What is perjury in Australia?

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Perjury is a serious criminal offence which essentially consists of making a false statement (orally or in writing) under oath or affirmation, in connection with any judicial proceeding.

Examples of what may be considered perjury include:

• Making a false statement or lying in court to protect a friend, family member or associate, such as providing a false account of events or a false alibi,
• Making a false statement or lying so that someone may be falsely convicted of an offence,
• Filing a sworn affidavit in proceedings that contains false information.

Offences of perjury are dealt with incredibly seriously as they are seen as undermining the foundations, and thus integrity, of the justice system.

Perjury in New South Wales

In New South Wales, perjury is criminalised under Part 7 of Division 4 of the Crimes Act 1900 (NSW).

The elements of the offence that the prosecution must prove, are essentially that:

1. The accused has made a false statement (oral or written) under oath or affirmation,
2. This statement made in, or in connection with, any judicial proceeding,
3. The statement concerns any matter which is material to the proceeding, and
4. The accused made the statement knowing it to be false or not believing it to be true.

A statement will be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.

The maximum penalty applicable is imprisonment for 10 years, as per section 327.

This offence is classified as a ‘table 1’ offence which means that it will be dealt with summarily in the Local Court, unless prosecutor or accused person elects to take it to the District Court.

In the Local Court, the maximum penalty applicable is instead limited to 2 years imprisonment and/or an $11,000 fine.

However, where the offence is committed with further intent to procure the conviction or acquittal of any person of any serious indictable offence (an offence punishable by a term of 5 years imprisonment or more) the maximum penalty extends to 14 years imprisonment, as per section 328.

This offence is classified as ‘strictly indictable’ which means that it will proceed to the District Court.

There are restrictions on the prosecution of perjury, with a person unable to be prosecuted unless it is:

• by the Director of Public Prosecutions (‘DPP’),
• at the direction of the Attorney General, or
• by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

The NSW Police are still responsible for investigations of perjury.

Following a police investigation, the matter will be referred to the DPP, who will determine whether the offence is to be prosecuted.

As outlined, the Attorney General does retain a power to direct a prosecution for perjury.

However, this is only employed in very exceptional circumstances, such as if an employee of the Office of the DPP were accused of perjury.

Notably, after the introduction of the Director of Public Prosecutions Act 1986 (NSW), decisions to commence a prosecution have always been made by the DPP.

In 2021 – 2022, the DPP provided consent for the commencement of the proceedings of only two proceedings related to perjury.

Possible defences to perjury can include where you honestly believed the statement to be true rather than false, where you did not understand the question posed, or where the statement was not actually connected or ‘material’ to a judicial proceeding.

Perjury in Victoria

In Victoria, perjury is an offence as outlined in section 314 of the Crimes Act 1958 (Vic).

Under this section, the elements of the offence that the prosecution must prove, are essentially that:

1. The accused has made a false statement (oral or written) (wholly or in part),
2. The false statement was made under oath or affirmation, or in an affidavit, and
3. They knew the statement was false and made it wilfully and corruptly.

However, the common law also continues to apply in Victoria. This provides that the police must prove the following factors for common law perjury:

1. The accused has made a false statement (oral or written) under oath or affirmation,
2. This statement made in, or in connection with, any judicial proceeding,
3. The statement concerns any matter which is material to the proceeding, and
4. The accused made the statement knowing it to be false or not believing it to be true.

The maximum penalty of perjury is ‘level 4’ imprisonment which is 15 years and/or a $332,856 fine (penalty unit = $184.92 x 1,800 units).

It is an indictable offence and will usually be heard in the County Court of Victoria.

However, it may also be heard in the Magistrates Court of Victoria, where the court deems that this is appropriate and the accused person consents to having their charges heard summarily.

The Court will consider the seriousness of the offence, whether adequate sentences are available in the summary jurisdiction for the offence, whether a co-accused is charged with the same offence, and any other matters considered relevant, when determining whether this is appropriate.

If dealt with summarily, the maximum penalty applicable is instead limited to 2 years imprisonment or a fine of $92,460, for a single offence.

Perjury in Queensland

In Queensland, perjury is an offence as outlined in section 123 of the Criminal Code 1899 (Qld).

Under this section, the elements of the offence that the prosecution must prove are:

1. The accused has made a false statement (oral or written) under oath or affirmation,
2. The statement was made in any judicial proceeding or for the purpose of instituting any judicial proceeding,
3. The statement concerns any matter which is material to any question in the proceeding or one which is intended to be raised, and
4. The accused made the statement knowing it to be false.

Notably, if a person makes two irreconcilably contradictory statements under oath or affirmation, and the court is unable to determine which statement was falsely made, it will still be able to find the accused guilty of perjury where it can still be deemed that the accused made one of the statements knowing it to be false.

The Act provides that a person cannot be convicted of committing perjury (or of counselling or procuring the commission of perjury) upon the uncorroborated testimony of one witness.

A maximum penalty of 14 years imprisonment is applicable, as per section 124.

However, this maximum penalty raises to imprisonment for life, where the offence is committed in order to procure the conviction of another person for a crime punishable with imprisonment for life.

Perjury in Western Australia

In Western Australia, perjury is an offence as outlined in section 124 of the Criminal Code Act Compilation Act 1913 (WA).

