Misleading justice Flashcards
Legislation - perjury defined
s108 C.A 61
1 - perjury is assertion as to matter of fact, opinion, belief or knowledge, made by witness in proceedings as part of evidence on oath, being known to be false or intended to mislead.
2 - oath includes affirmation and declaration.
3 - person is witness who gives evidence, whether competent or not, whether admissible or not.
4 - proceeding is judicial if held before:
- court of justice
- House of Representatives
- arbitrator or umpire
- legal tribunal
- person acting as court/tribunal
- disciplinary officer/appeal court/court martial under armed forces discipline act 1971
5 - proceeding is judicial whether tribunal duly constituted or appointed or not, duly instituted or not, invalid or not.
Formal statement
s83 criminal proceedire act 2011
- filed under s83 to be treated as evidence on oath given in judicial proceeding
Punishment of perjury
s109 C.A 61
1 - except as provided in ss2, everyone liable for term of imprisonment not exceeding 7 years
2 - if perjury to procure conviction of person for any offence, where max punishment more than 3 years, then punishment is term of imprisonment not exceeding 14 years.
False oaths
s110 C.A 61
Liable to term of imprisonment not exceeding 5 years, who, being required or authorised by law to make statement on oath/affirmation, makes a statement that would amount to perjury in judicial proceeding.
False statement or declaration
s111 C.A 61
Liable for term not exceeding 3 years, who, when required/permitted by law to make statement/declaration, makes statement/declaration that would amount to perjury in judicial proceeding
Evidence of Perjury, false oath, false statement
s112 C.A 61
- no person shall be convicted under s110 or s111 on evidence of one witness alone, unless corroborated by some material evidence.
Fabricating evidence
s113 C.A 61
Liable for imprisonment of term not exceeding 7 years, who, with intent to mislead tribunal, fabricates evidence by means other than perjury
Elements of perjury
- witness making any
- assertion to matter of fact, opinion, belief or knowledge,
- in any judicial proceeding
- forming part of evidence in oath
- known by witness to be false, and
- intent to mislead tribunal.
Witness
Person who gives evidence and able to be cross-examined.
Includes person actively engaged in process, previously given evidence and/or who will give evidence
Assertion
Something declared or stated positively
Matter of fact
Fact is thing done, an actual occurrence/event and presented during proceedings in form of witness testimony and evidence.
Witness is permitted to testify what they personally know about the facts of the case but not about opinion unless expert who’s speciality is considered sufficient to allow them to state opinion
Opinion
s4 Evidence Act 2006
Means a statement of opinion that tends to prove or disprove a fact
Opinion evidence
s24 evidence act 2006
-witness may state opinion if necessary to communicate, or help others to understand, what witness saw, heard, or otherwise perceived.
- routinely permitted to give opinion re age, identity, speed, physical/emotional state, condition of articles, whether under the influence.
s25 evidence act 2006 deals with admissibility of expert opinion evidence.
Belief
A subjective feeling regarding validity of idea or set of facts. More than mere suspicion but less than knowledge.
Having faith in an idea, or formulating conclusion as a result of the available information.
Knowledge
Simester and Brookbanks - knowing means to know or correctly believe.
Belief must be a correct one, where belief is wrong a person cannot know something.
Judicial hearing - AVL
Giving evidence via AVL from another location (including another country) is considered as taking place at the hearing. This means that giving false evidence via AVL would equate to perjury.
Giving evidence
Means to give evidence in a proceeding in 1 of 3 ways.
1 - ordinary way (personally in court)
2 - alternative way (CCTV, DVD, AVL, screens)
3 - any other way provided under act or any enactment.
Affirmation
Verbal or written declaration, made before a person with authority to administer an oath, saying thing is true or right, without reference to religious belief.
Oath
Declaration before person, who has authority to administer an oath, which invokes some religious belief, and says a thing is true or right
Declaration
Person under 12 years makes declaration, which is a promise to tell the truth.
Intention to mislead
Offence is complete at time of false evidence given, accompanied by intention to mislead.
There is no defence where witness later recants.
To be guilty of perjury the witness must make wilfully false statement.
Evidence
There must be something corroborating the allegation that element of the offence occurred.
If a person may have made previous statement, but not on an oath, which is contradicted by a subsequent statement on oath, it is not sufficient evidence alone without confession.
Corroboration
only necessary in criminal proceedings for charges of perjury, false oath, false statements or declarations.
Justification of corroboration
To protect witnesses from vexatious accusations of lying on oath. Making it too easy to prosecute for perjury might discourage people from giving evidence
Conspiring to defeat justice
s116 C.A 61
Liable for term of imprisonment not exceeding 7 years, who conspires to obstruct, pervert, prevent or defeat course of justice.
Examples of misleading justice
- prevent witness from testifying
- wilfully going absent (witness)
- threat/bribe witness
- concealing fact offence committed
- intentionally giving false info to Police
- supplying false info to probations
- assist wanted person to leave country
- arranging false alibi
- threat/bribe jury
Corrupting juries and witnesses
s117 C.A 61
- everyone liable to max 7 year imprisonment who-
a) dissuade/ attempt to, any person by threat/bribe from giving evidence
b) influence/ attempt to, by threats/bribe, member of jury
c) accepts bribe to abstain from giving evidence
d) accepts bribe on account of conduct as member of jury
e) wilfully attempts in any other way, to obstruct, pervert, prevent or defeat course of justice (in NZ or any other country)
Investigation procedure
- conspiring to defeat course of justice encompasses civil and criminal proceedings
- no defence to charge that aim was to secure just result or one they believe was right.
- where can’t establish conspiracy, evidence may reveal wilful attempt to obstruct, prevent, pervert or defeat course of justice
- may only commence prosecution for perjury where court recommends or directed by police commissioner
- perjury complaints can arise in 2 ways
1. Individual complains someone perjured themselves
2. Judge may state/direct police to make inquires into the truth of the evidence given
