Mohareb v Palmer [2016] NSWCA 378

Mohareb v Palmer [2016] NSWCA 378

The omission from the respondent's affidavit did not constitute a false statement on oath as required for perjury under s 327 of the Crimes Act 1900 (NSW). The elements of perjury require a positive falsehood, not simply the non-inclusion of material, unless the omission itself renders a positive statement false. Here, the affidavit's statement was true as made, and there was no evidence of deliberate intent to mislead or knowledge of falsity. Consequently, the appeal had no reasonable prospects of success.

Parties
Appellant: Nader Mohareb; Respondent: Matthew Palmer
Jurisdiction
Australia
Judgment Date
22 December 2016
Procedural Posture
Appeal / Appeal From District Court Decision to Court of Appeal; Determination on Leave to Prosecute for Perjury and Costs
Outcome
Appeal dismissed with costs, including costs of the summons for leave to appeal. Summons dismissed with no order as to costs.
Legal Topics
Perjury, Omissions and Perjury, Indemnity Costs, False Statements on Oath, Appellate Review of Costs Orders
Criminal Law Procedure Defamation Perjury Omissions and Perjury Indemnity Costs False Statements on Oath Appellate Review of Costs Orders

Case Brief

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Parties

Nader Mohareb

Appellant

Matthew Palmer

Respondent

Procedural Posture

Appeal / Appeal From District Court Decision to Court of Appeal; Determination on Leave to Prosecute for Perjury and Costs

Legal Issues

  1. 1 Whether the trial judge erred in refusing to grant the appellant leave to prosecute the respondent for perjury
  2. 2 Whether the trial judge erred in awarding indemnity costs against the appellant
  3. 3 Whether an omission can form the basis for a charge of perjury

Ratio Decidendi

The omission from the respondent's affidavit did not constitute a false statement on oath as required for perjury under s 327 of the Crimes Act 1900 (NSW). The elements of perjury require a positive falsehood, not simply the non-inclusion of material, unless the omission itself renders a positive statement false. Here, the affidavit's statement was true as made, and there was no evidence of deliberate intent to mislead or knowledge of falsity. Consequently, the appeal had no reasonable prospects of success.

Court Disposition

Appeal dismissed with costs, including costs of the summons for leave to appeal. Summons dismissed with no order as to costs.

Orders

  • Appeal dismissed with costs, including costs of the summons for leave to appeal.
  • Summons dismissed with no order as to costs.