The Queen v Shaw

[2006] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/05

THE QUEEN

v

SONNY SHAW

Hearing:10 April 2006

Court:Glazebrook, Williams and Ronald Young JJ

Counsel:Appellant in person

M A Woolford for Crown

Judgment:27 June 2006 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Williams J)

Facts

[1]       On 22 February 1993 the appellant, Mr Shaw, was dismissed from his position as accountant to the Bosnyak Group of companies. 

[2]       On 17 May 1994, when giving evidence in the Employment Court in support of his claim for lost wages, redundancy, compensation and injury to feelings, he said, on oath, that “since my dismissal I have had no income”.

[3]       Mr Bosnyak had information that Mr Shaw had earned income for part of the period between February 1993 - May 1994 and complained to the Police about the evidence given by Mr Shaw to the Employment Court.

[4]       For reasons not now relevant, Mr Bosnyak’s complaint was not lodged with the Police until 19 December 1994 and there were delays on the part of the Police in investigating it.   It was not until 20 October 1995 that Mr Shaw was first notified of the complaint, and not until 30 April 1997 that an information was laid against him alleging perjury in his Employment Court evidence.

[5]       With the assistance of counsel, Mr Tucker, he defended the charge in a jury trial in the Otahuhu District Court commencing on 29 January 1998 but was convicted and sentenced on 1 April 1998 to eight months’ imprisonment.

[6]       He appealed to this Court against the conviction but that was dismissed “on the papers” on 23 July 1998.  This is a rehearing of Mr Shaw’s appeal following the Privy Council decision in R v Taito [2003] 3 NZLR 577.

Grounds of appeal

[7]       In the formal terms of s 385(1)(a), the sole ground of appeal pursued at hearing was that the jury’s verdict was unreasonable and could not be supported having regard to the evidence.  That requires the appellant to demonstrate that a “jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant”:  R v Ramage [1985] 1 NZLR 392, 393.

[8]       In essence, Mr Shaw submitted that the District Court trial evidence was fatally flawed because witnesses spoke of payments by his alleged employer, Drake Personnel (or Drake Overload), during the period September/October 1993 ‑ May 1994 to a recipient whose IRD number differed from Mr Shaw’s and into a bank account which was not opened until 30 May 1994, 17 days after his Employment Court evidence.

[9]       A number of other grounds were listed in Mr Shaw’s notice of appeal.  Some will be dealt with in the course of this judgment but those not actively pursued before us included:

(a)That proof was deficient that his Employment Court evidence was given on oath. 

The evidence clearly showed administration of the oath to him.

(b)The prosecution ought never to have been commenced because of Police delays and because the evidence was so slight. 

The delays largely stemmed from lack of Police resources, the necessity for the officer-in-charge to obtain the Commissioner’s approval to commence perjury proceedings when a proposed accused exercised his right to silence and Mr Shaw’s absence from the country for about six months.  Those assertions were also covered in an application under the Crimes Act, 1961, s 347 heard and dismissed by Judge Bouchier the day before trial.

(c)Late disclosure by the Police of Drake wage cards said to be those of the appellant. 

It seems disclosure may have been later than optimal but copies of the cards were sent to Mr Shaw’s counsel five days before trial, even though Mr Shaw only saw them the night beforehand.

(d)That the information against Mr Shaw said only that his alleged offence was against s 109(1) when the perjury section is s 108. 

Sections 108 and 109 respectively define perjury and set the maximum penalty.  The information against Mr Shaw may have been in error in mentioning only s 109(1), but the indictment mentioned both sections.

(e)That Mr Shaw’s application for legal aid for his present appeal was declined. 

That is correct but seeing it was declined on the basis of a Grants Officer’s conclusion that Mr Shaw’s furnished details showed he did not qualify and Mr Shaw confirmed to us he sought no review of that decision, that matter passes from consideration.  That said, as an accountant, Mr Shaw was clearly familiar with bookkeeping matters and the detail of his case and represented himself ably before us.

(f)Mr Shaw was critical of the fact that at a callover before his trial, the District Court Judge, he said, directed him to apply for legal aid because “he did not want someone defending themselves on perjury” in his Court and stood the matter down until Mr Shaw completed an application.

