Page 2212 - Week 07 - Thursday, 23 June 2005
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the uniform national approach for dealing with crimes that relate to the administration of justice.
In addition to the recommended model for criminal code offences, chapter 7 also includes a number of related summary offences that have either been suggested by the Model Criminal Code Officers Committee or have been prepared by the government to replace some commonly repeated offences in the ACT statute book. Further, schedule 1 of the bill will significantly rationalise and reduce the ACT statute book by repealing numerous offences in other legislation that will be made redundant by the new codified offences in chapter 7. The bill also contains some technical amendments to existing chapters of the Criminal Code, which are discussed in some detail in the explanatory statement to the bill.
Before I deal more specifically with the offences in the bill, I should say that in general these offences will apply more broadly than the current ACT law equivalents, which primarily are in the common law. For example, the relevant common law offences, such as perjury, require a connection to judicial proceedings, whereas the bill offences will apply to legal proceedings in which evidence may be taken on oath or affirmation. Therefore, in future, relevant criminal conduct that relates to administration and quasijudicial proceedings will also be caught by those offences, provided that proceedings allow for the oath or affirmation to be administered. This is a practical development that accords with the MCCOC recommendation, is consistent with the current position in most Australian jurisdictions and makes it more difficult to avoid the consequences of the law by lying.
Division 7.2.1 of chapter 7 contains the perjury and aggravated perjury offences in the bill. It clearly sets out the elements that apply to each offence, including that the false statement must be sworn, that it must be false, in fact, and that a person must at least be reckless about the fact that it is false. The division also clarifies some important ancillary matters that relate to perjury, namely, that the offences apply to interpreters as well as witnesses, that it is not necessary for the sworn statement to be admitted into evidence, that formal defects in a falsely sworn document are irrelevant and that, if there are two irreconcilable sworn statements, it is not necessary to prove which of the two statements is false.
This division also makes some practical modifications to the law of perjury. This includes that it is not necessary for the false sworn statement to be about something material in the proceedings. This is because witnesses are sworn to tell the truth in legal proceedings, even if they think it is about something unimportant or immaterial. It is a matter for the judge or magistrate to determine what is important, and often that is not apparent until late in the proceedings.
Also the bill provides that only witnesses who are incompetent in the technical sense and who lack the capacity to understand the obligation to give truthful evidence, such as children, will not be liable to perjury. Other categories of incompetent witnesses can be prosecuted if their sworn statements are false. Further, the old common law rule that a person cannot be convicted for perjury on the uncorroborated evidence of one witness will no longer apply. Essentially this is because the rule is largely ineffective in practice and there are no sufficient reasons to justify a distinction in this regard between perjury and other serious offences.
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