7.11.3.3 - Charge: Attempting to pervert the course of justice (Course of justice commenced)[1]
When to use this charge
This charge should only be used for the offence of attempting to pervert the course of justice where it is not in dispute the accused engaged in the relevant conduct after a course of justice had commenced.
If the conduct of the accused occurred before the course of justice commenced use charge: Attempting to pervert the course of justice (No course of justice commenced).
The elements
I must now direct you about the offence of attempting to pervert the course of justice. To convict the accused of this offence, the prosecution must prove the following 2 elements beyond reasonable doubt:
One – the accused engaged in conduct that had the tendency to pervert the course of justice.
Two – the accused intended for that conduct to pervert the course of justice.
I will now explain each of these elements in more detail.
Tendency to pervert the course of justice
The first element requires you to be satisfied the accused engaged in conduct that tended to pervert the course of justice.
The ‘course of justice’ is the administration of the law and justicein a court proceeding. The phrase ‘tendency to pervert the course of justice’ means NOA’s conduct posed areal risk or possibility of interfering with the administration of justice by a court.
The prosecution say [describe NOA’s alleged conduct] posed a real risk or possibility of interfering with the administration of justice because [describe how this is alleged to have potentially interfered with the administration of justice].[2]
[If the defence dispute that the accused engaged in the alleged conduct, add the following shaded section]
The defence argues that the prosecution has not proved, beyond reasonable doubt, that NOA [describe alleged conduct].
[Refer to competing prosecution and defence evidence and arguments].
[If the defence dispute that the conduct had a tendency to pervert the course of justice, add the following shaded section]
The defence argues that NOA’sconduct did not pose a real risk or possibility of interfering with the administration of justice because [refer to relevant defence evidence and arguments].
[If the issue of impossibility arises, add the following shaded section]
In deciding whether NOA’s conduct had a tendency to pervert the course of justice, I direct you as a matter of law it is not relevant that [describe basis of impossibility]. Instead, you must look at NOA’s conduct objectively and decide whether [describe alleged conduct without reference to basis of impossibility – e.g. offering a bribe to a police officer] in general poses a real risk or possibility of interfering with the administration of justice by a court.
If you are satisfied NOA engaged in conduct that tended to interfere with the administration of justice in the [describe relevant court proceeding], this first element will be met.
Intention to pervert the course of justice
The second element the prosecution must prove is at the time the accused engaged in the relevant conduct, s/he intended to pervert the course of justice.
In this case, the prosecution must prove, beyond reasonable doubt, that when NOA [describe alleged conduct], s/he intended that [describe basis for alleged perversion of the course of justice].[3]
I direct you as a matter of law, this element does not require the prosecution to prove NOA realised or understood the conduct would resultin a perversion of the course of justice.
[Summarise relevant prosecution and defence evidence and arguments]
If you are satisfied, at the time the NOA [describe alleged conduct], s/he intended to pervert the course of justice in [describe relevant proceeding], then this element will be met.
Summary
To summarise, before you can find NOA guilty of attempting to pervert the course of justice the prosecution must have proved to you beyond reasonable doubt:
One – NOA engaged in conduct that tended to pervert the course of justice; and
Two – NOA intended to pervert the course of justice.
If you find that either of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of attempting to pervert the course of justice.
1
[1] Last updated: 27 April 2016
[2] If required, see the Bench Notes for guidance on when conduct may tend to pervert the course of justice.
[3] For example, when NOA threatened NOW, she intended that NOW would give false information to police which would prevent them from charging NOA with assaulting NO3P.