Misleading Justice

Question 1

Perjury

Legislation

Answer 1

S108 CA61

(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.

Question 2

Perjury

Penalty

Answer 2

S109 CA61

(1) Except as provided in subsection (2) of this section, every one is liable to imprisonment for a term not exceeding 7 years who commits perjury.
(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.

Question 3

False Oaths

Statement on oath/affirmation

Elements

Answer 3

S110 CA61

Every one 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, thereupon makes a statement that would amount to perjury if made in a judicial proceeding.

Question 4

False statements or declarations

Elements

Answer 4

S111 CA61

Every one 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 if made on oath in a judicial proceeding.

Question 5

Evidence of perjury, false oath, or false statement

Legislation

No one shall be convicted….

Answer 5

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.

Question 6

Fabricating Evidence

Elements

Answer 6

S113 CA61

Every one 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 any means other than perjury.

Question 7

Witness

Definition

Answer 7

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.

Question 8

Assertion

Definition

Answer 8

This is something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion’s accuracy.

Question 9

Matter of Fact

Definition

Answer 9

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.

Question 10

Opinion

Definition

Answer 10

S4 Evidence Act 06

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.

Question 11

Opinion evidence of lay witnesses

Legislation

and when opinion evidence is permissible

Answer 11

S24 Evidence Act 06

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

Under this section, 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 drink.

Question 12

Belief

Definition

Answer 12

A subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge.

Question 13

Knowledge

Definition

Answer 13

“Knowing” means “knowing, or correctly believing” … the belief must be a correct one, where the belief is wrong a person cannot know something:

Question 14

Oath

Definition

Answer 14

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.

Question 15

Affirmation

Definition

Answer 15

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

Question 16

Declaration - witness under 12

What is this also called

Answer 16

A witness under 12 years old may make a declaration, which is a promise to tell the truth.

Question 17

Perjury

When is offence complete

and no defence

Answer 17

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.

Question 18

Corroboration

Legislation

Answer 18

S121 Evidence Act 06

(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).

Question 19

Conspiring to defeat justice

Elements

Answer 19

S116 CA61

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.

Question 20

Conspiring to defeat justice

Examples

Answer 20

• threatening or bribing witnesses
• threatening or bribing jury members
• preventing a witness from testifying
• wilfully going absent as a witness
• assisting a wanted person to leave the country
• arranging a false alibi
• concealing the fact an offence has been committed
• intentionally giving police false information to obstruct their inquiries
• supplying false information to probation officers

Question 21

Corrupting Juries and Witnesses

Elements

Answer 21

S117 CA61

Every one 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 cause or matter
(b) influences 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 defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

Question 22

Investigative Procedure

Guidelines

Answer 22

• 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.
• 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 inquiries into the truth of the evidence given by a witness

• 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.

Question 23

When can you start a prosecution for perjury

Answer 23

Where it is recommended by the courts or you are directed to do so by the Commissioner of Police.

Question 24

The two main points to be covered when interviewing a suspect in respect of perjury are:

Answer 24

• whether the suspect knew their assertion was false, and

* whether they intended to mislead the tribunal governing proceedings.