Are you Facing Perjury Charges?
In Victoria, perjury is a serious offence with severe penalties, including imprisonment. However, there are often a number of defences available in relation to this charge.
- Can the prosecution establish all elements of the offence?
- Did you know the statement you made was false?
- Or, at the time, did you believe the information to be correct?
If you have been charged with perjury, contact a specialist Criminal Lawyer today. After discussing the answers to these questions with your lawyer, you should consider how you intend to plead to this charge.
See ‘Perjury and Making False Report‘ for a recent case study at our firm.
What is Perjury?
Perjury is a false statement knowingly made under either an oath or affirmation lawfully administered or through a declaration or affidavit sworn before an authorised person. Perjury is an offence under the Crimes Act 1958 s314 and at common law (see Crimes Act 1958 s314(3)).
Section 314(3) of the Crimes Act 1958 makes it an offence to knowingly make one or multiple false statements under oath or lawfully administered affirmation or by way of a declaration or affidavit sworn before an authorised person.
Under subsection (2), a person may also be liable for perjury under other pieces of legislation. This article does not purport to discuss those provisions and focuses solely on section 314(3), the provision against statutory perjury.
Since each false statement represents an individual offence, the prosecution may charge an accused with multiple perjury charges or one that captures the overall effect of the statements made (Stanton v Abernathy (1990) 19 NSWLR 656). The court will then decide whether or not the prosecution can lay one charge for multiple statements (Traino v R (1987) 45 SASR 473).
The Elements of Perjury
Section 314 of the Crimes Act 1958 requires the following elements be made out beyond reasonable doubt by the prosecution for a charge of perjury to be satisfied:
The accused made a false statement;
That statement was made in prohibited circumstances; and
The accused made the false statement knowingly.
(1) The accused made a false statement
First, the prosecution is required under section 314(3) to prove that the defendant made a false statement. A false statement can be made by (as outlined by section 314(3)) by:
making a false assertion in and of itself;
verifying the validity an existing statement which is wholly or partly untrue; or
omitting information which, under an existing obligation, requires disclosure.
In this context, false is simply defined by its ordinary definition (R v Davies (1974) 7 SASR 375). As such, to prove the accused made a false statement, the prosecution is required to specifically prove:
That the accused in fact made the statement alleged; and
That the statement alleged was false.
In proving the truth (or lack thereof) of the alleged statement, section 164(2) of the Evidence Act 2008 requires that the prosecution corroborate any evidence brought.
It is important to highlight that corroboration need only occur with reference to evidence brought in proving the falsity of the statement itself, and no other element of this offence.
Should the prosecution fail to corroborate the necessary evidence, the element, and thus the charge, will not be made out (R v Linehan [1921] VLR 582).
As such, in proving the falsity of a statement made, the prosecution is required to produce two witnesses (one corroborating the other), or have a witness’ evidence corroborated by additional documentation. For evidence to adequately corroborate another piece of evidence, it is required to be (R v Linehan [1921] VLR 582):
Independent of the evidence being corroborated; and
Capable of, by itself, confirming what the evidence being corroborated is being brought to prove.
(2) The false statement was made in prohibited circumstances
Secondly, the prosecution is required under section 314(3) to show that the alleged false statement was made in prohibited circumstances, such as under either an oath or affirmation, or by way of a declaration or affidavit, and that such an oath, affirmation, declaration or affidavit was made or administrated lawfully (R v Charles (1866) 3 WW & A’B). To be administered lawfully, the oath, affirmation, declaration or affidavit must occur in the presence of an authorised person.
(3) The accused made the statement knowingly
Lastly, though section 134(3) details that the false statement be made ‘knowingly, wilfully and corruptly’, it is sufficient for the prosecution to satisfy that the defendant made the false statement knowingly, as this term would seem to encapsulate the other two mentioned.
For a false statement to have been made knowingly, the prosecution must prove that the defendant either (R v Aylett (1785) 99 ER 973):
Knew the statement was indeed false; or
Did not believe the statement was true when they were presenting it as such.
