A rare perjury charge laid four years ago against a respected businessman who was later jailed for defrauding an Auckland rest home has been dismissed so the threat of prosecution does not hang forever over the “calculated” criminal’s head.

That’s despite the Crown saying there’s sufficient evidence for a jury to convict Duncan John Napier of deliberately lying under oath to mislead a court, and prosecutors urging a judge to keep the “door ajar” to pursuing the charge in the future.

A victim says Napier repeatedly lied during three separate trials and the perjury matter should have proceeded.

“Perjury should be treated as a serious offence and an example made to deter others and uphold the rule of law,” Torbay Rest Home director Mike Single said.

Retired University of Auckland law professor Bill Hodge says the case is a rare example when a perjury prosecution would be warranted, given the calculated nature of the offending committed against vulnerable, elderly victims.

“That’s a pretty serious dagger blow to the heart of civil society.

“We want people to feel that justice is not just done, but is seen to be done.”

Napier is serving four years and 10 months behind bars for siphoning money from Torbay Rest Home in offending spanning seven years.

He overpaid himself and his wife hundreds of thousands of dollars, and used hundreds of rest home cheques to finance personal expenses such as school fees, Sky TV subscriptions and gym memberships, and to pay contractors working on the couple’s dream lifestyle.

High Court sentencing judge Timothy Brewer said Napier destroyed financial records to conceal the extent of his crimes, making it impossible to calculate how much he actually stole.

Napier was a successful real estate agent working for Bayleys when two civil court decisions in 2015 and 2016 found he had earlier “misappropriated” more than $1 million during his time as the rest home’s administration manager.

He was ordered to repay the money.

Duncan Napier was working for Bayleys when two civil court findings found he'd earlier misappropriated more than $1m from Torbay Rest Home. Photo / Supplied

Police laid criminal charges in 2019, including one of perjury. It alleged Napier lied under oath during the 2015 trial by claiming there was an agreement for him to earn commission on rest home unit sales - a claim denied by the company’s directors.

In 2020, Napier’s lawyers successfully had the perjury matter “severed” from the fraud charges to protect his fair trial rights.

Following Napier’s incarceration in October, the Crown applied to have the perjury charge withdrawn, saying although a properly directed jury could convict Napier of lying under oath, there was no longer sufficient public interest in pursuing the charge.

However, the Crown wanted to retain the option of doing so in the future.

“Should circumstances change and the public interest favour prosecuting Mr Napier for the serious allegation of perjury, the public, and the courts, should be permitted that opportunity,” Crown prosecutor Sam McMullan submitted.

Duncan John Napier and his wife Sara worked at Torbay Rest Home when Duncan Napier defrauded the company in offending spanning seven years. Photo / Dean Purcell / Supplied

Napier’s lawyer Fletcher Pilditch KC, however, argued it was unfair for someone already paying a “heavy price” for historic crimes, to then have “Damocles’ sword” hanging indefinitely over his head.

He said there was no public interest in pursuing the perjury matter and the charge should be dismissed - effectively an acquittal.

Napier had lived a “lawful and prosocial life” in the decade since his offending, and had no prospect of rebuilding his career when he was eventually released.

The Crown should “put up or shut up”, and let Napier move on with his life after serving his sentence, Pilditch submitted.

During a hearing last month, Pilditch said it was not just the Crown that could relitigate the perjury charge.

Fletcher Pilditch KC argued it was unfair for his client to have "Damocles' sword" hanging indefinitely over his head. Photo / File

His client’s principal concern was “not in respect of the Crown doing an about turn, it’s in respect of former business partners”.

Justice Michael Robinson agreed that Napier was entitled to “finality”. He dismissed the Crown’s application and the perjury charge was dismissed this week.

Single told the Herald the rest home directors had asked the Crown to proceed with the perjury charge which they believed was in the public interest.

“We believe the law should be upheld.”

They felt the decision not to prosecute reflected Crown Law’s limited resourcing, forcing the Crown to drop cases and ration funds.

Single disputed claims about Napier’s otherwise good character, saying he had committed perjury throughout the 2022 criminal trial.

Bill Hodge, retired University of Auckland law school professor. Photo / NZME.

Hodge said perjury charges were available following most jury trials as one party had always been found to be untruthful.

But such cases were rare because they were often seen as an abuse of process by the Crown, or a way of prosecutors harassing and “getting back” at offenders.

Judges didn’t like perjury cases, which would simply clog up the courts.

However, Hodge felt the Napier case was a rare example where a perjury case was warranted due to the cynical and prolonged nature of the offending, which was committed against vulnerable, elderly victims who deserved to be protected.

“It was conceived by a person in a position of trust who abused that trust. He was very intelligent, calculating and perpetrated it over an extended period of time. That’s a pretty serious dagger blow to the heart of civil society.

“I can imagine some of the victims would feel pretty strongly about it. We want people to feel that justice is not just done but is seen to be done.”