Mohareb v Palmer

THE COURT: On 4 March 2016, her Honour Gibson DCJ dismissed the appellant’s notice of motion in which he sought leave, pursuant to the Crimes Act 1900 (NSW), s 338(1)(c) to prosecute the respondent for the offence of perjury. The appellant appeals, by leave granted by this Court on 9 August 2016, from her Honour’s order dismissing the notice of motion.

The underlying proceedings in the matter were defamation proceedings brought by the appellant in 2014 against the respondent and his wife. The appellant, the respondent and his wife were all residents of a small community on Scotland Island. On 5 March 2015, a ‘Deed of Agreement and Understanding’ (the agreement) was entered into by the parties whereby it was agreed that the defamation proceedings would be discontinued within seven days of the respondent and his wife making an apology to the appellant and using their best endeavours to have the apology published on the Scotland Island Community Facebook page.

A question arose as to whether there had been a publication of the apology in accordance with the terms of the agreement. The respondent and his wife contended that they had complied with the agreement and, upon the appellant’s refusal to discontinue the proceedings, filed a notice of motion seeking a declaration, pursuant to the Civil Procedure Act 2005 (NSW), s 73, that the proceedings had been compromised and settled and an order that the defamation proceedings be dismissed.

The notice of motion was supported by an affidavit of the respondent made on 23 April 2015, together with an affidavit of William Blundell, the solicitor who had the day-to-day carriage of the matter on behalf of the respondent. It is the affidavit of 23 April 2015 upon which the appellant relied as the basis for his application for leave to commence proceedings for perjury.

Gibson DCJ dismissed the respondent’s notice of motion on the basis that the apology had not been published within the 14 day time period specified in the agreement. Nonetheless, her Honour dismissed the defamation proceedings pursuant to the Civil Procedure Act 2005 (NSW), s 61 in circumstances where there had been a later publication of the apology on the Facebook page.

By notice of motion filed on 29 May 2015, the appellant sought leave to prosecute the respondent for perjury. The alleged perjury was a statement made by the respondent at para 13 of his affidavit dated 23 April 2015 in the following terms:

An entry from the Facebook page was annexed to the affidavit. That entry stated:

That notice of motion was heard by Gibson DCJ on 5 June 2015. On 30 July 2015, her Honour dismissed the notice of motion with costs: Mohareb v Palmer (No 2) [2015] NSWDC 141. A summons seeking leave to appeal from the dismissal of the notice of motion was dismissed by the Court of Appeal on 27 November 2015: Mohareb v Palmer [2015] NSWCA 369.

On 15 December 2015, the appellant filed a further notice of motion again seeking leave to prosecute the respondent for perjury in his affidavit. The perjury was particularised as follows:

The notice of motion was heard by Gibson DCJ on 18 February 2016. Both the appellant and the respondent were represented before her Honour. The evidence adduced on that day in relation to that notice of motion comprised the following: the respondent’s affidavit of 23 April 2015 and its annexures (which did not include the messages of 8.48am or 10.26am which appear below); two pages being screenshots of the Scotland Island Community Facebook page containing a number of entries on 2 April 2015; a screenshot of the apology (which became Exhibit 1 in the proceeding before her Honour); and the transcript of the hearing before her Honour on 5 June 2015.

The two pages of Facebook postings tendered at the hearing on 18 February 2016 contained the following entries:

At the hearing of the appellant’s first motion for leave to prosecute the respondent for perjury on 5 June 2015, the appellant cross-examined the respondent in respect of his affidavit of 23 April 2015 and, in particular, as to the content of para 13. That cross-examination was as follows (the reference to “conversation” being a reference to a relevant Facebook posting):

There was then an exchange between the primary judge and the respondent’s counsel as follows:

There was another exchange between her Honour and counsel for the respondent, as follows:

The reference to the documents produced under the notice to produce was a reference to the two pages of Facebook postings which are set out in [11] above. Those pages were also tendered at the hearing on 5 June 2015.

