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Last Updated: 2 February 2018
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IN THE COURT OF APPEAL OF NEW
ZEALAND
SOLICITOR-GENERAL
v
JOHN FREDERICK ALEXANDER
Hearing: 16 July 2009
Court: William Young P, Hammond and Baragwanath JJ
Counsel: F E Guy Kidd for Solicitor-General
A G Speed for Respondent
Judgment: 6 August 2009 at 10am
Reissued: 6 November 2009 at 2.30pm : see minute of 6 November 2009
Effective date of judgment: 6 August 2009
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JUDGMENT OF THE COURT
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____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
The appeal
[1] The respondent, John Frederick Alexander, had acknowledged in writing a debt of $25,000 to his former partner, Ms D. He was charged in the District Court on one count of forgery and one count of perjury. Count one alleged that the respondent had made a false document, namely a receipt purporting to be signed by Ms D and witnessed by the respondent’s mother and a neighbour; count two alleged he had sworn a false affidavit asserting that the receipt evidenced a repayment. The trial began on 16 July 2008. At the end of the prosecution case on 17 July, the trial Judge discharged the respondent on both counts under s 347 of the Crimes Act 1961.
[2] The Crown has appealed to this Court against the decision as being erroneous in law under the new s 381A which permits the prosecution to challenge a s 347 discharge in this Court. On the application of the Crown pursuant to that section, the Judge referred five questions of law (set out at [8] below) arising out of that direction for this Court’s opinion. The appeal accordingly falls for determination under s 382.
[3] The appeal turns largely on whether the Crown may rely on ss 413 – 415 of the Crimes Act, which came into effect on 26 June 2008 but which had not come to the attention of counsel or the Judge. They deal with a problem identified in R v Sizemore CA290/05 5 December 2005: what is to happen when criminal legislation is repealed and replaced by a new enactment and it cannot be established whether the alleged criminal conduct occurred before or after the change?
[4] On count one (forgery), the indictment referred to s 256 of the Crimes Act and alleged that the respondent made the false receipt “on or about the 8th June 1999” (the day on which payment was expressed to have been received).
[5] The difficulty was that the Crown could not establish when the receipt was actually made. That date could potentially have been anywhere between 25 March 1999 (the date borne by the respondent’s acknowledgement of debt) and 15 May 2005 (when the affidavit attaching it was sworn). Because s 256 was not enacted until 1 October 2003, if the conduct had occurred prior to this date (as specified in the indictment), the Crown had nominated the wrong provision; the former s 264, which was repealed on 1 October 2003 and was in somewhat different terms, would have been appropriate.
[6] The Crown applied for count one to be amended so as to cover the period from March 1999 to May 2005. Other potential amendments were also canvassed in oral argument, namely:
- (a) alternative charges, ie:
(i) one charge under s 264 relating to the period 25 March 1999 to 30 September 2003 (inclusive); and in the alternative
(ii) one charge under s 256 relating to the period 1 October 2003 to 15 May 2005; or
(b) a hybrid charge incorporating the mens rea elements contained in both ss 256 and 264.
[7] Judge Kiernan declined the Crown’s application and a further application for adjournment. She then dismissed both charges, for the following reasons:
- (c) Count one was a nullity and incapable of amendment. This arose from the fact that the respondent was charged with having committed forgery pursuant to s 256 “on or about” a date prior to that section coming into force.
- (d) There was insufficient evidence to support a conviction on count two (perjury) and, in any event, if the Court discharged the respondent in respect of count one, count two could not proceed.
The questions of law
[8] On the Crown’s application, Judge Kiernan reserved, under s 380 of the Crimes Act, the following questions of law for the opinion of this Court. We add in italics our answers to the questions:
Count one
(a) it was unknown when the alleged forgery occurred between the dates 25 March 1999 and 15 May 2005 (inclusive); and
(b) the crime of forgery was amended as from 1 October 2003; and
(c) I would have difficulties directing the Jury;
it was not appropriate for me to grant the Crown’s application under s 335(3) Crimes Act to amend count one?
Yes
No
Yes
Yes
Yes
[9] The questions were formulated before counsel and the Judge learned of the new ss 413 – 415. But we find it unnecessary to remit the questions for amendment.
Factual context
[10] The respondent was in a longstanding relationship with Ms D. When it ended in March 1999, they signed a loan agreement which contained the acknowledgement of debt and the respondent’s agreement to repay the $25,000 over a period of 30 months from 1 April 1999.
[11] Claiming that no repayments had been made, Ms D filed a claim for summary judgment against the respondent in the District Court. The respondent filed in opposition to the application the affidavit which asserted he had repaid the $25,000 on 8 June 1999 and annexed the receipt written on the letterhead of Ms D’s then employer.
[12] The appellant was charged with the counts recorded at [1] above.
