The court said she was lying about being abused. She wasn’t
A domestic violence victim was convicted of perjury, and sentenced to a year on home detention. But she wasn't lying.
At her lowest point, she couldn’t sleep at all. It gnawed at her – the injustice, and the shame. By then, she’d lost almost everything. She used to be a teacher, but the perjury conviction ended her career. She lived in a garage with no hot water. Her arms were scabbed from scratching at them incessantly, to cope with the anxiety.
Since her separation, she’d begun to feel like an outcast. Now she withdrew even further.
Her lawyer had tried to argue that she didn’t deserve to be punished. Her story was complex and sad, involving abuse behind closed doors. She was fragile, and traumatised.
But the court hadn’t considered her a victim. Instead, it gave her abuser the power to bankrupt her, and to publicly shame her.
The justice system turned her into a criminal, and locked her up. It would take another five years to clear her name.
The story of what happened to Mrs P – whose real name is permanently suppressed – begins in 2015, at a Family Court hearing before Judge Peter Callinicos. It is the culmination of nine years of legal back-and-forth, and two previous matrimonial property settlements. The current argument is about whether the second settlement was fair, as Mrs P’s ex-husband says he was mentally unwell during the negotiation, and did not receive correct advice.
Mrs P says she signed the first agreement under duress, and that she had been in an abusive marriage for 16 years. She has evidence including police photographs of her injuries, and ACC counselling forms that document abuse through the relationship. She also has witnesses who will appear in court.
But as the hearing progresses, it becomes clear that her evidence will not be enough.
The parties are also being judged on their credibility. And while Mrs P’s ex-husband, who denies the abuse, comes across as confident and reliable, she is still traumatised. She becomes confused by the questioning from her ex-husband’s counsel, and gives answers that seem to frustrate both the lawyer and the judge.
Worse, part-way through her cross-examination, she is accused of making up the abuse.
Her ex-husband’s lawyer tells the judge Mrs P has ‘‘falsified evidence’’ on one of the ACC file notes attached to her affidavit. The lawyer says she has managed to obtain the original version after gaining access to Mrs P’s entire confidential ACC file.
Both versions of the form state Mrs P is ‘‘being abused in her current marriage’’, and outline the abuse in graphic detail.
But on the version in Mrs P’s affidavit, some information has been changed, the lawyer says. Mrs P has amended the date the abuse began, as recorded by the ACC counsellor, and deleted references to a previous partner. Other information – about her history of bulimia, and shoplifting as a teenager – has been blacked out.
The lawyer puts it to Mrs P that she changed the dates so the form would incriminate her ex-husband, when really the abuse happened earlier, perpetrated by another man. She accuses Mrs P of removing her eating disorder and the reference to shoplifting to make herself look more credible.
Mrs P says it’s not true. She hadn’t changed any of the information about the abuse.
The other man referred to never abused her, she says. The conversation with the counsellor about bulimia was irrelevant and confidential, she says, and she didn’t want anyone knowing about something she considers shameful, not even her lawyer.
Mrs P says she doesn’t understand why the court is accusing her of deception when it’s obvious the document has been changed. She has written ‘‘censored’’ or ‘‘personal, not relevant’’ next to some of the changes, and even signed her initials.
Her lawyer never raised questions about the documents, and nor did the court registrar, Mrs P says. But the cross-examining lawyer doesn’t accept this answer, and neither does the judge.
Both continue to question Mrs P, routinely interrupting, talking over her, and criticising her for giving ‘‘wishy-washy vague’’ answers. At one point the lawyer asks why, if Mrs P was being abused, she never went to the police.
Mrs P struggles. She told very few people about the abuse, and not the details, she says. She felt she had her husband’s reputation to uphold, as she thought he was unwell. ‘‘And because you still care about them, I mean they’re not like that all the time.’’
The cross-examination continues. She is accused of spreading rumours in the community to bolster her case. By this point, she is close to breaking down. She feels the court is determined not to believe her, no matter what.
Judge Callinicos interrupts before she finishes her sentence.
