An Invercargill judge’s decision to dismiss the case of a woman accused of making a false statement to police was erroneous, a High Court Justice says.
Justice Simon France allowed an appeal from the Solicitor-general and directed a retrial for the woman, who has name suppression.
In May, she had her case dismissed after she plead not guilty to giving a false statement to police in relation to an incident on May 14, 2015 — on that date, she said she was sexually assaulted at her home, but in August 2016, the defendant admitted she had made up the allegation.
On the third day of the trial, Judge Mark Callaghan told the jury the case was dismissed because in a perjury case evidence must come from a secondary source.
Justice France wrote the alleged falsity related to allegations made to the police officer who attended the house following the 111 call.
"The District Court understood s 112 of the Crimes Act to require the prosecution to lead evidence of falsity from an independent source, that is, not from the defendant. Accordingly, material sourced in her subsequent recorded interview and her cautioned retraction interview was put to one side."
Judge Callaghan concluded the forensic evidence standing alone was just as consistent with truth of the original statement as with falsity, and accordingly the prosecution had failed to discharge the s 112 requirement.
Justice France stated the District Court erred in putting to one side the evidence deriving from the respondent.
"The person who heard the retraction may give evidence of that in the normal way, and in that sense becomes a witness to the falsity of the statement that is the subject of the charge."
He also said another error was committed as the Crown case was a combination of an admission as to falsity by the respondent, and circumstantial evidence that tended to point to falsity.
Justice France said the reality of a circumstantial case was there would almost always be more than one witness.
He said the case had at least two items of evidence produced by different witnesses go to the falsity — the witness who detailed the retraction and the expert witness who testified as to the lack of male DNA on and item which allegedly was used during the assault.
"We consider the Crown is entitled to submit that the evidence shows that the allegedly false statement did have the ex-husband as its target, even though the defendant tried at the time to disguise this.
"If it can establish that, then evidence that the ex-husband cannot have done it is relevant to proving the falsity. That evidence is
therefore relevant to meeting the s 112 requirement."
Justice France approved the appeal, said the Judge’s ruling was erroneous.
A retrial would be directed.