We doubt that a Judge would have expressed themselves in such terms but doubtless – and for good reason – he strongly advised Mr Shaw to obtain legal representation and urged him to apply for legal aid were he not able to fund his defence personally.  He had previously been similarly urged to obtain legal representation by the Justices of the Peace who presided at the depositions hearing Mr Shaw conducted on his own behalf.

[g]Mr Shaw was also critical of trial counsel for not calling him to give evidence. 

It would be highly likely that the pros and cons of that course of action would have been discussed with Mr Shaw and he would have given instructions on the topic but, without a waiver of privilege so we could have the benefit of Mr Tucker’s views, we are unable to comment on that proposition.  Mr Shaw, in any event, does not assert that the failure to call him was contrary to his express instructions.

Perjury trial

[10]     The principal prosecution witness at Mr Shaw’s trial was a Ms Barton, manager of Drake.  That company supplies temporary staff to other firms including Ford Motor Co Ltd. 

[11]     She knew Mr Shaw personally.  She said she employed him to do temporary accounting work from late September 1993 to about March 1996.  During that period she said he worked at Ford.  It invoiced Drake weekly for the hours worked.  Drake then paid Mr Shaw’s wages by direct credit to his bank account.  She produced wage cards bearing entries relating to the employment of a Mr “Sonny Shaw” living at what the appellant acknowledged was his correct address and showing weekly payments from 5 October 1993 onwards for work at Ford. The “date commences” box on the first card was noted “27/9/93”.  Each of the weekly columns had “DC” stamped at the foot although since the box “Staff No.” bore the same stamp that may not necessarily indicate the payments were made by direct credit.  The wage cards bore IRD number 17632310.  (The copies of the wage cards handed to us at the hearing only covered the periods from 5 October 1993 to 29 December 1993 and 7 April 1994 to well beyond the Employment Court hearing so it appears that the copies we received may have been an incomplete set of the wage cards produced as exhibits in the District Court.)

[12]     As mentioned, Mr Shaw said the wage cards were only disclosed to Mr Tucker five days before trial was due to commence.  However, on 13 December 1995, the Police had executed a search warrant on Drake and obtained details concerning Mr Shaw’s earnings showing that from a start date of 27 September 1993 he had earned from Drake $15,573.65 gross in the 1993 financial year, $32,774.33 gross in the 1994 financial year and $25,598.14 gross in the 1995 financial year to the week ending 1 December 1995.  The data for each of those three years appeared in separate boxes in a fax sent to Ms Barton by Drake’s payroll clerk.  In the upper box, that for the 1993/94 financial year, the IRD number 17632310 was listed and in the box for the part-1995 financial year, there was an entry “Bank‑a/c 12‑3017‑0505340-01”.  That document was disclosed to the defence and put in evidence during Ms Barton’s cross-examination.  Mr Tucker also put to her an account inquiry dated 15 May 1997 for ASB account 12-3017-0505340-01 and a letter dated 7 January 1998 from the ASB Bank to the “Sonny Shaw Family Trust” at Mr Shaw’s residence confirming that the Sonny Shaw Family Trust bank account number was 12-3017-0505340-01.  Both said the account was opened on 30 May 1994.  Mr Shaw obtained those two documents and supplied them to Mr Tucker.

[13]     The officer-in-charge of the case conceded at trial that bank statements in Mr Shaw’s name for account 12-3017-0505340-01 covering February 1993 - May 1994 had been seized under warrant by the Police from the ASB and produced at depositions.  They were not produced at trial because they disclosed no payments into that account by Drake during the period prior to the Employment Court hearing on 17 May 1994. 

[14]     The way in which the case was presented or summed-up to the District Court jury by counsel and the Judge was not recorded but it would be surprising if Mr Tucker did not stress that Ms Barton’s evidence as to the suggested payments by Drake to Mr Shaw’s numbered bank account prior to 17 May 1994 must have been incorrect, given the account was not opened until 13 days after the Employment Court hearing.

First Appeal

[15]     On 2 April 1998 Mr Shaw lodged an appeal in this Court against his conviction and sentence.

