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CRIMINAL CODE (ADMINISTRATION OF JUSTICE OFFENCES) AMENDMENT BILL 2005
2005
LEGISLATIVE
ASSEMBLY FOR THE AUSTRALIAN CAPITAL
TERRITORY
CRIMINAL CODE
(ADMINISTRATION OF JUSTICE OFFENCES) AMENDMENT BILL
2005
EXPLANATORY
STATEMENT
Circulated by authority of
Katy Gallagher MLA
Acting
Attorney General
Outline
The Criminal Code (Administration of Justice Offences) Amendment Bill
2005 (the Bill) amends the Criminal Code 2002 (the Criminal Code) by
inserting new chapter 7, which deals with offences directed to ensuring the
proper administration of justice in the ACT.
This Bill represents the
fifth stage in a process that began in September 2001 to progressively reform
and codify the criminal law of the ACT. The reforms are primarily based on the
Model Criminal Code (the MCC), developed by the national Model Criminal Code
Officers Committee (MCCOC) and established by the Standing Committee of
Attorneys-General. All governments committed themselves to the development of a
uniform criminal code in 1991 and through the Standing Committee of
Attorneys-General established MCCOC for that purpose. MCCOC is made up of
Territory, State and Commonwealth criminal law advisers and since 1991 embarked
on an extensive consultative program that saw the development of nine chapters
of the MCC for implementation by all Australian jurisdictions.
Since
September 2001 the Criminal Code has progressively grown in volume and to date
it consists of five chapters, which deal with a broad and diverse range of
matters. Chapters 1 and 2 deal with preliminary matters and, most importantly,
with the general principles of criminal responsibility; chapter 3 contains the
Criminal Code offences on theft, fraud, bribery and related matters; chapter 4
deals with property offences and computer crime; and the most recent addition,
chapter 6, contains the ACT’s serious drug offences.
The proposed
new chapter 7 incorporates offences based on the MCCOC chapter 7 report, issued
in July 1998 and titled “Administration of Justice Offences”
(the MCCOC report) but also includes a number of related summary offences that
have either been suggested by MCCOC or have been prepared by the department as
generic offences to replace standard offences that commonly appear throughout
the statute book. The Bill also contains some technical amendments to existing
chapters of the Code, which are discussed more fully in the body of this
Explanatory Statement.
At present, the law in the ACT that deals with
the proper administration of justice is partly contained in the Crimes Act
1900 (“the Crimes Act”) and partly in the common law. The
relevant Crimes Act offences appear mainly in Part 8 (Perjury and like offences)
and Part 9 (Accessories after the fact) but they are far from comprehensive so
that it is necessary to consult the common law in order to ascertain the full
range of conduct that is proscribed in this area of the law. Also the Crimes
Act offences that are included are generally not self-contained. For example,
section 167 of the Crimes Act provides that “a person who commits the
crime of perjury shall be liable to imprisonment for 7 years”. However,
the Act does not define perjury so that it is necessary to research the common
law in order to determine the elements that must be proved in order to establish
the offence.
The Bill will improve the accessibility and effectiveness
of the law in this area by conveniently locating the offences in one discrete
chapter of the Criminal Code and comprehensively setting out in clear language
the elements, defences and other relevant qualifications that apply to each
offence. Essentially the Bill will replace the existing Crimes Act and common
law offences with a range of specific offences that deal with the
following:
• Perjury and aggravated perjury (division
7.2.1);
• Falsifying, destroying or concealing evidence (division
7.2.2);
• Interfering with witnesses, interpreters, jurors and court
officers, including deceiving, corrupting, threatening or causing reprisals
against witnesses etc (division 7.2.3);
• Perverting the course justice
and related matters, including publications that cause a miscarriage of justice
and false accusation of an offence (division 7.2.4);
• Accessories
after the fact (clause 718);
• Summary offences related to the proper
administration of legal proceedings (Part 7.2).
The indictable offences
in chapter 7 will apply more broadly then is currently the case under ACT law
(common law). At present, the relevant ACT law, such as perjury, requires the
testimony to be given in or in connection to judicial proceedings. On
the other hand, the chapter 7 offences refer to “legal proceedings”,
which has an extended meaning to include any “proceeding in which evidence
may be taken on oath” (or affirmation). Accordingly, administrative
proceedings, as well as judicial proceedings, will be caught by the offences
provided that they include the power to take evidence on oath or affirmation.
This is consistent with the current position in most Australian jurisdictions
and will avoid a need for the courts to consider the often-complex question
about whether a tribunal or other entity was exercising judicial powers in order
to determine the applicability of the offences under this
chapter.
Division 7.2.1 contains the perjury and aggravated perjury
offences in the chapter. MCCOC did not recommend the inclusion of an aggravated
perjury offence but one currently exists in the Crimes Act and given the
mischief that it is directed against, it is appropriate to retain it. The Bill
offences will clearly set out the elements that apply, including that the sworn
statement must be false, in fact, and that the fault element that applies is
recklessness about the falsity. This contrasts with the less clear common law
formulation that the defendant “does not believe his or her statement to
be true”. Clause 704 in this division will clarify some important
ancillary matters concerning perjury, including that it does not matter whether
the sworn statement relates to something material in the proceedings or whether
it is admitted into evidence (provided that it is made in or for legal
proceedings) and that a statement of an opinion that is not genuinely held is a
false statement for the purposes of the perjury offences. In accordance with
the current law people who lack the capacity to understand the obligation to
give truthful evidence (for example, children and the mentally impaired) will
not to be subject to the perjury offences but other categories of
“incompetent” witnesses (for example a juror who mistakenly gives
evidence in proceedings about matters affecting the conduct of the proceeding)
will be liable if they give false sworn evidence. Further, the old common law
rule that a person cannot be convicted for perjury on the uncorroborated
evidence of one witness will no longer apply, essentially because the rule is
largely ineffective in practice and there are no sufficient reasons to justify a
distinction in this regard between perjury and other serious offences. The
division will also clarify the application of the law of perjury with respect to
interpreters in legal proceedings by including specific offences for
interpreters who give false or misleading interpretations and are reckless about
that fact.
Divisions 7.2.2 and 7.2.3 relate to conduct that generally
falls under the common law offence of perverting or attempting to pervert the
course of justice. Although the Bill also includes a general offence of
perverting the course of justice (clause 714) it is important to clearly
identify and define the conduct proscribed so that there can be no doubt about
the seriousness with which the law views these matters. Also, delineating the
ways in which justice can be perverted in the form of separate statutory
offences will enhance the community’s understanding of the offences
concerned. The division includes offences of making or using false evidence
(clause 705), destroying or concealing evidence (clause 706), corruption
(bribery) of or by witnesses, interpreters, jurors and others involved in legal
proceedings (clause 707), preventing the production of evidence in legal
proceedings and the attendance of witnesses, interpreters, jurors and others
(clauses 711 and 710) and deceiving, threatening or taking reprisals against
witnesses, interpreters, jurors and others (clauses 708, 709, 712 and 713).
Division 7.2.4 includes the general offence of perverting the course of
justice. It is important to include this general offence to cover criminal
behaviour that may not be caught by the specific offences so that there are no
gaps in this very important area of the law. The Bill offence will clarify
some matters that are not clear under the corresponding common law offence,
including the fault element, which under the Bill is an intention to pervert the
course of justice. The division also includes the offence of being an accessory
after the fact. That is, where a person assists someone who has committed an
offence to either escape justice or realise the proceeds of his or her crime.
The Bill offence closely follows the corresponding Crimes Act offence in section
181 although it has a wider scope in that it applies where a person assists
someone he or she “believes” committed an offence, whereas the
Crimes Act requires proof of knowledge.
Part 7.2 contains summary
offences that have either been suggested in the MCCOC report or have been
included to replace commonly repeated offences in the statute book that are
related to the administration of justice. The summary offences suggested by
MCCOC are the offences of pleading guilty in another name (clause 719) and
obstructing or hindering an investigation (clause 726). The generic offences
have generally been formulated in terms that are similar to the common offences
that they are replacing. They include offences of failing to attend legal
proceedings to give evidence (clause 720), failing to produce documents and
other things (clause 721), failing to take the oath (clause 722), failing to
answer questions (clause 723), a summary offence of giving false or misleading
evidence (clause 724) and obstructing legal proceedings (clause 725). The
inclusion of these offences will simplify and reduce the size of the statute
book by eliminating unnecessary duplication and will also advance an important
objective of the Criminal Code, which is to standardise and centralise offences
so that they are more easily understood and accessible.
Part 7.4
contains procedural provisions that are related to the offences in chapter 7 and
essentially follow the recommended provisions in the MCCOC report.
NOTES ON CLAUSES
Clause 1 Name of Act
This clause explains that the name
of the Act is the Criminal Code (Administration of Justice Offences)
Amendment Act 2005
Clause 2 Commencement
This clause
explains that the Bill will commence 28 days after the day it is
notified.
Clause 3 Legislation amended
This clause explains that the Bill will amend the Criminal Code
2002 (“the Criminal Code”) and the Acts and Regulations
mentioned in Schedule 1 of the Bill.
Clause 4 Delayed application of chapter 2 to certain
offences, sections 8(1) and (3)
Sections 8 and 10 of the Criminal Code refer to certain provisions of
chapter 2 as “immediately applied provisions”. They are the
provisions that apply to all ACT offences, regardless of whether the offences
were created before of after 1 January 2003. This clause simply changes the
expression “immediately applied provisions” to “applied
provisions”. This will not alter the effect of sections 8 and 10.
However, it is a more accurate expression now that part 2.5 of chapter 2 has
been added to the list of “applied provisions” and did not
“immediately” apply when chapter 2 was first enacted. See also the
amendment in clause 5 below and the note with respect to part 2.5.
Clause 5 Section 10
The main purpose of this clause is to
amend the “default application date” in section 10 from 1 January
2006 to 1 July 2007. Section 10 currently provides, in effect, that chapter 2
of the Criminal Code will generally apply to all ACT offences created after
1 January 2003 but that it will not apply to pre January 2003 offences
until the “default application date”. It has been necessary to
delay the application of chapter 2 to pre January 2003 offences to
allow time to “harmonise” them to conform to the general principles
of criminal responsibility in chapter 2. Although good progress has been made
harmonising the pre January 2003 offences, there is still some considerable work
to be done and it is therefore necessary to change the default application date
to 1 July 2007. New section 10 will also use the new expression “applied
provisions” and not “immediately applied provisions”. See the
commentary to clause 4 above.
Clause 6 Establishing guilt of
offences, section 12
This is a minor technical amendment to section
12 of the Criminal Code and should be read with clauses 7 and 8 of the Bill. The
clause will effectively identify the current provisions in section 12 as
subsection (1), and clause 7 will insert a new provision that will be subsection
(2).
Clause 7 New section 12(2)
This clause should be
read with clauses 6 and 8 of the Bill, which together will amend section 12 and
repeal section 37 of the Criminal Code. The amendments are technical in nature
and are aimed at clarifying the intended effect of what is currently subsection
37(1) of the Criminal Code. Essentially the clauses will remove section 37 in
its entirety and relocate a modified version to new subsection 12(2). The
Commonwealth has recently made similar amendments to section 9.3 of its Criminal
Code (which corresponds to section 37), however, it has not relocated its
equivalent of subsection 37(1). See item 5 of schedule 4 of the Commonwealth
Crimes Legislation Amendment (Telecommunications Offences and other Measures)
Act (No. 2) 2004. It is considered, however, that the Commonwealth’s
new section 9.3 and new subsection 12(2) of the Criminal Code are to the same
effect and will operate in the same way.