Evident in this definition, the defendant will not have made a false statement knowingly if they honestly believed the truth of the statement when they made it, irrespective of the reasonableness of that belief (R v Mackenzie (1996) 190 CLR 348).
It is also worth highlighting that the statement must be confirming made concurrent with the knowledge of its falsity. If, for example, a statement was made that happened to be false, but person A honestly thought, when making the statement, that it was true, only to later find out that it was not, they would not be liable for perjury. This is compared to a person B who knew the statement was false when making it.
Perjury Case Examples
Donohue was convicted of 12 charges of making a false document, three charges of attempting to pervert the course of justice, and four charges of perjury. The charges were related to persistent and brazen offending over an extended period in which Donohue created documents, purporting to be from medical professionals, to mislead the court about his health status and avoid resolution of charges against him.
Donohue also signed statutory declarations falsely stating he was required for military duty, preventing him from attending court hearings. The false documents and declarations were found on Donohue’s computer, and his claims of secret military or intelligence duty were rejected by the jury.
Donohue was sentenced to a total effective sentence of 4 years and 5 months, with a non-parole period of 2 years and 9 months. The Court of Appeal refused an application for appeal from Donohue, concluding that the proposed appeal had no prospects of success. The Court of Appeal found that even if the applicant could establish some error in his sentence, there was no prospect that the Court would impose a less severe sentence than the sentence first imposed.
The Court of Appeal also noted that the sentence imposed on Donohue was at the very bottom of the range, suggesting that an appeal could potentially result in an increase in his sentence. The Court found that Donohue’s claims about his health conditions and military duty were false, and that he had not been involved in any military duty, special military duty or federal government duty as alleged by him. The Court concluded that Donohue’s evidence at trial, that he was acting on behalf of the federal government in secret special military or intelligence duty, was a fiction created by him so that the charges against him would not be finalised.
The Court of Appeal’s decision underscores the importance of truthfulness in the administration of justice and the serious consequences of attempting to pervert the course of justice.
Smith v The Queen – [2014] VSCA 241
Smith pleaded guilty to charges of perjury and attempting to pervert the course of justice. The charges against Smith were related to a police investigation of an armed robbery conducted by others to repossess a vehicle. Smith had provided false information in his statements to the police regarding his possession of one of the keys to the vehicle. He also relocated the vehicle and staged a charade to make it appear as if he had recovered the key from his work van. Smith later admitted to lying to the police throughout the investigation and providing false statements.
Smith was initially sentenced to 12 months’ imprisonment for perjury and 6 months’ imprisonment for attempting to pervert the course of justice, with a total effective sentence of 15 months’ imprisonment and a non-parole period of 9 months. However, Smith sought leave to appeal on the ground that the sentence was manifestly excessive.
On appeal, the court noted that while perjury and attempting to pervert the course of justice are very serious offences, the circumstances of Smith’s offending and his personal circumstances led them to the conclusion that the sentence imposed was outside the permissible range open to the sentencing judge.
Accordingly, Smith was re-sentenced to 12 months’ imprisonment on the perjury charge and three months’ imprisonment on the charge of attempting to pervert the course of justice, with a total effective sentence of 12 months’ imprisonment.
Punishment for Perjury
Section 314(1) outlines a maximum penalty of 15 years (or level 4) imprisonment if found guilty of committing wilful and corrupt perjury.
However, sentences this extreme are quite rare and a defendant can receive a penalty ranging from a community corrections order to an immediate custodial sentence. The sentence received is often dictated by the quality of the representation sought.
Where Will my Case be Heard?
Being an indictable offence, a charge of perjury is likely to be heard in the County Court. However, it is also capable of being heard summarily in the Magistrates Court (Schedule 2, Criminal Procedure Act 2009).
What Should I Do Next?
A charge of perjury can result in a term of imprisonment if convicted. You should contact an experienced criminal lawyer today to ensure you are provided with the best representation and that there is adequate time to prepare any possible defences
