Misleading Justice

Question 1

What is the liability of perjury?

Answer 1

Sec 108 CA 1961
Sec 108(1) Perjury defined,
1. Perjury is an assertion as to a matter of fact, opinion, belief, or knowledge
2. made by a witness in a judicial proceeding as part of his or her evidence on oath
3. whether the evidence is given in open court or by affidavit or otherwise,
4. that assertion being known to the witness to be false
5. and being intended by him or her to mislead the tribunal holding the proceeding

Question 2

Explain perjury in relation to formal statements

Answer 2

False statement in formal statement deemed to be perjury (Sec 83, CPA 2011)
A formal statement filed under section 85 is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108

Question 3

Explain the punishment of perjury

Answer 3

Sec 109, Crimes Act 1961

(1) Except as provided in subsection (2), 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 4

What section relates to false oaths?

Answer 4

Sec 110, Crimes Act 1961
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 5

What section relates to false statements or declarations?

Answer 5

Sec 111, Crimes Act 1961
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 6

What section relates to evidence of perjury, false oath, or false statement?

Answer 6

Sec 112, Crimes Act 1961
No one shall be convicted of perjury, or of any offence against section 110 or section 111, on the evidence of 1 witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.

Question 7

What section relates to fabricating evidence?

Answer 7

Sec 113, Crimes Act 1961
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 8

Define witness

Answer 8

A person who gives evidence and is able to be cross-examined in a proceeding. This includes a person(s) who are in the process/has previously given/who will give, evidence.

Question 9

Define assertion

Answer 9

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 10

Define matter of fact

Answer 10

Used by courts to distinguish a particular kind of information.

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.
A witness is generally permitted to testify as to what they personally know about the facts of a case but are prevented from giving testimony as to their opinions (i.e thoughts, beliefs, inferences). An exception is made for expert witnesses,

Question 11

Define opinion

Answer 11

Defined in sec 4 of the Evidence Act 2006.
Opinion, in relation to a statement offered in evidence, means a statement of opinion that tends to prove or disprove a fact.

Question 12

Explain opinion evidence by lay witnesses

Answer 12

Sec 24, Evidence Act 2006, General admissibility of opinions
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 say, heard, or otherwise perceived.

Question 13

Define belief

Answer 13

Belief is 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 14

Define knowledge

Answer 14

Simester and Brookbanks opine that “Knowing” means “knowing” or correctly believing. The belief must be a correct one. Where the belief is wrong a person cannot know something.

Question 15

Explain perjury in relation to AVL

Answer 15

Giving evidence in a proceeding by way of audio-visual link from another location is considered as taking place at the hearing: S14 Courts (remote participation) Act 2010. This means that giving false evidence by such a method from another country would equate to perjury in NZ and falls within the NZ jurisdiction

Question 16

Explain giving evidence

Answer 16

To give evidence means to give evidence in a proceeding (sec 4 Evidence Act 2006) in one of three defined ways:

(a) In the ordinary way as described in s83 (personally in court or by way of 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 17

Define oath, affirmation and declaration

Answer 17

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. Eg; Christian swearing an oath on a bible.
Affirmation- This is 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- A witness under 12yo may make a declaration, which is a promise to tell the truth.

Question 18

Explain intention to mislead

Answer 18

The offence of perjury is complete 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.
In R v Goodyear-Smith the Court held that to be guilty of perjury, a witness must make a wilfully false statement in respect of an issue that the witness believes is of material importance to the proceeding.
The intention must be to mislead the tribunal, where this intention is absent no offence is committed.

Question 19

Explain evidence of perjury, false oath, or false statement

Answer 19

In Taylor v Manu the Court held there must be something corroborating the allegation that an element of these offences occurred.
The Court in R v Cleland highlighted that if a person may have made a previous statement that was not on oath, which is contradicted by a subsequent statement on oath, it is not sufficient evidence alone, without a confession, to establish perjury in respect of the latter statement.
The two main points to be covered when interviewing a suspect in respect of perjury are:
• Whether the suspect knew their assertion was false and
• Whether they intended to mislead the tribunal governing proceedings.

Question 20

Is corroboration required for perjury?

Answer 20

Yes.
It is not necessary in a criminal proceeding for the evidence on which the prosecution file relies to be corroborated, except with respect to the offences involving perjury, false oaths and false statements or declarations.
Where there is no corroborating evidence of perjury, the judge must stop the case at the close of the prosecution case and direct an acquittal.

Sec 121 Evidence Act 2006 relates

The justification for the corroboration requirement in the case of perjury is to protect witnesses from vexatious accusations of lying on oath. It is thought that making it too easy to prosecute someone for perjury might discourage people from giving evidence, which is undesirable.

Question 21

Explain conspiring to defeat justice

Answer 21

Sec 116, Crimes Act 1961
Everyone is liable to imprisonment for a term of not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice.
Conspiracy is considered under sec310 of the Crimes Act 1961.

Question 22

Do you have to pick out of obstruct/prevent, pervert or defeat?

Answer 22

In respect of sec116, in assessing the conduct of the offender, you must make a clear determination as to which of the alternative intents available fits the circumstances.

Question 23

Explain course of justice

Answer 23

The administration of Justice by the courts is at its heart. Includes proceedings initiated and continuing before a tribunal as per s108(4).
The offence of conspiring to defeat justice extends to include conduct intended to affect whether or not proceedings will ever be started. It also includes situations where a victim is discouraged from pursuing a complaint or where false statement are made so as to engage police in the task of investigating a complaint which would otherwise not be pursued.

Question 24

What are some examples of misleading justice?

Answer 24

Examples of conspiring or attempting to mislead justice within sections 116 and 117 may include:
• 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 25

Briefly explain Sec 117, CA 1961

Answer 25

Corrupting juries and witnesses

(a) dissuades a person from giving evidence
(b) influences a member of a jury
(c) bribes a person from giving evidence
(d) bribes a member of a jury
(e) attempts any other way

Question 26

Explain the investigative procedure

Answer 26

• 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
• In situations where you are unable to establish a conspiracy pursuant to sec116, the evidence may reveal a wilful attempt to obstruct, prevent, pervert or defeat the course of justice subject to sec 117
• 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 recommendations that the Police undertake inquiries into the truth of the evidence given by a witness.