The purpose of these
amendments is to deal with an issue commonly referred to as the “knowledge
of law” issue. Subsection 37(1) of the Criminal Code provides that a
person can be criminally responsible for an offence even though the
person is mistaken about or ignorant of the existence or content of a law that
creates the offence. However, subsection 37(2) qualifies this by positively
asserting that a person is not criminally responsible if the offence is
either (i) expressly or “impliedly” to the contrary effect or (ii)
the person’s ignorance or mistake negates a fault element for a physical
element of the offence. This is problematic because subsection 37(2) (and
section 22 of the Criminal Code) could operate to mean that a simple
cross-reference in an offence to another provision impliedly displaces the
general rule in subsection 37(1) and requires the prosecution to prove that the
person knew or was aware of the existence (or content) of the provision referred
to. For example, it may be an offence for a person to contravene a direction
given under “section 5 of the Act”. Generally the prosecution is
not required to establish that the person knew or was aware that the direction
was given under a particular section of an Act – only that the person was
given a direction. If the offence were read to imply that the person needed to
have knowledge that the direction was made pursuant to “section 5 of the
Act”, the prosecution would be required to prove that element. In most
cases this would be difficult or impossible.
Cross-referencing in
legislation is a common drafting device and, in most cases, such an
interpretation would be contrary to the intended effect of the particular
offence provision. To date, this problem has been overcome by applying
“absolute liability” to the cross referencing element but this makes
drafting more complex and involves over-use of a term that should be used
sparingly. A longer-term solution is required. Accordingly, these amendments
will clarify the operation of the general principle (currently in subsection
37(1)) and ensure that the court is not compelled to require proof of knowledge
of the law or the content of a law unless the relevant offence provision
expressly requires it. “Expressly” will be evidenced where a fault
element (such as “knowledge”, “recklessness” or
“intention” etc) is stated with respect to the relevant physical
element of the offence to require awareness about the law. For example, the
relevant provision could state that a person commits an offence “if the
person intentionally contravenes a direction made under section 5 and the
person knows that the direction was made under section 5”. Unless
subsection 12(2) is expressly excluded the general principle in that provision
will operate and the court will not be compelled to require proof of an
awareness of the law or the content of a law.
Clause 8 Mistake or ignorance of law creating
offence, section 37
This clause repeals section 37 of the Criminal Code but a modified form
of the section will be reinserted by clause 7 of the Bill as new subsection 12
(2) of the Criminal Code (see the commentary to clause 7). It is considered
preferable to relocate the general principle in subsection 37(1) because it is
an important rule about proof of fault and therefore more relevantly placed in
part 2.2 of the Code.
Clause 9 Complicity and common purpose, new section
45(8) to (11)
The purpose of this amendment is to clarify the operation of section 45 of
the Criminal Code. Subsection (1) of that section provides that a person is
taken to have committed an offence if the person aids, abets, counsels or
procures the commission of the offence “by someone else”. In cases
such as bar room brawls it is often unclear who committed the relevant offence
and who aided or abetted etc that offence (that is, who struck the blow that
caused grievous bodily harm). Since section 45 requires proof of aiding or
abetting etc someone else’s offence a prosecution under that provision can
fail if the matter is unclear. The proposed amendment will ensure that in such
cases a person can be convicted under section 45 of the Criminal Code provided
that the jury is satisfied beyond a reasonable doubt that the defendant either
committed the offence or aided or abetted etc the offence but can’t
determine which. It is important to note that proposed new subsection 45(8) is
not an alternative verdict provision. The effect of the subsection - that a
person can be found to have committed an offence on a different basis - is
contemplated by subsection 45(1).
New subsection (9) is a transitional
provision that provides that new subsection (8) will only apply to prosecutions
started after the commencement of the subsection (which is 28 days after
notification). The amendment will not apply to prosecutions already commenced,
but could apply to an offence committed before the provision commences (if the
prosecution is not brought until after commencement).
New subsections
(10) and (11) are mechanical provisions that provide, in effect, that the
transitional provision in subsection (9) will expire after 1 year, but that it
will continue to have legal effect after it has expired.
Clause 10 Obtaining financial advantage from the
Territory, section 335(1)(a)
Section 335 of the Criminal Code contains two offences of obtaining a
financial advantage. There is some concern that, as currently drafted, section
335 does not make it clear that “obtains a financial advantage” in
paragraphs (1)(a) consists of a conduct element and a result element.
Accordingly, this provision inserts a new paragraph (a) that makes it clear that
there is a conduct and a result element in the offence. Although clarified, the
substance and effect of the offence is not changed by this amendment.
Clause 11 Section
335(3)(a)
Like clause 10 and for the same reasons this provision
will insert a new paragraph 335(3)(a)
to make it clear that there is a conduct and a result element in the
offence in subsection 335(3).
Clause 12 New section 336A
This clause will insert a new
offence in chapter 3 of the Criminal Code relating to the making of false
statements on oath or in a statutory declaration. Since the offence does not
require the false statement to be made in relation to legal proceedings it is
more appropriate for inclusion in chapter 3 then chapter 7.
The clause
provides that a person commits an offence if he or she makes a false statement
on oath or in a statutory declaration and the person knows that the statement is
false. The maximum penalty is five years imprisonment or 500 penalty units
($50,000) or both, which accords with the maximum penalty for the similar
offence in section 170 of the Crimes Act 1900 (“the Crimes
Act”), which this offence will replace.
The dictionary of the
Legislation Act 2001 (“the Legislation Act”) defines
“oath” to include an affirmation and also defines “statutory
declaration” as a statutory declaration made under the Commonwealth
Statutory Declarations Act 1959. Although that Act currently operates in
the ACT and will continue to do so, it is appropriate for the ACT to have its
own offence for making a false statutory declaration. However, this offence
will apply to any false statement on oath, whether or not it is made in a
statutory declaration.
Clause 13 New chapter 7
This
clause will insert new chapter 7 in the Criminal Code
Chapter
7 Administration of Justice Offences
Part 7.1 Interpretation for
chapter 7
Clause 700 Definitions for chapter
7
This part contains definitions that apply throughout the whole
of chapter 7.
Cause –This definition explains that where
an offence refers to “causes” a detriment or another result, such as
in the offence of causing a detriment in clause 712, the person will be taken to
cause the detriment etc if his or her conduct substantially contributes to the
detriment or other result.
Evidence – this clause gives an
extended meaning to the terms “evidence” and is intended to ensure
that the term encompasses the statements and things etc that could be used as
evidence in legal proceedings as well as anything that has been admitted into
evidence. The term is used extensively throughout chapter 7, including sections
705 (making or using false evidence), 706 (destroying or concealing evidence),
707 (corruption in relation to legal proceedings), 708 (deceiving witnesses
etc), 709 (threatening witnesses etc), 711 (preventing production of thing in
evidence), 719 (failing to attend) and 721 (failing to take oath).
Interpreter – This clause clarifies the meaning of the term
“interpreter” for the purposes of the offences in this chapter. It
provides, in effect, that in addition to the plain English meaning of that term,
the expression also includes a person who interprets signs or other things made
or done by someone who cannot speak adequately for the purpose of giving
evidence in legal proceedings. For example, a person who interprets sign
language in legal proceedings for someone who is unable to speak. A number of
offences in part 7.2 of this chapter apply with respect to interpreters,
including perjury and aggravated perjury (clauses 702(2) and 703(2)), corruption
in relation to legal proceedings (clauses 707(1) and (2)) and the offences of
deceiving, threatening, taking reprisals against and preventing the attendance
of witnesses, interpreters or jurors (clauses 708, 709, 710 and 712).
Law enforcement officer – This definition is
important for the offences in clauses 715 (false accusation and false charges),
716 (compounding) and 725 (obstructing or hindering an investigation), which
apply with respect to “law enforcement officers”. The term is
defined broadly so that in addition to the ACT police the term also means the
police of another Australian or foreign jurisdiction; a person exercising a law
enforcement function for the Australian Customs Service or the Australian Crime
Commission; the Attorneys-General of the ACT and another Australian
jurisdiction; the director of public prosecutions (“the DPP”), or a
person performing a similar function under a law of another Australian
jurisdiction; a person employed in the office of the DPP or a similar entity
established under a law of another Australian jurisdiction; any other person
responsible for the investigation or prosecution of offences against a territory
law, or a law under another Australian jurisdiction; and a lawyer to the extent
that she or he is engaged to prosecute offences against a territory law, or a
law of another Australian jurisdiction.
Statement - This term
appears in the context of the expression “sworn statement” in
clauses 702 (aggravated perjury), 703 (perjury), 704 (ancillary provisions
relating to perjury and aggravated perjury) and 723 (giving false or misleading
evidence) and also in the context of the expression “unsworn
statement” in clause 723. The provision explains that the term means any
statement made orally, in a document or in any other way. A person who
states something using sign language, for example, would be caught by this
definition.
Sworn statement – This expression appears in
clauses 702 (aggravated perjury), 703 (perjury), 704 (ancillary provisions
relating to perjury and aggravated perjury) and 723 (giving false or misleading
evidence). The provision explains that the term “sworn statement”
means a statement that is made or verified on oath (such as oral testimony or a
statement made in an affidavit). It is important in this context to have regard
to the dictionary definition of “oath” in the Legislation Act, which
provides that that term includes an affirmation, a declaration and a
promise.
Subpoena - This definition is relevant to
the offences in clauses 719 (failing to attend a legal proceeding) and 720
(failing to produce document or other thing) of part 7.2 of chapter 7. The
offences in part 7.2 (including sections 719 and 720) are intended to operate as
generic offences to replace the numerous similar offences in the statute book.
Since the existing offences apply to summonses and notices as well as subpoenas
the term “subpoena” has been defined to include a summons or notice
(however described) issued by an entity for a legal proceeding before the
entity.
Witness – This definition makes it clear that the
term “witness” can include a person who has not been subpoenaed as a
witness. The definition has been included primarily for the purposes of
the offence in clause 710(a). The definition is not directly relevant to the
offences in clauses 707 to 709 because they will apply if the defendant has the
relevant intention, even if, for example, the person he or she bribes not to
attend as a witness, is not yet a witness in the formal sense. However, this
definition has been included in the general definitions for chapter 7 so that if
for some reason the status of a person as a witness is put in issue this
extended definition will apply.
Dictionary definitions
– clauses 14 to 21 of the Bill insert a number of definitions in the
dictionary of the Criminal Code that are relevant to the offences in this
chapter and it is convenient to discuss them at this stage of the Explanatory
Statement.
Create – This definition will replace the
existing definition of that term in the dictionary of the Criminal Code and
although it is substantially to the same effect, it will bring new subsection
12(2) of the Criminal Code (see the commentary to clause 7) more closely into
line with the Commonwealth equivalent of that provision (that is, section 9.3).
Benefit – This term is an element in the offences in
clauses 707 (corruption in relation to legal proceedings) and 716 (compounding
of offence). Because these offences are similar to the bribery and other
corrupt benefit offences in division 3.7.2 of the Criminal Code (which employ
the same definition), it is appropriate that the same meaning for the term
“benefit” should apply. Accordingly, the term is defined to include
any advantage and is not limited to property or money. This is appropriate
since bribes can be paid by many different means.
Detriment -
This term is broadly defined to include any disadvantage and is not limited to
personal injury or to loss or damage to property. This term appears in clauses
709 (threatening witnesses, interpreters or jurors) and 712 (reprisal against
person involved in proceeding).
Threat – This definition
is relevant to the offences in clauses 709 (threatening witnesses, interpreters
or jurors) and 712 (reprisal against person involved in proceeding). The clause
explains that a threat can be made by any conduct, not just speech, and can be
explicit or implied, conditional or unconditional.
