Misleading Justice Flashcards
Elements of perjury
The elements of the offence of perjury are:
• a witness making any
• assertion as to any matter of fact, opinion, belief, or knowledge
• in any judicial proceeding
• forming part of that witness’s evidence on oath
• known by that witness to be false, and
• intended to mislead the tribunal
Witness meaning
A witness is a person who gives evidence and is able to be cross-examined in a proceeding. This includes a person who is actively engaged in the process of giving evidence and/or one who has previously given evidence. The term witness also includes a person who will give evidence.
Assertion meaning
This is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion’s accuracy.
Matter of fact meaning
The term “matter of fact” is used by the courts to distinguish a particular kind of information.
A fact is a thing done, an actual occurrence or event, and it is presented during court proceedings in the form of witness testimony and evidence.
A witness is, in general terms, permitted to testify as to what they personally know about the facts of a case but are prevented from giving testimony as to their opinions (ie thoughts, beliefs, inferences) in regard to those facts. An exception is made for expert witnesses, whose technical or scientific speciality is considered sufficient to allow them to state their opinion on relevant matters.
Opinion evidence allowed by the court
Under section 24, lay witnesses are routinely permitted to give evidence concerning apparent age, identity, speed, physical and emotional state of people, condition of articles (worn, used, or new), and whether a person is under the influence of drink.
Section 25 deals with the admissibility of expert opinion evidence.
Belief meaning
Belief is essentially a subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge. Belief is having faith in an idea or formulating a conclusion as the result of considering the available information.
AVL from another country ramification for perjury
Giving evidence in a proceeding by way of audio-visual link from another location is to be considered as taking place at the hearing: s14 Courts (Remote Participation) Act 2010. This means that the giving of false evidence by such a method from another country would equate to perjury in New Zealand and falls within the New Zealand jurisdiction.
Different ways to give evidence
To give evidence means to give evidence in a proceeding, (section 4, Evidence Act 2006) in one of three defined ways:
(a) in the ordinary way as described in s83; (personally in court or by affidavit) or
(b) in an alternative way, as provided for by s105; (CCTV, DVD, screens etc.) or
(c) in any other way provided for under this Act or any other enactment.
Oath, affirmation and declaration meaning
Oath
This is a declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right. For example, a Christian would swear an oath on the Bible.
Affirmation
This is a verbal or written declaration, before a person who has authority to administer an oath, saying that a thing is true or right without reference to religious belief
Declaration
A witness under 12 years old may make a declaration, which is a promise to tell the truth.
When is the perjury offence complete
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal. There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence given.
What is the justification for requiring corroboration for perjury
The justification for the corroboration requirement in the case of perjury is to protect witnesses from vexatious accusations of lying on oath. It is thought that making it too easy to prosecute someone for perjury might discourage people from giving evidence, which is undesirable.
Conspiring to defeat justice
Section 116, Crimes Act 1961
Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice.
Course of justice meaning
The phrase ‘course of justice’ is not defined within the Act. The administration of justice by the courts is at its heart. The course of justice includes proceedings initiated and continuing before a tribunal as per s108(4).
The offence of conspiring to defeat justice extends to include conduct intended to affect whether or not proceedings will ever be started. It also includes situations where a victim is discouraged from pursuing a complaint or where false statements are made so as to engage police in the task of investigating a complaint which would otherwise not be pursued.
Examples of misleading justice
Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:
• preventing a witness from testifying
• wilfully going absent as a witness
• threatening or bribing witnesses
• concealing the fact an offence has been committed
• intentionally giving police false information to obstruct their inquiries
• supplying false information to probation officers
• assisting a wanted person to leave the country
• arranging a false alibi
• threatening or bribing jury members
Investigative procedure for misleading justice
• Conspiring to defeat the course of justice encompasses both civil and criminal proceedings.
• It is no defence to a charge of conspiring to defeat the course of justice that the aim of the offender was to secure a just result, or one they believed was right.
• In situations where you are unable to establish a conspiracy pursuant to section 116, the evidence may reveal a wilful attempt to obstruct, prevent, pervert or defeat the course of justice subject to section 117.
• You may only commence a prosecution for perjury (civil or criminal), where it is recommended by the courts or you are directed to do so by the Commissioner of Police. You may, however, begin inquiries into an allegation of perjury without reference to the court or Commissioner of Police.
• Complaints of perjury can arise in two ways:
− An individual may complain that someone has perjured themselves.
− A Judge may state or direct in a court recommendation that the police undertake inquiries into the truth of the evidence given by a witness.
