Perverting the Course of Justice

– Common Law
Old Man Receiving Bad News on PhoneThe charges of ‘perverting the course of justice’ and ‘attempting to pervert the course of justice’ are laid in situations where a person intentionally engages in conduct to pervert the course of justice. There is significant overlap between these two offences however there are key differences between them as well.

These are common law offences derived from case law.1

Examples of Perverting the Course of Justice / Attempting to Pervert the Course of Justice
  • An accused threatens or bribes a witness to alter their evidence.
  • An accused intimidates another person into pleading guilty to an offence and as such the person’s decision to plead is not made freely.
  • An accused destroys evidence that the court needs to understand the true facts and circumstances of the case.
Questions in cases like this
  • Did the accused’s conduct pervert the course of justice?
  • Did the accused’s conduct have a tendency to pervert the course of justice?
  • Did the accused intend that their conduct pervert the course of justice?
What are some of the possible defences to Perverting the Course of Justice / Attempting to Pervert the Course of Justice?

Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

  • The accused’s conduct did not pervert the course of justice or have a tendency to pervert the course of justice;
  • The accused did not intend that their conduct pervert the course of justice.

You should ring us and discuss your case if you have been charged with perverting the course of justice or attempting to pervert the course of justice. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with these charge

ImprisonmentBoth perverting the course of justice and attempting to pervert the course of justice have a maximum penalty of 25 years imprisonment.2

Perverting the course of justice and attempting to pervert the course of justice are very serious offences which are both heard in the County Court.

What is the legal definition of Perverting the Course of Justice / Attempting to Pervert the Course of Justice?

The ‘legal definition’ of perverting the course of justice is similar to the definition of attempting to pervert the course of justice, however they have key differences. As these are common law offences, there is no legal definition written in a piece of legislation.

To understand how ‘perverting the course of justice’ and ‘attempting to pervert the course of justice’ function at law, see the ‘elements of the offence’ section below.

Legislation

‘Perverting the course of justice’ and ‘attempting to pervert the course of justice’ are common law offences and, as such, they are not written in a piece of legislation. The offences exist due to case law.

Elements of the offence

The two key differences between the offences of ‘perverting the course of justice’ and ‘attempting to pervert the course of justice’ are:

  1. A judicial proceeding must be on foot at the time the relevant conduct took place for a charge of ‘perverting the course of justice’ to be successfully prosecuted. This is because the course of justice only begins once a court or judicial body’s jurisdiction has been invoked.3 A judicial proceeding need not be on foot for a charge of ‘attempting to pervert the course of justice’ to be successfully prosecuted.
  2. For an offence of ‘perverting the course of justice’, the prosecution must prove that the relevant conduct actually did pervert the course of justice. For an offence of ‘attempting to pervert the course of justice’, the prosecution need only prove that the conduct had a tendency to pervert the course of justice.

These differences between the two offences mean that they have different elements.

Elements – Perverting the Course of Justice

‘Perverting the course of justice’ has the following elements:

  1. A course of justice has begun;
  2. The accused engaged in conduct which did pervert the course of justice;
  3. The accused intended for that conduct to pervert the course of justice.

CourtElement 1: A course of justice has begun
A course of justice begins when a court or judicial body’s jurisdiction is invoked.4 Police investigations of an offence are not part of the ‘course of justice’ because it is the courts, not the police, that administer justice.5

In a criminal proceeding, the court’s jurisdiction is not invoked until the filing of a charge sheet, a direct indictment or a direction to be tried for perjury.6 When one of these three things have occurred, a judicial proceeding will be on foot and the first element of the offence will be satisfied.

