A simple little appeal judgment can contain a lot of lessons. So it is with W (CA641/2019) v R [2020] NZCA 286.
The lessons? Here are the points I noted:
1. In a trial, don’t forget the elements of the alleged offence.
Here, the alleged offence was perjury, and the mental elements were both knowing the assertion (here, in a document) was false and intending by it to mislead the court. The trial judge thought the only issue was whether the defendant intended to mislead, whereas the real issue was whether the defendant knew the assertion was false. Closely related to this is the actus reus: swearing that the document was a true copy in the sense of it being unaltered from the original.
2. Be alert for ambiguity, and don’t assume a defendant is using words in their legal sense.
Here the ambiguous expression was “a true copy”. Lawyers understand this to be a matter of form, whereas it can also refer to substance. Here, a document was altered by the defendant, who claimed to have been correcting it, and then copied and presented to the court in other proceedings. In lawyers terms it was not a true copy because it had been altered from the original, but in the defendant’s terms it was a true copy because it was a copy that had been corrected from the original.
3. Don’t assume that an irritating witness is being dishonest.
Demeanour can be misleading and can result in judicial bias.
4. An appeal court, working from a transcript of the trial, customarily acknowledges the advantages that the trial judge had in seeing witnesses and deciding credibility, but those advantages can be over-stated.
Here, the Court of Appeal had the advantage (although it didn’t say so) of the objectivity gained by not being subjected to the stress and errors of judgment caused by the irritations of trial.
5. Bias can cause a judge to take sides, and to permit an objectionable style of cross-examination of a defendant.
Here, the Judge in his verdict described the prosecutor’s cross-examination of the defendant as “skilful and penetrating”, whereas the Court of Appeal saw it as “overall unfair and at times bullying.”
6. Failure at a first appeal (here, to the High Court) should not discourage counsel from seeking leave for a second appeal (as here, where it seems counsel wasn’t even slightly discouraged) when the result seems wrong. Even when the Court grants leave on some points, a more fundamental point may be discovered in the actual hearing where the Court has the benefit of argument.
