[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: Mr Mohareb sought leave to appeal from an order of the primary judge (Gibson DCJ) refusing him leave pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute the respondent for perjury. That sub-section provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, at the direction of the Attorney General, or by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.
On 24 November 2015 the Court ordered that the summons seeking leave to appeal be dismissed with costs. It reserved its reasons for the making of that order. Those reasons follow.
The circumstances in which the perjury is alleged to have been committed were as follows. The applicant brought proceedings against the respondent in the District Court for defamation. Those proceedings were the subject of a compromise agreement, the terms of which included that the respondent should publish an apology to the applicant on the Facebook page of the Scotland Island Community. Following the making of that agreement, the respondent posted an apology to that Facebook page on 1 April 2015. That post was taken down by the moderator of the page on the same day. Early on the following morning the moderator stated that he would not allow the post and that the respondent would be banned from the page if he attempted to post it again. The respondent replied and by email sent at 8.48am the moderator responded: "we will reinstate your post". This was apparently done. However, between that time and 10.26pm the post was removed. It was subsequently restored on 1 May 2015.
These events gave rise to a dispute between the parties as to whether there was a binding agreement, whether the obligation of the respondent to publish an apology had been satisfied, and whether the respondent was entitled to an order that the underlying proceedings be dismissed with no order as to costs.
On 19 May 2015 the respondent filed a motion in the District Court seeking a declaration that the proceedings had been compromised and an order that they be dismissed. He had earlier sworn an affidavit dated 23 April 2015. In para 13 of that affidavit he said:
On or around 2 April 2015 I received a Facebook private message from the moderator of the Facebook Page to the effect that I would be banned from the page if I attempted to post the apology again.
That application was heard by the primary judge on 5 June 2015. The applicant appeared for himself and the respondent was represented by counsel. Earlier, on 29 May 2015, the applicant had filed a notice of motion seeking leave under s 338(1)(c) to prosecute the respondent for perjury. In support of that application he had filed an affidavit which purported to identify the act of perjury alleged as follows (as extracted at Judgment [80]):
I have firm and irrefutable evidence that in his affidavit of 23 April 2015, Mr Matthew Palmer made false statement(s) on oath concerning a matter which is material to the proceedings, knowing the statement(s) to be false as well as not believing it to be true.
The transcript of argument on 5 June 2015 shows that the application for leave to prosecute was addressed midway through the afternoon of a hearing which had commenced around 10am (tcpt 05/06/15, p 117). In the course of the hearing of the respondent's motion, his affidavit of 23 April 2015 was read and he was cross-examined. In that cross-examination he accepted that on 2 April 2015 following an earlier email, the moderator had "changed his mind" and allowed the apology to be posted (tcpt 05/06/15, p 18).
The elements of the offence of perjury include the making, in or in connection with any judicial proceeding, of a false statement on oath: Crimes Act 1900, s 327. In the course of the argument of the applicant's motion, the primary judge sought to have the applicant identify the statement that was said to have been false. In response the applicant referred to an email that he had sent to the respondent's solicitor, Mr Blundell, dated 15 May 2015. That email was not before this Court. In her reasons at [81] the primary judge describes its contents:
the [applicant] stated that the administrator denied having initially refused to allow publication of the apology, and that the [respondent's] statements to the contrary were "false assertions under oath", which was "a criminal offence".
Her Honour then inquired whether there were any other communications that described the alleged perjury:
The exchanges between the Court and the applicant in response continue over 14 pages of transcript (tcpt 05/06/15, pp 122-136) and include the following (tcpt 05/06/15, p 132):
HER HONOUR: Mr Mohareb, you haven't been able to identify with precision what the relevant statements are. I looked at the statement that was in the correspondence which you wrote to the other side about, and in fact what it was, was that Mr van Mierlo has now said that he did take it off.
PLAINTIFF: If I may, your Honour, it's the whole - it's not just one statement. It's the whole purpose of putting that particular affidavit as evidence to, to, to - the purpose of making that affidavit, the whole affidavit, is to mislead the Court and to, to, to try to attempt to get away with not complying with the deed, not publishing the apology. That's the purpose of it. You know, the purpose of it is not just one statement, it's the purpose of the whole document as a whole.
At no time during the argument was the false statement said to have been made clearly identified. At the end of the argument the applicant requested that the primary judge reserve her decision and allow him time to present the application for leave "in a more acceptable form" (tcpt 05/06/15, p 139). The primary judge declined the applicant that opportunity, and no challenge is sought to be made to that aspect of her Honour's decision.
On 30 July 2015 the primary judge delivered judgment on the respondent's motion for an order that the proceedings be dismissed and on the applicant's motion for leave to prosecute: Mohareb v Palmer (No 2) (District Court (NSW), Gibson DCJ, 30 July 2015, unrep). Her reasons for dismissing the applicant's motion included the following in respect of the statement described in her judgment at [81] (see [8] above):
[82] … [T]his allegation is without foundation.
[83] Mr Mohareb was unable to identify with precision what evidence given by the first defendant today was perjury.
…
[85] In the present case, the sole piece of evidence identified in correspondence is not perjured evidence, but a correct statement of the facts.
The primary judge concluded:
[87] Given the lack of evidence in the supporting affidavit and the plaintiff's failure to delineate additional "perjury" in this application, the motion should be dismissed with costs.
Counsel for the applicant submitted to this Court that the primary judge had erred in not being satisfied that the applicant had established that he had good prospects of successfully prosecuting a charge of perjury. It was said that by making the statement in para 13 of the 23 April 2015 affidavit while omitting a "plainly material fact", the respondent had sought to induce the Court to believe "something that was not true and that the [respondent] knew was not true: [namely] that the reason the apology was not displayed on the Page [after 8.48am on 2 April 2015] was that the moderator of the Page refused to permit it to be posted". That was said to be false because, as the primary judge found, the true position (as understood by the respondent from 8.48am) was that the moderator had resiled from his earlier position that the respondent would be banned from using the page, and had indicated that he was prepared to reinstate the post.
The problem for this argument is that it does not address the reason why the primary judge rejected the application for leave which was the failure to identify with precision the false statement said to have been made on oath in connection with proceedings before the primary judge. The specification of that statement was the starting point for the primary judge's consideration of the strength or otherwise of the allegation of perjury and whether the applicant should be given leave to prosecute that charge.
A reading of the transcript of argument confirms (as is apparent from the extract set out in [9] above) that the applicant's real complaint was not that there had been a false statement made in the affidavit of 23 April 2015, but that a false representation or statement was made because the respondent did not disclose in connection with the making of the statement in para 13 of his affidavit that shortly thereafter the moderator had changed his mind. However, her Honour was right to conclude that the making of that statement was not, and certainly was not sufficiently clearly, the subject of the application for leave. Her Honour also correctly concluded that the statement in para 13 was not itself a false statement.
In the absence of the clear identification of the perjury charge sought to be brought, her Honour did not err in dismissing the application. For that reason, the proposed appeal did not have reasonable prospects of success and the application for leave to appeal was dismissed with costs.
[3]
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Decision last updated: 27 November 2015