[16]     He was sent an application for legal aid.  It was refused on 22 April 1998.

[17]     Mr Shaw was advised of a fixture on 21 May 1998 and filed a 15 page submission, largely making the same points he made before us.  He attached an income tax statement in his name dated 9 April 1998 which bore his personal IRD number of 64-734-474.

[18]     Mr Shaw’s submissions caused this Court to grant him legal aid solely for the purpose of an investigation of the District Court evidence being undertaken by counsel.  It appointed Mr Wiles for that purpose.  The Court had already obtained copies of the District Court exhibits and copies of these were made available to Mr Wiles though it seems he did not receive the wage cards.

[19]     Mr Wiles’ report highlighted the evidence as to direct payments of the Drake wages to the numbered bank account, the fact it was not opened until 30 May 1994, and the Police failure to produce the bank statements for account 12‑3017-0505340-01 at trial.

[20]     Mr Wiles’ opinion was that the case against Mr Shaw was “very thin indeed” and could have given rise to a successful s 347 application but he emphasised that his ability to reach a concluded opinion was hampered by not having seen the wage cards.

[21]     On 26 June 1998 the Court asked Mr Wiles to investigate further as to whether there was additional evidence such as pay sheets bearing on Mr Shaw’s employment status.  His response of 28 June was:

The appellant knows of no other evidence other than that adduced at trial relating to Mr Shaw’s employment.  Counsel at trial does not know of any other evidence either apart from the bank statements which the Crown produced at depositions but chose not to at trial because they did not show that the account had been credited with payments from Drake Overload.  That factor was contrary to and conclusively contradicted Ms Barton’s evidence.

[22]     It is evident from that paragraph that Mr Wiles must have discussed the issues to which he referred with the appellant and Mr Tucker before reporting.

[23]     In an ex parte judgment delivered on 23 July 1998, Keith J, for the Court, reviewed the history of the matter and observed in relation to matters now relevant that (at pp 2 - 3):

The appellant's submissions extensively document what he considers to be a failure to prove the perjury charge beyond reasonable doubt.  In particular Mr Shaw concentrates on two aspects.  First he argues that insufficient evidence was adduced to show that he did, in fact, receive income during the period between his dismissal and his statement in Court.  …

It is the case that the Crown failed to show that the money had been received into a bank account during the period in question but the evidence about bank accounts related to an account that had been opened only after the critical date.  If that were the only evidence, then the Crown would not have established its case.  However, Ms Barton, the Auckland Manager of Drake Overload, also testified that Mr Shaw whom she identified in Court had been employed through her company during the period before the Employment Court hearing and produced pay sheets to support this.  That evidence was not directly challenged in any way.  From this evidence the jury were entitled to hold, as they no doubt did, they [sic.] Mr Shaw had received an income in that period contrary to the evidence he gave to the Employment Court.  They would weigh that against the evidence about the bank accounts.

In his submissions Mr Shaw acknowledges that the pay records were evidence of the fact that he had been in receipt of an income during that period but argues that they were hearsay and inadmissible since Ms Barton had not personally compiled them.  There was, however, nothing improper in such documents being introduced since they are clearly covered by the business document exception to the hearsay rule contained in s3 of the Evidence Amendment Act (No 2) 1980.  There is no need for corroboration as Mr Shaw contends.

[24]     Mr Shaw’s appeal against conviction was dismissed, his appeal against sentence having been withdrawn.

This Appeal

[25]     In preparing for the hearing before us Mr Shaw lodged his personal income tax statements issued by the IRD on 5 September 1998 and 17 January 2002 listing his personal IRD number as 64-734-474.  Responding to the Crown submissions that those documents were created well after the relevant 1993/94 period, Mr Shaw handed us copies of the first page of his personal 1995/96 income tax return bearing the same IRD number, and a GST registration notification issued by the IRD to the Sonny Shaw Family Trust on 1 January 1991 and a letter from the IRD to the Trust dated 23 November 1994, both showing the Trust’s IRD number as 58-118-567.  Although the documents handed to us could not have been fresh evidence in the technical sense of not being available to Mr Shaw prior to his District Court trial, the Crown did not object to their production.

