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7.8.1 - Statutory Perjury

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Introduction

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

    Charging an accused who has made multiple false statements

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

    Elements

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

    The accused made a false statement

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

    Proving the accused made the statement

  13. The prosecution must be able to prove, on the basis of admissible evidence, that the accused made the relevant statement.
  14. This may not be possible where:

    Proving the statement was false

  15. Although Evidence Act 2008 s164 abolished the general requirement for corroboration, an exception is made with respect to the offence of perjury (s164(2)).
  16. Consequently, where the prosecution is relying on oral evidence to prove that the accused’s statement was false, the prosecution’s evidence must either come from two witnesses, or one witness with corroboration. Failure to comply with this requirement will entitle the accused to an acquittal (R v Linehan [1921] VLR 582; R v Hoser [1998] 2 VR 535).
  17. The requirement for corroboration only applies to proving that the accused’s statement was false. Corroboration is not required to prove that the accused made the statement or knew the statement was false (R v Linehan [1921] VLR 582; R v O’Connor [1980] Crim LR 43; R v Mondon [2003] 1 Qd R 200 at [11]).
  18. The requirement for corroboration only applies where the prosecution is relying on oral evidence to prove that the accused’s statement was false. Corroboration is not required where the accused has clearly admitted that his or her statement was false (R v Townley (1986) 24 A Crim R 76; R v Sumner [1935] VLR 197. See also R v Mondon [2003] 1 Qd R 200 at [14]).
  19. However, corroboration is required where the accused has simply made contradictory statements (R v Townley (1986) 24 A Crim R 76; R v Sumner [1935] VLR 197).

    What is Corroboration Evidence?

  20. Corroboration can be found in both direct and circumstantial evidence (R v Baskerville (1916) 2 KB 658; R v Rayner [1998] 4 VR 818; R v Holmes [2008] VSCA 128).
  21. To be capable of amounting to corroboration, evidence must:
    1. Come from a source independent of the witness to be corroborated; and
    2. Be capable of confirming, in some material particular, that the accused made a statement that was false (R v Linehan [1921] VLR 582; R v Baskerville (1916) 2 KB 658; R v Rosemeyer [1985] VR 945).
  22. Each of these requirements is discussed in turn below.

    Independent Evidence

  23. In most cases there will be little difficulty in determining whether corroborative evidence comes from a source independent of the witness to be corroborated. However, particular care should be exercised where it is suggested that the following types of evidence amount to corroboration:
  24. Evidence given by a witness of oral admissions that the accused allegedly made to him or her is not evidence from a source independent of that witness, and cannot provide corroboration. If such evidence is led, the judge should give directions that ensure the jury does not misuse it as corroborative evidence (R v Robertson [1998] 4 VR 30).
  25. If a “lie” evidencing a consciousness of guilt is to be used as corroboration, the falsity of the lie must be established by evidence that is independent of the witness to be corroborated (Edwards v R (1993) 178 CLR 193). See Incriminating Conduct (Post Offence Lies and Conduct).
  26. The true source of direct evidence will generally be clear, but this is often not the case with circumstantial evidence. As a result, care should always be taken to ensure that circumstantial evidence comes from a source independent of the witness concerned (R v Martin (2003) 142 A Crim R 153. See also R v Hoser [1998] 2 VR 535).
  27. In relation to accomplices, it was accepted at common law that accomplices could not provide mutual corroboration, because there would be both an opportunity and a motive for joint fabrication (Pollitt v R (1991) 174 CLR 558).
  28. It is unclear whether this principle has any potential application in relation to corroboration requirements for perjury. The original formulation of the corroboration rule for perjury states that the prosecution requires two witnesses, or one witness with corroboration. The potential for joint fabrication has not been explicitly identified as an exception to that ‘two witness’ rule.
  29. However, in R v Hoser [1998] 2 VR 535, the accused was charged with perjury relating to a claim that he had been sent a letter from VicRoads. Two employees of VicRoads testified that the letter had not come from VicRoads. The trial judge treated those two witnesses as a single entity, as they came from different departments in VicRoads, rather than independent. On appeal, the Court described that position as favourable to the accused, but did not explore the matter further.

    Confirming Evidence

  30. The requirement that the corroborative evidence be capable of confirming or supporting the evidence in question has been stated in a number of different ways. For example, in R v Baskerville (1916) 2 KB 658 it was held that evidence may be corroborative if it:
  31. Most of the law about when evidence will provide corroboration was developed in the context of warnings about the dangers of acting on uncorroborated evidence. The following paragraphs, which describe when evidence provides corroboration, must be treated with some caution, as corroboration for perjury only required to prove that the statement was false and is not necessary for other elements of the offence (see R v Linehan [1921] VLR 582).
  32. To be corroborative, the evidence does not need to be capable of establishing any proposition beyond reasonable doubt (Doney v R (1990) 171 CLR 207; R v Pisano [1997] 2 VR 342), nor does it need to be directly probative of guilt. It merely needs to be capable of “confirming”, “supporting” or “strengthening” the evidence in question. It is evidence which “helps to determine the truth of the matter”. In other words, it is evidence which renders the evidence in question more probable (DPP v Kilbourne [1973] AC 729; R v Taylor (2004) 8 VR 213; R v Holmes [2008] VSCA 128).
  33. The mere fact that an accused can advance an innocent explanation for a potentially corroborative fact does not deprive that fact of its capacity to corroborate. The jury may well regard the proffered explanation as implausible in the circumstances, or for some other reason properly reject it out of hand (BRS v R (1997) 191 CLR 275; R v Challoner (2000) 110 A Crim R 102; R v Taylor (2004) 8 VR 213; R v Strawhorn [2008] VSCA 101; R v Holmes [2008] VSCA 128).
  34. In such cases, as long as the evidence is reasonably capable of corroborating matters which require corroboration, it may be left to the jury (R v Holmes [2008] VSCA 128).
  35. Corroborative evidence must bear upon the issue or issues joined at the trial. Evidence that merely confirms facts in the common ground between the parties will therefore not be corroborative (R v Pisano [1997] 2 VR 342; R v Nanette [1982] VR 81).
  36. However, the law does not permit an accused to deprive facts of their corroborative quality by making a timely admission. An admitted fact may be corroborative if, when seen in the light of the prosecution case, that fact (or an inference drawn from it) is capable of implicating the accused (R v Lindsay (1977) 18 SASR 103; R v Arundell [1999] 2 VR 228; BRS v R (1997) 191 CLR 275).

