W (CA641/2019) v R [2020] NZCA 286

W (CA641/2019) v R [2020] NZCA 286 [14 July 2020]NOTE: DISTRICT COURT ORDER AT [2018] NZDC 23200 PROHIBITINGPUBLICATION OF THE APPELLANT'S NAME AND ANY IDENTIFYINGDETAILS REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA641/2019[2020] NZCA 286BETWEEN W (CA641/2019)AppellantAND THE QUEENRespondentHearing: 22 June 2020Court: Brown, Simon France and Brewer JJCounsel: E A Hall for AppellantB F Fenton for RespondentJudgment: 14 July 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The conviction for perjury is quashed.C There is no order for a retrial.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Following a trial before Judge Cathcart sitting alone, W was convicted of onecharge of perjury and acquitted of another.1 In the course of relationship property1 R v [W] [2018] NZDC 2543; and Crimes Act 1961, ss 108 and 109(1), maximum penalty sevenyears' imprisonment.proceedings, W had appended to an affidavit a third party's document that she hadaltered. The alterations were not acknowledged by her in the affidavit. The perjuryrelated to what was said to be a false oath concerning the attachment.[2] W was sentenced to 12 months' home detention.2 On appeal, the convictionwas confirmed by Clark J but the sentence was reduced to one of nine months' homedetention.3 Subsequently this Court gave leave to bring a second appeal.4Background[3] W and her former husband were embroiled in relationship propertyproceedings. Within that context, W wished to advance the proposition that herhusband had physically and sexually abused her. W said that her lawyer advised herto seek supporting evidence of this proposition. In pursuit of this, W asked theAccident Compensation Corporation (ACC) for a copy of her file. Over the years atvarious times W had received counselling. She was aware she had disclosed thealleged abuse to a counsellor who provided reports to ACC and thought there mightbe helpful material on the file.[4] The date at the time of her inquiries was 2009. Included amongst thedocuments received from ACC was a report to ACC of counselling she had receivedin the latter part of 1995. The form, called a "20 Hour Report Form", was a standardform which was a mixture of set inquiries with the correct answer to be circled, andsections allowing the counsellor to write a comment. The form was annexed to W'saffidavit in the Family Court proceedings as exhibit I.The alterations[5] The document referred to W being sexually abused by her husband. It thereforewas seen as being a source of confirmatory evidence, albeit suffering from the obviousweakness that it was merely recording what W had said. However, the document also2 R v [W] [2018] NZDC 22589.3 W v R [2019] NZHC 2740.4 W v R [2020] NZCA 90.contained statements and information which W considered to be in error, and she setabout changing them.[6] First, the form asked at what age the abuse occurred. The original said "19-25".W altered this to "31-35". It appears likely that the original figures were either twinkedout and overwritten, or just overwritten. The 2 of "25" appears to be altered byextending the written 2 to 3, making the "35". The 1 and the circle part of the 9 from"19" are seemingly deleted, and in their place is written a 3, thus reading "31".The style and consistency of the 3, on what is a photocopied version available to theCourt, has all the hallmarks of a letter or figure written over the top of twink.[7] Next came question five. The original reads:5. (a) Please provide brief details of the nature of the abuse.(1) Frequently beaten & then raped.(2) Is being sexually abused in current marriage(b) What is the relationship of the perpetrator(s) to this claimant?(1) De facto partner(2) Husband[8] W was in a de facto relationship with another person prior to commencing arelationship and then marrying her husband. W has consistently said that she nevertold the counsellor or anyone that her de facto partner did anything to her, and nor didhe. She says she was concerned at the implication and so altered the form so that itread:5. (a) Please provide brief details of the nature of the abuse.(1) Frequently beaten & then raped.(2) Is being sexually abused(b) What is the relationship of the perpetrator(s) to this claimant?(1) Husband.To achieve this, W removed the words "in current marriage" from the abusedescription at 5(a)(2), and deleted all reference in 5(b) to the de facto partner and thenrenumbered the "Husband" answer. It appears from an answer in cross-examinationthis latter change was done by using twink, and then overwriting the "1" next to"Husband". Again, the tell-tale signs of a broken-up ink figure are present.[9] We observe that it appears this is what W did because the original documentfiled by her in the Family Court was not presented in the District Court for the criminalprosecution. Rather, a photocopy was filed as evidence. Whether the changes madeby W on the original filing were obvious could not be assessed at the criminal trial.It is not known, and she was never asked in either proceeding, whether she providedher lawyer (who compiled the affidavit) with the altered document itself ora photocopy of the altered document. Naturally, looking at the original copy it wouldbe clear whether twink had been used; it is not so clear looking at the photocopy.[10] The next change is under a question which asks about the effects of the abuseon the claimant. The first topic is physical well being, "e.g. psychosomatic symptoms,eating disorders." Beneath this, the counsellor had written:STEALING, SHOPLIFTING, BULIMIA.W deleted these, again presumably by twinking them out.[11] Finally, there is a portion of the form where the counsellor provides a writtennarrative of the gains made from counselling. Within this section the counsellor notes"No longer steals or shoplifts". In a second part of the form, there is a request for thecounsellor's supervisor to comment on the need for the client to have morecounselling. The supervisor has repeated the observation of "no longer steals orshoplifts."[12] Concerning these, on each occasion they appear W has crossed out, usinga pen, the words "steals" and "shoplifts". She has signed the alterations with her name.By the first alteration there is an asterisk, with the margin comment:* I censored. Personal not relevant.[13] What can then be said of the document that was appended to the affidavit isthat on its face it contained obvious corrections made by W, and acknowledged by herto be such. These were the words crossed out in pen. There were then otheralterations, words that were likely changed using twink. As it appeared at the criminalprosecution, these other alterations were not apparent because what was filed asevidence was a photocopy of the original. It was not possible at the criminal trial toassess if the other changes to the document originally filed were obvious or not.[14] There was no focus or questioning on the method of alteration at theFamily Court hearing, presumably because it was common ground by the time of thehearing that alterations had been made and what they were. At the criminal trial thefact that the document under consideration was not the original does not seem to havebeen averted to.Legal historyFamily Court proceeding[15] The Family Court proceeding was heard in late 2014 and early 2015.Judge Callinicos, in strong terms, found W to be an unreliable witness. He directedthe matter of the altered document to be referred to the police on this basis:5[372] The making of false evidence in any Court proceeding is a seriousmatter. It causes not merely an injustice to the respondent to thefalse evidence, but to the interests of justice generally. While I makedue allowance for human tendencies to give evidence shaped byemotion or anxiety, it is an entirely different situation where a partyactively plans to amend a document and attach it to an affidavit forthe expressly stated purpose of attacking another party's credibility.Such calculated and dishonest actions cannot go withoutrepercussions.[373] The Registrar may release to the Police the following:(a) A copy of this decision,(b) A copy of the notes of evidence, or such parts thereof aspertain the false evidence. To assist, the central findings ofconcern are recorded at paragraphs [48] to [58] of thisdecision,(c) A certified copy of any affidavits from the file including thatof [the ACC deponent] and the ACC documents provided,(d) If required for prosecution, then the original documents maybe released to the Police provided the Registrar retainsaccurate coloured copies of all documents so released.5 [W] v [W] [2015] NZFC 4905.[16] W was charged with two counts of perjury under s 108 of the Crimes Act 1961.That section provides:(1) Perjury is an assertion as to a matter of fact, opinion, belief, orknowledge made by a witness in a judicial proceeding as part of hisor her evidence on oath, whether the evidence is given in open courtor by affidavit or otherwise, that assertion being known to the witnessto be false and being intended by him or her to mislead the tribunalholding the proceeding.The offence requires both elements of wilful falsity and an intent to mislead.6Criminal proceeding in the District Court[17] The first charge related to the swearing of the affidavit with the altereddocument as an exhibit. The second charge related to W at the start of her evidence inthe Family Court confirming as true the contents of the same affidavit. This lattercharge was understandably dismissed.7 It was known by all participants prior to thetrial that W had altered the document. She had said so in an affidavit filed in theproceeding. It therefore could not be said that W intended to mislead the Court.8It could be thought of some interest, however, in terms of the issue of what thesequestions and statements are understood to mean, that, despite everyone knowing therewas an altered exhibit, W's lawyer asked her to confirm the contents of the affidavitwere "true and correct". When W answered yes, no one queried the answer.[18] Judge Cathcart was as unimpressed as Judge Callinicos by W's evidence anddismissed it completely as unreliable.9 Addressing the fact that the document hadplainly been altered by the crossings out mentioned earlier, the Judge concluded thesealterations were purposefully obvious so as to hide the other, less obvious,alterations.10 By acknowledging some alterations, W had thereby intended to deflectany inquiry or suspicion about the rest of the document. The correctness of thisreasoning is not essential to the view we take of the case, but it is appropriate at this6 R v Goodyear-Smith HC Auckland T332/92, 26 July 1993 at 5.7 R v [W], above n 1, at [87]–[97].8 At [97].9 At [79].10 At [73] and [81].point to note we are left with some reservations about this reasoning. There wereavailable inferences more favourable to W.[19] The context for all this was that there had been a settlement of the matrimonialproperty dispute which W was seeking to reopen on the basis that there had beenduress. The allegations of physical and sexual abuse were to support the duressrationale. Judge Cathcart variously described the document as of central importanceto the Family Court case, and of persuasive force as an independent source of W'sclaim.11 We consider this wrongly assesses the document's probative value. This inturn can lead to incorrect inferences as to W's motivations. As the probative value ofthe document decreases, the likelihood of such carefully planned deceit diminishes.[20] The document is not independent evidence. It is merely a report, in veryabbreviated form, of what W said to the counsellor. Its admissibility lies in the oldconcept of recent complaint, it being a prior consistent statement, albeit in hearsayform in a business record.12 It is one of numerous similar items of evidence that wereavailable to the decision maker, and is far from the best of them. There were, forexample, photographs of injuries, written admissions by W's husband of violence, andwitnesses giving direct evidence of psychological abuse. Seen in this light, one mightwonder why someone would go to such length to alter what was at bestlow-level support.[21] Further, as regards the alterations, we accept Ms Hall's submission that theydo not add anything to W's case against the husband. W's complaints against herhusband were there prior to and after alteration. The only effect of W's actions is toremove the allegations against the de facto partner. We accept that the change to W'sage at the time of the alleged abuse alters a time frame that could not otherwise applyto the husband. We note, however, that nor, on the available evidence, could theoriginal time frame fully align with her relationship with the de facto partner.As initially recorded, the age at which W suffered abuse pre-dated either relationship.Further, the counsellor later wrote W was suffering abuse "in her current marriage".11 At [47], [71] and [80].12 R v Nazif [1987] 2 NZLR 122 (CA). See also Evidence Act 2006, ss 35 and 127.This points to a time frame well outside the ages the counsellor had earlier recordedand suggests they are an obvious error.[22] Finally, as regards the other obvious alterations which concern shoplifting andstealing, matters unknown to anyone other than this admission to her counsellor, it isdifficult to see these alterations as an attempt to deceive. If the document assumedany significance, W would inevitably be asked about the clear alterations, being thecrossings out of the words in pen, and what they were. Indeed, we assume, withoutknowing, that the obvious changes were what caused counsel for the former husbandto pursue a copy of the original.Appeal to the High Court[23] We return to the narrative of the legal events. Following conviction Wappealed.13 The grounds of the conviction appeal were that Judge Cathcart shouldhave recused himself because he might not have been impartial due to his priorknowledge of the matters before the Court, in particular the Family Court's findingson W's credibility; that evidence given by W at the Family Court proceeding waswrongly admitted at the criminal trial because there should have been, and was not,a self-incrimination warning given in the Family Court; that the District Court wronglyassessed the evidence; and that there was an error concerning the standard of proof.14[24] The third of these grounds of appeal, the incorrect assessment of evidencepoint, concerned whether there was proof that W had sworn that exhibit I was a"true copy" of the original document. The wording on the affidavit says only that theexhibit is "a copy", but Clark J referred to an admission by W at her police interviewthat she was "saying the same" about the exhibit as she was about the contents of theaffidavit. The Judge found that W agreed that she was swearing the exhibit was alsotrue and correct.1513 W v R, above n 3.14 At [37].15 At [98].[25] The appeal failed on all points. Leave to bring a second appeal was grantedwith this Court referring in particular to the issues of recusal and self-incrimination.16However, with the benefit of argument on the matter, and a better understanding ofwhat was before the District Court, we consider a more fundamental issue exists withwhether the charge has been proved.Assessment[26] In order for W to be guilty of perjury, she needed to make an assertion as to amatter of fact which she knew to be false, and in doing so intend to mislead the Court.17The wilful falsity is said to be the swearing of the affidavit as a true statement whenshe knew it to contain an altered exhibit. The necessary inference is that in so swearingthe affidavit as true, W was swearing that the exhibits attached were "true copies" ofthe original documents and therein lies the falsity.[27] Neither the wording of the oath on the affidavit, nor the form of words used bythe officer witnessing the affidavit, refer to the exhibits. That W was swearing that thecopies were "true copies" of the originals can only be a matter of inference. Normallythat inference might not be difficult to draw but here the relevant exhibit had beenwritten over by the deponent, and obviously so. It carried a statement to that effect:I censored. Personal not relevant.[28] What then was the oath being attributed to W? It could only be "exhibit I isa copy of the original which has been altered by me in the ways that are obvious buthas not otherwise been amended". That is not a normal understanding of what is beingattested to, and was not the focus of the prosecution case or the evidence. It is,however, what had to be proved.[29] The inference to be drawn as to what W was attesting to is a question of fact,but we consider there must have been a reasonable doubt as to whether W wasswearing that exhibit I was a true copy of the original ACC form or, alternatively,to the modified proposition identified above. The first, normal, inference would be16 W v R, above n 4, at [2].17 Crimes Act, s 108(1).readily drawn if all the alterations were hidden, but the presence of obvious alterationson the document and a plain acknowledgment by her on the face of the document thatshe had altered it means the normal and obvious inference is displaced.[30] This is not the sole concern. Given the context just identified, the state of thedocument as originally appended to the affidavit becomes important. If the deletions,and the deletions and overwriting, were done in a way that supports an inference ofdeliberate deceit, the necessary inference as to what W was swearing might still bedrawn. However, the prosecution did not place the document actually filed before theCourt. What was presented was a copy which prevented any consideration of the stateof the original document. We do not consider the necessary inferences could be drawnto establish a wilful falsity without the original being available.[31] While these factors are sufficient to allow the appeal, we note other matters ofconcern that reinforce a conclusion that this is not a safe verdict.[32] Throughout the evidence and verdict there is an emphasis on the only trial issuebeing W's intent. Judge Cathcart observed:18[3] The sole issue before me was whether the Crown can establish beyondreasonable doubt [W] intended to mislead the Court when she sworeher affidavit (charge 1) and/or when she confirmed its truth on oath laterbefore the Family Court (charge 2). The fact that the document attachedto the affidavit was known by her to be false was not disputed. [W]expressly disavowed any challenge to that proposition. From theget-go, the defence case was the Crown could not sheet home to therequired standard that [W] intended to mislead the Court at the time sheswore the affidavit (charge 1) and/or when she later gave formalevidence on that point in the Family Court (charge 2) and thus shouldbe found not guilty of both charges of perjury.[33] This statement of the issues is incorrect. W did dispute that the document wasknown to her to be "false". Her whole defence was that in its original form it wasincorrect and she had altered it to make it a correct and "true" document.Further, although it was common ground that W had amended the document, that isnot the actus reus of the offence that must be proved. The act requirement is that she18 R v [W], above n 1.has sworn it as a true copy in the sense of it being an unaltered copy of the original.19The distinction between these two was not sufficiently addressed.[34] At the end of the Crown case, W's counsel made an application under s 147 ofthe Criminal Procedure Act 2011 for dismissal of the charges on the basis that theCrown had not proved W ever swore exhibit I was a true copy of the originaldocument. In dismissing the application, the Judge referred to:20(a) the absence of any reference in the affidavit to alteration (we observethis goes more to intent than to the meaning of her oath);(b) the contents of the affidavit; and(c) W's evidence in the Family Court.[35] The Judge concluded the ruling in these terms:[8] Mrs Wright's [counsel for W] line of cross-examination went wellbeyond the statement of particulars for charges 1 and 2. She cross-examined the officer in charge at length about the nature of thedeletions, omissions and alterations to the form. The application unders 147 is declined.(Emphasis added).[36] Subsequently, another ruling was issued:21[1] I have just declined a no case to answer application and invitedMrs Wright to inform me as to whether [W] intends to give or callevidence. Prior to that election, Mrs Wright submitted there were nowtwo issues involved in the case. That is contrary to the memoranda filedby Mrs Wright to date in which she repeatedly confirmed that theintent-to-mislead element is the sole issue under each charge. My s 147ruling at an earlier stage of the proceedings last year also confirmed thiselement was the sole issue.[2] Initially, Mrs Wright said that it was her mistake to have confined thecase to one issue. I have invited Mrs Wright to take instructions from19 Or, in this case, more exactly a true copy of the original except to the extent it has been obviouslyaltered by W.20 R v [W] [2017] NZDC 25752.21 R v [W] DC Gisborne CRI-2016-016-000407, 14 November 2017 (Ruling No 2).