Misleading Justice - Module Flashcards
Misleading Justice - Module
Introduction
Misleading justice encompasses offences against the judicial system which
include perjury, false oaths, false statements, and fabricating evidence.
Legislation
Perjury defined Section 108, Crimes Act 1961
(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.
(2) In this section the term oath includes an affirmation, and also includes a declaration
made under section 13 of the Oaths and Declarations Act 1957.
(3) Every person is a witness within the meaning of this section who actually gives
evidence, whether he is competent to be a witness or not, and whether his evidence
is admissible or not.
(4) Every proceeding is judicial within the meaning of this section if it is held before
any of the following tribunals, namely:
(a) Any Court of justice:
(b) The House of Representatives or any Committee of that House:
(c) Any arbitrator or umpire, or any person or body of persons authorised by law
to make an inquiry and take evidence therein upon oath:
(d) Any legal tribunal by which any legal right or liability can be established:
(e) Any person acting as a Court or tribunal having power to hold a judicial
proceeding:
(f) a disciplinary officer, the Summary Appeal Court of New Zealand, or the
Court Martial of New Zealand acting under the Armed Forces Discipline Act
1971.
(5) Every such proceeding is judicial within the meaning of this section whether the
tribunal was duly constituted or appointed or not, and whether the proceeding was
duly instituted or not, and whether the proceeding was invalid or not.
Formal Statement
Criminal Procedure Act 2011
83 False statement in formal statement deemed to be perjury
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 (which relates to perjury).
Punishment of perjury
Section 109, Crimes Act 1961
(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.
False oaths Section 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.
False statements or declarations
Section 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.
Evidence of perjury, false oath, or false statement
Section 112, Crimes Act 1961
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
Fabricating evidence
Section 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.
Elements
Elements of perjury
The elements of the offence of perjury are:
* 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
Witness
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.
Assertion
This is something declared or stated positively, often with no support or
attempt made at furnishing evidence or proof of the assertion’s accuracy.
Matter of fact
The term “matter of fact” is used by the 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, in general terms, 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 (ie thoughts, beliefs, inferences) in regard to those facts. An
exception is made for expert witnesses, whose technical or scientific
speciality is considered sufficient to allow them to state their opinion on
relevant matters.
Opinion
Opinion is defined in s4 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.
A statement of an opinion is not admissible in a proceeding, except as
provided by section 24 and 25 of the Evidence Act 2006.
Opinion evidence by Lay witnesses
Section 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 saw, heard, or otherwise perceived
Under this section, lay witnesses are routinely permitted to give evidence
concerning apparent age, identity, speed, physical and emotional state of
people, condition of articles (worn, used, or new), and whether a person is
under the influence of drink.
Section 25 deals with the admissibility of expert opinion evidence.
Belief 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.
Knowledge
Simester & Brookbanks33 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:
It also means knowing or believing a set of circumstances so as to be free
from doubt.
Judicial proceeding
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.
Giving evidence
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.
Oath, affirmation and declaration
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. For
example, a 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.
Intention to mislead
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-Smith34 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.
Evidence of perjury, false oath, or false statement
In Taylor v Manu35 the Court held there must be something corroborating the
allegation that an element of these offences occurred.
The Court in R v Cleland36 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.
Corroboration required
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 and false statements or declarations.
Legislation
Section 121, Evidence Act 2006
Corroboration
(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).
(2) Subject to subsection (1) and section 122, if in a criminal proceeding there is a jury, it is not necessary for the Judge to—
(a) warn the jury that it is dangerous to act on uncorroborated evidence or to give
a warning to the same or similar effect; or
(b) give a direction relating to the absence of corroboration.
Justification
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.
Conspiring to defeat justice, corrupting juries and witnesses
Conspiring to defeat justice
Section 116, Crimes Act 1961
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.
Conspiracy is considered under s310 of the Crimes Act 1961.
Obstruct, prevent, pervert or defeat
In respect of s116, in assessing the conduct of the offender, you must make a
clear determination as to which of the alternative intents available fits the
circumstances.
Course of justice
The phrase ‘course of justice’ is not defined within the Act. The
administration of justice by the courts is at its heart. The course of justice
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 statements are made so as to engage police in the task of
investigating a complaint which would otherwise not be pursued.
Examples of misleading justice
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
Corrupting juries and witnesses
Section 117, Crimes Act 1961
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 New Zealand 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 New Zealand 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 New Zealand 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 New Zealand 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 New Zealand or the course of justice in an overseas
jurisdiction.
Investigative procedure
Introduction
During an investigation into misleading justice offences you should keep in
mind the following general guidelines. These will assist you in determining
whether someone has conspired or attempted to obstruct the course of
justice.
Investigative procedure
- 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
section 116, the evidence may reveal a wilful attempt to obstruct, prevent,
pervert or defeat the course of justice subject to section 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 recommendation that the police
undertake inquiries into the truth of the evidence given by a witness.
