Misleading Justice Flashcards
Perjury legislation
What is the section and definition of perjury?
-s108 CA61
(1) perjury is a 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
What is the punishment of perjury?
S109 CA1961
(1) Wxcept as provided in subsection (2) of this section, everyone is liable to imprisonment for a term not exceeding 7 years who commits perjury.
(2) if surgery is committed in order to procure the conviction of a person for any offence for which maximum punishment is not less than 3 years imprisonment, the punishment may be imprisonment for a term not exceeding 14 years
False oaths
What is the section and elements of false oaths? (statement on oath/ affirmation).
S110 CA61
Everyone is liable to imprisonment for a term not exceeding 5 years who, being required or authorised by law to make any statement on oath or affirmation, there upon makes a statement that would amount to perjury of made in a judicial proceeding.
False statement of declaration
What is the section and elements?
S111 CA61
Everyone is liable to imprisonment for a term not exceeding 3 years who, 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 of made in oath in judicial proceeding
Evidence of perjury, false oath, or false statement.
What is the section and legislation?
S112 CA61
- 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.
Fabricating evidence
What is the section & elements?
S113 CA61
- Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by means other than perjury.
What are the elements of perjury?
- A witness making any
- Assertion as to any matter of fact, opinion, belief or knowledge.
- in any judicial proceeding
- forming part of that witnesses evidence in oath.
- known by that witness to be false, and
- intended to mislead to tribunal
What is the definition of a witness?
- 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
What is the definition of assertion?
- this is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertions accuracy
What is the definition of “matter of fact”?
- A fact is a thing done, an actual occurs. E or event, and it is presented during court proceedings in the form of witness testimony and evidence.
What is the definition of “opinion”?
S4 EA06
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 opinion is not admissible in a proceeding, except as provided by section 24 & 25 of EA06
Opinion evidence of lay witness legislation & when opinion evidence is permissible
Section 24, EA 06
- a witness may state an opinion in evidence in a proceeding of that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.
Under section 24 EA06, lay witnesses are routinely permitted to give evidence concerning:
- apparent age
- identity
- physical and emotional state of people
- condition of articles (worn, used or new)
- speed
- whether a person is under the influence of alcohol/ drink
What is the definition of belief?
- a subjective feeling regarding the validity of a idea or set of facts, it is more than mere suspicion and less than knowledge.
What is the definition of knowledge?
- “knowledge” means “knowing or correctly believing”. The belief must be a correct one, where the belief is wrong a person cannot know something.
What is the definition of 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.
What is the definition of an 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 - witness under 12
What is this also called?
- a witness under 12 years old may make a declaration, which is a promise to tell
The truth
Perjury - when is offence complete?
No defence
- At the time the false evidence is given accompanied by an intention to mislead the tribunal.
- there is no defence when the witness later recants and informs the tribunal
Of the falsity of the earlier evidence given
Corroboration Legislation
S121 Evidence act 2006
(1) it is not necessary that in a criminal proceeding for the evidence on which the prosecution relies to be corroborated except with respect to the offences of;
(a) Perjury (S 108 CA61) and
(b) false oaths (S110 CA61) and
(c) false statements or declarations (s111 CA61) and
(d) treason (S73 CA61)
Corroboration required
- 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 involving perjury, false oaths & false statements or declaration
Conspiring to defeat justice
Elements
S116 CA61
Everyone is liable to imprisonment for a term not exceeding 7 years who conspires to, obstruct, prevent, pervert, or defeat the course of justice
Where is conspiracy considered?
- section 310 CA61
What Dow “course of justice” mean?
- The phrase ‘course of justice’ is not determined 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)
What are some examples of misleading justice?
- preventing witness from testifying
- wilfully going absent as a witness
- threatening or bribing witness
- concealing the fact an offence has been committed
- arranging a false oaths
Corrupting hurries and witnesses
Section 117 CA61
Everyone is liable to imprisonment for a term not exceeding 7 years who:
(a) dissuades or attempts to dissuade any person, by threats, bribes or other corrupt means, from giving evidence in any matter
(b) influence or attempts to influence, by threats or bribes or other corrupt means, a member of a jury in his or her conduct as such.
(c) accepts any bribe or other corrupt consideration to abstain from giving evidence.
(d) accepts any bribe or other corrupt consideration 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 fear the course of justice in NZ or the course of justice in an overseas jurisdiction
Investigative procedure
What are the guidelines?
- you may only commence a prosecution for perjury, where it is recommended by the courts or you are directed to do so by the COMMISSIONER of police. You may however, begin enquires into an allegation of perjury without reference to the court or commissioner of police.
- 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.
- 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 inquires into the truth of the evidence given by a witness
- in situations where you are unable to establish a conspiracy pursuant to section116, the evidence may reveal a WILFUL ATTEMPT to obstruct, prevent, pervert or defeat the course of justice subject to S117
When can you start a prosecution for perjury?
- where it is recommended by the courts or you are directed by the commissioner of police
What are the two main points to be covered when interviewing a suspect of perjury?
- whether the subject knew their assertion or as false, and
- whether they intended to mislead the tribunal governing the proceedings.
