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7.8.2 - Common Law Perjury

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Introduction

  1. Perjury is an indictable common law offence (R v Aylett (1785) 99 ER 973), as well as statutory offence (see Statutory Perjury).
  2. The operation of common law perjury has been specifically preserved by Crimes Act 1958 s314(3).

    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. See Statutory Perjury for further information concerning this issue.

    Elements

  5. Common law perjury has the following five elements:
    1. The accused made a false statement;
    2. The false statement was made on oath or affirmation
    3. The false statement was made in a judicial proceeding;
    4. The false statement was material to the judicial proceeding; and
    5. The accused made the false statement knowingly.

    The accused made a false statement

  6. The first element that the prosecution must prove is that the accused made a false statement.
  7. 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). [1]
  8. 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).
  9. Where the prosecution relies on oral evidence to prove the statement was false, the prosecution must either call two witnesses, or one witness who is corroborated (R v Linehan [1921] VLR 582). See ‘Proving the statement was false’ in Statutory perjury for information on the requirement of corroboration.

    The false statement was made on oath or affirmation

  10. The second element relates to the circumstances in which the false statement was made. It must have been made on oath or affirmation.
  11. For this element to be met, the oath or affirmation must have been lawfully administered (R v Charles (1866) 3 WW & A’B).
  12. For an oath or affirmation to have been lawfully administered, the body that administered it must have:
  13. See also Evidence (Miscellaneous Provisions) Act 1958 s151).
  14. An oath will be lawfully effective even if:
  15. 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 in a judicial proceeding

  16. The third element requires the oath or affirmation to have been sworn or made in a judicial proceeding (R v Aylett (1785) 99 ER 973).
  17. A judicial proceeding is a ‘proceeding which takes place in or under the authority of any court of justice, or which relates to the administration of justice, or which legally ascertains any right or liability’ (Stephan, A Digest of the Criminal Law (5th ed, 1894), 107).
  18. Judicial proceedings include the civil and criminal processes and judgments of the courts (Lipohar v R (1999) 200 CLR 485).
  19. The internal arrangements of a court (e.g., its internal administrative procedures) are not a ‘judicial proceeding’ (R v Fingleton (2005) 227 CLR 166).

    The statement must be ‘material’ to the judicial proceeding

  20. The fourth element requires the statement to have been material to the relevant judicial proceeding (R v Davies (1974) 7 SASR 375).
  21. A statement will have been material if it was significant enough to have been capable of affecting a decision concerning a fact in issue. This includes statements about the defendant’s credit or a witness’ credit. The effect may be direct or indirect (R v Davies (1974) 7 SASR 375; R v Lewis (1914) 10 TASLR 48).
  22. To be ‘material’, the statement must have been practically relevant to the proceeding. Statements which are too remote, or which are only theoretically relevant, are not ‘material’ (R v Davies (1974) 7 SASR 375).
  23. The standard by which materiality is measured is an objective one (R v Millward [1985] 1 All ER 859).
  24. Materiality turns on the significance of the false statement actually made, and not on the significance a true statement would have had (R v Millward [1985] 1 All ER 859).
  25. It is for the judge to determine, as a matter of law, whether a statement is capable of constituting a material statement. It is for the jury to determine, as a matter of fact, whether the statement actually was material (R v Davies (1974) 7 SASR 375).

    The false statement was made knowingly

  26. The fifth element requires the false statement to have been made ‘knowingly’.
  27. See Statutory Perjury for further information concerning this element.

    Note

[1] There is some early authority (Ockley and Whitlebye’s Case (1622); Allen v Westley (1629)) which suggests that an accused who has made a true statement believing it to be false (or being reckless as to whether it was true or false) could be convicted of perjury. However, modern authorities (e.g., R v Davies (1974) 7 SASR 375) seem to require that the statement actually be false.

Last updated: 11 July 2018

In This Section

7.8.2.1 - Charge: Common Law Perjury

7.8.2.2 - Checklist: Common law perjury

See Also

7.8 - Offences against justice

7.8.1 - Statutory Perjury

7.8.3 - Perverting and attempting to pervert the course of justice