Clause 701 Meaning of legal proceeding for chapter
7
This is probably the most important definition in the Bill because most
of the offences in chapter 7 will only apply if the conduct relates to
“legal proceedings”. Subclause (1) sets out three categories of
proceedings that are legal proceedings for this chapter. They are (a)
proceedings in which evidence may be taken on oath; (b) proceedings in which
judicial power is exercised; and (c) a proceeding or anything else that a law
declares to be a legal proceeding for this chapter. In contrast to category (c)
the concluding words of subclause (1) provide, in effect, that a law may declare
that a proceeding (or other thing) is not a legal proceeding for chapter
7, even if it otherwise satisfies the words in paragraphs (a), (b) or (c).
Although, category (c) and these concluding words may not be strictly necessary,
they make it clear that there is always the legislative option to apply or
disapply chapter 7 to proceedings etc when it is considered appropriate. The
provisions also identify an important option for clarifying the application of
chapter 7 in circumstances where that may not be entirely clear.
It is
important to bear in mind, with regard to category (a) of the definition of
legal proceedings, that there may be a power to take evidence on oath in certain
proceedings, even if there is no express power to do so. This is because of
section 178 of the Legislation Act, which provides that a court, tribunal or
other entity (including a natural person) authorised by law to hear and decide a
matter has the power to receive evidence and administer the oath.
Subclauses (2) and (3) add important clarifications to the definition of
“legal proceeding” in subclause (1). Subclause (2) provides that a
reference to legal proceedings in chapter 7 is not only a reference to
proceedings that have started but also to proceedings that may start in the
future. Similarly, subclause (3) provides that “in” a legal
proceeding includes for the purposes of a legal proceeding. These provisions
will ensure that people who perpetrate abuses of the legal system, whether it is
done outside of the actual proceedings or before they have commenced, will be
caught by the offences in chapter 7.
Currently in the ACT the law
relating to the administration of justice is generally governed by the common
law, which in the case of perjury, for example, requires the relevant testimony
to be given in or in connection to judicial proceedings (in the ordinary
sense of that term) before a competent tribunal. The central notion of
“judicial proceedings” in that sense is that they are proceedings by
a body authorised to conduct a hearing for the purpose of determining any matter
or thing. This notion is incorporated in paragraph (b) of the definition of
legal proceedings in subclause (1). However, paragraph (a) has also been
included because it would be rare for proceedings that are essentially judicial
in nature not to also include the capacity to take evidence on oath. A major
advantage of this is that it will generally make it unnecessary for the courts
to go into the comparatively more complex question about whether the tribunal or
other entity was exercising judicial powers in order to determine the
applicability of the offences under this chapter. On the other hand this will
extend the reach of these offences (in comparison to their equivalents at common
law and in comparison to the ACT law) to administrative/quasi judicial
proceedings as well as judicial proceedings. However this extension is
consistent with most other Australian jurisdictions and the relevant MCCOC
recommendation.
Subclause (4) has been inserted to make it clear that
although declarations under subclause (1) will appear in some legislation but
not all, the absence of a declaration does not imply that the proceedings under
the relevant legislation are or are not “legal proceedings” for
chapter 7.
Part 7.2 Indictable offences for chapter
7
Division 7.2.1 Perjury
This division will codify the law
of perjury and aggravated perjury in the ACT.
Clause 702 Aggravated perjury
This clause sets out the elements for the offences of aggravated
perjury. The MCC does not include an aggravated perjury offence but the Crimes
Act does (section 168) and it is considered appropriate to retain it especially
given the particularly serious nature of the conduct section 168 is directed
against. The Bill offences are based on the MCC perjury offence in section
7.2.1 and section 168 of the Crimes Act.
Subclause (1) provides that a
person commits the aggravated perjury offence if the person makes a false sworn
statement in a legal proceeding with the intention of procuring his, her or
someone else’s conviction or acquittal for an offence that is punishable
by imprisonment and the person is reckless about whether the statement is false.
The maximum penalty is 14 years imprisonment or 1400 penalty units ($140,000) or
both. This offence and the offence in subclause (2) will replace the aggravated
perjury offence in section 168 of the Crimes Act, which also applies a maximum
prison term of 14 years.
At present the law of perjury in the ACT is
primarily governed by the common law. Although the Crimes Act includes statutory
offences of perjury (section 167) and aggravated perjury (section 168) neither
define what perjury is. Under current ACT law (common law) a person commits
perjury or aggravated perjury if, amongst other things, he or she makes a
statement on oath (or affirmation etc) in connection with a judicial proceeding.
The perjury offences in the Bill are similar, though the term “legal
proceedings” is wider then “judicial proceedings” under the
common law. Accordingly, for the Bill offences to apply the relevant statement
must be a “sworn statement” made “in a legal
proceeding”, in the sense in which those terms are defined in clauses 700
and 701. That is, the statement (which can be oral, written or communicated in
some other way, such as sign language) must be made or verified on oath (which
includes an affirmation, a declaration and a promise) for the purposes of legal
proceedings, including proceedings that have started, as well as proceedings
that may be started (see subclause (2)). Thus the chapter 7 perjury offences
can apply to false sworn affidavits and statutory declarations even if they are
not put into evidence (which is also consistent with current ACT law) provided
that they are made in or for the purposes of legal proceedings (this is also
confirmed by clause 704(1)(b) of the Bill).
To commit perjury at
common law it is also necessary to prove, amongst other things, that when the
defendant made the relevant statement he or she either knew that it was false or
did not believe it to be true and it is no defence that the statement was in
fact true. In contrast, the perjury offences in the Bill will require the
prosecution to prove that the defendant’s statement was in fact
false (see, for example, clause 702(1)(c)) and that he or she was reckless about
whether it was false. This is consistent with the current law of perjury in
almost every Australian jurisdiction (including the Commonwealth) and given the
seriousness of the offences concerned and the level of the prison terms that can
be imposed the alternative position is considered inappropriate.
Even if
a person makes a sworn statement in legal proceedings that is false a
person will not be liable for the perjury offences in the Bill unless he or she
was reckless about whether the statement was false. It is important to note in
this context that although clause 702(1)(d) (and its equivalents in this and
clause 703) only refers expressly to “recklessness”, section 20(4)
of the Criminal Code provides that if recklessness is a fault element for a
physical element of an offence, proof of intention, knowledge or recklessness
satisfies the fault element. Accordingly, like the present ACT position, if the
defendant “knows” that the statement is false, instead of just being
reckless about whether it is false, he or she will be caught by the perjury
offences in the Bill.
However, in cases where the defendant does not
know that the statement is false, the fault element that applies,
“recklessness”, is conceptually different to the fault element that
applies at common law; namely that the defendant “did not believe his or
her statement to be true”. This, of course is not to say that the common
law requires a positive belief that the statement is false but rather that a
lack of belief in the truth of the statement will suffice. In
comparison, for recklessness to apply in the relevant context of these offences
the defendant must be aware of a substantial risk that the circumstance exists
(namely that the statement is false) and having regard to the circumstances
known to him or her, it is unjustifiable to take the risk. It is important to
note that the term “substantial risk” in the definition of
“recklessness” is not synonymous with “greatest risk” in
the sense that it is more probable or likely that the statement is false but
rather the term is more closely linked to the notion of a significant risk that
the statement is false. Therefore, if the defendant lacks a belief in the truth
of the statement (either because he or she has not enquired about the truth or
because his or her conviction falls short of a belief that it is true) it is
open to find that the defendant was aware of a substantial risk that the
statement was false.
In addition to the elements discussed above
(which are common to all the perjury offences in the Bill) the aggravated
perjury offence in subclause (1) also requires proof that the defendant made the
false sworn statement with the intention of procuring his, her or someone
else’s conviction or acquittal for an offence that was punishable by
imprisonment. Provided that the defendant had that intention it is not
necessary for someone to have actually been convicted or acquitted. However,
the false sworn statement must have been made to procure a conviction etc for an
offence that in fact allowed for punishment by imprisonment and the
defendant must have been reckless about that circumstance.
Consistent
with the recommended MCC perjury offences, subclause (2) contains an aggravated
perjury offence (based on the general aggravated perjury offence) specifically
directed at interpreters (defined in clause 700) in legal proceedings. It
provides that an interpreter commits the offence if by a sworn statement he or
she gives a false or misleading interpretation of a statement or other
thing in a legal proceeding, with the intention of procuring someone
else’s conviction or acquittal for an offence that is punishable by
imprisonment and the interpreter is reckless about whether his or her sworn
statement is false or misleading. The maximum penalty is 14 years imprisonment
or 1400 penalty units ($140,000) or both, which is the same as the maximum
penalty for the aggravated perjury offence in subclause (1).
Although
there is currently no specific ACT offence of perjury with respect to
interpreters, the preferred view is that the common law of perjury applies to
interpreters. MCCOC considered that the interests of justice require a
specific offence for interpreters who knowingly or recklessly give
misleading (as well as false) interpretations in a legal proceeding.
This, therefore, will extend the current ACT law of perjury with respect to
interpreters and is an important distinguishing feature of the interpreter
related perjury offences in the Bill.
MCCOC gave the following reason
(at page 33 of its Report) for extending the interpreter offences to misleading
interpretations:-
“The Discussion Paper expressed the view that an
interpreter in judicial proceedings may provide an interpretation that, while
literally correct, is nevertheless, in its context, significantly misleading ...
The case of an interpreter giving a misleading interpretation can be
distinguished from that of an ordinary witness who gives misleading evidence.
The interpreter is ordinarily the only person in the court room who knows what
the witness meant and the court, including opposing counsel, must rely on that
interpretation. In the case of an ordinary witness giving misleading evidence,
opposing counsel will have the opportunity in cross-examination to bring out the
misleading nature of the evidence.”
The Gibbs Committee in its
Review of Commonwealth Criminal Law (4th interim Report, 1990) also
favored an offence for interpreters that would extend to misleading
interpretations and made the following remarks (at paragraph 6.25) in support of
an interpreter specific perjury offence:-
“All the submissions made
to the Review Committee agreed that the proposed consolidating law should
contain provisions of the kind suggested by the United Kingdom Law Commission.
The Review Committee is not aware that the need for such a provision has yet
manifested itself in Australia, but considers that since interpreters play a
role of great importance in proceedings before courts and tribunals now that
Australia is a society many of whose members do not speak English, or do not
speak it fluently, some such provision ought to be made. The Review Committee
accordingly recommends that the proposed consolidating law should contain
provisions to the effect that an interpreter sworn in a judicial proceeding who
intentionally or recklessly gives a misleading interpretation should be guilty
of the offence of perjury.”
The interpreter related perjury
offences in the Bill only apply to interpretations made by “sworn
statements” (as that term is defined in clause 700) in legal proceedings
but importantly, the offences are not limited to interpretations of sworn
statements because an interpreter may be called on to interpret a letter (for
example), which, while admitted in evidence, has not been verified on oath or
affirmation. However, like the other perjury offences in the Bill the
prosecution is required to prove that the interpreter’s sworn statement
was in fact false or misleading (see, for example, clause 702(2)(c)) and
that he or she was reckless about that fact. Also for the aggravated offence it
must be established that the interpreter made the false or misleading sworn
statement with the intention of procuring someone’s conviction or
acquittal for an offence that is punishable by imprisonment. Provided that the
defendant has that intention it is not necessary for someone to have actually
been convicted or acquitted. However, the false or misleading interpretation
must have been made to procure a conviction etc for an offence that in
fact allowed for punishment by imprisonment and the interpreter must have
been reckless about that circumstance.
When considering the offences in
this clause and clause 703 it is important to also have regard to the commentary
to clause 704, which contains some important qualifications to the perjury and
aggravated perjury offences in this Bill, and also the commentary to clauses 726
and 727, which contain related alternative verdict and procedural provisions.
