Murray and Ms Cowdell on this point was to establish the appellant had received the s 9 notice that required her to attend for interview.

[14]     Counsel for the appellant accepted that if we concluded that service by a facsimile at Chep New Zealand Limited was sufficient to establish, in the circumstances of this case, service of the s 9 notice, then the appeal points concerned with privilege and hearsay could not be pursued.  Given our conclusions in the first ground of appeal there is no need for us to consider the second and third grounds of appeal.

Lack of specificity

[15]     The fourth ground of appeal arises from the complaint about lack of specificity in count 2 of the indictment.  Count 2 provided as follows:

THE said Solicitor‑General further charges that ANJILA NAIDU, on 17 April 2007, at Auckland, in the course of complying with a requirement imposed pursuant to section 9 of the Serious Fraud Office Act, namely the issue of a notice in writing requiring her to attend before the Director and answer questions, gave answers to questions and provided an explanation knowing the same to be false or misleading in a material particular.

[16]     As a result of a request from the appellant, in June 2007 the Crown wrote to the appellant identifying in detail the allegations relating to count 2.  No subsequent complaint was made by counsel for the appellant about being inadequately informed about the particulars of count 2.

[17]     Section 329(4) of the Crimes Act provides as follows:

(4)Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.

And s 331 as follows:

331     Certain objections not to vitiate counts

No count shall be deemed objectionable or insufficient on the ground—

(a)That it does not contain the name of any person injuriously affected; or

(b)That it does not state who is the owner of any property therein mentioned; or

(c)That it charges an intent to defraud, without naming or describing the person whom it was intended to defraud; or

(d)That it does not set out any document which may be the subject of the charge; or

(e)That it does not set out the words used, where words used are the subject of the charge; or

(f)That it does not specify the means by which the crime was committed; or

(g)That it does not name or describe with precision any person or thing:

Provided that the Court may, if satisfied that it is necessary for a fair trial, order that further particulars in writing of any such document, words, means, person, or thing be furnished by the prosecutor.

[18]     The appellant accepts the Crown letter of June 2007 did provide detail of the allegations of count 2.  Counsel maintained, however, these details should be contained in the count itself.  That was not necessary.  We are satisfied that the appellant did have sufficient detail of the Crown’s case against her with regard to count 2 and no miscarriage of justice has occurred.

Misleading answers

[19]     Count 2 is based on s 45(e) of the SFO Act which provides as follows:

45       Offence to obstruct investigation, etc

Every person commits an offence, and is liable on conviction on indictment … who,—

…

(e)In the course of complying with any requirement imposed pursuant to section 5 or section 9 of this Act, gives an answer to any question, or supplies any information, or produces any document, or provides any explanation, knowing that it is false or misleading in a material particular or being reckless as to whether it is so false or misleading.

[20]     The Crown case was that the appellant, in answering questions regarding the involvement of one Stephen D’Villiers in a series of property transactions had knowingly provided misleading information when she denied he had been involved in these transactions.

[21]     The appellant had purchased and sold of a number of house properties.  Some of the purchases were made using forged documentation and false representations.  During the course of her interview, the appellant was asked on a number of occasions who she used to obtain the loans, purchase the properties and who was behind the transactions.  Ms Naidu maintained throughout that her “uncle”, Stephen D’Villiers, had nothing to do with the arrangements or transactions.  The appellant claimed a broker whose name and details she could not recall was involved. 

[22]     There was evidence which satisfied the Judge that Stephen D’Villiers was involved in the purchase and sale of the properties owned by the appellant.  From the evidence we are satisfied the Judge was entitled to conclude that the appellant knowingly gave answers that were false and misleading in a material particular during the course of her interview when she claimed Stephen D’Villiers was not involved in these transactions.  There is no merit in this ground of appeal.

[23]     The appeal against conviction is dismissed.

[24]     The appellant abandoned her appeal against sentence.  It is also dismissed.

Solicitors:

Crown Law Office, Wellington.