Later during the cross-examination, the following exchange occurred:

The respondent’s solicitor also gave evidence. Relevantly, he stated that he looked at the terms of the agreement. The primary judge then intervened in the questioning by the appellant:

Gibson DCJ stated, at [27], that the principles to be applied in determining an application brought pursuant to the Crimes Act 1900 (NSW), s 338 for leave to prosecute for perjury were those stated in Moss v McIlveen [2011] NSWCA 77. In that case, this Court referred to the elements of the offence that required proof beyond reasonable doubt and concluded, at [20], “there [was] no reasonable prospect of conviction for perjury in relation to [each of the alleged lies]”.

Gibson DCJ, at [27], expressed her concern as to the absence of a clear identification of the perjury charge sought to be brought. Her Honour noted, at [28], that what was asserted was “an omission of factual material from [the respondent’s] affidavit” in circumstances where the respondent had given evidence that his lawyers had prepared the affidavit and that he had instructed them “to confirm to [the appellant] the entire conversation [on Facebook]”: see transcript set out above at [14].

Her Honour, at [29], observed that there were other difficulties with the application which cast doubt on the appellant’s submission that the proposed prosecution had “good prospects of success”. Her Honour found, at [30], that the omission was in an affidavit prepared by the respondent’s legal advisers and was not a deliberate and positive statement on oath. Her Honour further found that the affidavit was made in circumstances where the respondent had told the court that his instructions to the solicitors preparing the affidavit were to set out the entirety of the conversations and dealings.

Further, her Honour, at [31], was not satisfied that there was perjured evidence or that that its presence in or absence from the affidavit was material to the outcome. Her Honour reiterated, at [33], that the respondent had relied upon his solicitors to set out his evidence in his affidavit. Her Honour considered that this was corroborated by the evidence of his solicitor.

Her Honour reiterated at [36] the requirement on a person seeking leave to prosecute for perjury to identify the perjury with “the same precision as in an indictment”: Sims v Wran [1984] 1 NSWLR 317.

Her Honour concluded, at [37], that the appellant had failed to articulate with precision the facts and matters replied upon to assert that the respondent’s omission from his affidavit of facts said to be material was capable of amounting to perjury.

A further aspect of Gibson DCJ’s reasons should be mentioned. Her Honour, in her judgment of 30 July 2015 did not accept the respondent’s denial that he had not removed the posting from the Facebook page, as the moderator of the page had intimated in the posting on 2 April 2015 at 10:26am: Mohareb v Palmer (No 2) [2015] NSWDC 141. Her Honour, at [38] of the judgment under appeal, stated that as was apparent from the evidence before her, the original 31 March 2015 apology to the appellant was still on the Facebook page, in chronological order. In the original apology, the respondent had misspelt the appellant’s first name. Her Honour noted the difficulties in relation to evidence relating to social media and also observed that it had not been explained to her how that apology had remained on the Facebook page.

Her Honour observed, at [40], that there was no evidence as to how long the original posting had been there, but commented, “the fact that it is there is now undisputed”. Her Honour further noted, at [43], that the presence of the apology posted on Facebook, being Exhibit 1, made her:

Her Honour, at [44], recorded the appellant’s submission that he did not need to rely upon the finding in the judgment that the respondent had removed the post for there to be good evidence of perjury. It was the appellant’s submission before her Honour that the “mere absence of material” from the affidavit and/or the respondent’s “knowingly dishonest statements” about the evidence was enough.

Her Honour, at [45], rejected that submission, stating that she should be cautious about granting leave to bring a criminal prosecution in circumstances where she was not comfortably satisfied as to the principal facts in contention. Her Honour concluded that the appellant had failed to satisfy the onus on him to establish a basis upon which leave should be granted.

The Crimes Act, s 327 provides:

Section 338(1) provides:

In this case, the appellant sought leave to prosecute for perjury pursuant to s 338(1)(c).

The elements of the offence of perjury in s 327, each of which must be proved beyond reasonable doubt are as follows: there must be a statement made on oath; the statement must have been made in or in connection with judicial proceeding; the statement must concern a matter which is material to that proceeding; the statement must be false; and the person who made the statement must know the statement to be false or not believe it to be true: see Moss v McIlveen at [18]-[19].