The legislation
[13] Prior to its repeal on 1 October 2003, s 264 read:
264 Forgery
(1) Forgery is making a false document, knowing it to be false, with the intent that it shall in any way be used or acted upon as genuine, whether within New Zealand or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within New Zealand or not.
(2) For the purposes of this section, the expression making a false document includes making any material alteration in a genuine document, whether by addition, insertion, obliteration, erasure, removal, or otherwise.
(3) Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, although the offender may not have intended that any particular person should use or act upon it as genuine, or should be induced by the belief that it is genuine to do or refrain from doing anything.
(4) Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted on as genuine.
[14] Section 256, which took effect on 1 October 2003, states:
256 Forgery
(1) Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.
(2) Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.
(3) Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).
(4) Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.
[15] Sections 413 – 415 were added to the Crimes Act as from 26 June 2008. They are in the following terms:
413 Enactment creating offence is repealed and replaced or consolidated
Section 414 applies if—
(a) an enactment that forms a part of this Act and that creates an offence is repealed and is replaced by, or is consolidated in, a new enactment, whether in the same or a different form; and—
(i) proceedings are commenced for an offence contrary to the repealed enactment in reliance on section 19 of the Interpretation Act 1999; or
(ii) proceedings are commenced for an offence contrary to the new enactment; or
(iii) proceedings are commenced for an offence contrary to the repealed enactment in reliance on section 19 of the Interpretation Act 1999 and, in the alternative, for an offence contrary to the new enactment; and
(b) the date of the act or omission by the defendant constituting the alleged offence cannot be established with sufficient certainty to determine whether it occurred before the repeal of the repealed enactment or after the commencement of the new enactment.
414 Repealed enactment continues to have effect
(1) The repealed enactment referred to in section 413(a) continues to have effect for the purposes of the proceedings.
(2) The defendant may be found guilty or convicted of the offence created by the repealed enactment if the defendant's act or omission—
(a) would have constituted an offence under both the repealed enactment and the new enactment referred to in section 413(a); and
(b) occurred on a date that cannot be established with certainty but that is established to have occurred either after the commencement of the repealed enactment and before its repeal or after the commencement of the new enactment and before its repeal.
(3) If subsection (1) applies, the defendant is entitled to raise any defence to the repealed enactment that the defendant would be entitled to raise under the new enactment, if that defence is relevant to the repealed enactment.
(4) A defendant found guilty or convicted, in accordance with this section, of an offence created by the repealed enactment is liable to a maximum penalty which is the lesser of that prescribed for the offence of which the defendant is found guilty or convicted and that prescribed for the corresponding offence created under the new enactment.
415 Inconsistency with other enactment or rule of law
If sections 413 and 414 are inconsistent with any other enactment or rule of law, sections 413 and 414 prevail over that enactment or rule of law.
The decision of the District Court
[16] In an oral judgment granting the defence application to discharge the respondent, Judge Kiernan analysed the elements of the former s 264 and its replacement s 256. For s 264, those elements were: (1) the accused made a false document; (2) at the time he made the document, he knew it was false; and (3) at the time he made the document, he intended that it be acted upon as if it were genuine or, alternatively, that some person should be induced by the belief that it was genuine to do or refrain from doing some particular thing.
[17] The first and second elements of s 256 are the same. The third is different, requiring an intention to use the document to obtain a benefit.
[18] The Judge then examined s 335 of the Crimes Act, which is headed “Variance and amendment”. Subsection (1) allows the trial court or this Court to amend an indictment or any count where there is variance between the proof and the charge, so as to make the indictment conform with the proof. By subs (2), if the court is of the opinion that the accused has not been misled or prejudiced in his defence by such variance, it shall make the amendment. By subs (3), if there is in the indictment or any count an omission to state anything requisite to constitute the crime, but the matter omitted is proved by the evidence, the trial court or this Court, if of the opinion that the accused has not been misled or prejudiced in his defence by the error or omission, shall amend the indictment or count as may be necessary. By subs (5), if the court is of the opinion that the accused has been misled or prejudiced in his defence by any such variance, error or omission, but that the effect of his being misled or prejudiced can be removed by postponing the trial, the court may in its discretion make the amendment, discharge the jury and postpone the trial on such terms as it thinks fit. By subs (8)he propriety of making or refusing to make any such amendment shall be deemed a question for the court which may be reserved for this Court or brought on appeal before this Court in the same manner as any other decision on a point of law.
[19] The Judge considered that the count as then drafted was invalid, because s 256 did not exist in 1999. She considered whether the count should be amended under s 335(3). She accepted the defence submission that the case had been run before the jury on the basis that the date of the alleged forgery was 8 June 1999.
