Misleading Justice Flashcards
S108(1) - Perjury defined
CA61; S108(1):
Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence on oath, whether the evidence is given in open Court or by affidavit or otherwise, that assertion being known to the witness to be false and being intended by him to mislead the tribunal holding the proceeding.
S109(1) and (2) - Perjury Penalty
CA61; S109:
(1) 7 years
(2) If perjury is committed in order to procure the conviction of a person for any offence for which the maximum punishment is not less than 3 years’ imprisonment, the punishment may be imprisonment for a term not exceeding 14 years.
S110 - False Oaths
Elements
CA61; S110
5 years imprisonment
- Being required or authorised by law to make any statement on oath or affirmation,
- Thereupon makes a statement
- That would amount to perjury if made in a judicial proceeding.
S111 - False statements or declarations
Elements
CA61; S111
3 years imprisonment
- On any occasion on which he is required or permitted by law to make any statement or declaration
- Before any officer or person authorised by law to take or receive it, or before any notary public to be certified by him as such notary,
- Makes a statement or declaration that would amount to perjury if made on oath in a judicial proceeding.
S112 - Evidence of perjury, false oath, or false statement
Legislation
CA61; S112
No one shall be convicted of perjury, or of any offence against section 110 or section 111 of this Act, on the evidence of one witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.
S113 - Fabricating Evidence
Elements
CA61; S113
7 years imprisonment
- With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies,
- Fabricates evidence by any means other than perjury.
S108 - Elements of perjury
(AAIFKI)
CA61; S108
- 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
Definition
A person who gives evidence and is able to be cross-examined in a proceeding.
This includes:
- has previously given evidence
- actively engaged in the process of giving evidence
- will give evidence.
Assertion
Definition
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
Definition
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.
Opinion
Definition
Opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.
A statement of an opinion is not admissible in a proceeding, except as provided by section 24 and 25 of the Evidence Act 2006.
Evidence Act 2006 - S24: Opinion evidence of lay witnesses
Legislation
Evidence Act 2006; S24:
A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
List four areas that lay witnesses may give opinion evidence under S24 of the Evidence Act.
- Age
- Identity
- Physical and emotional state of people
- Whether a person is under the influence of drink.
Belief
Definition
A subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge.
Knowledge
Definition
“Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something:
Oath
Definition
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.
Affirmation
Definition
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 - witness under 12
A witness under 12 years old may make a declaration, which is a promise to tell the truth.
Perjury
When is offence complete
and no defence
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.
Examples of tribunals (S108(4)(a) - (d))
S108(4):
(a) any court of justice
(b) the House of Representatives or any Committee of that House
(c ) any arbitrator or umpire
(d) any legal tribunal by which any legal right or liability can be established
Corroboration
Legislation
Evidence Act 2006; S121
(1) It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of—
(a) perjury (section 108 of the Crimes Act 1961); and
(b) false oaths (section 110 of the Crimes Act 1961); and
(c) false statements or declarations (section 111 of the Crimes Act 1961); and
(d) treason (section 73 of the Crimes Act 1961).
Conspiring to defeat justice
Elements
CA61; S116
7 years
- Every one who
- Conspires to obstruct, prevent, pervert, or defeat the course of justice.
Conspiring to defeat justice
Examples
(BMTA)
- Threatening or Bribing witnesses
- Threatening or bribing jury Members
- Preventing a witness from Testifying
- Wilfully going Absent as a witness
Corrupting Juries and Witnesses
Legislation
CA61; S117
Every one is liable to imprisonment for a term not exceeding 7 years who:
(b) Influences by threats or bribes a jury member
(c) Accepts any bribe to abstain from giving evidence
(d) Accepts any bribe on account of his or her conduct as a member of a jury
(e) Wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand
Investigative Procedure
Guidelines
- 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
When may a prosecution for perjury begin?
Where it is recommended by the courts or you are directed to do so by the Commissioner of Police. You may begin making inquiries into an allegation of perjury without reference to both however.
What intent must you be able to prove in order to establish a charge of perjury?
The intent to mislead the tribunal holding the judicial proceeding.
What are the two main points to be covered when interviewing a suspect in respect of perjury?
- Whether the suspect knew their assertion was false
- Whether they intended to mislead the tribunal governing proceedings.
What are four examples of conspiring or attempting to obstruct, prevent, pervert or defeat the course of justice?
- Threatening or bribing witnesses
- Threatening or bribing jury members
- Preventing a witness from testifying
- Wilfully going absent as a witness
