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Disc Paper.Pdf PARLIAMENT OF VICTORIA L AW R EFORM C OMMITTEE I NQUIRY INTO ADMINISTRATION OF JUSTICE OFFENCES D ISCUSSION P APER August 2003 SUBMISSIONS ARE INVITED The Committee welcomes written submissions in response to the issues raised in its Discussion Paper or on any matter related to the Terms of Reference of this Inquiry. To assist interested parties in making submissions a number of questions have been posed throughout the Discussion Paper. Please note that the Committee requires all submissions to be signed hard copy originals and would also appreciate an electronic copy. Confidentiality – All submissions are treated as public documents, unless confidentiality is requested. It is the intention of the Committee to place submissions on its webpage. Public Hearings – The Committee is planning to hold public hearings at which oral submissions and evidence can be given. The dates of public hearings will be advertised in the Age newspaper and on our website. Parliamentary Privilege – All submissions received and statements made at public hearings are protected by parliamentary privilege. Please take this opportunity to make a written submission. Send all submissions to: Inquiry into Administration of Justice Offences Victorian Parliament Law Reform Committee Level 8, 35 Spring Street Melbourne Victoria 3000 Phone: (03) 9651 3644 Fax: (03) 9651 3674 Email: [email protected] Website: http://www.parliament.vic.gov.au/lawreform THE CLOSING DATE FOR SUBMISSIONS IS 31 OCTOBER 2003 ISBN – 0 7313 5395 1 ii C OMMITTEE M EMBERSHIP C HAIR Mr Rob Hudson, MLA D EPUTY C HAIR Mr Noel Maughan, MLA M EMBERS Hon Andrew Brideson, MLC Hon Richard Dalla-Riva, MLC Ms Dianne Hadden, MLC Ms Dympna Beard, MLA Mr Tony Lupton, MLA S TAFF E XECUTIVE O FFICER Ms Merrin Mason R ESEARCH O FFICERS Ms Kristin Giles (Inquiry into Administration of Justice Offences) Ms Sue Kaufmann (Inquiry into Forensic Sampling and DNA Databases in Criminal Investigations) O FFICE M ANAGER Ms Jaime Cook iii Functions of the Victorian Parliament Law Reform Committee The Victorian Parliament Law Reform Committee is constituted under the Parliamentary Committees Act 1968, as amended. Section 4E. a) to inquire into, consider and report to the Parliament where required or permitted so to do by or under this Act, on any proposal, matter or thing concerned with legal, constitutional or Parliamentary reform or with the administration of justice but excluding any proposal, matter or thing concerned with the joint standing orders of the Parliament or the standing orders of a House of the Parliament or the rules of practice of a House of the Parliament; b) to examine, report and make recommendations to the Parliament in respect of any proposal or matter relating to law reform in Victoria where required so to do by or under this Act, in accordance with the terms of reference under which the proposal or matter is referred to the Committee. Terms of Reference Referred by the Governor in Council on 6 May 2003 To inquire into, consider and report to Parliament on: 1. The current state of law in Victoria in relation to administration of justice offences (such as perjury, perverting the course of justice, falsifying evidence and threatening witnesses); and 2. Whether these laws should be amended, and in what way, having particular regard to interstate laws and the recommendations of the Model Criminal Code Officers Committee Discussion Paper on Administration of Justice Offences (July 1997). iv T ABLE OF C ONTENTS QUESTIONS FOR DISCUSSION ....................................................................................................VII CHAPTER ONE – INTRODUCTION .................................................................................................1 TERMS OF REFERENCE ..........................................................................................................................2 PURPOSE OF THIS DISCUSSION PAPER...................................................................................................2 CODIFICATION VERSUS COMMON LAW..................................................................................................3 WHICH OFFENCES ARE REGARDED AS “ADMINISTRATION OF JUSTICE OFFENCES”?...............................8 COMMON FEATURE: A STRIKE AT THE HEART OF THE ADMINISTRATION OF JUSTICE ...........................12 THE COMMITTEE’S APPROACH ...........................................................................................................15 WHY CODIFY? THE ADVANTAGES AND DISADVANTAGES OF CODIFICATION .......................................16 BACKGROUND TO THE MODEL CRIMINAL CODE OFFICERS COMMITTEE ............................................21 CHAPTER TWO - PERVERTING THE COURSE OF JUSTICE.................................................23 STRUCTURE OF CHAPTER ...................................................................................................................23 TERMINOLOGY ...................................................................................................................................24 COMPLETED OFFENCE – SUBSTANTIVE NOT INCHOATE .......................................................................25 SUMMARY OF ELEMENTS OF THE OFFENCE .........................................................................................26 “TENDING TO PERVERT” – THE PHYSICAL ELEMENT ...........................................................................27 “INTENDING TO PERVERT” – THE MENTAL ELEMENT...........................................................................34 “COURSE OF PUBLIC JUSTICE” ............................................................................................................39 SENTENCING.......................................................................................................................................43 PERVERTING THE COURSE OF JUSTICE AS A STATUTORY OFFENCE – COMPARISON WITH OTHER JURISDICTIONS....................................................................................................................................45 REFORM ISSUES..................................................................................................................................48 FALSE ACCUSATION OF OFFENCE ........................................................................................................52 CHAPTER THREE - SPECIFIC OFFENCES RELATING TO EVIDENCE AND WITNESSES ................................................................................................................................................................59 OFFENCES RELATING TO INTERFERENCE WITH EVIDENCE ...................................................................59 OFFENCES RELATING TO INTERFERENCE WITH WITNESSES .................................................................68 REPRISALS AGAINST WITNESSES.........................................................................................................77 v CHAPTER FOUR - ACCESSORIES.................................................................................................87 PRINCIPAL OFFENCES TO WHICH THE OFFENCE APPLIES......................................................................88 COMMISSION OF PRINCIPAL OFFENCE .................................................................................................90 THE PHYSICAL ELEMENT OF THE OFFENCE..........................................................................................95 THE MENTAL ELEMENT.......................................................................................................................97 PENALTIES........................................................................................................................................106 RELATED OFFENCE: CONCEALING OFFENCES FOR BENEFIT...............................................................107 CHAPTER FIVE – PERJURY .........................................................................................................109 INTRODUCTION.................................................................................................................................109 REQUIREMENT OF A LAWFUL OATH .................................................................................................111 FAULT ELEMENT...............................................................................................................................125 THE RULE AGAINST DUPLICITOUS COUNTS: ONE COUNT FOR EACH FALSE STATEMENT? ...................131 CORROBORATION REQUIRED ............................................................................................................134 DOUBLE JEOPARDY / ISSUE ESTOPPEL ..............................................................................................145 SENTENCING.....................................................................................................................................146 ADDITIONAL ISSUES .........................................................................................................................152 APPENDIX – LIST OF REFERENCES ................................................................................161 vi Q UESTIONS FOR D ISCUSSION Question 1 - Meaning of tendency ............................................................................... 33 What do you think is the correct approach to “tendency” to pervert the course of justice? Does the law need to be clarified and, if so, how? Question 2 - Knowledge sufficient for mental element?...........................................
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