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  • Perjury Offences and Penalties in Victoria (VIC)

    When a Victorian Court calls upon a witness to testify in a criminal trial, the judge will typically ask them to make an oath. Then, the judge will direct the witness to lift their right hand and swear to tell the truth and nothing but the truth.

    No witness should take this oath lightly. Anyone who knowingly lies in Court could find themselves in trouble with the law. However, the offence of perjury is much broader. This article will look at Victorian perjury laws and the penalties for lying under oath.

    If an individual is convicted in a Victorian court for a perjury offence, the offence will show up as a disclosable court outcome (DCO) on a Criminal History Check result in Victoria.

    The Law on Perjury in Victoria

    Perjury in Victoria is both a statutory offence and a common-law one. Statutorily, this crime is an offence under Section 314 of the Crimes Act 1958 (Vic). According to this section, a person commits perjury if they make a false statement under oath, in an affidavit, declaration, or affirmation.

    When charging a person under this section, the prosecution must prove the following elements beyond a reasonable doubt:

    • The accused made a statement on oath, by declaration, affirmation, or affidavit
    • The accused’s statement was false
    • The accused made the statement knowing that it was untrue at the time they made it
    • The accused made the false statement in prohibited circumstances

    We’ll discuss each of these elements in detail below.

    The First Element

    Making a statement under Section 314 of the Crimes Act 1958 (Vic) could involve any of the following:

    • Giving and signing a witness statement to the police
    • Providing an affidavit or statutory declaration
    • Giving oral evidence in Court

    The Second Element

    Under this section, there are three ways that a person can make a false statement. They can do so by:

    • Making an assertion about a matter, fact, or thing that is untrue
    • Claiming to verify the truth of a statement that is either entirely untrue or in part, or
    • Failing to mention information or facts that the law requires them to state

    When bringing perjury charges against a person, the prosecution must also specify the exact statement that is allegedly false. Therefore, it will typically not be sufficient for them to rely on an entire testimony transcript and claim that the accused gave false evidence.

    In proving that the statement was false, the prosecution can rely on corroborative evidence. While Section 164 of the Evidence Act 2008 (Vic) abolishes the general requirement for corroboration, it makes an exception concerning the offence of perjury.

    Therefore, the prosecution can rely on oral evidence to prove that the defendant's statement was false. However, such evidence must come from at least two witnesses or one witness with corroboration. If the prosecution cannot do so, the Court may acquit the accused.

    It is vital to note that this corroboration requirement only applies to proving that the defendant's statement was false. It also only applies in cases where the prosecution depends on oral evidence to prove the falsity of the accused's statement.

    The prosecution does not have to provide corroborating evidence to show that the accused made the statement or knew that the statement was false. The prosecution also does not need corroboration if the accused has clearly admitted that the statement was false. However, the Court will require corroborative evidence where the defendant made contradictory statements.

    The Third Element

    The Court will only find a person facing perjury charges guilty if the prosecution can prove that they made the false statement intentionally. This element means that the accused either knew that the statement was false or did not believe the statement to be true.

    However, if the defendant made the statement with inadvertence, misunderstanding or carelessness, they will not be guilty of perjury. The same applies if the accused had an honest but mistaken belief that the statement was true. Note that honesty does not always mean accuracy.

    As such, a person's statement might be sincere while being inaccurate.

    It is also essential to note that it does not matter whether this belief was reasonable or not.

    The Fourth Element

    The accused must have made the false testimony in prohibited circumstances. This aspect relates to the circumstances in which the accused made the false statement. For example, they must have made it while on oath or affirmation or in an affidavit or declaration.

    This oath, declaration, affirmation, or affidavit must have been lawfully made or administered. As such, the party that administered it must have had:

    1. The power to administer affirmations or oaths
    2. The jurisdiction to hear the case before it

    Note that an oath is lawfully effective even if:

    • The body administering it did not use a religious text
    • The defendant did not have a religious belief, or
    • The defendant did not understand the nature of the oath and its consequences

    Other essential points to take note of when considering whether the prosecution’s evidence meets the fourth element are:

    • The accused must have sworn the affidavit or statutory declaration, where applicable, before an authorised person.
    • The defendant must have been legally competent to take the oath or make the declaration, affirmation, or affidavit.

    Perjury At Common Law

    Perjury is also an indictable common law crime. A person will be guilty of common law perjury if they intentionally make a false statement while under oath or affirmation.

    However, they must have made this statement during a judicial proceeding regarding an issue that is material to the proceeding's determination.

    So, to prove that a person committed common law perjury, the prosecution must prove that:

    • The defendant made a false statement
    • The defendant made the false statement knowingly
    • They made the false statement on oath or affirmation
    • They made it in a judicial proceeding
    • The false report was material or relevant to the judicial proceeding

    It is obvious from the above that common law perjury and statutory perjury in Victoria have certain elements that overlap. The first three elements under common law perjury are also present in statutory perjury. Therefore, we will only consider those elements peculiar to common law perjury.

