Misleading Justice

Question 1

Perjury
S108(1) CA61
Legislation

Answer 1

• A witness making any
• assertion as to a matter of fact, opinion, belief, or knowledge
• in a judicial proceeding
• forming part of that witness’s evidence on oath
• known by that witness to be false, and
• intended to mislead the tribunal.

Question 2

Fabricating Evidence
S113 CA61
Elements

Answer 2

With intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.

Question 3

Witness

Definition

Answer 3

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 4

Assertion

Definition

Answer 4

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 5

Matter of Fact

Definition

Answer 5

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 6

Opinion

Definition

Answer 6

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 7

Opinion evidence of lay witnesses

Legislation

and when opinion evidence is permissible

Answer 7

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 8

Belief

Definition

Answer 8

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

Question 9

Knowledge

Definition

Answer 9

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

Question 10

Oath

Definition

Answer 10

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 11

Affirmation

Definition

Answer 11

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 12

Declaration - witness under 12

What is this also called

Answer 12

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

Question 13

Perjury

When is offence complete

and no defence

Answer 13

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 14

Corroboration
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—

Answer 14

(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 15

Conspiring to defeat justice
S116 CA61
Elements

Answer 15

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 16

Conspiring to defeat justice

Examples

Answer 16

• 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.

Question 17

Investigative Procedure

Guidelines

Answer 17

• 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

Question 18

When can you start a prosecution for perjury

Answer 18

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

Question 19

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

Answer 19

• whether the suspect knew their assertion was false, and

* whether they intended to mislead the tribunal governing proceedings.