Misleading Justice

Question 1

Perjury defined

S108 CA61

Answer 1

(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 preceding

Question 2

False statement in formal statement deemed to be perjury

S83 Criminal Procedure Act 2011

Answer 2

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 of the Crimes Act 1961

Question 3

Punishment of perjury

S109 CA61

Answer 3

(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 4

False oath

S110 CA61

Answer 4

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

Question 5

False statement or declaration

S111 CA61

Answer 5

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

Evidence of perjury, false oath, or false statement

S112 CA61

Answer 6

No one shall be convicted of perjury, or of any offence against s110 or s111 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 7

Fabricating evidence

S113 CA61

Answer 7

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 s108 applies, fabricates evidence by any means other than perjury.

Question 8

Elements of perjury

Answer 8

• A witness making any
• Assertion as to any matter of fact, opinion, belief, or knowledge
• In any judicial proceeding
• Forming part of that witness’ evidence on oath
• Known by that witness to be false, and
• Intended to mislead the tribunal

Question 9

Define witness

Answer 9

A witness is a person who gives evidence and is able to be cross-examined in a proceeding

Question 10

Define assertion

Answer 10

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 11

Define opinion

S4 Evidence Act 2006

Answer 11

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 s24 and s25 of the Evidence Act 2006.

Question 12

General admissibility of opinions

S24 Evidence Act 2006

Answer 12

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.

(S25 deals with admissibility of expert opinion evidence)

Question 13

Define belief

Answer 13

Belief is essentially 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 & Brookbanks -
Knowing means knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.

It also means knowing or believing a set of circumstances so as to be free from doubt.

Question 15

To give evidence means to give evidence in a proceeding in one of three defined ways (s4 Evidence Act 2006):

Answer 15

(a) In the ordinary way is described in s83 (personality 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 16

Define:
Oath
Affirmation
Declaration

Answer 16

Oath:
This is a declaration before a person who has authority to administer an oath, which invokes some religious belief and says that thing is true alright. Eg. Christian would swear an oath on the Bible.

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

Question 17

Mens rea

Answer 17

The intention must be to mislead the tribunal, where this intention is absent no offence has committed

Question 18

When is the offence of perjury complete

Answer 18

The offence is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal

Question 19

Corroboration required for perjury

S121(1) Evidence Act 2006

Answer 19

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 declarations, and treason.

Question 20

Justification for corroboration requirement in the case of perjury

Answer 20

To protect witnesses from vexatious accusations of lying on oath, which may discourage people from giving evidence.

Question 21

Conspiring to defeat justice

S116 CA61

Answer 21

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 22

Examples of conspiring or attempting to mislead Justice within ss116 and 117 include: (9 points)

Answer 22

• 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 23

Corrupting juries and witnesses

S117 CA61

Answer 23

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 (whether civil or criminal, and whether tried or to be tried in NZ or in an overseas jurisdiction); or
(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 (whether in a cause or matter tried or to be tried in NZ or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(c) Accepts any bribe or other corrupt consideration to abstain from giving evidence (whether in a cause or matter tried or to be tried in NZ or in an overseas jurisdiction); or
(d) Accepts any bribe or other corrupt consideration on account of his or her conduct as a member of a jury (whether in a cause or matter tried or to be tried in NZ or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in NZ or the course of justice in an overseas jurisdiction.

Question 24

Investivegative procedure - General guidelines when investigating Misleading Justice offences

Answer 24

• 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 day believed was right.
• In situations where you are unable to establish a conspiracy pursuant to s116, the evidence may reveal a wilful attempt to obstruct, prevent, pervert or defeat the course of justice subject to s117.
• 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 2 ways:
  1. An individual may complain that someone has perjured themselves.
  2. 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 25

Matter of fact

Answer 25

Term used by courts to distinguish a particular kind of info
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