My letter to the Chief Justice of the Federal Court of Australia about MURPHY's disgraceful conduct
Concealing serious criminal offences

Two offences I'd like us to discuss today - first up perjury

I'd like to open a couple of discussions on criminal offences today in the context of the new Slater and Gordon/Wilson revelations.

The two offences I'd propose we look at are perjury and concealing a serious indictable offence.

First a backgrounder on each crime - then I'll post what I think might be some relevant evidence arising from the Murphy/Wilson file.

Here's a quote from the former NSW Attorney General John Dowd MLA in introducing a bill which created statutory offences against public justice:

Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done.

Here are a few comments about perjury from Australian cases.

Offences of perjury and false swearing undermine the very foundation of the justice system: R v Aristodemou (unrep, 30/6/94, NSWCCA).

The need for general deterrence is the prime consideration in sentencing for offences of this kind: R v Aristodemou; R v Bulliman (unrep, 25/2/93, NSWCCA).

Any person who commits perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an Independent Commission Against Corruption (ICAC) inquiry should do so in the clear understanding that if their offence is detected, they will go to gaol except in exceptional circumstances: R v Aristodemou; R v Chad (unrep, 13/5/97, NSWCCA); R v Chapman (unrep, 21/5/98, NSWCCA); R v Fish (2002) 131 A Crim R 172 at [143], [152]; R v Mahoney [2004] NSWCCA 138 at [12]–[14].

And here are the Bench Notes from Victoria's Judge school, the Judicial College.

http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#47373.htm

7.11.1.1 - Bench Notes: Statutory Perjury

Click here to obtain a Word version of this document

Introduction

  1. Perjury is an offence under Crimes Act 1958 s314, as well as at common law (see Crimes Act 1958 s314(3)).
  2. These Notes address the statutory offence of perjury. See Bench Notes: Common Law Perjury for information concerning the common law offence.

    Charging an accused who has made multiple false statements

  3. As each false statement constitutes a separate crime, each false statement should usually be charged as a separate offence (Traino v R (1987) 45 SASR 473).
  4. Consequently, where the accused has made multiple false statements, the prosecution should usually either:
    • Select one of the statements as the basis for a single charge of perjury; or
    • Charge the accused with multiple offences (one charge for each false statement) (Stanton v Abernathy (1990) 19 NSWLR 656).
  5. However, where the accused has made a series of false statements about the same matter, it may be appropriate to lay only one charge of perjury, which consists of the cumulative effect of all of the statements (Traino v R (1987) 45 SASR 473; Stanton v Abernathy (1990) 19 NSWLR 656).
  6. Courts should adopt a common sense approach when deciding whether the prosecution can lay one charge for multiple statements (Traino v R (1987) 45 SASR 473; Stanton v Abernathy (1990) 19 NSWLR 656).

    Elements

  7. Statutory perjury has the following three elements:
    1. The accused made a false statement;
    2. That statement was made in prohibited circumstances; and
    3. The accused made the false statement knowingly.
  8. Unlike at common law, the prosecution does not need to prove that the statement was material to the proceeding. All evidence is deemed to be material (Crimes Act 1958 s315).

    The accused made a false statement

  9. The accused must have made a false statement about a fact, matter or thing (Crimes Act 1958 s314(3)).
  10. The word “false” is to be given its ordinary English meaning: a statement is “false” if it is untrue (R v Davies (1974) 7 SASR 375).
  11. Under s314(3), there appear to be three ways in which an accused can make a “false” statement:
    1. By making an untrue assertion about a fact, matter or thing;
    2. By purporting to verify the truth of a statement which is untrue wholly or in part; or
    3. By omitting to mention information which the law requires him or her to mention.
  12. The prosecution must specify the statement that is alleged to be false. It will usually not be sufficient for the prosecution to rely upon an entire transcript of testimony and allege that the witness gave false evidence (Stanton v Abernathy (1990) 19 NSWLR 656).

    Proving the accused made the statement

  13. The prosecution must be able to prove, on the basis of admissible evidence, that the accused made the relevant statement.
  14. This may not be possible where:
    • There is a legislative provision limiting the subsequent admissibility of statements made in a certain kind of proceeding (see, e.g., Royal Commissions Act 1902 (Cth) s6DD); and
    • The statement was only made in that kind of proceeding (see, e.g., Giannarelli v R (1983) 154 CLR 212).