It is well established that the offence of perjury requires proof of deliberate falsehood. Thus in Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ stated, at 373-374, that:

In R v Liristis [2004] NSWCCA 287; 146 A Crim R 547, Kirby J, Studdert and Hislop JJ agreeing, in considering whether adequate directions had been given to a jury in respect of a count of perjury, stated, at [133]:

In Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 the High Court, held that the word “false” in the offence in s 229(1)(i) of the Customs Act should be strictly construed as meaning “purposely or deliberately or intentionally untrue”: per Deane, Dawson and Gaudron JJ at 29. So far as is relevant for present purposes, s 229(1)(i) provided for the forfeiture to the Crown of goods in respect of which “any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced”.

Here the appellant contends that the perjury was constituted by an omission. (The respect in which he says this is explained below.) He then relies on the following passages in Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 as establishing that the offence of perjury could be constituted by an omission:

The purport of the appellant’s submission was that if the perjury could also constitute the offence of ‘pervert the course of justice’, and the latter offence could be committed by an omission with intent to pervert the course of justice, it followed that perjury could also be committed by means of an omission.

The statement made by the respondent in para 13 of his affidavit was that on or about 2 April 2015 he “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 statement considered alone was true. At 7:30am on 2 April 2015 the respondent had received a message to that effect.

However the appellant points to the context in which that affidavit was subsequently produced and relied on to explain at the hearing on 23 April 2015 why the respondent had not, on or after 2 April 2015, again attempted to post his apology to that Facebook page. At 8:48am on that day the respondent had received a further message from the moderator of the Facebook page saying that he would reinstate the earlier post. The appellant contends that the effect of the absence of any reference to or disclosure of that further communication at the time the affidavit was relied on, was to mislead someone who was not aware of all of the facts into believing, wrongly, that the attitude of the moderator as stated in para 13 had continued throughout and following 2 April 2015.

Putting the matter slightly differently, the appellant contends this context gave rise to a reasonable expectation in a person to whom that explanation was being given that if the position in relation to the moderator’s attitude had changed, that fact would have been referred to and disclosed, either in the affidavit or otherwise as part of the relevant narrative. In the face of that expectation, and no such disclosure, the respondent or his representatives could be said to have represented or at least created the impression that the moderator’s attitude as stated had not relevantly changed.

This analysis describes the circumstances and respects in which the appellant alleges that para 13 of the respondent’s affidavit, or the reading of that affidavit on 23 April 2015, was misleading and constituted perjury. It also exposes fatal flaws in his submission that the prosecution he proposes has “reasonable prospects of success”. The elements of the offence of perjury, which must be proved beyond reasonable doubt, are set out above. They include that a statement has been made on oath in or in connection with any judicial proceeding, that the statement is false and that the person making it knew it was false or did not believe it was true.

It may be accepted that the statement made in para 13 was made by the respondent, on oath, in or in connection with a judicial proceeding and concerning a matter which was material to that proceeding. The affidavit was sworn in support of the respondent’s application brought under Civil Procedure Act, s 73 for a declaration that the proceedings had been compromised and settled. The issue in those proceedings was whether the respondent and his wife had complied with the terms and requirements of the apology so as to be entitled to have an order made that the defamation proceedings be dismissed. The affidavit was relevant to that issue.

That leaves for consideration whether the statement in para 13 was false and made in circumstances where the respondent knew the statement was false or made it not believing it to be true.

As we have already observed the statement in para 13, considered alone, was not false. The respondent had received such a message. The representation said to have been made and to be untrue is to the effect that the moderator’s attitude as stated in the message referred to in para 13 had not changed. No such statement was made in para 13 or merely by the swearing of the affidavit. The argument that such a statement was made and false requires that other conduct be taken into account, and specifically what happened at the hearing on 23 April 2015. That other conduct includes that there was no reference made in the context of the argument before the Court to the moderator’s later message of 8:48am. This is the “omission” which the appellant says was misleading and constituted the perjury.

A statement made on oath necessarily describes something said or written. It does not describe a representation conveyed by conduct which may include the making on oath of a written or oral statement. It is necessary to prove that what was said or written on oath was false. It is not sufficient to prove that a representation conveyed by conduct, which included the making of a statement on oath and silence, was false or misleading.

