The case stemmed from Family Court proceedings in 2009, when the woman first swore an affidavit to which she attached a third party's document she had altered.
The alterations were not acknowledged by her in the affidavit. The perjury charge related to what was said to be a false oath concerning the attachment.
The document — an ACC sensitive claims form — was authored by a counsellor who had since died, and was intended by the woman to be independent evidence supporting her claim of spousal abuse.
She altered information on it, specifically a date range that attributed the abuse not to her ex-husband but an earlier former partner, whose name she deleted.
Those alterations were not as obvious as parts where she blacked out some of the counsellor's comments and wrote, “I censored. Personal, not relevant”.
The alterations came to light in 2012, when lawyers for the other party (her ex-husband) sought disclosure from ACC of the original document.
The form surfaced again in continued proceedings with her ex-husband in 2015, when the woman again swore it was true and correct and used it to support her claim she was under duress when she agreed to an earlier matrimonial property settlement.
Judge Peter Callinicos reacted in strong terms calling the woman an unreliable witness and referring the matter to police, who laid two charges of perjury.
The criminal case, heard by Judge Warren Cathcart in February, 2018, resulted in the woman being found guilty of one charge and acquitted of the other.
In evidence, the woman said neither her lawyer in 2009 or the court registrar in front of whom she swore the affidavit, had commented on the obviously altered state of the form. In her mind she was swearing that form was true and correct – not that it was a true copy of the original form.
But Judge Cathcart was as unimpressed by the woman's evidence as Judge Callinicos and dismissed it as completely unreliable.
He said the woman deliberately set out to mislead the Family Court and to paint herself in a good light and her ex-husband in a bad one.
In his view, the deliberate nature of some alterations was to deflect attention from, and hide, less obvious ones.
The appeal to the High Court and subsequently the Court of Appeal was on three grounds: that Judge Cathcart should have recused himself as he might not have been impartial due to his prior knowledge of the matters before the Court, in particular the family court's findings on the woman's credibility; that evidence given by the woman in the criminal trial was wrongly given because there should have been, and was not, a self-incrimination warning given in the Family Court; and that the district court wrongly assessed the evidence and there was an error concerning the standard of proof.
Justice Simon France said there was no need to address the first two grounds. The charge had not been sufficiently proved.
There was a reasonable doubt as to whether, in swearing the affidavit, the woman was attesting the form to be a true copy of the original ACC form or one altered by her in ways that were obvious, but not otherwise amended.
The absence of the original document being included in the prosecution case meant there was no way to properly assess the state of all the alterations and whether the deletions and overwriting were done in a way that supported an inference of deliberate deceit.
A ruling in the criminal hearing prevented the defence from presenting an important aspect of its case.
Cross-examination of the woman, was “overall unfair and at times bullying”. (That said, it was recognised she could be a frustrating witness, prone to wanting to answer questions her own way.)
Justice France said there had been a tendency in the case for the term “true copy” to be used without sufficient focus on what exactly was meant by it on the facts of this case.
