Perverting the Course of Justice

Police Interview

The purpose of the interview is not to search for the truth but rather to obtain evidence that can be admitted against you in court. This evidence comes in the form of admissions. You may say things that you think are not important and that you are simply ‘telling the truth’. These words can be used against you in ways you wouldn’t expect. Your statements could be used to try and discredit you to a jury or show you are a liar or an inconsistent storyteller if what you say changes, even slightly, later. Call one of our lawyers if you are asked to attend a Police interview for advice on whether you should or should not comment in your specific situation. We can also attend to support you and ensure the process goes smoothly if you need.

Pleading Not Guilty

It is important that you hire experts to help combat the vast resources of the state. The Prosecution will work very hard to secure a conviction. Our lawyers work just as hard to ensure that you can defend your case effectively. We have in-house trial advocates and accredited criminal law specialists who understand the changing law. They are experts in the law of evidence and at questioning witnesses. In some cases we may even be able to persuade the Prosecution to drop charges before ever going to trial.

Pleading Guilty

You should only plead guilty if that is the best option for you. Our lawyers can help advise you about the best way forward for your particular case. After speaking with police you may think that there is no option but to please guilty and that the case is very strong. We are experts in Criminal Law and we may see things that you do not. If it in your best interests to plead guilty we know how to present your plea in mitigation to the Court in the most positive manner. We understand sentencing and know what does and does not work and can help you get the fairest possible result.

Sentencing

Sentencing in the higher courts of Victoria

Which court will the case be heard in?

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?

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 they function at law, see the ‘elements of the offence’ section below.

Examples

• 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.

Legislation

These offences 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.¹ 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 result in a perversion. 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

This offence has the following elements:

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

Element 1: A course of justice has begun
A course of justice begins when a court or judicial body’s jurisdiction is invoked.² Police investigations of an offence are not part of the ‘course of justice’ because it is the courts, not the police, that administer justice.³

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.⁴ 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.⁵ Frustrating a police investigation before the instigation of court proceedings may result in a successful prosecution of this offence but not of ‘perverting the course of justice’.⁶

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.⁷ This gets perverted whenever an accused impairs, obstructs, adversely interferes or prevents the court from administering justice.⁸

Ways in which an accused can pervert justice include (but are not limited to)⁹:

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 cause the course of justice to be perverted, if the accused’s carried out their purpose successfully.¹⁰

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.¹¹ For example, an accused might intend to intimidate a person into pleading guilty without having in mind that the course of justice will be perverted. 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 intend to cause such perversion.

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

Elements – Attempting to Pervert the Course of Justice

This offence 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.¹² 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.¹³

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”.¹⁴ This will be made out if the conduct had the tendency to deflect the police from bringing a prosecution for some offence.¹⁵

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”.¹⁶ 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.¹⁷

Defences

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

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?

You should ring us and discuss your case if you have been charged with either of these offences. 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

Both of these offences, i.e. attempting to or actually perverting the course of justice, have a maximum penalty of 25 years imprisonment.¹⁸

Other important resources

• Judicial College of Victoria – Perverting and Attempting to Pervert the Course of Justice

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