Clause 703 Perjury
This clause contains the core perjury offences in the Bill, which
conform to the model offences in the MCC. Subclause (1) provides that a person
commits perjury if he or she makes a false sworn statement in a legal proceeding
and is reckless about whether the statement is false. Similarly, subclause (2)
provides that an interpreter commits perjury if by a sworn statement he or she
gives a false or misleading interpretation of a statement or other thing
in a legal proceeding and is reckless about whether the interpreter’s
sworn statement is false or misleading.
The elements of these
offences have been explained above, however, it is worth noting that, like the
offences in clause 702, the prosecution will be required to prove that the sworn
statement was in fact false (in the case of the general perjury offence)
or false or misleading (in the case of the interpreter offence). Also,
these offences do not include the aggravating elements of intention to procure a
conviction or acquittal and consequently the maximum penalties are lower. That
is, for both the offences in this clause the maximum penalty is seven years
imprisonment or 700 penalty units ($70,000) or both. Although this is lower
than the recommended MCC penalty of 10 years it is the same as the maximum
prison term that applies in section 167 of the Crimes Act (which these offences
will replace). The lower penalty is justified because the MCC does not include
aggravated perjury offences so that the more extreme cases of perjury (where the
defendant seeks to procure someone’s wrongful conviction or acquittal) are
expected to be dealt with under the new aggravated offences, which apply a
maximum prison term of 14 years.
Clause 704 Additional provisions about perjury and
aggravated perjury
This clause contains some important qualifications to the perjury and
aggravated perjury offences (hereinafter referred to as perjury) in this Bill.
Paragraph 1(a) of this clause provides that to establish perjury under
chapter 7 it does not matter whether the false sworn statement relates to
something material in the proceedings. In contrast, the current ACT law of
perjury requires that the sworn statement must be material to the proceedings.
In MCCOC’s view the materiality rule is not appropriate because it is
important for witnesses to tell the truth without reservation, even with regard
to matters they consider immaterial and, in any case, the materiality of a
matter is often not apparent until late in the proceedings. Also, if the
falsehood was about something relatively insignificant, the prosecutor can
decline to prosecute (see clause 726) but if he or she considers it serious
enough to proceed, the court can take the materiality of the false statement
into account on sentencing.
Paragraph 1(b) explains that to establish
perjury under chapter 7 it does not matter whether the sworn statement was
admitted into evidence in the proceedings. This is consistent with current ACT
law and with the terms of the perjury offences in the Bill. That is, the
perjury offences apply to sworn statements made “in legal
proceedings”, which is defined to include proceedings that have not yet
started and “for the purposes of the legal proceedings” (see clause
701). Therefore if a false statement in an affidavit comes to notice before the
affidavit is admitted into evidence the perjury offences will apply to it.
Paragraph 1(c) explains that to establish perjury under chapter 7 it
does not matter that the court or other entity that dealt with the legal
proceedings in which the sworn statement was made did not have jurisdiction to
deal with the matter or was not properly constituted or was not sitting in the
proper place. Under current ACT law perjury cannot be committed if the court or
tribunal lacks jurisdiction, however, the position with regard to the proper
constitution and venue of the court etc is less clear. In MCCOC’s view
paragraph 1(c) is justified because the substance of perjury is the deliberate
telling of lies for the purpose of legal proceedings. If a witness considers
that the tribunal is not properly constituted or lacks jurisdiction the remedy
is to object to the proceedings. Also, one of the more important features of
chapter 7 is that it will apply perjury to evidence taken by entities that are
not courts and whose jurisdiction might be narrowly defined. In such cases a
person’s culpability ought not to turn on issues about whether the
tribunal etc was technically acting within power, or properly constituted or
sitting in the proper place.
Paragraph 1(d) provides that it is
immaterial to the perjury offences in chapter 7 that the person who made the
false sworn statement was not competent to give evidence in the legal
proceedings. However, this provision should be read with subclause (2), which
provides that a person does not commit perjury if he or she is not competent to
give evidence under section 13 of the Commonwealth Evidence Act 1995
(“the CEA”).
The CEA (which applies in the ACT)
distinguishes between two groups of people who are not competent to give
evidence. The first group is covered by section 13 of the CEA and concerns
those who lack the capacity to give sworn evidence because they are incapable of
understanding the obligation to give truthful evidence (essentially children and
the mentally impaired). The second group concerns those who are not competent
to give evidence on other grounds. Sections 16 and 17 of the CEA cover the
second group. They provide that a judge or juror in a proceeding is not
competent to give evidence in the proceeding about matters affecting conduct of
the proceeding and that a defendant in a criminal proceeding is not competent to
give evidence as a witness for the prosecution. In the past a person was
generally considered incompetent to give evidence for or against his or her
spouse but this is no longer the law in the ACT (section 12 of the CEA).
The combined effect of paragraph 1(d) and subclause (2) of this provision is
that a person who is not competent to give evidence because of lack of
capacity is not liable to perjury under chapter 7 but a person who is not
competent on other grounds is liable. In contrast the current law in the ACT is
that any incompetent witness (whether because of incapacity or otherwise) who
gives sworn evidence by mistake cannot be indicted for perjury.
Subclause (2) is consistent with the current law in the ACT and in any
case it is clearly inappropriate for a person who lacks the capacity to
understand the obligation to give truthful evidence to be exposed to the
possibility of prosecution for perjury. On the other hand, the witnesses in the
second group of incompetence are aware of the seriousness of their conduct and
should not escape liability for untruthful testimony on a technicality of this
kind.
Paragraph 1(e) is similar to paragraph 1(c) in that it makes it
clear that it is immaterial to the perjury offences that there is a
“formal defect” in the documentary evidence on which the charge is
based (e.g. an affidavit that does not comply with the court rules). For this
provision “formal defect” is defined in subclause (7) to include any
formal error, any irregularity and any non compliance with a rule of court,
approved form or rule of practice. Paragraph 1(e) is similar in effect to
section 172 of the Crimes Act, which it will replace.
Subclause (3)
provides that if the trier of fact in a perjury trial is satisfied beyond
reasonable doubt that the defendant has made two sworn statements that are
irreconcilably in conflict but cannot decide which statement is false it can
find the person guilty of perjury. This provision is essentially the same as
section 171 of the Crimes Act, which it will replace. The provision is
important otherwise in cases where a witness makes two sworn contradictory
statements the prosecution would have to prove which statement was false.
Subclause (4) explains that it does not matter whether the two statements were
made in the same proceedings or different proceedings, however, both statements
must have been sworn statements.
Subclause (5) explains that a
statement of an opinion that is not genuinely held is a false statement for
perjury in chapter 7. This is currently the law in the ACT.
Subclause (6) explains that to establish perjury under chapter 7 it is
not necessary for the evidence of the perjury to be corroborated. Currently the
law in the ACT is that a person cannot be convicted for perjury on the
uncorroborated evidence of one witness. In support of its recommendation not to
include the requirement for corroboration MCCOC quoted (at page 55 of its
report) the following passage from the 1988 Murray Report (The Criminal Code: A
General Review):
‘It is also to be noted that the requirement of
law can work with great artificiality, and does not really achieve the end which
would appear to be sought. We may take the requirement in cases of perjury or
false statements on affidavit, as example. In such cases, which are concerned
with the deleterious effect on the administration of justice caused by the
telling of a relevant lie, it is apparently thought necessary to take care that
the accused is not convicted upon such an allegation made by a single witness
who may himself be telling a lie, and certainly it is clear that in practical
terms, care would need to be taken in that area to examine the motives of such
an accuser, and consider whether that might in fact be the case. However, the
requirement for corroboration does not achieve that result. Perjury cases are
usually proved either by ample independent evidence demonstrating the falsity of
the witness’s account on oath, or by evidence of admissions made by the
accused out of Court to the effect that his former evidence was indeed a lie. In
the latter case the requirement for corroboration is satisfied by the simple
expedient of calling two police officers to testify as to those admissions, the
one to corroborate the other. That satisfies the requirement of law, but it may
leave the Court no nearer to determining where the truth of the matter lies and
in no way assisted in that exercise.’
In MCCOC’s view there
are no sufficient reasons to justify a distinction between perjury and other
serious offences and in any case the requirement that the Director of Public
Prosecutions must consent for perjury to be prosecuted, provides an adequate
safeguard (see clause 726).
Division 7.2.2 Falsifying, destroying
or concealing evidence
The offences in this division are generally
covered by the ACT (common law) offences of perverting or attempting to pervert
the course of justice. In MCCOC’s view it is important to have specific
offences of the kind that appear in this division so that there is not the
slightest doubt about how seriously the law considers these matters.
Clause 705 Making or using false evidence
This clause sets out the elements of two offences directed at those who
make or use false evidence. The ACT and Victoria are the only two jurisdictions
in Australia that do not have specific offences of this kind.
The
offence in subclause (1) relates to the making of false evidence. It provides
that a person commits an offence if he or she makes false evidence with the
intention of either influencing a decision about starting a legal proceeding or
influencing the outcome of a legal proceeding. Both of the offences in this
provision and in subclause (2) apply a maximum penalty of seven years
imprisonment and/or 700 penalty units ($70,000) or both, which is the same as
the maximum prison term recommended by MCCOC.
As in the case of the
perjury offences the evidence that the person makes must in fact be
false. The term “make” evidence in this offence is defined in
subclause (3) to include “change” evidence but does not include
perjury or aggravated perjury, since the making of evidence in that sense is
already covered by clauses 702 and 703. Although MCCOC recommended the word
“alter” instead of “change”, the latter is considered to
be a better plain English alternative but is otherwise to the same effect.
MCCOC preferred the word “make” to the more usual,
“fabricate”, for this offence because the latter expression has a
dual meaning (as revealed in R. v Love (1983) 9 A Crim R 1 at p5)
so that it does not necessarily mean devised or contrived in the pejorative
sense but can also mean “make up” or “get together”
without any dishonest connotation. Given that police officers and prosecutors
put together true evidence for the purpose of influencing a decision whether to
institute proceedings or their outcome, MCCOC considered that the term
“fabricate” should be avoided.
In addition to proving
that the defendant made the false evidence the prosecution must also establish
that he or she did so with the intention of influencing a decision about
starting a legal proceeding or influencing the outcome of a legal proceeding.
This formula is not inconsistent with the High Court decision in R v
Rogerson ((1992) 174 CLR) and will clarify the law for these matters. As to
the fault element of “intention” in that context, subsection 18(2)
of the Criminal Code provides that a person has intention in relation to a
result if the person means to bring it about or is aware that it will
happen in the ordinary course of events. However, once the person makes the
false evidence with the relevant intention the offence is complete and it is not
necessary for the prosecution to also establish that the defendant’s
conduct in fact influenced a decision about starting a legal proceeding
or influenced the outcome of legal proceedings.
The offence in
subclause (2) relates to the use of false evidence. It provides that a person
commits an offence if the person uses false evidence that he or she knows or
believes is false and the person is reckless about whether using the
evidence could either influence a decision to start a legal proceeding or
influence the outcome of a legal proceedings. As in the case of the perjury
offences the evidence that the person uses must in fact be false.
As to the fault elements that apply to this offence, it is important to
note that whereas subclause (1) requires an “intention” to influence
the starting etc of legal proceedings, paragraph 2(b) requires
“recklessness” (an awareness of a substantial risk that using the
false evidence could have the relevant influence etc – see section 20(1)
of the Criminal Code). Given that a person is closer to the mischief that these
offences are directed against (the admission of false evidence in legal
proceedings) when he or she is considering using false evidence as opposed to
making it, the lower fault element of “recklessness” in paragraph
2(b) is justified.