[20] The Crown had called evidence from Ms D that she did not say anything on that date and that she did not receive any money. The Judge viewed the Crown case as being that the document was forged either on that date or on some other date before Ms D became aware of the false receipt in 2005 after she filed proceedings against the respondent. The Judge noted that the Crown’s proposed amendment sought to cover the entire period from 1999 right through to 2005, during which the law changed and the elements of forgery were altered. She saw as an initial hurdle the problem of directing the jury properly as to the law: were they to guess when the forgery actually occurred? Because there was no evidence allowing the date on which the forged document was made to be pinned down, the jury would be left with the whole period.
[21] The Judge recorded that questioning on behalf of the respondent had focused on 8 June 1999. She considered that to allow amendment at the conclusion of the Crown case would make it impossible for the respondent to recover by putting his case in questioning of the Crown witnesses. She recognised the alternative of amending the indictment but discharging the jury and adjourning the trial, but considered that the legal problems would remain for any subsequent direction. For these reasons she declined the amendment application and consequently discharged the respondent on count one.
[22] In relation to count two, the Judge noted that the Crown would have to prove beyond reasonable doubt that the respondent was a witness in a judicial proceeding. She recorded that while there had been some evidence as to the proceeding, a court official had not been called to give evidence as to the proceeding. Proof was also required of the assertion contained in the respondent’s affidavit that was alleged to be false, however, neither a certified copy nor the original affidavit had been produced. The evidence before the District Court was as follows:
- A photocopy of the sworn affidavit of the respondent, annexing the receipt in question as exhibit “A” but omitting exhibits “B” and “C”. The affidavit referred to the judicial proceeding in which it was filed.
- Oral evidence from Ms D that she initiated the summary judgment application and in response received via her lawyer a copy of the respondent’s affidavit annexing the receipt.
- A statement from the respondent that the police had served documents relating to a civil proceeding on him, that he had referred the documents to his lawyer, and that documents relating to the civil matter were “now on record at the Auckland District Court”.
- Evidence from Senior Constable Gough that he obtained a copy of the receipt allegedly forged by the respondent from the Auckland District Court, where it had been lodged for the purposes of the civil claim.
[23] The Judge considered this evidence inadequate to establish beyond reasonable doubt that the respondent was a witness in a judicial proceeding. She held that, even if wrong in that regard, having discharged the respondent on count one, it would be prejudicial to him for count two to continue because of its reliance on the forged receipt that was the subject of count one.
The submissions on appeal
[24] Counsel for the respondent, Mr Speed, supported the decision of the trial Judge in all respects. As to count one, he challenged the Crown contention that the respondent had been proved to be the maker of the allegedly false document. As to prejudice in relation to that count, he submitted that the defence had made a tactical decision not to challenge the date on which the defence could demonstrate that no offence had been committed under s 256, and that, had s 264 been relied upon, witnesses might have been called upon to establish an alibi, or that the document was not a forgery.
[25] Mr Speed submitted that s 413(b) did not apply because it required that the date “cannot be established with certainty” and, although Ms D’s mother is now dead, the neighbour could have been called as a Crown witness.
[26] As to count two, Mr Speed added to the Judge’s reasons the submission that there was necessarily reasonable doubt whether the receipt was forged or believed by the respondent to be forged. As to both counts, he submitted that the failure to grant an adjournment did not entail an error of law. The Judge had been rightly concerned about delay and the apparent disarray of the Crown case in relation to the perjury count.
[27] Mr Speed further relied upon the proviso to s 382(2), which states:
...no conviction or acquittal shall be set aside, nor any new trial directed, although it appears that some evidence was improperly admitted... or that something not according to law was done at the trial... unless in the opinion of the Court of Appeal some substantial wrong or miscarriage of justice was thereby occasioned on the trial....
He submitted that the proviso was not satisfied.
[28] The Crown submissions are sufficiently covered in our following discussion.
Discussion
Question 1
[29] We accept the Crown’s submission that ss 413 and 414 remove any difficulty in directing the jury in relation to the doubt as to whether s 264 or s 256 applied, and so answer the question yes (see [8] above).
Question 2
[30] We accept Mr Speed’s submission that the respondent’s trial counsel had conducted his case on the basis that the alleged forgery had occurred on or about 8 June 1999 in breach of s 256, when s 256 was not in force. That date was led from Ms D in her evidence-in-chief, and counsel for the Crown focused on Ms D’s activities on that day (by reference to her diary). Cross-examination was accordingly directed to that date and the relevant diary entry.
[31] The Crown having directed its case to the particular date in the indictment, we agree with the Judge that the belated application for amendment, which sought to recast the Crown’s case radically, entailed prejudice to the respondent by misleading him as to the date at issue and to which he responded accordingly. The answer to question 2 is no.
