R v Houda

[1993] QCA 562

IN THE COURT OF APPEAL [1993] QCA 562

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1993

Brisbane

[R v. Houda]

T H E Q U E E N

v.

FADY HOUDA

(Appellant)

________________________________________________________________
_

Macrossan C.J. McPherson J.A. Pincus J.A.

________________________________________________________________

_

Judgment delivered 20/12/93
Judgment of the Court
________________________________________________________________

_

A PPEAL AGAINST CONVICTION DISMISSED

________________________________________________________________

_

CATCHWORDS:	CRIMINAL LAW - perjury - affidavit put forward in application for bail contained false statements - affidavit purportedly sworn before a justice of the peace - whether proved appellant swore to truth of affidavit - whether jury properly could act upon the signature of affidavit as an admission of administration of oath - whether verdict unsafe and unsatisfactory.
Counsel:	Mr T Carmody for the appellant. Mr J Hunter for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing Date:	18 November 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1993

Brisbane

Before Macrossan C.J. McPherson J.A. Pincus J.A.

[R v. Houda]

T H E Q U E E N

v.

FADY HOUDA

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/12/93

This is an appeal against conviction. The appellant was convicted of four charges of perjury, based on the content of an affidavit signed by him for the purpose of obtaining bail. There was evidence on which the jury could properly find that the affidavit was signed, and it was not in issue that the affidavit contained false statements. The jury could without doubt properly find that the statements were made by the appellant knowing they were false. The question raised on appeal was whether the verdicts were safe, since although the affidavit purported to have been sworn before a justice of the peace, there was no evidence, it was submitted, upon which the jury could be satisfied that it was in truth sworn. The justice of the peace before whom the affidavit purported to have been made was not called because, it appears, he was overseas at the time of the trial. The appellant gave no evidence at his trial.

The offence of perjury is defined by s. 123 of the Criminal Code which reads, so far as is relevant, as follows:

"Any person who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called perjury.
It is immaterial whether the testimony is given on oath or under any sanction authorised by law.
The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used.

It is immaterial whether the false statement is given orally or in writing..."

It was contended on behalf of the appellant that no testimony was given, because it was not proved that the appellant swore to the truth of the affidavit, nor that the testimony was given "under any other sanction authorised by law", the alternative mentioned in the second sentence of the section.

Although in some contexts "testimony" refers to oral evidence, it is clear from the last sentence we have quoted from s. 123 that affidavit evidence is testimony for this purpose. What is not quite so clear, in a case where no oath is administered, is what is contemplated by the expression "any other sanction authorised by law". The next sentence, read in isolation, would seem to make it sufficient to show that a form or ceremony was used with the intention of binding the person giving the testimony to speak the truth and that that person assented to the form or ceremony used; but the first sentence beginning "It is immaterial..." may be thought to imply that if there is no oath, the law's authority must apply to the means used to bind the person giving the testimony to speak the truth.

It is we think unnecessary to define, for present purposes, the

way in which the two sentences are reconciled.

Here, the affidavit was in the conventional form; that is, it read so far as relevant as follows:

"I, ABDUL FATTAH HOUDA...make oath and say as follows:-
...
SWORN by the abovenamed Deponent )
at Brisbane in the State ) Abdul Houda
of Queensland this 4th day of )
December 1991 )

before me:

J. Prismall

A Justice of the Peace/Solicitor"

On the face of it, the language used evidenced the taking of an oath. There was, as has been mentioned, evidence sufficient to show that it was signed by the appellant, and the difficulty from his point of view is that, on the face of it, his signature is an admission that an oath was administered. Further, the third sentence of s. 123 at least makes it clear that the precise method used in administering the oath is of no consequence, as long as it was assented to; see, as to the position under the general law: R v O'Sullivan, ex parte the Attorney General [1988] 1 Qd.R. 672 at p. 676 per McPherson J (as his Honour then was) and at p. 678 per Derrington J.

Counsel for the appellant argued, as we understood him, that the jury was not entitled to act on the admission because evidence was given by a witness at the trial as follows, relating to what the appellant said at the hearing of the application at which the affidavit in issue was used:

"He said that he was at Boggo Road Prison at the time the affidavit was made and that his solicitor came out to the prison and said to him, "If you want bail sign this.", and so he thought it was a form that you had to sign to get bail and he said that his solicitor didn't have a Bible with him and that he was not a Christian anyway, that he was a Muslim, and he said he couldn't read English."

In our view, the jury was not obliged to act on the version of the circumstances under which the affidavit was made given by the appellant at that hearing, before MacKenzie J. Particularly in view of the undisputed falsity of parts of the affidavit, the jury was entitled to be sceptical of the accuracy of statements made by the appellant of an exculpatory kind.

In response to the suggestion that the jury could properly have acted upon the signature of the affidavit as an admission of the administration of an oath, it was also argued for the appellant that the judge should have instructed the jury that, to act on such an admission, they would have to be satisfied that it was true. During the course of the summing-up, the judge referred to the fact that the Crown had invited them to infer, from the fact that the person who supposedly administered the oath was a justice of the peace and a solicitor, that "he would have acted properly and administered a duly binding oath on the accused person". His Honour said:

"...you may have some doubts as to whether that is an
inference you can draw from the document itself...".

That, as it appears to us, must have sufficiently reminded the jury that they should not necessarily assume that what purported to have been done had in fact been done. Of course, his Honour made it clear elsewhere that the Crown had to prove its case to the requisite standard and that a necessary part of the Crown case was proof of "...making an oath or making a statement under some sanction of the Court with the knowledge that it was binding upon his conscience". It was made evident to the jury that it was a question for them whether they could infer from the content of the document (including the signature) that there had been an oath or its equivalent and, no doubt for that reason, counsel for the appellant who appeared below did not make the complaint about the judge's directions which was made before us.

It is our opinion that the jury was entitled to treat the appellant's signature on the affidavit as evidence of the truth of a particular fact stated in it, namely that the document had been sworn; neither the circumstance that the document contained some lies, nor that the appellant had implied before MacKenzie J that he had not properly sworn the affidavit, prevented the jury from acting on that admission, if they saw fit to do so.

The appeal must be dismissed.