As to the falsity of the evidence, subclause 2(a)
requires “knowledge or belief” that the evidence that is being used
is false. Section 19 of the Criminal Code provides that a person has
knowledge of a circumstance (that the evidence is false) if he or she is
aware that it exists. Although the fault element of “belief” is not
defined in the Criminal Code it involves a state of mind that is less than
actual knowledge.
Although the requirement to prove knowledge or belief
is consistent with the corresponding MCC provision (7.3.1(2)), the Bill
provision includes a range of defences in subclauses (3), (4) and (5) to ensure
that the offence does not apply to legitimate uses of evidence that a person
knows or believes to be false. First, paragraph 3(a) provides that the offence
does not apply to a lawyer or person assisting a lawyer who does not know
that the evidence is false and who uses the evidence on instructions from a
client. An important principle of the adversarial judicial system is that
clients are entitled to have their case put to the court even though their legal
representatives may not believe their evidence. Ultimately it is for the
court and not the lawyer to decide where the truth lies. However it is not
appropriate for legal representatives to knowingly mislead the court.
Accordingly, the defence in paragraph 3(a) will not apply if the lawyer knows
that his or her client’s evidence is false. Secondly, paragraph 3(b)
allows a defence to a person who is, or may be, involved in a legal proceeding
as a law enforcement officer, lawyer, or party (or those assisting them) and who
uses the evidence for a “legitimate forensic purpose” in relation to
the proceeding. The term “legitimate forensic purpose” is defined
in subclause (6) to include for the purpose of demonstrating that the evidence
is false or misleading. Accordingly a police officer who, for example, uses
evidence he or she knows or believes to be false to compile a brief of
evidence or to test the story of a suspect would be covered by the defence.
Similarly, a lawyer might tender false evidence to prove that it is false in a
perjury trial or might use the evidence in cross examination to test a witnesses
credit or might show the evidence to opposing lawyers outside the court in
negotiations about the case. It is important to note that these are only
examples and that there will be other instances where a lawyer, law enforcement
officer or party may use evidence they know or believe to be false for a
“legitimate forensic purpose”. Thirdly, subclause (4) allows a
defence to a person who uses evidence he or she knows is false if when or before
using the evidence the person discloses that it is false. The defence in
subclause (5) is similar, except that it applies in cases where the person
believes (but does not know) that the evidence is false. For the defence to
apply in such cases the person must disclose or must have disclosed that he or
she believes that the evidence is false. The defences in subclauses (4) and (5)
will cover cases were, for example, a person uses evidence that he or she knows
or believes to be false, to disclose a crime to police. He or she may use false
accounts to demonstrate a fraud or may be admitting to a crime.
Clause 706 Destroying or concealing evidence
The offence
in this clause is similar to the offence in subclause 705(1) except that it
relates to the destruction and concealment of evidence. The ACT and Victoria
are the only two jurisdictions in Australia that do not have specific offences
of this kind. The Bill offence provides that a person commits an offence if he
or she “destroys or conceals” evidence with the intention of either
influencing a decision about starting a legal proceeding or influencing the
outcome of a legal proceedings. The term “conceal” has its natural
meaning but the word “destroy” is given an extended definition in
subclause (2) so that if a person with the relevant intent mutilates or changes
evidence or makes it illegible, indecipherable or otherwise unable to be
identified, he or she will be caught by the offence. The commentary to
subclause 705(1) is relevant to a consideration of the other elements of this
offence. Consistent with the offences in clause 705, the maximum penalty that
applies is seven years imprisonment and/or 700 penalty units ($70,000), which is
the same as the maximum prison term recommended by MCCOC.
Division
7.2.3 Protection of people involved in legal proceedings
The
offences in this division are generally covered by the ACT (common law) offences
of perverting or attempting to pervert the course of justice or the law of
contempt. Again, it is important to have offences of the kind in this division
so that there is not the slightest doubt about how seriously the law considers
these matters.
Clause 707 Corruption in relation to legal
proceedings
This clause sets out the elements of two offences relating to the
corruption of witnesses, interpreters and jurors in legal proceedings. Although
the ACT currently has an offence of corrupting a juror (Juries Act 1967)
there are no similar offences with respect to witnesses and interpreters.
Subclause 707(1) essentially concerns the giving of bribes. It provides
that it is an offence for a person to give, offer or promise to give a benefit
to another person, with the intention that that other person (or a third person)
will do or not do any of the things listed in paragraph (b). That is, that a
person will not attend as a witness, interpreter or juror in a legal proceeding;
or will give false or misleading evidence or withhold true evidence in a legal
proceeding; or that an interpreter will give a false or misleading
interpretation in a legal proceeding; or a juror will improperly make a decision
in a legal proceedings; or that someone will improperly influence a juror in a
legal proceeding. In addition to giving, offering or promising to give a
benefit, the offence also covers cases where a person (with the relevant
intention) causes a benefit to be given or causes an offer or promise of a
benefit to be made to someone else. The term “benefit” is defined
to include any advantage and is not limited to property or money (see the
commentary on clause 700).
This offence is based on section
7.4.2 of the MCC but since it is essentially a bribery offence it has been
expanded to more closely follow sections 356 and 357 of the Code. The Bill
offence has also been expanded to apply to those who corrupt jurors (as well as
witnesses and interpreters).
In accordance with the recommendation by
MCCOC, the maximum penalty for this offence is seven years imprisonment or 700
penalty units ($70,000) or both. This is the same as the penalty for the general
perjury offence in clause 703 and the falsifying, destroying or concealing
offences in clauses 705 and 706. Given that the mischief that these offences are
directed against is essentially the same, the same penalty is considered
appropriate.
As indicated above the offence in subclause (1) applies
not only if a person actually gives a benefit (with the relevant intention) but
also if he or she only offers or promises to give a benefit. It also applies
where someone causes a benefit to be given or causes an offer or a promise of a
benefit to be made. Thus if, for example, a government employee improperly adds
the name of a witness on a list of prospective recipients for a government
grant, the employee would be causing a benefit (the witnesses’ name on the
list of prospective recipients) to be given to the witness. Also the benefit
need not be a benefit to the witness or juror etc. It could be a benefit to a
third person (eg the witnesses’ mother) in order to persuade the witness
to withhold true evidence.
As indicated above, in addition to proving
that the defendant gave or offered etc a benefit to another person, the
prosecution must also establish that the defendant did so with the intention
that the other person (or a third person) would do or not do any of the things
listed in paragraph (b). This does not mean that the prosecution has to show
that there was an actual agreement between the defendant and the other person
but only that (by giving the benefit to the witness) the defendant intended the
witness, for example, not to attend the legal proceedings. Therefore, a person
is liable even if, for example, the witness does not “take” the
bribe. As to the fault element of “intention” in this context,
subsection 18(2) of the Criminal Code provides that a person has intention in
relation to a result if the person means to bring it about or is aware that it
will happen in the ordinary course of events.
Subclause (2)
concerns the taking of bribes. It provides that it is an offence for a person to
ask for a benefit, obtain a benefit or agree to obtain a benefit for himself,
herself or someone else, with the intention that the person he or she asks etc
(or a third person) will do or not do any of the things listed in paragraph (b)
or with the intention of inducing, fostering or sustaining a belief that
he or she will do or not do any of the things listed in paragraph (b). The
underlined words have been added to this offence (compare subclause (1)) to make
it clear that the offence will apply in cases where, for example, a witness
takes a bribe but with no intention of acting upon it.
Subclause (3)
makes it clear that a person is taken to have obtained a benefit for another if
the person induces a third person to give that other person a benefit.
A
proceeding for an offence under this clause cannot be commenced without the
consent of the Attorney General or the Director of Public Prosecutions (see
clause 726).
Clause 708 Deceiving witness, interpreter or
juror
This clause makes it an offence for a person to deceive someone with
the intention that the other person or a third person will not attend as a
witness, interpreter or juror in a legal proceeding or that the other person (or
a third person) will give false ormisleading evidence or withhold true evidence
in a legal proceeding. The offence is based on sections 7.4.1 and 7.4.4 of the
MCC but paragraph 708(a) has been expanded so that the offence also applies in
cases where a person deceives someone to achieve the non-attendance of an
interpreter or juror as well as a witness. Again, the ACT does not have a
specific offence of this kind although most Australian jurisdictions do,
including the Commonwealth. The maximum penalty is five years imprisonment or
500 penalty units ($50,000) or both. This accords with the maximum penalty in
the recommended MCC offence and is commensurate with the penalties that apply
for the comparatively more serious offences in clauses 703 (perjury), 705
(making or using false evidence) and 706 (destroying or concealing evidence).
To make out this offence it is sufficient for the prosecution to prove
that the defendant deceived the other person with the relevant intention. In
other words, the offence is complete at that point and it is not necessary for
the prosecution to also establish that the interpreter or juror etc in
fact failed to attend the legal proceedings or that the witness in
fact gave false evidence or withheld true evidence. For paragraphs (b) and
(c) the intention must be for the witness to give false evidence or
withhold true evidence. The offence will not apply if the witness is deceived in
order to ensure that he or she tells the truth. Also it is not necessary for
the witness or interpreter etc to be deceived. It can be a third person, such
as a spouse or an alleged accomplice. As long as the defendant deceives someone
with the intention of achieving one of the results enumerated in paragraphs (a)
to (c) the offence applies. As to the fault element of “intention”
in this context, subsection 18(2) of the Criminal Code provides that a person
has intention in relation to a result if the person means to bring it about or
is aware that it will happen in the ordinary course of events.
A
proceeding for an offence under this clause cannot be commenced without the
consent of the Attorney General or the Director of Public Prosecutions (see
clause 726).
Clause 709 Threatening etc witness, interpreter or
juror
This clause makes it an offence for a person to cause a
“detriment” or “threaten” to cause a detriment to
someone else with the intention that the other person or a third person will do
or not do any of the things listed in paragraphs (a) to (f) of the clause. That
is, that a person will not attend as a witness, interpreter or juror in a legal
proceeding; or will give false or misleading evidence or withhold true evidence
in a legal proceeding; or that an interpreter will give a false or misleading
interpretation in a legal proceeding; or a juror will improperly make a decision
in a legal proceedings; or that someone will improperly influence a juror in a
legal proceeding. The offence is based on the recommended offences in section
7.4.3 of the MCC but has been extended to also apply with respect to jurors and
persons who improperly influence jurors, as well as witnesses and interpreters.
The maximum penalty is five years imprisonment or 500 penalty units
($50,000) or both, which accords with the maximum penalty recommended by MCCOC
and the maximum penalty in clause 708.
In considering the ambit of this
offence it is important to have regard to the proposed dictionary definitions of
“detriment” and “threat”, which will be inserted by
clause 19 of the Bill and “causes” a detriment or result, which is
defined in clause 700. The term “detriment” is defined widely to
include any disadvantage and is not limited to personal injury or to loss or
damage to property (see clause 700). Therefore, a person who (with the relevant
intention) threatens to have a witness expelled from the local tennis club could
be caught by this offence. Given the role of witnesses, interpreters and jurors
to the administration of justice, it is important to ensure that they have the
protection that the wide definition of “detriment” will afford to
them. Similarly “causes” a detriment will catch conduct that
substantially contributes to the detriment and “threat” includes a
threat “made by any conduct, whether explicit or implied and whether
conditional or unconditional”. Therefore a person who threatens someone
with gestures rather than speech would be caught, such as where a person stalks
a witness or the witnesses’ family to pressure him or her into not giving
evidence. This is a particularly important definition in cases of a sexual
nature where dominance of the victim is a common feature and pressure can be
brought to bear with little outward appearance of a threat.