In contrast, the offence of ‘attempting to pervert the course of justice’ may occur due to conduct that takes place before the initiation of court proceedings.7 Frustrating a police investigation before the instigation of court proceedings may result in a successful prosecution of ‘attempting to pervert the course of justice’ but not ‘perverting the course of justice’.8

Element 2: The accused engaged in conduct that did pervert the course of justice
The course of justice is the exercise of a court or judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of a party to a proceeding.9 The perversion of a course of justice occurs when an accused impairs, obstructs, adversely interferes or prevents the court from administering justice.10

Ways in which an accused can pervert justice include (but are not limited to)11:

  1. Erosion of the integrity of the court or competent judicial authority; or
  2. Hindering access to the court or competent judicial authority; or
  3. Deflecting applications that would be made to the court or competent judicial authority; or
  4. Denying the court or competent judicial authority knowledge of relevant law; or
  5. Denying the court or competent judicial authority knowledge of the true circumstances and facts of the case; or
  6. Impeding the free exercise of the jurisdiction and power of the court or competent judicial authority including the power to execute its decisions.

To satisfy the second element of this offence, the prosecution must prove that accused’s conduct has resulted in the perversion of justice.

Element 3: The accused intended for that conduct to pervert the course of justice
To satisfy the final element of the offence, the prosecution must prove that the accused deliberately engaged in conduct for a purpose that would pervert the course of justice, if the accused’s carried out their purpose successfully.12

This element of the offence can be satisfied even if the accused does not have the concepts of ‘course of justice’ or ‘perversion’ in mind when they engage in their conduct.13 For example, an accused might intend to intimidate a person into pleading guilty without having in mind that this will pervert the course of justice. If the accused is successful in intimidating a person into pleading guilty, then they will satisfy the third element of the offence even though they did not have in mind that they were perverting the course of justice.

“Can they prove that you intended to pervert the course of justice?”

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Elements – Attempting to Pervert the Course of Justice

‘Attempting to pervert the course of justice’ has the following elements:

  1. The accused engaged in conduct that had the tendency to pervert the course of justice;
  2. The accused intended for that conduct to pervert the course of justice.

Element 1: The accused engaged in conduct that had the tendency to pervert the course of justice
To satisfy the first element of this offence, an accused’s conduct must have the objective capacity to pervert the course of justice.14 This means that there must be a real possibility or risk that the accused’s conduct had the capacity to interfere with the proper administration of justice.15

The court’s jurisdiction does not need to have been invoked to satisfy this element of the offence. However, the conduct must still tend to pervert “imminent, probable or even possible judicial proceedings”.16 This will be made out if the conduct had the tendency to deflect the police from bringing a prosecution for some offence.17

Element 2: The accused intended for that conduct to pervert the course of justice
This element is the same as element 3 of ‘Perverting the course of justice’ above.

The prosecution must prove that the accused’s intention related to a course of justice. The accused’s conduct must be directed towards perverting “imminent, probable or even possible judicial proceedings”.18 It is insufficient to satisfy this element of the offence for the prosecution to prove a mere intention to frustrate a police investigation without a connection to future to judicial proceedings.19

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[1] R v Murphy (1985) 158 CLR 596
[2] Crimes Act 1958 s 320
[3] R v Rogerson (1992) 174 CLR 268
[4] R v Rogerson (1992) 174 CLR 268
[5] R v Rogerson (1992) 174 CLR 268
[6] Criminal Procedure Act 1009 (Vic) ss 5, 6, 159 and 415.
[7] R v Rogerson (1992) 174 CLR 268
[8] R v Rogerson (1992) 174 CLR 268
[9] R v Rogerson (1992) 174 CLR 268
[10] R v Rogerson (1992) 174 CLR 268
[11] R v Rogerson (1992) 174 CLR 268
[12] Meissner v R (1995) 184 CLR 132
[13] Meissner v R (1995) 184 CLR 132
[14] R v Rogerson (1992) 174 CLR 268
[15] R v Murray [1982] 1 WLR 475
[16] R v Rogerson (1992) 174 CLR 268 at 277
[17] R v Rogerson (1992) 174 CLR 268
[18] R v Rogerson (1992) 174 CLR 268 at 277
[19] R v Rogerson (1992) 174 CLR 268