    The accused made the false statement in a judicial proceeding

    This element means that the defendant must have made the oath or affirmation in a judicial proceeding. Judicial proceeding here refers to a trial that takes place in or under the authority of a Victorian court of justice. It also includes proceedings that legally ascertain a right or liability or relate to the administration of justice. Simply put, judicial proceedings are the criminal and civil processes and judgments of any court.

    The statement was material to the judicial proceeding

    A statement was material to a case if it was significant enough to have been able to affect the Court’s decision concerning a fact in issue. Such an effect may be direct or indirect.

    A statement is also material if it is practically relevant to the case in question. On the other hand, any comment that is too remote or only theoretically relevant is deemed not material to the proceeding.

    This element is objective and speaks on the significance of the false statement, not on the import a true statement would have had.

    Jurisdiction: What Court Will Hear a Perjury Case?

    Perjury is an indictable offence in Victoria and is, therefore, usually heard in the County Court. However, since it is listed in Schedule 2 of the Criminal Procedure Act 2009 (Vic), it is a charge that is also within the summary jurisdiction in Victoria of the Magistrates Court. As such, the Magistrates Court of Victoria can hear a perjury matter if the defendant agrees and the Court deems it appropriate.

    What is the Penalty for Perjury in Victoria?

    As per Section 314 of the Crimes Act 1958 (Vic), the maximum penalty for perjury is level 4 imprisonment, 15 years. However, despite this provision, the maximum punishment for this crime would be two years imprisonment if a Magistrate Court handles the case. The reason is that the law only allows a Magistrate to impose at most two years of imprisonment for a single offence and five years incarceration for multiple charges.

    Still, the Court may not sentence a person it finds guilty of perjury to prison in some instances. Instead, it may give the offender a Community Correction Order (CCO).

    A Victorian court can only make this order under the following circumstances:

    • If the crime it found the offender guilty of is punishable by more than five penalty units.
    • If the Court receives a pre-sentence report (where applicable) and has considered any information, recommendations, or matters the report identifies
    • If the convict consents to the order.

    Before giving a sentence after finding a person guilty of perjury, the Court will typically consider the following:

    • The level of remorse the offender shows
    • The impact of the offender’s false statement on a finding of innocence or guilt
    • Whether the offender is a public figure or seems to have a special relationship with the administration of justice (i.e. a person working in the justice system or law enforcement)
    • Whether the accused has intentionally placed an innocent individual in a position where they were at risk of being found guilty or being deprived of their freedom
    • Whether the offender entered a plea of guilty at an early opportunity.

    If the Court decides to grant an offender a community correction order, the length of the sentence cannot exceed:

    • Two to five years if the Magistrates Court was the body that gave the directive. Two years if it is a single offence, four years if it is in respect of two crimes, and five years for three or more charges
    • 5 years if it was the County Court or the Supreme Court that gave the order

    When giving a convict a community correction order, the ordering court may also attach a condition requiring the offender to carry out unpaid community work. In such cases, the convicted person must perform the specified number of hours of community work under an unpaid community work condition.

    Any offender on a CCO is under the regulation and supervision of the Victorian Office of Corrections. Accordingly, this agency will typically assign such a convict to a Corrections Case Manager. This officer will roster the convicted person for unpaid community work and supervise them during the course of the CCO.

    The offender will also have to attend regular appointments with their Corrections Case Manager, who will oversee their progress on the CCO. They also cannot leave the state during the period of the order without the written permission of the Office of Corrections.

    Possible Defences to Perjury Charges

    A person facing perjury charges may assert any of the following defences to avoid a finding of guilt;

    1. Mistake of fact

    Using this defence, the accused person claims that they did not know that their statement was false. This defence also applies to where the accused misunderstood a question or court instruction, causing them to make the apparently false statement.

    2. Duress

    Here, the defendant asserts that they gave the false statement because they were threatened with severe injury or death. When claiming duress, the accused must prove that they would have suffered instant harm or future retaliation if they did not cooperate with a demand to perjure themselves.

    3. The Statement Was Not Falses

    The defendant could maintain that their statement was true even if they had perhaps left out a material fact. So, if the information was misleading but accurate, the Court cannot find the accused guilty of perjury.

    4. The Defendant Wes Not Under Oath

    Although lying is unethical, it is not a crime unless told under oath.

    5. The Defendant Retracted the False Statement

    An accused person can only use this defence if they acknowledge that their statement was false during the same legal proceeding. However, if the false report had already affected the proceedings in a substantial way or another person identified the perjury, this defence would not stand.

    Conclusion

    It is crucial for anyone facing perjury charges to contact an experienced criminal lawyer. Taking this step at the early stages of a criminal investigation or trial can significantly improve their chances of getting a favourable resolution.

    Will a Perjury Offence in Victoria (Vic) show up on a Nationally Coordinated Criminal History Check?

    If an individual is found guilty of a perjury offence in Victoria, the offence will show up as a disclosable court outcome (DCO) on the results of their police clearance check.

    Individuals can obtain a nationally coordinated criminal history check online via the Australian National Character Check - ANCC® website.

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