Kendall v The Queen - [2012] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND

CA572/2011
[2012] NZCA 5

BETWEEN GRAEME JOHN KENDALL
Appellant

AND THE QUEEN
Respondent

Hearing: 2 November 2011

Court: Chambers, Chisholm and Potter JJ

Counsel: G C Gotlieb and M A Karam for Appellant
P K Feltham for Respondent

Judgment: 9 December 2011

Reasons: 8 February 2012 at 2 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

B The convictions are quashed.

C A new trial is directed.

D Any application for bail is to be dealt with in the High Court.

REASONS OF THE COURT

(Given by Chambers J)

Alleged perjury in civil proceeding

Graeme Kendall, the appellant, and Patricia Murfitt, formed a relationship in early 2005. Mr Kendall was a businessman with a myriad of companies. Later in 2005, when things were still rosy, he transferred one of his companies, Home Pride Ltd, to Ms Murfitt so that she could use it as a vehicle to buy a rental property. She became the sole director and shareholder of it.
Although Mr Kendall and Ms Murfitt married in March 2006, they separated not long afterwards and in acrimonious circumstances. Mr Kendall served a trespass notice on Ms Murfitt and took other legal proceedings against her.
In January 2007, Mr Kendall caused one of his companies, Feature Furniture Ltd, to issue a statutory demand on Home Pride for $64,400. This was said to be unpaid rent Home Pride owed Feature Furniture on a lease of a unit in Rosebank Road, Auckland.
Ms Murfitt saw her lawyer and then applied to set aside the statutory demand. Mr Kendall responded with a notice of opposition, which he supported by an affidavit (“the first affidavit”). Later in July 2007, Mr Kendall swore a second affidavit in opposition (“the second affidavit”). The second affidavit was detailed. It set out why Mr Kendall contended Feature Furniture was entitled to rent from Home Pride.
The Crown subsequently charged Mr Kendall with telling lies in those affidavits. Mr Kendall faced two charges of perjury. He elected trial before a judge alone. Courtney J convicted him on both counts.[1] She later sentenced him to a year’s imprisonment.[2]
[1] R v Kendall HC Auckland CRI-2009-004-7655, 1 March 2011.
[2] R v Kendall HC Auckland CRI-2009-004-7655, 9 September 2011.
Mr Kendall appealed his conviction and sentence. On 9 December last year, we allowed his appeal against conviction.[3] We said reasons would follow. These are the reasons.

Issues on the appeal

[3] Kendall v R [2011] NZCA 632.

Messrs Gotlieb and Karam, for Mr Kendall, advanced two grounds on the appeal against conviction. The first was that the verdicts were unreasonable in terms of s 385(1)(a) of the Crimes Act 1961. We are quite satisfied that this ground of appeal cannot succeed. Because of our views on the second ground, we need say no more about this.
The second ground was that the Judge made an error of law with respect to the use the defence could make of…

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 Kendall v The Queen

Details

AGLC: Kendall v The Queen [2012] NZCA 5
Case: [2012] NZCA 5
Decision Date: 8 February 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Graeme John Kendall against his conviction for perjury. Kendall was charged with lying under oath in two affidavits related to a statutory demand issued by one of his companies against another company he had transferred to his former wife, Patricia Murfitt. The case was heard by Chambers, Chisholm, and Potter JJ, with the judgment delivered on 8 February 2012. The central legal issue revolved around the admissibility of Kendall's affidavits in his defence. The Crown argued that the affidavits could not be used to prove their truth, while the defence contended that they were admissible for all purposes once produced as exhibits. The Court of Appeal found that the trial judge's ruling restricting the use of the affidavits was erroneous, as the Evidence Act 2006 does not support the concept of limited admissibility. The Court concluded that the error was significant enough to warrant a new trial, allowing the appeal, quashing the convictions, and directing a retrial. Any application for bail was to be dealt with in the High Court.

Orders