    Proving the statement was false

  15. Although Evidence Act 2008 s164 abolished the general requirement for corroboration, an exception is made with respect to the offence of perjury (s164(2)).
  16. Consequently, where the prosecution is relying on oral evidence to prove that the accused’s statement was false, the prosecution’s evidence must either come from two witnesses, or one witness with corroboration. Failure to comply with this requirement will entitle the accused to an acquittal (R v Linehan [1921] VLR 582; R v Hoser[1998] 2 VR 535).
  17. The requirement for corroboration only applies to proving that the accused’s statement was false (R v Linehan [1921] VLR 582).
  18. The requirement for corroboration only applies where the prosecution is relying on oral evidence to prove that the accused’s statement was false. Corroboration is not required where the accused has clearly admitted that his or her statement was false (R v Townley (1986) 24 A Crim R 76; R v Sumner [1935] VLR 197).
  19. However, corroboration is required where the accused has simply made contradictory statements (R v Townley (1986) 24 A Crim R 76; R v Sumner [1935] VLR 197).
  20. See Bench Notes: Corroboration (General Principles) for information concerning the corroboration requirement.

    The false statement was made in prohibited circumstances

  21. The second element relates to the circumstances in which the false statement was made. It must have been made while on oath or affirmation, or in a declaration or affidavit (Crimes Act 1958 s314(3)). [1]
  22. For this element to be met, the oath, affirmation, declaration or affidavit must have been lawfully made or administered (R v Charles (1866) 3 WW & A’B).
  23. For an oath or affirmation to have been lawfully administered, the body that administered it must have:
    • Had the power to administer oaths or affirmations (R v Shuttleworth [1909] VLR 431. See also Evidence (Miscellaneous Provisions) Act 1958 s111); and
    • Had the jurisdiction to hear the matter before it (R v Kilkenny (1890) 16 VLR 139; R v Charles (1866) 3 WW & A’B; R v Ashby (2010) 25 VR 107; R v Dobos (1984) 58 ACTR 10. See also Evidence (Miscellaneous Provisions) Act 1958 s151).
  24. An oath will be lawfully effective even if:
    • A religious text is not used;
    • The accused did not have a religious belief, or a religious belief of a particular kind; or
    • The accused did not understand the nature and consequences of the oath (Evidence Act 2008 s24).
  25. An affidavit must be sworn before an authorised person. See Evidence (Miscellaneous Provisions) Act 1958 s123C for a list of authorised persons. See also Evidence (Miscellaneous Provisions) Act 1958 ss112, 124, 125, 126, 126A and 165 and Evidence Act 2008 s186.
  26. A statutory declaration must be signed in the presence of an authorised person (Evidence (Miscellaneous Provisions) Act 1958 ss107). See Evidence (Miscellaneous Provisions) Act 1958 s107A for a list of authorised persons.
  27. The accused must have been legally competent to take the oath or make the affirmation, declaration or affidavit (R v Kilkenny (1890) 16 VLR 139).

    The false statement was made knowingly

  28. Section 314 refers to the false statement having been made “knowingly wilfully and corruptly”. However, it is unclear what the words “wilfully and corruptly” add to the word “knowingly”. [2] Consequently, for the sake of simplicity, these Notes (and the Charge) focus solely on the requirement for knowledge. However, if in a case there appears to be a need to separately address the terms “wilful” or “corrupt”, a trial judge should do so.
  29. To have acted “knowingly”, the accused must have:
    • Actually known that the statement was false; or
    • Not believed that the statement made was true (R v Aylett (1785) 99 ER 973).
  30. This element will not be met where:
    • The accused has an honest but mistaken belief in the truth of the statement; or
    • The statement is made with inadvertence, carelessness or misunderstanding (R v Mackenzie (1996) 190 CLR 348).
  31. There is no requirement that the accused’s belief in the truth of the statement be reasonable (R v Mackenzie (1996) 190 CLR 348).
  32. A trial judge must direct the jury on the distinction between “knowingly” making a false statement and honestly or innocently making a false statement. A failure to do so could deprive the accused of the possibility of an acquittal (R v Mackenzie (1996) 190 CLR 348).
  33. Such a direction must be given even if the accused does not believe that he or she was mistaken. It is important to distinguish between honesty and accuracy. An inaccurate statement is not the same as a dishonest statement (R v Mackenzie (1996) 190 CLR 348).

    Notes

[1] This differs from the common law offence of perjury, which only applies to false statements made under oath in a judicial proceeding: see Bench Notes: Common Law Perjury.

[2] In this context, the term wilfully has been defined to mean “intentionally” or “deliberately and not inadvertently or by mistake” (R v Ryan (1914) 10 Cr App R 4; R v Millward [1985] 1 All ER 859; R v Lowe [1917] VLR 155).

Last updated: 2 December 2013

See Also

7.11.1 - Statutory Perjury

7.11.1.2 - Charge: Statutory Perjury

7.11.1.3 - Checklist: Statutory Perjury

Next up - concealers of offences.

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