7.11.2.2 - Charge – Common Law Perjury[1]

I must now direct you about the crime of perjury. To prove this crime, the prosecution must prove the following five elements beyond reasonable doubt.

One – the accused made a false statement.

Two – the accused made the false statement [under oath / on affirmation].

Three – the accused made the false statement in a judicial proceeding.

Four – the statement was material to the judicial proceeding.

Five – the accused knew that the statement was false,or did not believe that it was true.

I will now explain each of these elements in more detail.

The Accused Made a False Statement

The first elementthat the prosecution must prove beyond reasonable doubt is that the accused made a statement which was false.

In this case the prosecution alleged that NOA made the following false statement: [identify alleged false statement].[2]

[Summarise relevant evidence and arguments about whether the statement was false].

[Where a corroboration direction is required, add the following shaded section.]

The law says that you must not find this element to have been proven on the basis of the evidence of one witness alone. You must be satisfied that there is additional evidence in the case that supports the witness’s allegation that the statement was false.

In this case, the prosecution relies on the following evidence to support NOW’s allegation: [Identify evidence capable of providing corroboration]. This is the only evidence that can support NOW’s evidence for this purpose.

It is for you to determine, based on all the evidence, whether NOA made a false statement. It is only if you are satisfied, beyond reasonable doubt, that s/he did, that this first element will be met.

The False Statement was made in Prohibited Circumstances

The second element that the prosecution must prove beyond reasonable doubt is that the accused made the false statement [under oath / on affirmation].

In this case it is not disputed that the relevant statement was made [under oath / onaffirmation].You should therefore have no difficulty finding this element proven.[3]

The Statement was made in a Judicial Proceeding

The third element that the prosecution must prove beyond reasonable doubt is that the accused made the statement in a judicial proceeding.

In this case, it is not disputed that the statement was made [identify relevant proceeding], and that [identify relevant proceeding] is a “judicial proceeding”.You should therefore have no difficulty finding this element proven.[4]

The Statement was Material to the Judicial Proceeding

The fourth element that the prosecution must prove beyond reasonable doubt is that the statement was material to the judicial proceeding. This will only be the case if the statement could have affected the court’s decision, or whether the accused or another witness was believable.

To find that this element is proved, you do not need to be satisfied that the statement actually did affect the outcome in some way. It is sufficient if it was capable of having such an effect.

In this case the prosecution alleged that the statement was capable of affecting [identify relevant determination of fact / credibility of accused / credibility of witness].

[Summarise evidence and/or arguments about materiality.]

The False Statement was made Knowingly

The fifth element relates to the state of mind the accused hadwhen s/he made the statement. The prosecution must prove that the accused eitherknew that the statement was false,or did not believe that it was true.

This element will not be met if NOA honestly but mistakenly believed the statement was true. A person cannot be convicted of perjury simply because they made a mistake. For this element to be satisfied NOA must have actually known that it was untrue to state that [identify statement], or at least not believed that was true.

[Summarise evidence and/or arguments about the accused’s state of mind.]

Relate Law to the Evidence

[If not previously done, apply the law to the relevant evidence here.]

Summary

To summarise,before you can find NOA guilty of perjury the prosecution must prove to you beyond reasonable doubt:

One – that s/he made a false statement; and

Two – that the false statement was made [under oath / on affirmation]; and

Three – the statement was made in a judicial proceeding; and

Four – the statement was material to the judicial proceeding; and

Five – that NOA knew that the statement was false,or did not believe that it was true.

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of perjury.

1

[1] This document was last updated on 11 July 2018.

[2]This charge is designed for use in cases where the accused makes an untrue assertion, or purports to verify the truth of a statement which is untrue. It will need to be modified if it is alleged that the accused made a false statement by omitting to mention information which the law required him or her to mention.

[3] If there is a factual dispute over whether the accused was under a legal obligation to tell the truth, or whether the oath or affirmation was lawfully made or administered, this section will need to be modified.

[4] If there is a dispute over whether the relevant proceeding was a “judicial proceeding”, this section will need to be modified.