A Queenstown man has failed in his bid to have a conviction for perjury quashed.
The Court of Appeal dismissed an application by Gareth David Marks, convicted of making a false statement in relation to disposing of a vehicle prior to June 6, 2012.
The December 11 decision related to evidence Marks gave at a hearing in the Queenstown District Court before Judge Michael Turner on June 6, 2012 when he was facing his third or subsequent drink-driving charge, which he had initially denied.
Marks admitted the charge at his defended hearing, and told Judge Turner a Mazda motor vehicle in which he had committed the offence had been sold about a month earlier to a work colleague, negating the need for Judge Turner to order its confiscation.
Judge Turner fined Marks $500, ordered court costs of $132.89 and disqualified him indefinitely. He also ordered him not to have any interest in a motor vehicle for 12 months.
Just over an hour after the case finished, two Queenstown police officers visited Marks’ address and saw the Mazda parked in his driveway.
The officers spoke to Marks’ colleague and checked the New Zealand Transport Agency database, which showed Marks was still the registered owner of the vehicle.
The following morning the car was located at his work colleague’s address and subsequent inquiries revealed he had gone to the NZTA two hours after being spoken to by police to change the ownership.
Marks was subsequently charged with making a false statement and the matter went to jury trial.
At the trial, Marks’ associate said he had purchased the vehicle about a month prior, but had left it at Marks’ address because he did not have room to store it at his own property.
The keys were left with Marks so it could be moved.
He said he had not got around to lodging the change of ownership form with NZTA prior to the afternoon of June 6, 2012 but did so after speaking to police because he did not want the vehicle to be confiscated and sold.
In cross-examination, the prosecutor presented a photograph taken on June 7, 2012 showing the Mazda parked at the new owner’s property, showing it was a large property and “obviously had room to store numerous vehicles”.
“[His] response, … that he needed to have sufficient room to be able to gain access to a pile of firewood … may well have struck the jury as being … lame,” the Court of Appeal said.
The jury found Marks guilty of perjury; he was convicted and fined $5000 by Judge Phil Moran.
Defence counsel Sonia Vidal appealed the conviction on several grounds, all of which were dismissed by the Court of Appeal.
Ms Vidal submitted the trial was procedurally unfair because she did not have sufficient notice the Crown would not be calling Marks’ colleague as a witness, so she did not have a proper opportunity to apply for leave to have the charge heard by a judge sitting without a jury; and the dynamics of the trial changed as a result of that decision, which created a subtle but perceptible shift in the onus of proof.
Ms Vidal further submitted the judge erred in law under a section of the Crimes Act 1961, on the basis the Crown had failed to prove corroboration.
She also contended the jury’s verdict was “unreasonable” and referred to remarks made by Judge Moran at sentencing immediately after the jury delivered its verdict which demonstrated he considered the jury’s verdict was unreasonable and not supported by the evidence.
He said: “The jury’s verdict would indicate that this was a deliberate and cynical attempt on your part to beat the system and that you were in it with [your work colleague] and between the two of you cooked up a forged document. It seems to me that this is what the jury verdict has amounted to. Like you, I do not agree with it but you are convicted and you are fined $5000.”
In dismissing the appeal the court found had the judge considered that to be the case, he could have discharged Marks.