Again, to
establish this offence it is sufficient for the prosecution to prove that the
defendant caused or threatened to cause the detriment to someone else with the
relevant intention. That is, the offence is complete at that point and it is
not necessary for the prosecution to also establish that the interpreter or
juror etc in fact failed to attend the legal proceedings or that the
witness in fact gave false evidence or withheld true evidence or that the
juror made an improper decision. Also it is not necessary for the defendant to
cause or threaten to cause detriment to the witness or juror etc. It can be
detriment or a threat of detriment to a third person, such as a spouse or an
alleged accomplice. As long as the defendant causes or threatens to cause
detriment to someone with the intention of achieving one of the results listed
in paragraphs (a) to (f) the offence applies. As to the fault element of
“intention” in this context, subsection 18(2) of the Criminal Code
provides that a person has intention in relation to a result if the person means
to bring it about or is aware that it will happen in the ordinary course of
events.
A proceeding for an offence under this clause cannot be
commenced without the consent of the Attorney General or the Director of Public
Prosecutions (see clause 726).
Clause 710 Preventing attendance etc of witness,
interpreter or juror
This offence is directed at those who would prevent witnesses,
interpreters or jurors from attending or answering a question in legal
proceedings. It provides that a person commits an offence if by his or her
conduct the person intentionally prevents someone else from (a) attending
as a witness, interpreter or juror in a legal proceeding or (b) answering a
question the person is required by law to answer in a legal proceeding. The
offence is based on section 7.4.4 of the MCC but has been expanded to apply with
respect to jurors (as well as witnesses and interpreters) and also includes
additional paragraph (b), which appears in similar offences in the ACT statute
book (see, for example, existing section 85(b) of the Coroners Act 1997,
which will be repealed by this Bill – schedule 1, part 1.5, item 1.36).
The maximum penalty is five years imprisonment or 500 penalty units ($50,000) or
both, which accords with the maximum penalty recommended by MCCOC and the
maximum penalty for the related offences in clauses 708 and 709. All Australian
jurisdictions, except the ACT and Victoria have specific offences of this kind.
Although the ground that this offence covers will overlap considerably
with the ground covered by the offences in clauses 707 (corruption in relation
to proceedings), 708 (deceiving witnesses etc) and 709 (causing or threatening
detriment to witnesses etc), it is appropriate to include it so that there are
no gaps in the protection afforded to witnesses, interpreters and jurors. In
contrast with the offences in clauses 707, 708 and 709, the defendant’s
conduct must in fact prevent the witness etc attending or answering a
question in legal proceedings. However, section 44 of the Criminal Code
will apply to attempts to prevent the attendance etc. It is also
important to note that although this offence does not specifically refer to
third persons, if the defendant’s conduct with respect to a third person
is such that it has the intended effect of preventing a witness etc from
attending the proceedings or answering a question, the offence will apply. It is
important in the context of this offence to note the defintion of
“witness” in clause 700, which provides that that term includes a
witness not subpoened as a witness in the proceedings.
Clause 711 Preventing production of thing in
evidence
This is similar to the offence in clause 710, except that it is
directed at those who would prevent documentary evidence and other things from
being produced in legal proceedings. It provides that a person commits an
offence if by his or her conduct the person intentionally prevents someone else
from producing in evidence in a legal proceeding a document or other thing that
is required by law to be produced. The offence is based on section 7.4.4 of the
MCC and applies a maximum penalty of five years imprisonment or 500 penalty
units ($50,000) or both, which accords with the maximum penalty recommended by
MCCOC and the maximum penalty for the related offences in clauses 708, 709 and
710. It is important to note however, that the offence only applies to
documents or things that the other person has a legal obligation to produce,
such as an obligation to produce under a subpoena or a lawful direction of a
court or other entity. This limitation is appropriate, since there can be
perfectly legitimate reasons for wanting to prevent a person from producing a
document or thing that is not legally required to be produced. The document
could be privileged and the thing could be subject to commercial in confidence.
Clause 712 Reprisal against person involved in
proceeding
Whereas the offence in clause 709 relates to detriments and threats of
detriment to prevent the proper participation of a person in legal
proceedings, the offence in this clause is directed at those who would punish or
threaten to punish a person for something that has been done in a legal
proceeding. Although most Australian jurisdictions have specific offences of
this kind, the ACT does not.
This clause makes it an offence for a
person to “cause” or “threaten” to cause a
“detriment” to a “person involved” in a legal proceeding
(a) because of something done by the involved person in the proceeding and (b)
in the belief that the involved person was an involved person who had done that
thing. The offence is based on section 7.4.6 of the MCC but unlike the MCC
provision, which limits the protection to witnesses and interpreters,this
offence has been expanded to afford protection to a broader range of
participants in legal proceedings. The maximum penalty for this offence is five
years imprisonment or 500 penalty units ($50,000) or both, which accords with
the maximum penalty recommended by MCCOC and the maximum penalty for the related
offence in clause 709.
The terms “cause”, “threaten”
to cause and “detriment” are discussed in the commentary to clause
709. Also, for this offence to apply the reprisal or threat of reprisal
must be taken or made against a “person involved” in a legal
proceeding. That term is broadly defined in subclause (2) to mean (a) a judge,
magistrate or member of a tribunal or other entity the proceeding is before; (b)
a registrar, deputy registrar or other official of the court, tribunal or other
entity the proceeding is before; (c) a witness, interpreter, juror or lawyer
involved in the proceeding; or (d) where the proceedings are criminal
proceedings, a complainant, informant or party to the proceeding. Also,
subclause (2) makes it clear that a witness or interpreter includes a person who
attends in the proceeding as a witness or interpreter but is not called. It is
appropriate to extend the protection of this offence to involved persons
and not just witnesses or interpreters, since reprisals and threats of reprisals
against anyone connected with the system of justice can have the potential to
seriously damage that system. However, it is not considered appropriate to
extend the coverage of this offence to parties involved in a civil proceeding
since its not unusual for opponents in litigation to refuse to continue to do
business with each other or make or threaten to make counterclaims, which are
“detriments”, as that word is defined in the Bill.
To establish this offence the prosecution must prove that the defendant
caused or threatened to cause a detriment to someone who was in fact a
person involved in a legal proceeding and also that the defendant caused
etc the detriment because of something that the other person did in the
proceeding and in the belief that the involved person was an involved person who
had done that thing. Therefore, if the defendant takes reprisals against an
involved person wrongly believing that that person did the relevant thing the
offence will still apply.
Division 7.2.4 Perverting the
course of justice and related offences
Clause 713 Perverting the course of
justice
Although MCCOC’s broad approach for chapter 7 was to develop
specific offences to cover conduct that is otherwise covered by the common law
offence of perverting the course of justice, it nevertheless saw an important
need to retain a general offence (in statutory form) of perverting the course of
justice. It’s reasons for recommending the general offence are stated at
page 115 of its report, as follows:-
“[T]he Discussion Paper
accepted the desirability in broad principle of minimising the use of general
offences of wide and imprecise ambit such as perverting the course of justice.
However, no matter how many different specific offences are created, the
Discussion Paper concluded that the possibility could not be removed that, in
circumstances not now foreseeable, conduct that amounts to perversion or
attempted perversion of the course of justice but falling outside the specific
offences, will come to notice”.
The only Australian jurisdictions
that do not currently have a statutory offence of perverting the course of
justice are the ACT and Victoria, which apply the common law offence.
The proposed general offence in this clause provides that a person
commits an offence if by his or her conduct the person intentionally perverts
the course of justice. The maximum penalty for this offence is seven years
imprisonment or 700 penalty units ($70,000) or both. Although this is slightly
higher then the maximum penalty MCCOC recommended (five years imprisonment),
it’s considered appropriate given the broad range of conduct that the
offence can catch and the need to discourage the development of new and novel
approaches for defeating the course of justice.
For the purposes of
this offence, subclause (2) defines the term “perverts” in broad
terms to include “obstructs”, “prevents”, and
“defeats”, which, in turn, will have their usual natural meaning.
Accordingly the offence is committed if a person’s conduct in fact
perverts, obstructs, prevents or defeats the course of justice and the person
intends by his or her conduct to pervert, obstruct, prevent or defeat the
course of justice. That is, the person must mean to bring about the
obstruction of justice, or the prevention of justice or the defeat or perversion
of justice (say by “planting” false evidence) or be aware that the
obstruction to justice etc will, because of his or her conduct, happen in the
ordinary course of events (subsection 18(2) of the Criminal Code). However, if
the person does not in fact succeed in perverting the course of justice
but his or her efforts are sufficiently proximate to constitute an
“attempt”, section 44 of the Criminal Code will apply. Similarly, a
person who conspires with another or incites another to pervert the course of
justice is liable for conspiracy or incitement under sections 48 and 47 of the
Criminal Code.
As to what is meant by the “course of
justice”, the High Court of Australia explained the term in R v
Rogerson at page 280 as follows:
“The course of justice consists in the due exercise by a court or
competent judicial authority of its jurisdiction to enforce, adjust or declare
the rights and liabilities of persons subject to the law in accordance with the
law and the actual circumstances of the case [...]. The course of justice is
perverted (or obstructed) by impairing (or preventing the exercise of) the
capacity of a court or competent judicial authority to do
justice.
According to the Judges in R v Rogerson the course of
justice does not commence until the “jurisdiction of some court or
competent judicial authority is invoked.” and that “neither the
police nor other investigative agencies administer justice in any relevant
sense.” However, the High Court held in that case that, although police
investigations into possible offences against the criminal law or a disciplinary
code do not form part of the course of justice, “an act calculated to
mislead the police during investigations may amount to an attempt to pervert the
course of justice.”
Clause 714 Publication that could cause miscarriage
of justice
This clause contains two offences related to the publication of
material that could cause a miscarriage of justice in legal proceedings. The
first offence appears in subclause (1). It provides that a person commits an
offence if he or she publishes something that could cause a miscarriage
of justice in a legal proceeding and the person does so with the
intention of causing a miscarriage of justice in the proceedings. The
maximum penalty for this offence is 10 years imprisonment or 1000 penalty units
($100,000) or both. The offence in subclause (2) is similar, except that the
fault requirement is reduced from intention to being reckless about
whether the publication could cause a miscarriage of justice and accordingly,
the maximum penalty is also reduced from 10 to seven years imprisonment or 700
penalty units ($70,000) or both. This accords with the recommended penalties in
the MCC.
To establish these offences it is not necessary to prove that
the publication in fact caused a miscarriage of justice. In the case of
the offence in subclause (1), provided that that is the person’s intention
and his or her publication could cause that result, the offence is made
out even if the miscarriage does not eventuate. However, there must be a
potential for that result to occur (the term “could” will have its
natural meaning) and as for the fault element of intention in this context, the
prosecution must establish that the defendant meant to bring about a miscarriage
of justice or was aware that it would happen in the ordinary course of events
(subsection 18(2) of the Criminal Code). For the offence in subsection (2) the
fault element is “recklessness” which in this context requires proof
that the defendant was aware of a substantial risk that his or her publication
would cause a miscarriage of justice and having regard to the circumstances know
to him or her it was unjustifiable to take the risk (subclause 20(1) of the
Criminal Code).
Clause 715 False accusation of offence
This clause contains two offences directed at those who falsely accuse
or charge innocent people of crimes. Although the ACT currently has a similar
offence in section 179 of the Crimes Act, this provision will clarify the
elements that apply and will replace the Crimes Act offence.
The
first of these offences appears in subclause (1). It makes it an offence for a
person to accuse someone else of a crime to a law enforcement officer if the
person knows or believes that the other person is innocent and
with the intention that the other person will be charged with the crime
or that the law enforcement officer will be deflected from prosecuting
the actual offender. The maximum penalty is five years imprisonment or 500
penalty units ($50,000) or both, which is the same as the recommended maximum
penalty in the MCC. Although this is less than the maximum penalty in section
179 of the Crimes Act (10 years imprisonment) and the maximum penalty for the
offence in subsection (2), it is considered appropriate because the fault
element for the subclause (1) offence is lower (belief in innocence is
sufficient) and also because of the heavier responsibility on law enforcement
officers to uphold the law.