The appellant’s particulars, and the evidence relied on in support of them, do not show that the respondent made a “false statement on oath”. Nor do they show that he knew it was false or did not believe it was true. The false representation is alleged to have been made by conduct, not being conduct only of the respondent, which does not include the making of a statement on oath in the terms which are said to have been false. That being the position, the proposed prosecution has no prospects of success.

The present case is not one in which it is alleged that the statement made was ambiguous and capable of conveying more than one meaning. Specifically it is not said that para 13 was ambiguous and that one of its available meanings, being that intended and understood by the respondent, conveyed that on 2 April 2015 he had received a message saying that the moderator’s attitude was that he would be banned from the Facebook page and that this continued to be the moderator’s attitude from that time.

Nor is this a case where for the statement made to be true it had to include reference to a particular matter that was omitted. For example, the respondent did not state that he had set out in his affidavit all of the messages that he had received from the moderator on the subject of his attitude to the posting of the apology. In such a case the statement made would have been rendered false by the omission of any reference to the message of 8:48am.

Our conclusion makes it unnecessary to determine whether the test to be applied when deciding whether to grant leave to prosecute for perjury is that there be shown to be a reasonable prospect of conviction. For the reasoning given above, we are comfortably satisfied that there is no such reasonable prospect.

The primary judge, by order 2 made 4 March 2016, ordered that the appellant pay the respondent’s costs of both notices of motion on an indemnity basis. Her Honour ordered that the costs be paid on an indemnity basis for essentially three reasons.

First, her Honour observed that she had made an order for indemnity costs in the appellant’s first application for leave to bring proceedings for perjury and that had not been disturbed by the Court of Appeal. Her Honour also referred to this Court’s decision in Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. Secondly, her Honour questioned the utility of applications for orders under s 338 when there were quicker and easier avenues for such applications. Thirdly, her Honour referred to the heavy burden on the court if it was required to revisit the evidence for the purpose of making complex factual findings and considered this a relevant consideration in relation to costs by reason of the Civil Procedure Act, s 60. Her Honour considered that the procedure under s 338 should only be employed where the circumstances of the trial rendered the findings of the judge of importance.

The appellant sought to have order 2 set aside.

For this Court to interfere with her Honour’s costs order, which involved the exercise of her discretion, the appellant was required to demonstrate House v The King error: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. The appellant did not advance any submissions as to why her Honour’s discretion miscarried and save for one matter to which we refer below, no such error is discernible.

The one matter which calls for comment relates to the third of the reasons given by her Honour as to why indemnity costs were appropriate. If her Honour thereby intended to state a principle of general application, we do not necessarily agree with it. However, it is not clear that her Honour was stating a general principle and indeed, to do so would have involved a constraint on the exercise of a general judicial discretion. The only principle that governs the exercise of such a discretion is that it be exercised judicially.

However, having regard to the introductory words, at [48], in the paragraph in which her Honour referred to this matter, “There are other factors which may be relevant to costs”, we do not consider she intended to state a principle that otherwise constrained the exercise of a general discretion, but rather was having regard to a relevant consideration in the exercise of the discretion.

Accordingly, we also reject this ground of appeal.

The respondent sought the costs of the appeal on an indemnity basis. No argument was addressed as to why indemnity costs should be ordered. Whilst the appellant has failed on the appeal, the Court determined that leave to appeal should be granted and the appellant did not engage in any undue prolongation of the appeal process.

The Court well appreciates that this is the second time that the appellant has brought proceedings in the District Court seeking leave to prosecute the respondent for perjury. However, his failure on the first occasion was the absence of proper particulars. Leave to appeal from that decision was refused. This is the first occasion that the appellant has had a full hearing of an appeal and the first occasion that there has been a full explication of why it is considered that his appeal must fail.

In those circumstances, we do not consider this an appropriate case in which to order indemnity costs on the appeal. The appeal should be dismissed with costs, including the costs of the summons for leave to appeal.

The appellant also filed a summons seeking relief pursuant to the Supreme Court Act 1970 (NSW), s 69, should it be determined that no appeal lay from the primary judge’s determination: see the District Court Act 1973 (NSW), s 127. We have determined that an appeal lay. However, should we have been wrong in that determination, we would have dismissed the summons for the same reasons that we have disallowed the appeal.

The Court makes the following orders: