VICTORIAN PARLIAMENT L AW R EFORM C OMMITTEE ADMINISTRATION OF JUSTICE OFFENCES F INAL R EPORT Ordered to be printed Melbourne Government Printer June 2004 No. 75 of session 2003-2004 Level 8, 35 Spring Street Melbourne VIC 3000 Tel: (03) 9651 3644 Email: [email protected] Website: www.parliament.vic.gov.au/lawreform Parliament of Victoria Law Reform Committee Administration of Justice Offences ISBN- 0-7313-5399-4 2 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 (to 4 February 2004) Ms Michelle McDonnell (from 11 March 2004) O FFICE M ANAGER Ms Jaime Cook iii iv Functions of the Victorian Parliament Law Reform Committee Under section 12 of the Parliamentary Committees Act 2003 (Vic): (1) The functions of the Law Reform Committee are, if so required or permitted under this Act, to inquire into, consider and report to the Parliament on any proposal, matter or thing concerned with— (a) legal, constitutional or parliamentary reform; (b) the administration of justice; (c) law reform. 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). v vi F OREWORD A system of justice fairly administered and free of corruption or obstruction underpins our democratic society. Public confidence in the justice system is fundamental to its proper functioning. Hence, offences which have a tendency to undermine or interfere with the justice system are considered to be serious in nature and usually carry heavy maximum penalties. It is these administration of justice offences which are the subject of this Report. The context of our review of these laws was set by the terms of reference for the inquiry which directed the Committee to have particular regard to interstate legislation and the recommendations of the Model Criminal Code Officers Committee (MCCOC) in their report on these offences. The benefits of consistency with other jurisdictions and of clarity and transparency of the law, became key themes in the Committee’s consideration of the issues raised. In Victoria the common law offence of attempting to pervert the course of justice covers a variety of conduct, whereas in many other jurisdictions separate statutory offences have been created to cover particular conduct. The Committee’s first task was to decide the threshold question of whether a general offence should be retained, or whether a codification of the offence by creating separate offences was desirable. The Committee chose the latter course believing that it had distinct advantages in terms of improving accessibility and clarity of the law, and in creating greater consistency with other jurisdictions. The other major administration of justice offence considered was perjury. Again, Victoria currently relies on common law for the definition of what constitutes perjury, and again the Committee determined that a move towards codification was appropriate. vii Whilst generally accepting that a change towards codification was advantageous the Committee was, however, careful to confine itself largely to clarifying, rather than extending, the existing law. Evidence received did not generally identify a need for expansion. In reaching its conclusions the Committee was given significant assistant from witnesses, particularly those practitioners in this area of law who provided essential information about how the law works in practice. I wish to express our sincere thanks to all those who made submissions both in writing and orally, to the Committee. The Committee is acutely aware of the very important role which stakeholder and public consultation plays in the production of our reports. I would also like to thank the members of the Committee for their contributions to this Report. The Report owes an enormous amount to the original research and writing of the discussion paper and draft by Kristin Giles, whose attention to detail provided many stakeholders with a succinct summary of the current law in this area for the first time. Kristin has now left the Committee but her expert contribution to this and other reports over the past two years has been greatly appreciated by the Committee. Michelle McDonnell has ably stepped in to redraft the final Report and finalise its recommendations. Merrin Mason, as always, has contributed her considerable expertise to the work done by the Committee on this reference, and skilfully supervised the research and discussion which have led to this Report. Jaime Cook has provided able administrative support and backup for the Committee’s work. This Report would not have been able to be concluded without the effective work of the staff team. The Committee hopes that this Report will result in reform which produces greater clarity of the law in this area, increased national consistency between Australian jurisdictions and improvements to the administration of justice in Victoria. I commend the Report to the Parliament. Rob Hudson MP, Chair viii T ABLE OF C ONTENTS Foreword ...............................................................................................................................................vii Table of Contents...................................................................................................................................ix Table of recommendations..................................................................................................................xiii Executive summary ............................................................................................................................xxv Chapter One – Introduction ..................................................................................................................1 Terms of reference ...............................................................................................................................2 Inquiry process ....................................................................................................................................3 Codification versus common law.........................................................................................................4 Which offences are regarded as “administration of justice offences”? ..............................................8 Common feature: a strike at the heart of the administration of justice .............................................13 Why codify? The advantages and disadvantages of codification.......................................................18 Chapter Two - Perverting the course of justice .................................................................................41 Structure of Chapter ..........................................................................................................................42 Terminology.......................................................................................................................................42 Completed offence – substantive not inchoate...................................................................................43 Summary of elements of the offence...................................................................................................45 “Tending to pervert”—the physical element .....................................................................................45 “Intending to pervert”—the mental element .....................................................................................55 “Course of public justice”.................................................................................................................62 Sentencing..........................................................................................................................................69 Perverting the course of justice as a statutory offence— comparison with other jurisdictions.........75 ix General offence versus specific offences ...........................................................................................78 False accusation of offence................................................................................................................86 Chapter Three - Specific offences relating to evidence and witnesses .............................................95 Offences relating to interference with evidence.................................................................................96 Specific offences relating to interference with witnesses.................................................................111 Chapter Four – Accessory after the fact...........................................................................................149 Principal offences to which the offence applies...............................................................................151 Commission of principal offence .....................................................................................................155