‘‘I’m sorry,’’ he says. ‘‘I’m going to put very clearly and plainly to you: when a person fabricates documents . . . then you can expect a robust experience in court. I make no apology for that, and this is all on the record. And you’re just going to have to cope with that. OK?’’
Mrs P says again that she didn’t spread rumours, because she wanted to protect her husband’s reputation.
’’You’ve hardly protected his reputation, have you, when you launch into this, fabricate documents and bring about in a large part the very predicament that you and your husband are in today,’’ the judge says.
Mrs P: ‘‘I kept quiet for much of my marriage and now I just feel like I’m being, you know. I was so isolated, to talk to three close friends is not . . .’’
Judge: ‘‘And what do you feel like today? What are you trying to say?
What do you feel like today? That you are being punished for it in some way?’’
Mrs P: ‘‘I’m just, knowing what I know, about how I behaved and I just feel like the court’s being really quite, um –’’
Judge: ‘‘What? Tough on you?’’ Mrs P: ‘‘Because I know –’’ Judge: ‘‘Because you fabricate documents and swear false affidavits? What did you remotely expect –’’
Mrs P: ‘‘I just also know that [her ex-husband] has lied –’’
Judge: ‘‘What? No.’’
Mrs P: ‘‘– under oath.’’
The judge stops her again. ‘‘What did you remotely expect of a court?’’ he says. ‘‘Do you think I treat this job with frivolity? That people can come into it and fabricate documents? It is a criminal offence to put false documents or statements to ACC to gain counselling and payment, it’s a criminal offence.’’
Mrs P says her words have been twisted, but the judge speaks over her again.
‘‘Well, I simply do not accept a word of what you’re saying. I think it’s completely false on your part. It is yet another manipulation of your evidence.’’
By the time the judgment arrives, Mrs P is almost too numb to take it in.
Judge Callinicos finds she lied in an ‘‘unreasonable pursuit’’ of more money, saying her ‘‘unmerited attack’’ had caused ‘‘serious injustice’’ to her ex-husband.
She was not credible, he says. She was manipulative, and ‘‘a person of inherently dishonest character’’.
Her witnesses were not credible either, he says. Rather they were ‘‘unwitting victims’’ of Mrs P’s manipulative behaviour.
Meanwhile, her ex-husband was ‘‘the embodiment of a reliable and credible witness’’, the judge says. ‘‘I was not left in doubt to the accuracy of his evidence.’’
As such, almost all of Mrs P’s evidence has been set aside. ‘‘I am in no doubt that she was not abused by [her ex-husband],’’ the judge says.
Mrs P loses any claim to matrimonial property, and is ordered to pay $400,000 in costs, which later results in bankruptcy. She is ruined, both financial and emotionally.
‘‘He gave the man that abused me a piece of paper that he could show everyone, that said he didn’t do it,’’ she says. ‘‘The judge made him the victim.’’
But the worst is yet to come. Judge Callinicos decides to refer Mrs P to the police for perjury. He writes: ‘‘Such calculated and dishonest actions cannot go without repercussions.’’
Police lay criminal perjury charges in February 2016. Before the case is even heard in the district court, there are warning signs that it will not go well. Judge Warren Cathcart refuses almost every motion Mrs P’s lawyer brings, including a request to recuse himself, after the lawyer points out that to have read the whole Family Court judgment will be prejudicial, given Judge Callinicos’ strong views about Mrs P’s character.
At trial in 2018, the judge says a conviction for perjury requires two things: wilful falsity, and an intention to mislead.
Mrs P tells the judge what she told the Family Court: that she did not mean to mislead anyone.
On the stand, she is subjected to cross-examination by Crown lawyer Steve Manning that Cathcart calls ‘‘skilful and penetrating’’, but which the Court of Appeal later decides is ‘‘overall unfair and at times bullying’’. Again she is interrupted as she tries to speak.
Judge Cathcart finds against Mrs
P, saying he had no difficulty in deciding she intended to mislead the court, and changed the documents to boost her own credibility.
The Crown asks for a term of imprisonment. Mrs P’s lawyer asks for a discharge without conviction, saying it will cost Mrs P her job as a teacher. The judge decides on one year of home detention.