To establish this offence (subject to the
defence in subclause (2)) it is again not necessary for the law enforcement
officer to in fact charge the innocent person or to be deflected from
prosecuting the actual offender. Provided that the person makes the accusation
with one or both of the intentions listed in the clause (together with the
knowledge or belief of the other’s innocence) the offence will apply even
if the officer does not act on the accusation. This is appropriate given the
serious consequences that may be caused to a person falsely accused, even if the
truth is discovered before he or she is charged.
As to the fault
elements that apply, paragraph 1 (a) requires “knowledge or belief”
that the accused person did not commit the offence. Section 19 of the Criminal
Code provides that a person has knowledge of a circumstance (that the
evidence is false) if he or she is aware that it exists. Although the fault
element of “belief” is not defined in the Criminal Code it involves
a state of mind that is less than actual knowledge. As for the fault element of
intention in this context, the prosecution must establish that the defendant
meant for the other person to be charged with the crime etc or was aware that it
would happen in the ordinary course of events (subsection 18(2) of the Criminal
Code).
Subclause (2) contains an important defence to the subclause (1)
offence, to ensure that law enforcement officers who legitimately make
accusations to other law enforcement officers are not technically caught by this
offence. The defence provides that the offence in subsection (1) does not apply
to a law enforcement officer exercising his or her functions as a law
enforcement officer if he or she (a) makes the relevant accusation with the
intention in paragraph (1)(b)(i); and (b) does not know that the other
person did not commit the offence; and (c) believes that there are reasonable
grounds for charging the other person with the offence. This defence is
justified because often cases will arise where, a police officer, for example,
may personally believe that a suspect is innocent but also be aware of evidence
or other circumstances that justify accusing or charging the suspect. His
colleagues and his supervisor may believe that the suspect is guilty; the
circumstances may be such that he or she cannot take the risk that the suspect
is guilty (e.g. a domestic violence case) or ought not take the risk (a sexual
assault case where consent is in dispute) and ultimately, of course, the suspect
may be guilty.
The offence in subclause (3) provides that a law
enforcement officer commits an offence if the officer charges someone
with an offence knowing that the person did not commit the offence. For
the offence to apply the person much be formally charged. Also, for the reasons
given in relation to the defence in subclause (2), it is not appropriate for
this offence to apply to a law enforcement officer who simply believes that the
person did not commit the offence.
The maximum penalty is 10 years
imprisonment or 1000 penalty units ($100,000) or both, which is the same as the
maximum term of imprisonment under section 179 of the Crimes Act. This is
justified because of the higher fault element that applies (knowledge) and the
heavier responsibility on law enforcement officers to uphold the law.
Clause 716 Compounding of offence
The offences in this clause are essentially bribery offences, similar
to the offences in clause 707. However, whereas those offences can only occur
“in legal proceedings” (in the sense in which that term is defined
in clause 701), the offences in this clause relate more specifically to a crime
that has been committed and the corrupt behavior that a person may engage in to
prevent a prosecution for the crime. In effect, the person
“compounds” an offence that has occurred with another offence;
namely, an offence under this clause. Apart from the ACT, all other Australian
jurisdictions have statutory offences that address varying aspects of this kind
of conduct.
Subclause (1) essentially concerns the giving of bribes.
It provides that it is an offence for a person to give, offer or promise to give
a benefit to another person, with the intention that the other person (or a
third person) will do or not do any of the things listed in paragraph (b). That
is, that a person will conceal an offence; or not start, discontinue or delay a
prosecution for an offence; or withhold information, or give false or misleading
information in relation to an offence; or obstruct or hinder the investigation
of an offence by the police or other law enforcement officer. In addition to
giving, offering or promising to give a benefit, the offence also covers cases
where a person (with the relevant intention) causes a benefit to be given or
causes an offer or promise of a benefit to be made to someone else. The term
“benefit” is defined to include any advantage and is not limited to
property or money (see the commentary on clause 700). Although the offence is
based on section 7.5.4 of the MCC, it has been expanded to more closely follow
the bribery and related offences in sections 356 and 357 of the Criminal Code.
The maximum penalty for this offence is seven years imprisonment or 700
penalty units ($70,000) or both. Although this is slightly higher then the
recommended penalty for the corresponding MCC offence (five years imprisonment),
the increase is justified because the mischief that this offence is directed
against correlates more closely to the mischief that the falsifying, destroying
or concealing offences are aimed at in clauses 705 and 706.
Like the
offence in subclause 707(1), this offence will apply not only if the person
actually gives a benefit (with the relevant intention) but also if he or she
simply offers or promises to give a benefit. It also applies where someone
causes a benefit to be given or causes an offer or a promise of a benefit to be
made, say by someone else. Also the benefit that is given etc could be a
benefit to a third person.
In addition to proving that the defendant
gave or offered etc a benefit to another person, the prosecution must also
establish that the defendant did so with the intention that that other person
(or a third person) would do or not do any of the things listed in paragraph
(b). This does not mean that the prosecution has to show that there was an
actual agreement between the defendant and the other person but only that (by
giving the benefit) the defendant intended the other person to say, conceal the
offence. Therefore, the defendant will be liable even if the other person does
not take the bribe. As to the fault element of “intention” in this
context, subsection 18(2) of the Criminal Code provides that a person has
intention in relation to a result (e.g. that the other person will discontinue
the prosecution) if he or she means to bring it about or is aware that it will
happen in the ordinary course of events.
Subclause (2) concerns the
taking of bribes. It provides that it is an offence for a person to ask for a
benefit, obtain a benefit or agree to obtain a benefit for himself, herself or
someone else, with the intention that the person he or she asks etc (or a third
person) will do or not do any of the things listed in paragraph (b) or with the
intention of
inducing, fostering or sustaining a belief that he or she
will do or not do any of the things listed in paragraph (b). The underlined
words have been added to this offence (compare subclause (1)) to make it clear
that the offence will apply in cases where, for example, a person takes a bribe
to conceal the offence but with no intention of acting upon it.
Subclause (3) makes it clear that a person is taken to have obtained a
benefit for another if the person induces a third person to give that other
person a benefit.
A proceeding for an offence under this clause
cannot be commenced without the consent of the Attorney General or the Director
of Public Prosecutions (see clause 726).
Clause
717 Accessory after the factThis clause contains the
elements of the offence of being an accessory after the fact. The offence is
essentially aimed at those who help offenders to escape punishment or realise
the proceeds of their crime. The elements of the offence are contained in
subclause (1). It provides that a person commits an offence if he or she assist
someone who has committed an offence, knowing that the offender committed the
offence or believing that the offender committed the offence or a
related
offence, and with the intention of allowing the offender to escape
apprehension or prosecution or to obtain, keep or dispose of the proceeds of the
offence. The ACT has a similar offence in section 181 of the Crimes Act, which
will be replaced by the offence in this clause.
Although the crime of
accessory after the fact is separate from the offence committed by the principal
offender, the accessory offence will not apply unless the principal
in
fact committed an offence.
Any offence will suffice but wrongly
believing that a person committed an offence and assisting him or her (with the
relevant intention) will not constitute an offence under this clause. Also the
person must do something to actually assist the offender. An attempt to assist
will not suffice (subclause (4)). However, the assistance can be minor
(e.g. buying clothes for the principal) or indirect and impersonal (e.g.
repainting a stolen car or engaging the services of another to help the
principal).
In
addition to the physical elements, the prosecution must prove that the defendant
knew that the principal committed the offence that was in fact committed
or that the defendant
believed that the principal committed that offence
or “a related offence”. Also the prosecution must establish that in
giving the assistance the defendant
intended the principal to escape
apprehension or prosecution etc. The Bill offence is wider than the existing
Crimes Act offence because the latter only applies if the defendant
“knows” that the principal committed an offence. Also the Bill
offence extends to those who intend to help the principal to
“obtain” or “keep” as well as “dispose” of
the proceeds of the crime, whereas the Crimes Act offence is limited to
disposing of the proceeds. Section 19 of the Criminal Code defines
“knowledge” in this context as being aware that the circumstance
(that is, the fact that the principal committed the offence) exists.
“Belief” on the other hand requires a state of mind that is less
than knowledge but more than mere suspicion that the principle committed an
offence. As to “intention”, subsection 18(2) of the Criminal Code
provides that a person has intention in relation to a result (e.g. the offenders
escape) if he or she means to bring it about or is aware that it will happen in
the ordinary course of events. However, like a number of the other offences in
this chapter, it is not necessary for the prosecution to prove that the
principal in fact escaped or disposed of the proceeds etc.
The concept
of a “related offence” is defined in subclause (3). It provides, in
effect, that if the accessory believes that the principal committed a different
offence and the circumstances in which the accessory believes the different
offence occurred are the same, or partly the same as the circumstances of the
actual offence, it is a related offence. This will ensure that an accessory
cannot
completely avoid liability on the ground that he or she thought
that the offender had simply wounded and not murdered the victim (but see
subsection (2)).
Because this offence applies to assisting a person
who commits
any offence it is not appropriate to have a global penalty,
otherwise the accessory could conceivably be faced with a higher maximum penalty
than the principal. Accordingly, this clause applies a gradation of maximum
penalties ranging from 20 years imprisonment and/or 2000 penalty units
($200,000) if the principal offence is murder and three years imprisonment
and/or 300 penalty units ($30,000) if the principal offence applies a maximum
penalty of less than 10 years imprisonment. This is broadly similar to the
penalty regime under the Crimes Act, however, whereas the current law applies a
maximum penalty of life imprisonment for both murder (section 12) and being an
accessory after the fact to murder (section 181), the Bill offence applies a
maximum of 20 years imprisonment for the accessory offence. This is considered
appropriate given the lower level of culpability involved in being an accessory
after the fact to murder.
Subsection (2) is also an important provision
in relation to the penalties that apply. It provides, in effect, that where the
offence actually committed is different to the offence that the defendant
believes was committed, the maximum penalty that applies is the one that relates
to the offence that carries the lower maximum penalty.
A proceeding for
an offence under this clause cannot be commenced without the consent of the
Attorney General or the Director of Public Prosecutions (see clause 726).
Part 7.2 Summary offences for chapter 7This part contains
a range of summary offences that have been suggested in the chapter 7 report but
are not included in the MCC (that is, the offences in clauses 718 and 725) or
have been developed as generic offences to replace commonly repeated offences in
the statute book that are related to the administration of justice.
Clause 718 Pleading guilty in another’s nameThis clause
makes it an offence for a person to plead guilty to
a charge for an
offence, knowing that the charge is in someone else name. The maximum penalty is
six months imprisonment or 50 penalty units ($5000) or both. Although the ACT
has no existing statutory offence for this kind of conduct it is covered by the
common law offence of perverting the course of justice.
This offence can
apply either when the person pleading did not commit the offence charged but
pleads in the name of the person who did, or when the person pleading did commit
the offence charged, but pleads in the name of a person who did not. However,
there must be a formal charge and the person must
know (section 19 of the
Criminal Code) that it is in someone else’s name. But subclause (2) makes
it clear that to establish the offence it is not necessary for the prosecution
to prove the identity or existence of the other person.
