| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA572/2011 [2012] NZCA 5 |
| BETWEEN GRAEME JOHN KENDALL |
| AND THE QUEEN |
| Hearing: 2 November 2011 |
| Court: Chambers, Chisholm and Potter JJ |
| Counsel: G C Gotlieb and M A Karam for Appellant |
| 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
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…
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- AGLC
- Kendall v The Queen [2012] NZCA 5
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- [2012] NZCA 5
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