The Crown never pauses to check whether the abuse Mrs P alleged had happened.
By the time her case gets to the High Court, her health has worsened. She feels hopeless, transcripts say.
Her case is now in the hands of experienced Wellington criminal lawyer Elizabeth Hall, who argues Mrs P has suffered a miscarriage of justice.
Justice Karen Clark dismisses an appeal on the conviction, but allows the sentence to be reduced to nine months.
Mrs P is crushed, but Hall isn’t finished. While the High Court decision didn’t go her way, there was a moment in the hearing that gave her hope.
During Hall’s submission, she argued that the importance of the ACC form had been overstated, and therefore the motive for changing it couldn’t be to alter the outcome of the case.
Hall said there was ample other evidence, including ACC forms from later in the marriage, photographs, documents and witness accounts.
Most damningly, there was a letter from Mrs P’s ex-husband, describing how he would ‘‘explode verbally and physically’’ when frustrated.
‘‘I want to hurt you because I love you,’’ it says. ‘‘I want to hurt you like I feel you’ve hurt me because when I can’t get satisfaction from loving you I know I can get it from hurting you.’’
After Hall reads the letter, Justice Clark says: ‘‘Well, presumably there is no dispute at all that [Mrs P] was subjected to significant physical and emotional abuse.’’
‘‘I’m not sure,’’ Hall says. ‘‘[Mrs P’s ex-husband] certainly denied it.’’ Clark: ‘‘Yes, but the Crown?’’ Hall: ‘‘They would need to confirm their position on that . . . it seems remarkable that [Mrs P] has been convicted for perjury . . . and yet [her ex-husband] is denying – and denying under oath – that he’s abused her and that’s perjury in itself, and yet she’s the one who was prosecuted.’’
The Crown did not reply as to whether it believed the violence had occurred.
Hall decides to take the case to the Court of Appeal.
Three judges consider the appeal in June 2020. When the decision arrives, they are critical of the fact that Judge Cathcart was not provided with the original ACC form. Surely the changes would have been ‘‘obvious’’ – a mess of bumpy Twink and shaky pen.
To make its finding of ‘‘wilful falsity’’, the court needed to see that document, the appeal judges say. But instead the police presented only a photocopy and, even for the appeal, the original couldn’t be found.
While that point alone is enough to allow the appeal, the judges say there are other matters of concern that reinforce their conclusion there hadn’t been a ‘‘safe’’ verdict.
They say Mrs P didn’t need to change the document to prove abuse. They say the dates recorded by the counsellor were clearly incorrect.
They say they are uneasy about the way Judge Cathcart drew his conclusions, and equally uneasy about the ‘‘bullying’’ crossexamination by the Crown.
But primarily, they say, the Crown and the judge got it wrong.
To prove Mrs P was lying, the Crown needed to prove that, when she signed her affidavit, she was saying the altered ACC form was a true copy of the original – not whether she believed it to be a true statement of fact.
The offence of perjury did not occur, they say.
The Court of Appeal quashes the verdict. ‘‘We consider that a miscarriage of justice has occurred,’’ they say. A retrial is not justified.
In short, Mrs P wasn’t lying.
Nine months on, she is still living in her garage. She is still bankrupt from the court-awarded costs, and still picking at her arms. Even with her conviction overturned, she still feels like an outcast.
Allowing her story to be told is extremely difficult for her. But she says she hopes it provides protection and support for other women. After learning to cope with what happened in their marriages, it’s wrong and damaging for women to be further bullied and traumatised in the Family Court, she says.
‘‘Current official advice is for domestic abuse victims to tell someone, yet here in court I was berated by the judge for spreading it in the community, and discrediting my husband.
‘‘To have Callinicos, who is supposed to be unbiased, not only condone the behaviour but to join in the bullying and character assassination is just plain wrong.’’
She hopes the judge will read her story. ‘‘Judges have a lot of power within their courtrooms, and most are respectful of that power. I hope this helps him to reflect on his behaviour in his courtroom and to recognise better the behaviours of victims of domestic violence.’’