    Evidence Consistent with Guilt and Innocence

  37. To be corroborative, evidence need not prove the offence, but it must be capable of confirming or tending to confirm the evidence of the witness requiring corroboration (R v Baskerville (1916) 2 KB 658; Doney v R (1990) 171 CLR 207; R v Kerim [1988] 1 Qd R 426; R v Pisano [1997] 2 VR 342).
  38. Evidence will not have this capacity (and will not be corroborative) if it is “intractably neutral” (R v Pisano [1997] 2 VR 342; R v Kerim [1988] 1 Qd R 426).
  39. So long as the evidence is more consistent with guilt than innocence, it is no bar that corroborative evidence has a certain consistency with both guilt and innocence (R v Pisano [1997] 2 VR 342; R v Kerim [1988] 1 Qd R 426).

    Directions on corroboration

  40. When identifying the relevant evidence, the judge should not explain that s/he has ruled that the identified evidence is capable of corroboration. Juries may mistake this for a direction that the evidence actually is corroborative (R v Zorad (1990) 19 NSWLR 91; R v Kendrick [1997] 2 VR 699; R v Jolly [1998] 4 VR 495; R v Williams [2007] VSCA 208).
  41. It is preferable that the judge simply identify the relevant evidence as “evidence that the prosecution relies upon as amounting to corroboration”. Alternately, the judge may tell the jury that they may consider whether the specific evidence which s/he identifies amounts to corroboration (R v Zorad (1990) 19 NSWLR 91, R v Kendrick [1997] 2 VR 699).
  42. Where a combination of circumstantial facts (rather than individual facts standing alone) is relied upon as corroboration, the jury should be directed to consider those facts in combination rather than in isolation (R v Kendrick [1997] 2 VR 699; R v Tadic CCA Vic 31/8/1993).

    The false statement was made in prohibited circumstances

  43. The second element relates to the circumstances in which the false statement was made. It must have been made while on oath or affirmation, or in a declaration or affidavit (Crimes Act 1958 s314(3)).[1]
  44. For this element to be met, the oath, affirmation, declaration or affidavit must have been lawfully made or administered (R v Charles (1866) 3 WW & A’B).
  45. For an oath or affirmation to have been lawfully administered, the body that administered it must have:
  46. An oath will be lawfully effective even if:
  47. An affidavit must be sworn before an authorised person. See Evidence (Miscellaneous Provisions) Act 1958 s123C for a list of authorised persons. See also Evidence (Miscellaneous Provisions) Act 1958 ss112, 124, 125, 126, 126A and 165 and Evidence Act 2008 s186.
  48. A statutory declaration must be signed in the presence of an authorised person (Evidence (Miscellaneous Provisions) Act 1958 ss107). See Evidence (Miscellaneous Provisions) Act 1958 s107A for a list of authorised persons.
  49. The accused must have been legally competent to take the oath or make the affirmation, declaration or affidavit (R v Kilkenny (1890) 16 VLR 139).

    The false statement was made knowingly

  50. Section 314 refers to the false statement having been made “knowingly wilfully and corruptly”. However, it is unclear what the words “wilfully and corruptly” add to the word “knowingly”.[2] Consequently, for the sake of simplicity, this topic focuses solely on the requirement for knowledge. However, if in a case there appears to be a need to separately address the terms “wilful” or “corrupt”, a trial judge should do so.
  51. To have acted “knowingly”, the accused must have:
  52. This element will not be met where:
  53. There is no requirement that the accused’s belief in the truth of the statement be reasonable (R v Mackenzie (1996) 190 CLR 348).
  54. A trial judge must direct the jury on the distinction between “knowingly” making a false statement and honestly or innocently making a false statement. A failure to do so could deprive the accused of the possibility of an acquittal (R v Mackenzie (1996) 190 CLR 348; R v Liristis [2004] NSWCCA 287 at [132]).
  55. Such a direction must be given even if the accused does not believe that he or she was mistaken. It is important to distinguish between honesty and accuracy. An inaccurate statement is not the same as a dishonest statement (R v Mackenzie (1996) 190 CLR 348).

    Notes

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

[2] In this context, the term wilfully has been defined to mean “intentionally” or “deliberately and not inadvertently or by mistake” (R v Ryan (1914) 10 Cr App R 4; R v Millward [1985] QB 519; R v Lowe [1917] VLR 155).

Last updated: 11 July 2018

In This Section

7.8.1.1 - Charge: Statutory Perjury

7.8.1.2 - Checklist: Statutory Perjury

See Also

7.8 - Offences against justice

7.8.2 - Common Law Perjury

7.8.3 - Perverting and attempting to pervert the course of justice