7.8.3.5 - Charge: Attempting to pervert the course of justice (No course of justice commenced)

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When to use this charge

This charge should only be used for the offence of attempting to pervert the course of justice where it is not in dispute the accused engaged in the relevant conduct before a course of justice had commenced.

If the conduct of the accused occurred after the course of justice commenced use Charge: Attempting to pervert the course of justice (Course of justice commenced).

The elements

I must now direct you about the offence of attempting to pervert the course of justice. To convict the accused of this offence, the prosecution must prove the following 2 elements beyond reasonable doubt:

One – the accused engaged in conduct that had the tendency to pervert the course of justice.

Two – the accused intended for that conduct to pervert the course of justice.

I will now explain each of these elements in more detail.

Tendency to pervert the course of justice

The first element requires you to be satisfied the accused engaged in conduct that tended to pervert the course of justice. This involves two questions.

One – Was there a course of justice?

Two – Did the conduct create a real risk or possibility of interfering with that course of justice?

Connection to a future proceeding

For the purpose of this offence, a ‘course of justice’ is the administration of the law in a court proceeding.

At the time NOA [describe alleged conduct] a court proceeding had not yet commenced. The prosecution must therefore prove that a court proceeding was “imminent, probable or possible” at the time NOA [describe alleged conduct].

[Where the prosecution identifies a specific offence/cause of action for which proceedings would have been instituted add the following]

The prosecution says [describe alleged conduct of NOA or any other person likely to lead to a future court proceeding] was likely to lead to [describe future prosecution/court proceeding] because [summarise relevant prosecution arguments and evidence].

You must decide if the prosecution has proved beyond reasonable doubt the commencement of a court proceeding was likely. In other words, were future proceedings for [describe conduct of NOA or any other person likely to lead to a future court proceeding] “imminent, probable or possible”?

[Where the prosecution do not identify a specific offence/cause of action add the following]

The prosecution does not need to identify a specific [offence/cause of action] to satisfy this requirement. However, the prosecution must prove future proceedings were not ‘distant or hypothetical’ but were likely to result from [summarise relevant inquiries, e.g. police investigations into the alleged criminal conduct of NOA].

[If the defence dispute the likelihood of a future proceeding add the following shaded section]

The defence argues that proceedings for [describe future prosecution/court proceeding] were not “imminent, probable or possible” because [summarise relevant defence arguments and evidence].

[Refer to competing prosecution and defence evidence and arguments]

Defining tendency

The second question is whether NOA’s conduct created a real risk or possibility of interfering with that proceeding.

The prosecution say [describe NOA’s alleged conduct] posed a real risk or possibility of interfering with the administration of justice because [describe how this is alleged to have potentially interfered with the administration of justice].[1]

[If the defence dispute that the accused engaged in the alleged conduct, add the following shaded section]

The defence argues that the prosecution has not proved, beyond reasonable doubt, that NOA [describe alleged conduct].

[Refer to competing prosecution and defence evidence and arguments].

[If the defence dispute that the alleged conduct had a tendency to pervert the course of justice, add the following shaded section]

The defence argues that NOA’s conduct did not pose a real risk or possibility of interfering with the administration of justice because [refer to relevant defence and prosecution evidence and arguments].

[Refer to competing prosecution and defence evidence and arguments].

[If the issue of impossibility arises, add the following shaded section]

In deciding whether NOA’s conduct had a tendency to pervert the course of justice, I direct you as a matter of law it is not relevant that [describe basis of impossibility]. Instead, you must look at NOA’s conduct objectively and decide whether [describe alleged conduct without reference to basis of impossibility – e.g. offering a bribe to a police officer] in general poses a real risk or possibility of interfering with the administration of justice by a court.

If you are satisfied the prosecution has proved beyond reasonable doubt there was an “imminent, probable or possible” court proceeding and NOA’s conduct posed a real risk or possibility of interfering with that proceeding, then this first element will be met.

Intention to pervert the course of justice

The second element the prosecution must prove is that at the time the accused engaged in the relevant conduct, s/he intended to pervert the course of justice.

In this case, the prosecution must prove, beyond reasonable doubt, that when NOA [describe alleged conduct], s/he intended that [describe basis for alleged perversion of the course of justice].[2]

I direct you as a matter of law, this element does not require the prosecution to prove NOA realised or understood the conduct would result in a perversion of the course of justice.

[Summarise relevant prosecution and defence evidence and arguments]

[If the defence argues that the accused did not have any future proceedings in contemplation at the time of the alleged conduct, add the following shaded section]

The defence argues NOA did not intend to interfere with the administration of justice because at the time s/he [describe alleged conduct] it cannot be proved NOA thought future proceedings were “imminent, probable or possible”.

[Identify relevant defence evidence and arguments]

In response, the prosecution argues that [identify relevant prosecution evidence and arguments].

If you are satisfied, at the time the NOA [describe alleged conduct], s/he intended to pervert the course of justice, then this element will be met.

Summary

To summarise, before you can find NOA guilty of attempting to pervert the course of justice the prosecution must have proved to you beyond reasonable doubt:

One – NOA engaged in conduct that tended to pervert the course of justice; and

Two – NOA intended to pervert the course of justice.

If you find that either of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of attempting to pervert the course of justice.

Last updated: 27 April 2016

Notes

[1] If required, see Perverting and attempting to pervert the course of justice for guidance on when conduct may tend to pervert the course of justice.

[2] For example, when NOA threatened NOW, she intended that NOW would give false information to police which would prevent them from charging NOA with assaulting NO3P.

See Also

7.8.3 - Perverting and attempting to pervert the course of justice

7.8.3.1 - Charge: Perverting the course of justice

7.8.3.2 – Checklist: Perverting the course of justice

7.8.3.3 - Charge: Attempting to pervert the course of justice (Course of justice commenced)

7.8.3.4 – Checklist: Attempting to pervert the course of justice (Course of justice commenced)

7.8.3.6 – Checklist: Attempting to pervert the course of justice (No course of justice commenced)