[26]     There are a number of issues which Mr Shaw developed in his submissions concerning the appeal generally and that material in particular.

[27]     In the first place, he again submitted Ms Barton should not have been permitted to produce the wage records in evidence since she admitted they were prepared not by her but by Drake’s payroll clerk.  The transcript of the trial shows no objection by Mr Tucker on what must have been an obvious point.  That implies strongly that both counsel discussed the matter prior to trial and, realising that the document would likely have been admissible in Ms Barton’s hands under the Evidence Amendment Act (No.2) 1980, s 3, decided that the payroll clerk either could not or would not be called to give evidence.  That having been the case at the January 1998 trial, it was too late for the point to be taken in this Court on either of Mr Shaw’s appeals.  In any event, as earlier noted, that ground of appeal was dealt with and dismissed by this Court on Mr Shaw’s first appeal and we take the same view on the issue as the July 1998 Court.

[28]     Secondly, Mr Shaw submitted that there must have been additional documentary material available when the Police executed the search warrant which they either failed to obtain or failed to disclose.  He said that if MsBarton’s evidence was correct, there must have been weekly wage claims signed by him and submitted by Ford to Drake, there may well have been calculations made by the Drake payroll clerk and Drake must have had documents authorising the payment of wages into a named bank account on behalf of a person with a particular IRD number.  More broadly, he submitted that, again if Ms Barton’s evidence was correct, the Police should have uplifted a job application form signed by Mr Shaw prior to his commencement with Drake.

[29]     The form of the Police Job Sheet evidencing execution of the search warrant suggests Police obtained from Drake Personnel no more than the fax from the payroll clerk to Ms Barton detailing the earnings of “S. Shaw” and including the IRD and bank account numbers.

[30]     Finally, Mr Shaw emphasised that the IRD number on the wage cards was neither his personal IRD number nor that of his Family Trust.  IRD numbers, he submitted, are “lifetime” numbers, a point the Crown accepted.  And he again relied on the evidence that his Family Trust’s ASB account 12-3017-0505340-01 was not opened until 30 May 1994, after his Employment Court evidence.

[31]     Given the seriousness of the offence for which Mr Shaw has been convicted and in order to try to lay to rest, one way or the other, the matters raised by him as to the likely existence of other exculpatory evidence, on 29 May 2006, acting pursuant to the Crimes Act 1961, s 389(a), we directed the production of such records as might still exist evidencing Mr Shaw’s suggested employment for Drake at Ford between 27 September 1993 and 1 December 1995, including any signed documents evidencing the hours worked and any documentary record held by Drake relating to Mr Shaw’s alleged employment by that firm during the same period other than documents produced during the District Court trial. We also directed production of any documentary records still held identifying the taxpayer to whom IRD no. 17632310 was assigned during that period.  The Minute continued :

[2]The Crown is directed to undertake those inquiries, presumably through the Police, and if necessary we will issue any warrants required to enforce those directions.

[3]We appreciate that, given the lapse of time, these directions may not be able to ensure production of the documents sought.  We also appreciate that the Inland Revenue Department may raise statutory confidentiality requirements in relation to the request directed to the Department.  If that occurs, then the matter should be referred back to the Court.  Nonetheless, we consider the implementation of these directions, to the extent they are still able to be implemented, is necessary and expedient in the interests of justice.

[4]During consideration of the appellant’s 1998 appeal, counsel appointed to assist the Court was requested to obtain much of the material we now seek.  It seems, however, from counsel’s response that he misunderstood this Court’s request.  Hence our wish to have the above material produced to the extent it may still be available.

[32]     However, probably unsurprisingly given the lapse of time, the Crown advised us on 12 June 2006 that whatever records Ford and Drake may have had at the time have since been destroyed.  Predictably, too, the IRD took the view that the Tax Administration Act 1994, ss 81(1) (3) prevented disclosure of the information by the Department to us, though it could have been released to Mr Shaw.  Through the Crown, the Police, however, offered, should we require it, to try to obtain statements from persons employed by Drake or Ford at the time who might still be able to be located and interviewed and for further evidence to be given on Drake’s computer records.  The Crown also suggested a warrant might be issued to overcome the IRD objection to disclosure.

