Marks v The Queen - [2014] NZCA 609

IN THE COURT OF APPEAL OF NEW ZEALAND

CA381/2013
[2014] NZCA 609

BETWEEN	GARETH MARKS Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2014
Court:	Miller, Lang and Clifford JJ
Counsel:	S G Vidal for Appellant J E Mildenhall for Respondent
Judgment:	11 December 2014 at 2.30 pm

JUDGMENT OF THE COURT

AApplication for an extension of time granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Marks was found guilty by a jury in the Invercargill District Court on a charge of perjury. Judge P Moran fined him $5,000.[1] He now appeals against conviction.
[1]R v Marks DC Invercargill CRI-2012-059-979, 9 May 2013 [Sentencing notes].
The notice of appeal was filed within time but, in error, related only to sentence. That error was not detected until after the time for filing an appeal against conviction had expired.
There is no prejudice to the Crown in an extension of time being granted, and we did not take the Crown to object to the application. We grant an extension accordingly.

Background

The perjury charge related to evidence that Mr Marks gave at a hearing before Judge Turner in the Queenstown District Court on 6 June 2012. On that date Mr Marks was facing a charge of driving with excess breath alcohol on a third or subsequent occasion.[2] Although he had originally denied the charge, he entered a guilty plea on the day of the defended hearing.
[2]Land Transport Act 1998, s 56.
The entry of the guilty plea meant that s 129 of the Sentencing Act 2002 required the Judge to determine whether Mr Marks was the owner of the Mazda motor vehicle in which he had committed the offence. If he was, the Judge was required to order that the vehicle be confiscated and sold.[3] The proceeds of sale would be returned to Mr Marks after deducting the amount necessary to pay the debts described in s 137(3) of the Sentencing Act.
[3]Sentencing Act 2002, s 129(3).
Mr Marks was required to give evidence on oath regarding the issue of his ownership of the vehicle. He told the Judge he had sold the vehicle approximately a month earlier to a work colleague, Mr Godfrey, for $2,000 cash. He said Mr Godfrey had taken possession of the vehicle, and he believed that the registration of the vehicle had been changed into Mr Godfrey’s name. When the Judge asked Mr Marks if he had signed any papers, he said he had signed a form that Mr Godfrey had “posted in the mailbox”. He said he had sold the vehicle because he was not able to use it, and needed cash.
As a result of Mr Marks’ evidence the Judge did not make an order that the vehicle be confiscated. He fined Mr Marks the sum of $800, plus court costs of $132.89, and disqualified him from driving indefinitely.[4] Judge Turner also made an order prohibiting Mr Marks from having an interest in a motor vehicle…

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 Marks v The Queen

Details

AGLC: Marks v The Queen [2014] NZCA 609
Case: [2014] NZCA 609
Decision Date: 11 December 2014 at 2.30 pm

CaseChat Overview and Summary

In Marks v The Queen, the appellant was charged with perjury. The central issue in the case was whether the corroboration requirement under section 112 of the Crimes Act 1961 applies to cases where the prosecution relies on circumstantial evidence to prove the defendant's false statement. The Court was required to determine if the corroboration requirement applies when the prosecution's evidence is not solely based on the testimony of a witness who states the defendant has given false evidence, but instead relies on circumstantial evidence to establish the falsity of the defendant's statement. The Court considered whether the requirement is restricted to cases where the prosecution relies on the evidence of a witness stating that the defendant has given false evidence, or if it applies universally to all cases involving allegations of perjury, including those based on circumstantial evidence.

The Court examined the historical and logical rationales for the corroboration requirement. Historically, the requirement stems from the principle that "there would be oath against oath" if convictions for perjury could be based solely on the testimony of one witness. This principle is designed to prevent convictions based on conflicting testimonies and to deter malicious accusations of perjury. The Court also considered whether the rule might disproportionately affect the resolution of conflicting evidence given by two witnesses. The Court concluded that while the requirement might discourage witnesses from giving evidence, it serves a critical role in ensuring the safety and fairness of convictions for perjury. The Court found that the corroboration requirement applies universally to all cases involving allegations of perjury, including those based on circumstantial evidence, and upheld the decision of the trial judge.

