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

Elements of perjury

Answer 2

• 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

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

Belief Definition

Answer 7

A subjective feeling regarding the validity of an idea or set of facts. It is more than mere suspicion and less than knowledge. Belief is having faith in an idea or formulating a conclusion as the result of considering the available information.

Question 8

Knowledge Definition

Answer 8

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

Question 9

Judicial proceeding

Answer 9

Giving evidence in a proceeding by way of audio-visual link from another location is to be considered as taking place at the hearing: s14 Courts (Remote Participation) Act 2010. This means that the giving of false evidence by such a method from another country would equate to perjury in New Zealand and falls within the New Zealand jurisdiction

Question 10

Giving evidence

Answer 10

To give evidence means to give evidence in a proceeding, (section 4, Evidence Act 2006) in one of three defined ways: (a) in the ordinary way as described in s83; (personally in court or by affidavit) or (b) in an alternative way, as provided for by s105; (CCTV, DVD, screens etc.) or (c) in any other way provided for under this Act or any other enactment.

Question 11

Oath Definition

Answer 11

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 12

Affirmation Definition

Answer 12

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 13

Declaration - witness under 12 What is this also called

Answer 13

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

Question 14

Intention to Mislead

Answer 14

Must make wilfully false statement in respect of an issue that the witness believes is of material importance to the proceeding. Intention must be to mislead.

Question 15

Perjury Penalty

Answer 15

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 16

False Oaths Statement on oath/affirmation Elements

Answer 16

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 17

False statements or declarations Elements

Answer 17

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 18

Evidence of perjury, false oath, or false statement Legislation No one shall be convicted….

Answer 18

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 19

Fabricating Evidence Elements

Answer 19

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 20

Opinion evidence of lay witnesses Legislation and when opinion evidence is permissible

Answer 20

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 21

Perjury When is offence complete and no defence

Answer 21

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 22

Corroboration Legislation

Answer 22

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). Judge must stop the case at close of prosecution case and direct acquittal if no corroboration.

Question 23

Conspiring to defeat justice Elements

Answer 23

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 24

Conspiring to defeat justice Examples

Answer 24

• 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 25

Corrupting Juries and Witnesses Elements

Answer 25

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 26

Investigative Procedure Guidelines

Answer 26

• 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 27

When can you start a prosecution for perjury

Answer 27

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

Question 28

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

Answer 28

• whether the suspect knew their assertion was false, and • whether they intended to mislead the tribunal governing proceedings.