Clause 719 Failing to attend
This clause sets out the elements of a summary offence for failing to
attend legal proceedings when required to do so. The terms of the offence are
based on, and will replace, a number of similar offences that appear in
legislation throughout the ACT statute book. The offence applies to a person who
is served with a subpoena to attend to give evidence or information, or
answer questions, in a legal proceeding and who “fails to attend as
required by the subpoena” or “fail to continue to attend until
excused from further attendance”. However, subclause (2) provides that
the offence does not apply if the person has a reasonable excuse for not
attending or continuing to attend. This defence is common to offences of this
kind (including the similar offences in Commonwealth legislation) and is
considered appropriate in the context of this offence. The term
“subpoena” is defined in clause 700 to include a summons or notice
and the offence only applies to a requirement under subpoena to attend etc in a
“legal proceeding” (see clause 701). The maximum penalty for this
offence is six months imprisonment or 50 penalty units ($5000) or both, which is
the usual maximum penalty for this kind of offence.
Clause 720 Failing to produce document or other
thing
This is another generic summary offence that is based on the numerous
similar offences in the statute book that it will replace. The offence applies
to a person who is either served with a subpoena or is
otherwise required by law to produce a document or other thing in a legal
proceeding and the person fails to produce the document or other thing as
required. However, subclause (2) provides that the offence does not apply if
the person has a reasonable excuse for not producing the document or other
thing. Again, this defence is common to offences of this kind (including the
similar offences in Commonwealth legislation) and is considered appropriate in
the context of this offence. A person may be required by law to produce a
document in the absence of a subpoena (as defined) where the person is directed
to do so by a court, tribunal or other entity legally empowered to compel
production. The maximum penalty for this offence is six months imprisonment or
50 penalty units ($5000) or both, which is the usual maximum penalty for this
kind of offence.
Often where legislation contains an offence of this
kind there is also a provision that provides that a person cannot avoid
liability for the offence by claiming the privilege against self-incrimination.
However, where the privilege is abrogated in this way it is generally
accompanied with another provision that gives the person immunity from
prosecution (with some specified exceptions – e.g. if the prosecution is
for giving false or misleading statements) for any evidence that is
directly or indirectly obtained because of the person’s
compliance (sometimes the immunity is limited to the evidence that the person
gives and does not extend to evidence obtained because of the evidence the
person gives).
The long-standing criminal law policy position has
been that the privilege against self-incrimination is to be preserved unless
there are good reasons for abrogating it. This is reinforced by section 170 of
the Legislation Act, which provides that a law must be interpreted to preserve
the privilege. Accordingly, the offence in this clause and clause 722 has been
framed to reflect the “default position”. That is, a person who
refuses to give evidence on self-incrimination grounds will not commit an
offence against this clause (or clause 722) unless the relevant legislation
abrogates the privilege with respect to these offences. In other words,
although it is proposed to remove these offences from existing legislation, the
provisions in those Acts that abrogate the privilege and provide an immunity in
return, will remain, generally in their present terms.
Clause 721 Failing to take oath
This clause sets out the elements of a summary offence for failing to take
the oath in legal proceedings. It is similar to the numerous offences in the
statute book that it will replace. It provides that a person commits an offence
if he or she is required by law (e.g. directed by a court or tribunal
etc) to take an oath to give evidence in a legal proceeding and the person fails
to take the oath when required. However, subclause (2) provides that the
offence does not apply if the person has a reasonable excuse for not taking the
oath. This is considered appropriate and is common for this kind of offence
(including corresponding Commonwealth offences). The maximum penalty of six
months imprisonment or 50 penalty units ($5000) or both, is also usual for this
kind of offence.
Clause 722 Failing to answer a question or give
information
This clause sets out the elements of a summary offence
for failing to answer a question or give information in a legal proceeding.
Again, it is similar to the numerous offences in the statute book that it will
replace. It provides that a person commits an offence if he or she is
required by law (e.g. directed by a court or tribunal etc) to answer a
question or give information in a legal proceeding and the person fails to
answer the question or give the information when required. However, subclause
(2) provides that the offence does not apply if the person has a reasonable
excuse for not answering the question or giving the information, which is
considered appropriate and is common for this kind of offence (including
corresponding Commonwealth offences). The maximum penalty of six months
imprisonment or 50 penalty units ($5000) or both, is also usual for this kind of
offence.
In considering this offence it is important to also have regard
to the commentary on clause 721, particularly in relation to the issue
concerning the privilege against self-incrimination.
Clause
723 Making etc false or misleading statements in legal
proceeding
This clause contains three summary offences that relate to
the making or giving of false or misleading statements or documents in legal
proceedings. The offences will replace a large number of existing offences in
the statute book that relate to the making or giving false or misleading
statements to courts, tribunals and other entities.
The first offence
in subclause (1) provides that a person commits an offence if the person makes a
false sworn or unsworn statement in a legal proceeding before a
court and the person is reckless about whether the statement is
false. The maximum penalty for this offence and the offences in subclauses (2)
and (6) is 12 months imprisonment or 100 penalty units ($10,000) or both, which
is the more usual penalty for offences of this kind.
In contrast to
perjury, this offence relates to the making of both sworn and unsworn
statements. The terms “statement” (which can be oral or in a
document) and “sworn statement” (made or verified on oath) are
defined in clause 700 of this chapter. An “unsworn statement” is
defined in subclause (8) as a statement that is not made or verified on
oath. If the relevant statement is unsworn the offence will not apply
unless reasonable steps were taken to warn the person, before the statement was
made, that it is an offence to make a false statement (see subclauses (4) and
(5)). This is because administering the oath serves as an important warning to
witnesses that their undertaking to tell the truth carries with it a liability
to criminal penalties if they do not. Accordingly, in the absence of the oath it
is important to require a warning to be given, particularly because unsworn
statements are usually made in court proceedings by children and young persons.
Since the offence only applies to legal proceedings before a court it
does not extend to catch “misleading” statements because this is not
considered appropriate in strict adversarial proceedings where witnesses are
generally advised to only answer the question that is asked. For the offence to
apply the statement must be false in fact and the person must be reckless
about whether the statement is false. That is, the defendant must be aware of a
substantial risk that the circumstance exists (namely that the statement is
false) and having regard to the circumstances known to him or her, it is
unjustifiable to take the risk. Also, it is important to note that although
paragraph (1)(c) only refers expressly to “recklessness”, section
20(4) of the Criminal Code provides that if recklessness is a fault element for
a physical element of an offence, proof of intention, knowledge or recklessness
satisfies the fault element. Accordingly, if the defendant “knows”
that the statement is false, instead of just being reckless about whether it is
false, he or she will be caught by this offence.
Although, in most
cases where false evidence is sworn a perjury offence will apply (for which a
maximum penalty of seven years applies), it is considered appropriate to have a
lower order offence of this kind for the more minor incidences of giving false
evidence.
Subclause (2) provides that a person commits an
offence if the person makes a sworn or unsworn statement in a
legal proceeding before an entity that is not a court and the statement
is false or misleading and the person is reckless about that fact.
However, the offence will not apply if the statement is not false or misleading
in a material particular (subclause (3)). This is usual for offences of this
kind when they relate to proceedings before tribunals and other similar
entities. Like the offence in subclause (1), a warning must be given if the
statement is unsworn (subclauses (4) and (5)).
The offence in subclause
(6) provides that a person commits an offence if the person files, lodges or
gives a sworn document in a legal proceeding and the document contains
false or misleading information and the person is reckless about whether the
document contains false or misleading information. This offence does not extend
to unsworn documents because of the limited opportunities to give a
formal warning of the risks of submitting false or misleading documents.
There are a number of defences to this offence. First,
the offence will not apply if the relevant information is not false or
misleading in a material particular (subclause (8)). Also subclause (7)
contains a range of defences that are similar to the defences in subclauses
705(3) to (5) concerning the offence of using false evidence. Paragraph 7(a) of
this clause provides that the offence in subclause (6) does not apply to a
lawyer or person assisting a lawyer who files, lodges or gives the document on
instructions from a client and does not know the document contains false
or misleading information. Similarly, paragraph 7(b) provides that the offence
does not apply to a person involved in a legal proceeding as a law enforcement
officer, lawyer, or party (or those assisting them) and who files or gives the
document for a “legitimate forensic purpose”. The term
“legitimate forensic purpose” has the same meaning as that term in
subclause 705(6), and includes for the purpose of demonstrating that evidence is
false or misleading. Finally the defence in paragraph (7)(c) provides that the
offence in subclause (6) does not apply to a person who, when filing, lodging or
giving the document, discloses that it contains or may contain false or
misleading information.
Clause 724 Obstructing
etc legal proceeding
This offence will replace a number of similar offences in the statute
book. It provides that a person commits an offence if the person intentionally
obstructs or hinders a court, tribunal, commission, board or other entity in the
exercise of its functions in a legal proceeding or intentionally causes a
substantial disruption to a legal proceeding before a court, tribunal,
commission, board or other entity. The maximum penalty is 12 months
imprisonment or 100 penalty units ($10, 000) or both, which is the median
penalty for this kind of offence.
Clause 725 Obstructing
or hindering investigation
This summary offence has been included on
the recommendation of MCCOC in the chapter 7 report. The clause provides that a
person commits an offence if the person does something with the intention of
obstructing or hindering the investigation of an offence by a law enforcement
officer. The maximum penalty is six months imprisonment of 50 penalty units
($5000) or both.
Part 7.3 Procedural matters for chapter
7
This part contains some procedural provisions that relate to the
offences in this chapter.
726 Consent required for certain
prosecutions
This provision makes it clear that the consent of the
Attorney General or the Director of Public Prosecutions is required in order to
commence a prosecution for the offences in clauses 702 (aggravated perjury), 703
(perjury), 707 (corruption in relation to legal proceedings), 708 (deceiving
witness, interpreter or juror) and 709 (threatening etc witnesses, interpreter
or juror. However before the consent is given a person can be arrested, charged
remanded in custody or granted bail for those offences.
727
Alternative verdicts—aggravated perjury and perjury
This is an
alternative verdict provision that relates to the offences of perjury and
aggravated perjury in clauses 702 and 703 of chapter 7. It provides that if a
person is on trial for aggravated perjury and the jury (or the court if there is
no jury) is not satisfied that the defendant committed that offence but is
satisfied beyond reasonable doubt that the defendant committed perjury (clause
703) the jury etc may find the defendant guilty of perjury, but only if the
defendant has been given procedural fairness in relation to that finding of
guilt.
728 Alternative verdicts—perverting the course of
justice and
publication that could cause miscarriage of
justice
This is an alternative verdict provision that relates to the
offences of perverting the course of justice (clause 714) and a publication that
could cause miscarriage of justice (clause 713). It provides that if a person
is on trial for the publication offence and the jury (or the court if there is
no jury) is not satisfied that the defendant committed that offence but is
satisfied beyond reasonable doubt that the defendant committed the offence of
perverting the course of justice (clause 714) the jury etc may find the
defendant guilty of perverting the course of justice, but only if the defendant
has been given procedural fairness in relation to that finding of
guilt.
Schedule 1 Consequential
amendments
This schedule will
amend a total of 30 Acts and Regulations, primarily to remove offences
(including the offences in the Crimes Act) that will become redundant
because of the new codified offences in chapter 7. The schedule will also
make a number of minor consequential amendments that
are necessary because of the offences that have been repealed from the various
Acts referred to in the schedule. In addition, the schedule will insert
a declaration in a number of Acts to clarify the operation of chapter 7 with
respect to those Acts (see, for example, items 1.23 and 1.62 of the schedule and
the commentary to clause 701). Also, in accordance with current criminal law
policy, the schedule will insert a standard form immunity in Acts where the
privilege against self-incrimination is abrogated but no immunity has been
provided (see items 1.73, 1.78. 1.104, 1.115 and 1.143).
Schedule 2 Technical
amendments
This schedule will make
a number of minor technical amendments to various Acts. The drafter has
included an explanatory note in relation to each amendment.
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