Kendall v The Queen
[2012] NZCA 5
•8 February 2012
| 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
[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 the two affidavits Mr Kendall had sworn. They were, of course, prime Crown exhibits. We uphold Mr Gotlieb’s submissions on this point.
Because of our view that the appeal must be allowed and the convictions quashed, we do not need to consider the appeal against sentence.
Did the Judge err in the ruling she gave as to the use the defence could make of the two affidavits?
The Crown called Ms Murfitt as its first witness. She produced the two affidavits. Mr Karam cross-examined her. At one stage of the cross-examination, he put to her something Mr Kendall had said in one paragraph of his second affidavit. Mr Karam sought confirmation it was true. The prosecutor (not Ms Feltham, who appeared for the Crown on this appeal) objected. He submitted Mr Karam could not “put in evidence or rely on evidence of the statement of his client unless his client [proposed] to give evidence”. Authority for that proposition was said to be s 21 of the Evidence Act 2006. Mr Karam disputed that proposition of law. Mr Gotlieb told us his concern arose from the fact that it was not the defence’s intention at that stage for Mr Kendall to give oral evidence. Instead, he had intended to rely on Mr Kendall’s affidavits given they were in evidence as Crown exhibits.
Courtney J heard submissions on this question. She never gave a written ruling (despite being asked by the defence to do so) but we do have a full transcript of her interaction with counsel and the conclusion to which she came. In essence, she held that the two affidavits, while exhibits, were not admissible “for the truth of their contents”. Mr Karam, she held, was not permitted “to turn [the affidavit] into a true statement though the cross-examination of this witness”. He could not “cross-examine to prove the truth of its contents”. She considered such a course prohibited by s 21.
The consequence of this ruling was that Mr Kendall could not rely on the account he had given in his two affidavits. His counsel were not permitted to cross-examine Crown witnesses on the basis of what was contained in the affidavits. Effectively the defence was left with no alternative but to call Mr Kendall to give evidence.
Ms Feltham accepted the Judge’s ruling was wrong. The Crown had produced both affidavits (in their entirety) as exhibits. Once in, they were admissible for all purposes. The majority of the Supreme Court made this clear in Hart v R:[4]
[54] ... The general approach of the Evidence Act does not support the concept of limited admissibility of this kind. The statute proceeds on the basis that generally speaking, evidence is either admissible for all purposes or it is not admissible at all. Specific use provisions are expressly adopted when intended and appropriate.[5] The primary touchstone for admissibility is relevance; and relevance is regarded as a general, rather than a limited, concept. The artificiality and practical awkwardness of a rule which has certain evidence relevant to consistency but not directly to truth leads me to the view that the Act should not be construed as leading to that result unless that conclusion is unavoidable. We are satisfied that it is not. Indeed, as the Crown submitted, there are factors which suggested that the distinction formerly drawn between consistency and truth has deliberately not been included in the Act.
[4] Hart v R [2010] NZSC 91, [2011] 1 NZLR 1.
[5] See ss 27(1), 31, 32 and 34(2).
The present case did not fall within any statutory exception to the “general approach”. It is perhaps uncertain in this case whether the affidavits were admissible evidence under s 7 (the general section rendering relevant evidence admissible) or s 27 (the section permitting the prosecution to put in statements of a defendant) or both. It does not matter. The exhibits had been produced and were in evidence before Mr Karam started his cross-examination of Ms Murfitt. By putting to her paragraphs in those affidavits, he was not offering evidence in terms of s 21. He was entitled to try to persuade her to confirm the truth of any part of or the whole of the affidavits. And Mr Kendall was entitled to rely on the affidavits as part of his defence. His counsel was entitled to submit they were true, just as the prosecutor was entitled to submit they contained lies.
An analogy can be drawn with statements admitted as admissions under s 27. These statements may be in part inculpatory, in part exculpatory: they are often called “mixed statements”. It has long been the law that the defendant could rely on the exculpatory portions of the mixed statement.[6] That continues to be the law under the Evidence Act, even though s 27(1) refers to the statement being “admissible against that defendant”.[7] Why the statement may be used by the defendant as well is explained in this way by the learned authors of The Evidence Act 2006: Act and Analysis:[8]
It could be argued that s 27(1) changes the earlier law because it does no more than set out a rule of admissibility against the defendant. The argument would be that the defendant can no longer rely on any exculpatory portion of a mixed statement. However, it is inconceivable that the legislature could have intended such a dramatic change in the law. It is suggested that the issue of the admissibility in favour of the defendant of the exculpatory portions of a mixed statement will be analysed as a gap in the Act. Section 12 would then require that regard be had to the common law position, outlined above.
[6] R v Tomkins [1981] 2 NZLR 170 (CA) at 174–175.
[7] Emphasis added.
[8]Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Brookers, Wellington, 2010) at [EV27.01(4)(a)].
An alternative explanation was provided by this Court in R v Green.[9] The Court held that the word “against” in s 27(1) meant nothing more than that “the evidence will be proffered by the prosecution and that it will be taken into account by the jury in considering the Crown case against the defendant”. That view is strengthened by the fact that at least a co-equal purpose of s 27(1) is to make clear that a statement by one accused is not admissible against his or her co-accused.
[9] R v Green [2009] NZCA 400 at [12].
Having found the Judge’s ruling to have been, with respect, wrong, we went on to consider whether this was an appropriate case in which to apply the proviso to s 385. In the end, we concluded it was not an appropriate case. The Judge’s error led to the trial taking a markedly different course. Defence counsel were not able to use the affidavits in framing questions for cross-examination. Further, it became inevitable that Mr Kendall would have to give evidence, something which might have been avoided had the trial followed its proper course.
Result
For these reasons, we allowed the appeal, quashed the convictions and ordered a new trial.
Solicitors:
Stafford Klaassen, Auckland for Appellant
Crown Law Office, Wellington for Respondent