Under this section, the elements of the offence that the prosecution must prove are:

1. The accused has made a false statement (oral or written) under oath or affirmation,
2. The statement was made in any judicial proceeding or for the purpose of instituting any judicial proceeding,
3. The statement concerns any matter which is material to any question in the proceeding or one which is intended to be raised,
4. The accused made the statement knowing it to be false.

It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is actually admissible in the proceedings or not.

A maximum penalty of 14 years imprisonment is applicable, as per section 125.

However, this maximum penalty raises to imprisonment for life, where the offence is committed in order to procure the conviction of another person for a crime punishable with imprisonment for life.

Perjury in South Australia

In South Australia, perjury is an offence as outlined in section 242 of the Criminal Law Consolidation Act 1935 (SA).

It provides that a person who makes a false statement under oath is guilty of perjury.

A statement will be taken to be false if it is false in a material particular and the person by whom it was made knew it to be false or did not believe it to be true.

As per section 242(2), it is also an offence to counsel, procure, induce, aid, or abet another to make a false statement under oath, with this classified as ‘subornation of perjury’.

In this case, a statement will be taken to be false where it is false in a material particular and the person who counselled, procured, induced, aided, or abetted the other person to make the statement knew it to be false or did not believe it to be true.

A maximum penalty of 7 years imprisonment is applicable to both offences.

In contrast to Queensland and Tasmania, the South Australian legislation specifically provides that it is not necessary for the conviction of a person for perjury that evidence of the perjury be corroborated.

Perjury in Tasmania

In Tasmania, perjury is an offence as outlined in section 94 of the Criminal Code Act 1924 (Tas).

Under this section, the elements of the offence that the prosecution must prove are:

1. The accused was lawfully sworn as a witness, or as an interpreter,
2. The accused made a false statement,
3. They knew the statement was false or did not believe it to be true, and
4. The statement was made in a judicial proceeding.

A statement will be deemed to have been made in a judicial proceeding, if it is made for the purposes of any such proceeding, whether before or after it is commenced.

It is immaterial whether the person who made the statement was a competent witness or not, or whether the statement was actually admissible as evidence in the proceeding or not.

The maximum penalty applicable is 21 years imprisonment or a fine.

Perjury in Northern Territory

In the Northern Territory, perjury is an offence as outlined in section 96 of the Criminal Code Act 1983 (NT).

Under this section, the elements of the offence that the prosecution must prove are:

1. The accused has made a false statement (oral or written) under oath or affirmation,
2. The statement was made in any judicial proceeding or for the purpose of instituting any judicial proceeding,
3. The statement concerns any matter which is material to any question in the proceeding or one which is intended to be raised,
4. The accused made the statement knowing it to be false.

Again, it is immaterial whether the person who made the statement was a competent witness or not, or whether the statement was actually admissible as evidence in the proceeding or not.

The maximum penalty applicable is 14 years imprisonment.

However, this maximum penalty raises to imprisonment for life, where the offence is committed in order to procure the conviction of another person for a crime punishable with imprisonment for life.

The Act provides that a person cannot be convicted of committing perjury (or of counselling or procuring the commission of perjury) upon the uncorroborated testimony of one witness.

Perjury in Australian Capital Territory

In the Australian Capital Territory (‘ACT’), perjury is an offence as outlined in section 703 of the Criminal Code 2002 (ACT).

Under this section, the elements of the offence that the prosecution must prove are:

1. The accused has made a sworn statement in a legal proceeding,
2. The statement is false,
3. The accused was reckless about whether the statement is false.

Furthermore, an interpreter will be found guilty of perjury if they provide an interpretation of a statement or other thing in a legal proceeding, and their statement conveyed is false or misleading.

The interpreter is also required to have been reckless about whether their statement was false or misleading.

A maximum penalty of 7 years imprisonment and/or a $112,000 fine (penalty unit = $160 x 700 units) is applicable.

The aggravated form of the offence is contained within section 702 of the Act.

It will be considered ‘aggravated perjury’ where the person gives a false statement, while being under oath, in order to procure the person’s or someone else’s conviction for, or acquittal of, an offence.

The relevant offence is required to be punishable by imprisonment.

It provides that the court may also find a person guilty of aggravated perjury, even if the person is reckless about whether the statement is false, rather than actually knowing it was.

This offence is also applicable to interpreters or intermediaries.

An intermediary is an ‘impartial participant’ who assists vulnerable witnesses in giving evidence.

An intermediary may be found guilty of aggravated perjury where they, by a sworn statement, assist a witness to communicate evidence in a legal proceeding with the intention of procuring someone else’s conviction for, or acquittal of, an offence.

The intermediary’s sworn statement will be required to be false or misleading, with the intermediary reckless as to whether it is false or misleading.

A maximum penalty of 14 years imprisonment and/or a $224,000 fine is applicable for aggravated perjury.

In both offences, the sworn statement is not required to be related to something material to the legal proceeding, in contrast to the other States and Territories.

Furthermore, it is not necessary for the conviction of a person for perjury or aggravated perjury that evidence of the perjury be corroborated.

The Act also provides that if a person makes two irreconcilably contradictory sworn statements, and the court is unable to determine which statement was falsely made, it will still be able to find the accused guilty of perjury where it can still be deemed that the accused made one of the statements being reckless as to whether it was false.

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