[33]     After consideration of those matters, we decided not to pursue the inquiry further and advised the parties to that effect by Minute dated 19 June 2006.

[34]     Amongst the reasons for our taking that view were the lapse of time since the matters in issue occurred, the likelihood that, without documentary support to refresh their recollections, any statements from Ford or Drake employees could be unreliable and the fact that a similar inquiry would appear to have been intended by the Court in 1998 when documents or other evidence might be expected to have been more readily available but failed to yield any material at that stage.  A further and significant reason was that, although we directed the initial inquiry because we felt it appropriate in the interests of justice to try to establish the facts, it was no part of our province as Judges of this Court to pursue the matter further.  The inquiries we directed should self-evidently have been made by the Police or the appellant prior to the District Court trial or prior to, or as part of, Mr Shaw’s 1998 appeal.  Additionally, either party may have sought leave to put whatever evidence might still be available before us.  Neither party having, it seems, pursued those matters for more than a decade, we did not feel that it was for us to take the matter further.

[35]     That said, although we note that, at this remove, we have little more from the 1998 trial than the notes of evidence, there is nothing on the material available to us to suggest that there was at trial any objection in relation to supposedly inadequate investigation or disclosure.  Such also seems to have been the case on Mr Shaw’s first appeal, during which, it appears, he was consulted about these very matters.

Discussion

[36]     Even though the material available to this Court is incomplete, it is immediately apparent that the 1998 trial could have been run by both prosecution and defence on a broader basis than it was.

[37]     What should have been plain to the prosecution – absent any agreement with Mr Tucker – was the need to establish documentary links, first, between Mr Shaw and Drake and between Drake and Ford and, secondly, as to the correct bank account into which Mr Shaw’s Drake earnings were paid and evidence of his direction that such should occur.  What the defence should have done ‑  again absent any agreement with the prosecution – was to produce not just the evidence concerning the bank account number and the date of its commencement, but to put in evidence, and emphasise, the discrepancy between the IRD number on Drake’s wage cards, and the IRD numbers for Mr Shaw and his Family Trust.

[38]     Even so, in assessing the points made by Mr Shaw, several factors are to be borne in mind.

[39]     In the first place, Mr Shaw neither gave nor called evidence at the 1998 trial.  Although doubtless Mr Tucker made the point in closing that the account into which the then accused’s supposed earnings were said to have been paid was not in existence during the relevant period, Mr Shaw had the opportunity at the time to give evidence making the points on which he has relied on both appeals.  He did not do so.  It is now far too late for him to raise those issues.

[40]     In that regard, it also has to be remembered that the information given to Drake as to the IRD number appearing on the wage records and the bank account number into which the payments were said to be direct-credited, must have been given either by Mr Shaw or by someone to whom those numbers related.  Mr Shaw did not suggest whom else that might have been.

[41]     Further, if, as Mr Shaw suggests, the Drake wage records related to a Drake employee working at Ford from 27 September 1993 onwards whose IRD number was 17632310 so the name “Sonny Shaw” and the appellant’s correct address on the wage cards was entered by mistake, it would, to put it no higher, be a curious coincidence if indeed he did not start work at Drake until much later.  And it would be a further remarkable coincidence that the payroll clerk’s fax to Ms Barton concerning the earnings of “S Shaw” with that IRD number, nonetheless included the correct Sonny Shaw Family Trust ASB bank account number.  In that regard, the placement of the bank account number in the box for the 1995 financial year may give some slight indication that the payments into that account did not commence until after 1 April 1995.

[42]     Finally, it needs to be borne in mind that the 1998 jury were obviously satisfied to the required standard that the evidence of Ms Barton, someone who knew Mr Shaw personally, that she employed him from 27 September 1993 to work for Drake at Ford, a statement consistent with her company’s wage cards, was sufficient proof that Mr Shaw committed perjury in giving the evidence he did to the Employment Court on 17 May 1994.  We consider that it was open to the jury to be so satisfied.

[43]     In the end, with the Court which dismissed Mr Shaw’s appeal on 23 July 1998 and for much the same reasons, we have concluded that no ground has been made out to overturn the perjury conviction.  The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington