Mohareb v Palmer

The appeal concerned an application by the appellant, Mohareb, to prosecute the respondent, Palmer, for perjury. The primary judge had dismissed this application. The central dispute revolved around whether a statement made by the respondent in an affidavit constituted a "false statement made on oath" for the purposes of a perjury charge, specifically whether a deliberate omission of material from the affidavit could form the basis of such a charge. The appeal was heard by Beazley P, Meagher and Leeming JJA.

The legal issues before the Court of Appeal were twofold. Firstly, the Court had to determine the meaning of a "false statement made on oath" in the context of perjury, and whether an omission of material from an affidavit could satisfy this definition. Secondly, the Court was required to consider the primary judge's award of indemnity costs against the appellant and whether this order, along with the decision to dismiss the prosecution application, should be disturbed.

The Court of Appeal affirmed the primary judge's decision, holding that a deliberate omission from an affidavit, without any positive assertion that was false, did not constitute a "false statement made on oath" for the purposes of a perjury charge under the *Crimes Act 1900* (NSW). The Court reasoned that perjury requires a positive assertion of falsehood, not merely the withholding of information. Consequently, the appeal was dismissed. The Court also ordered that the appellant pay the costs of the appeal, including the costs of the summons for leave to appeal, while the summons itself was dismissed with no order as to costs.