The Court found that the trial judge was correct in refusing to discharge the defendant under section 347 of the Crimes Act. The prosecution had provided sufficient corroboration of the defendant's false statement through circumstantial evidence. The Court held that the corroboration requirement applies to cases where the prosecution relies on circumstantial evidence to prove the falsity of the defendant's statement. The Court's decision affirmed the importance of the corroboration requirement in ensuring the fairness and safety of convictions for perjury. The Court dismissed the appeal and upheld the conviction of the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 112 of the Crimes Act 1961 provides as follows:112 Evidence of perjury, false oath, or false statement No one shall be convicted of perjury, or of any offence against section 110 or section 111, on the evidence of 1 witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant. After the Crown closed its case, Ms Vidal applied for an order discharging Mr Marks under s 347 of the Crimes Act on the basis that the Crown had failed to provide the corroboration required by s 112. The Judge refused that application, and Ms Vidal now submits that he was wrong to do so.[8][8]Ruling No 1, above n 6. Section 112 essentially adopts the common law requirement that evidence of the falsity of a statement must be corroborated. That is, there must be something more than one witness testifying that the statement made was false.[9] The corroboration requirement does not apply to the other elements of the offence, namely the fact that the statement was made and the defendant knew that it was false.[10] [9]R v Monk CA15/95, 15 June 1995 at 4–5 and Taylor v Manu [1975] 1 NZLR 285 (SC) at 287. See also Rex v Cleland (1901) 20 NZLR 509 (CA) at 512.[10]Compare Taylor v Manu, above n 9, at 287 and R v Rider (1986) 83 Cr App R 207 (CA) at 210 with R v Evans (1995) 102 Man R (2d) 186 (MBCA) at [48]–[49]. The Crown did not rely in the present case solely upon the evidence of a witness who told the jury that the evidence Mr Marks had given before the Judge was false. Rather, it relied upon circumstantial evidence to prove that Mr Marks had committed perjury when he told the Judge he had sold his vehicle to Mr Godfrey some weeks earlier. The first issue we need to determine is whether s 112 applies in cases where the prosecution relies upon circumstantial evidence to prove the falsity of the defendant’s statement. Read literally, the section is not restricted to cases where the prosecution relies upon the evidence of a witness who states that the defendant has given false evidence. It is cast in universal terms that suggest it applies to all cases involving allegations of perjury. This would obviously include cases such as the present where the prosecution relies upon circumstantial evidence to prove the falsity of the defendant’s statement. The historical reason for the rule is that “else there would be oath against oath”.[11] The rationale underpinning the principle is that it might be unfair or unsafe to convict an individual for perjury on the basis that only one other person suggests that what he or she has earlier said on oath was false. The validity of this proposition has been questioned on the basis that the outcome of many prosecutions may depend on resolution of conflicting evidence given by two witnesses. It has been suggested that a more logical reason for the continuation of the rule may be that an ability to obtain a conviction for perjury based on the evidence of a single witness might encourage malicious accusations of perjury. This could discourage witnesses from giving evidence.[12] [11]R v Muscot (1713) 10 Mod Rep 192 at 198, 88 ER 689 (KB) at 691.[12]See Law Commission Evidence: Reform of the Law (NZLC R55 Vol 1, 1999) at [468]; and Evidence Law Reform Committee Report on Corroboration (November 1984) at [31]. See also in the United Kingdom context Colin Tapper Cross & Tapper on Evidence (12th ed, Oxford University Press, Oxford, 2010) at 261; and United Kingdom Law Commission Criminal Law: Offences Relating to Interference with the Course of Justice (Law Com No 96, January 1979) at [2.62].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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