Question 3
[32] As noted at [21] above, the Judge observed that if the jury were discharged and the trial adjourned, “the legal problems ... would remain for any subsequent direction”. Such statement was, in the light of ss 413 – 415, wrong in law. The prejudice could have been remedied by adjournment, which we read as embracing discharging the jury and commencing a new trial. We answer question 3 yes.
Question 4
[33] Section 108(1) states:
108 Perjury defined
(1) Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence on oath, whether the evidence is given in open Court or by affidavit or otherwise, that assertion being known to the witness to be false and being intended by him to mislead the tribunal holding the proceeding.
(Emphasis added)
It embraces the respondent’s affidavit in this case.
[34] We accept the Crown’s submission that the evidence referred to at [22] above was sufficient, if accepted by the jury, to sustain the allegation that the accused was a witness in the proceeding. The fact that better evidence could have been called is beside the point. The answer is yes.
Question 5
[35] We accept the Crown’s submission that, given the discharge on count one was unwarranted, there was no justification for discharge in respect of count two. We answer question 5 yes.
Section 413(b)
[36] Mr Speed’s submission that s 413(b) did not apply because it required that the date “cannot be established with certainty” is formally met by the fact that it was not included in the case stated. Had we seen merit in the point, we would have been prepared to send the case back to the District Court for amendment under s 382(1). But we were advised by counsel for the Crown, Ms Guy Kidd, without objection from Mr Speed, that the police had attempted to interview the neighbour but he had left New Zealand. They also attempted to obtain copies of signatures of Ms D’s deceased mother, but without success. If there be merit in the point, it can be taken by the respondent at the new trial we propose to direct.
The proviso to s 382(2)(f) and the discretion under s 382(2)
[37] We have reproduced the proviso to s 382(2) at [27]. The construction and application of that provision and s 382(2) may be the subject of consideration in Solicitor-General v Gwaze CA90/2009, on which we heard argument immediately before this appeal. Once a question of law has been reserved under s 380 and this Court has determined under s 383(2)(b) “that the ruling [appealed from] was erroneous, and that ... the accused has been wrongly discharged”, this Court must consider whether to direct a new trial.
[38] Here it is plain that the failure by counsel to bring the new ss 413 – 415 to the attention of the Judge resulted in dismissal of charges which should have gone to trial. Forgery and perjury involve conduct which challenges fundamental aspects of our social standards: that solemn documents can be relied upon as honest and that what is said in an affidavit filed in court and served on the opponent is honestly believed to be truthful.
[39] The authorities in different jurisdictions employ various tests of whether, given an error of law, there is such “substantial wrong or miscarriage of justice” as to justify a new trial. In R v Stephens CA 455/02 24 March 2003 this Court stated at [28]:
But even if this court were of the opinion that a substantial wrong or miscarriage of justice had been occasioned on the trial, there is still a discretion in s 382(2) whether to direct a new trial. Matters which might bear on the exercise of that discretion could include the seriousness of the particular offences; the prospects of conviction or acquittal in the event of a new trial, having regard to other evidence which might be available to the subject; whether the verdict was formally directed or deliberated after a comprehensive trial; the prejudice of delay or of cost in having once more to defend; the amenability of the subject to a greater penalty than previously; any other relevant matters.
However, that judgment makes plain that the test of the proviso to s 382(2) is not akin to the proviso to s 385(1) (power to dismiss a convicted person’s appeal if there is no substantial miscarriage of justice). It is enough for the purposes of this case to repeat that the present proviso requires this Court to determine whether the error of law has resulted in a substantial wrong or miscarriage of justice, in which event we must decide whether to direct a new trial. The latter judgment will be informed, although not dictated, both by the assessment of the substantiality of the wrong or miscarriage of justice and by our judgment of whether it is right in the circumstances to expose to a second trial this man who had been discharged at the first.
[40] These charges are serious. While the proof of the affidavit in count two was casual, the evidence in support may be described as strong. We are satisfied that the proviso is satisfied and that discretion should be exercised in favour of ordering a new trial.
[41] Under s 414(3), the respondent is entitled to raise in defence to the charge under s 264 any defence that he would be entitled to raise in reply to s 256. As noted at [17], s 256 requires that the Crown prove that the respondent intended to use the document to obtain a benefit. This element is not contained in s 264. It would thus be a defence to the charge under s 264 if the Crown cannot establish that the respondent intended to use the document to obtain a benefit. But there is ample evidence to show that the respondent did intend to obtain a benefit, and s 414(3) does not weigh against ordering a new trial.
[42] Pursuant to s 382(2), we direct a new trial on both counts. In the case of the forgery count, the charge is to be laid under s 264 of the Crimes Act 1961 which in this case is the relevant section in terms of s 414(2)(b). Since the respondent is liable to arrest pursuant to s 380(4), we record that questions of bail will be for the District Court.
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Crown Law
Office, Wellington
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