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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Shaw

Details

AGLC: The Queen v Shaw [2006] NZCA 143
Case: [2006] NZCA 143
Decision Date: 27 June 2006

CaseChat Overview and Summary

In The Queen v Shaw, the appellant, Sonny Shaw, contested his conviction for perjury in the Employment Court. Shaw was accused of providing false evidence under oath that he had no income after being dismissed from his position as an accountant. Following a complaint by his former employer, Shaw was charged with perjury and subsequently convicted in the Otahuhu District Court. He appealed this conviction, arguing that the jury's verdict was unreasonable, but his initial appeal was dismissed in 1998. After the Privy Council decision in R v Taito, Shaw's appeal was reheard.

The court considered whether the jury's verdict was unreasonable and whether the evidence presented was sufficient to prove Shaw's guilt beyond a reasonable doubt. Shaw argued that the prosecution's evidence was flawed, particularly the wage records that indicated he had an income during the relevant period. The wage records, however, were admitted under the business document exception to the hearsay rule. Furthermore, the jury was satisfied with the evidence provided by Ms. Barton, who testified that Shaw was employed by her company, Drake, during the relevant period, and this testimony was consistent with the wage records.

The court concluded that Shaw's arguments did not sufficiently demonstrate that a reasonable jury could not have found him guilty. Shaw had the opportunity to present evidence to counter the prosecution's claims but chose not to. The court also noted that the discrepancies in the evidence could have been addressed earlier in the trial or appeal process. Therefore, the appeal was dismissed, and Shaw's conviction for perjury was upheld.

Orders