Criminal Law
Offences Against Administration of Justice
Perjury
Perjury is the crime of giving false evidence on oath to a judicial proceeding, on a material point of fact, and knowing it to be false. This includes instances where a lie has been told to someone prior to a trial such as the police or a lawyer, but it must have been done on oath. This then includes when putting together an affidavit and swearing to its authenticity. The matter also must be en route to some form of judicial proceeding. Giving false evidence to a private investigator during the giving of a signed statement or recorded interview is not within the scope of perjury as there is no oath sworn.
As with any other crime, the perpetrator must have intended to mislead. Therefore apart from defences listed at the end of this chapter, it is a defence to establish that an honest mistake was made, or that the facts are in dispute.
It is obvious that whenever a person is acquitted of a crime and later found to have given false evidence, their denials of the crime amount to perjury. However the High Court has ruled that it would be an abuse of process to go behind the court verdict, as it were, and use the content of a trial as a basis for a further criminal charge.
In the matter of R v Carroll, the defendant had previously been accused of the murder of a 17 month old infant. Forensic evidence showed that bite marks on the deceased’s body were caused by the defendant. The defendant denied guilt at the trial, but was found guilty. On appeal it was found that it could not be concluded beyond reasonable doubt that the defendant was guilty and so he was acquitted. Fourteen years later the defendant was indicted for perjury in relation to his sworn evidence, with additional evidence showing his guilt. The high court reasoned that the charge of perjury was entirely unrelated to the charge of murder, being completely different laws. Therefore it was unlawful to use the substance of the trial in a matter unrelated to the crime at hand. Additionally, in spite of there being solid, fresh evidence, it was considered inappropriate that the acquittal on appeal should be challenged in an entirely separate matter (as opposed to a direct appeal).
Perverting the Course of Justice
Perverting the course of justice and attempting to do so involves any act or omission intended to obstruct, alter or defeat the course of justice or the administration of the law. Classically this is dealt with in connection to criminal matters and police investigations. However, the civil jurisdiction also relies on the same standards of integrity and needs the same protection.
This is a serious offence because it undermines the integrity of the justice system. If you can consider the reasons for which people engage in litigation or what may lie in store for defendants, and then consider how a decision going the wrong way would affect an innocent party, then you may understand how serious a matter this is.
The leading High Court authority in Australia is R v Rogerson. It establishes that the “course of justice” includes investigations, not just court proceedings. Proceedings need not to have commenced for the acts or omissions of concern to stand as criminal offences.
A distinction pointed out in R v Rogerson is that perverting the course of justice can only occur when court proceedings have already been invoked, while attempting to pervert the course of justice can be committed at any time before the invocation of proceedings.
Acts that amount to perverting the course of justice include lying to authorities during an investigation, misleading a court with false evidence, tampering with/destroying evidence, intimidating a witness, or bribing a police officer. For police, lawyers and civilian investigators (and anyone else involved in initiating the processes of justice), mishandling and misreporting evidence so that facts are exaggerated, diminished, suppressed, or skewed, excluding relevant witnesses with unique and irreplaceable testimony from the process, or coercing witnesses to testify one way or another, will attract a criminal charge. The penalty is imprisonment. To be successful, however, the prosecution must prove you engaged in relevant conduct (an act or omission). It must also prove you intended to pervert the course of justice (i.e., there was intent, not just an accident or genuine mistake).
R v Carroll (2002) 194 ALR 1.
See UK authorities for example, where persons were found guilty of perverting the course of justice in relation to civil trials: R v Sadiq & Others [2015] EWCA Crim 662; R v Karimi [2011] EWCA Crim 1463; R v Gibson [2004] EWCA Crim 2369.
R v Rogerson (1992) 174 CLR 268
R v Rogerson (1992) 174 CLR 268, 277, 283,293-4, 304-5.