[W] on the point. She had and it is agreed the intent-to-mislead issueremains the sole issue for both charges.(Emphasis added).[37] We understand the second issue referred to was a focus on the question ofwhether the actus reus had been proved. We are concerned that the opportunity topresent the full defence has not been taken. We acknowledge that counsel had theopportunity to discuss it with her client, but there was nothing at this point that shouldhave prevented both issues being explored. If that meant recalling any Crown witness,it would not have been a difficulty. Whatever prior indication there had been as to theissues, unless it is too late to change direction,22 a defendant must be able to advanceher defence.[38] Returning to the s 147 decision, the Judge refers to the content of the affidavitas providing evidence that W was swearing the exhibit to be a true copy of the original.The relevant paragraph from the affidavit reads:I refer to paragraph 12 [of W's former husband's affidavit]. Annexed heretoand marked "I" is a copy of [the counsellor's] report to ACC. It isself-explanatory.[39] Ms Fenton for the Crown also focused on the self-explanatory comment duringthe appeal, submitting it was an assertion as to the exhibit being a true copy. The firstresponse to be made is one noted already but which is pivotal to our reasoning.The document on its face plainly is not a true copy of the original and it cannot besuggested W was saying it was. That aside, the reliance on this paragraph againhighlights the lack of attention to proving the actus reus. There is no evidence aboutthe content of paragraph 12 of the affidavit of her former husband to which W wasresponding. Without that, it cannot be known what it is about exhibit I that makes ita self-explanatory response to paragraph 12. It is unlikely to be, but it could be assimple as a response to an assertion from W's former husband that W never went tocounselling. Reliance on the term self-explanatory as being an assertion of exhibit Ibeing a true copy at least needed consideration of the context in which that statementwas made.22 If it is, the issue will arise as to whether to persevere on the current path and leave the matter forappeal or start again. Many factors will inform that decision.[40] The issue of the meaning of "it is self-explanatory" affords an opportunity tomake a further comment we consider is necessary. When asked about these words Wsaid she attributed no meaning to them and they were her lawyer's words. W wascriticised for this in the District Court.23 In evidence and in the judgment there arecriticisms of W hiding behind her lawyer and tending to blame others.24 Our readingof the evidence leads us to the view this was not merited in this context. It is not anuncommon answer for a witness to observe that the drafting of an affidavit was doneby the lawyer. That of course does not make the deponent not responsible for thecontent, but some of the propositions put to her in evidence were not fair. Indeed, thatis a general observation we make of the cross-examination. The Judge described it inhis verdict as "skilful and penetrating".25 We see it otherwise as overall unfair and attimes bullying. Having read the transcript of two trials where W has testified, werecognise she is a witness prone to want to answer questions her own way. This canbe frustrating and W seems to have had that effect. We appreciate that hindsight, andanalysis only of a written transcript, can produce a different perspective. Nevertheless,this is another aspect of the case that causes us unease over the verdict.[41] Finally, we acknowledge the point made by Clark J that in the police interviewW appears to acknowledge that she was saying the exhibit was a true and correctcopy.26 However, the way the question is put, without clarification of its meaning andimport, does not in our view allow much store to be placed on the answer. W wasasked "when you signed this affidavit and said it was true and correct are you sayingthe same about this exhibit here", to which she responded "Yeah, I would be". It wasnot clarified whether "true and correct" meant a true copy of the original document ora true statement of fact. There has, as we have noted, been a tendency in the case forthe term "true copy" to be used without sufficient focus on what exactly is meant byit on the facts of this case, and without any explanation of what is being meant by itbeing given to the person to whom the question is put.23 Similar criticisms were made in the Family Court.24 R v W, above n 1, at [70] and [78(b)]. These conclusions were based on various aspects of W'sevidence, not just this topic.25 At [77].26 See [24] of this judgment; and W v R, above n 3, at [98].[42] For the reasons we have given, we consider that a miscarriage of justice hasoccurred, and the verdict must be quashed.27 It is not necessary to address the recusaland self-incrimination grounds. W has served her sentence, and the alleged underlyingculpability is not such as to justify a retrial in these circumstances.[43] W has previously been the subject of a permanent name suppression order.Conclusion[44] The appeal is allowed.[45] The conviction is quashed. There will be no order for a retrial.Solicitors:Crown Law Office, Wellington for Respondent27 Criminal Procedure Act 2011, ss 232(2), 233, 240 and 241.