Engaging in conduct which actually results in, or is intended to result in, justice not being achieved has always been treated seriously by the criminal justice system – historically attracting sentences as serious as death.
In New South Wales, the offence of perverting the course of justice or attempting to do so is contained in section 319 of the Crimes Act 1900 and carries maximum penalty of 14 years' imprisonment.
And while that may seem to be a heavy penalty in modern times, the offence can carry up to life in prison in some jurisdictions of the United Kingdom and Wales, and in the United States has seen those convicted being sentenced to terms of as long as 30 years behind bars.
This article will not only outline the law, but also look at incidents whereby those in positions of power – including politicians and judges – have been guilty of the offence, as well as cases whereby people received the ultimate sentence (of death) after conviction.
And while many might think agents in legal systems such as those who swear to uphold, pass judgement upon and/or enforce the law might be reticent to engage in conduct calculated to pervert the course of justice, the reality is very different.
So, let's go back in history and take a journey through instances of such conduct, and what has been done to punish and deter it.
A step back in time
399 BC saw Socrates convicted and executed on the charge of corruption of the youths of Athens Greece. Socrates was regarded as the founder of Western Philosophy. Eminent historians on reviewing the prosecution found evidence of perversion of the course of justice, primarily as revenge for Socrates support of the dictatorship opposition political party.
The jury comprised of 500 members, with 280 finding him guilty and 220 declaring him to be not guilty.
Joan of Arc was burnt at the ‘stake' in 1431 falsely convicted of heresy, witchcraft and cross-dressing despite the 19-year-old soldier dressing in men's clothing primarily to ride horses into battle during the war.
Whilst King Charles V11 owed his Kingship to Joan of Arc, it is suggested he allowed her sacrifice by permitting her capture by the Duke of Burgundy who sold her to the English for 10,000 livres, each livre being the French monetary equivalent of the British pound.
The King was worried about Joan of Arc's popularity yet also concerned with her believing she was receiving voice messages from God with the potential to supersede his authority. Those guilty of both perverting the course of justice and attempting to do so included royalty, religious leaders and prosecutors some who would have been alive when she was posthumously exonerated in 1456.
1894 was the year a French soldier found himself imprisoned on Devil's Island penal colony, the result of acts of perversion of the course of justice by anti-Semitic military superiors and was ultimately freed when the true culprit was revealed.
Through the centuries many innocent people were executed before future scientific advancements succeeded in their innocence being proclaimed by various forms of exoneration including Pardons.
Since 1973, approximately 200 innocent people have been exonerated who otherwise would have been executed by law with a significant number initially convicted by acts of perverting the course of Justice.
In addition a further 375 have been exonerated with the assistance of the Innocence Project by virtue of DNA reviews including 21 with each of them having served an average of 14 years.
The U.S. based Death Penalty Information Centre (DPIC) stated that the most common causes of wrongful death penalty convictions were the result of specific aspects of pervert the course of justice.
Although, it is only one statistic it is thought to be a cogent one but the Register of Exonerations whereby people were freed from death-row intimate that approximately 75% of the convictions were as a result of prosecutorial misconduct.
History is full of those accused and convicted of this offence, often by information given by those holding offices such as government cabinet ministers, justices of the commonwealth and state courts – prosecutors – lawyers – armed forces commissioned officers – commanders of police organisations and expert forensic scientists.
Modern people in high places
His Honour the Honourable Lionel Murphy, former Attorney–General and Justice of the High Court of Australia was a former Politician who was convicted on one count of attempting to pervert the course of justice and acquitted on a second charge.
He appealed and was found not guilty after a retrial.
Another perpetrator of this offence was highly respected jurist and former inaugural President of the Australian Human Rights and Equal Opportunity Commission, Justice Einfeld QC, a Justice of the Federal Court of Australia who spent 2 years in gaol having been convicted of perverting the course of justice, including perjury.
The Fugitive, a movie based on fact saw respected Osteopathic Physician, Sam Sheppard in 1954 subjected to what was regarded as the course of justice being perverted by certain investigative police.
The upside to this innocent doctor's predicament is that as a result of a more honest police officer he was ultimately acquitted of the murder of his wife and unborn child.
David Harold Eastman was convicted of executing Assistant Chief Commissioner of the Australian Federal Police, Colin Winchester and sentenced to life imprisonment without parole spent 19 years in gaol prior to being released, in part on the basis of flawed forensic evidence. The final avenue of appeal in Australia known as a Judicial Review recommended the quashing of the conviction and a pardon be given.
After a retrial Mr Eastman was found not guilty by a jury of his peers and awarded $A7 million dollars in compensation.
This is interesting in that exactly 100 years ago Colin Campbell Ross was convicted of rape and murder in Little Collins Street, Melbourne on false prosecution and police evidence.
About 15 years ago thanks to the expertise of the Victorian Institute of Forensic Medicine and the Forensic Division of the Australian Federal Police, the hair strands which had been located in a file at the Office of Public Prosecutions were re-examined paving the way for Mr Ross to receive a Pardon. The downside was that the innocent Mr Ross had already been executed for the crime he did not commit close to 90 years ago.
The destruction of a family
Many jurists from all corners of the world suggest that Australia's criminal justice system faced its most shameful moment with the conviction of a New Zealand born Australian raised mother, Alice Lynne (Lindy) Chamberlain. Another person, another family destroyed by those tasked with finding the truth in the criminal justice system ultimately appearing to pervert or attempting to pervert the course of justice.
After decades of prosecution and police obstruction and some say political interference, the Deputy Northern Territory Coroner Elizabeth Morris finding that Lindy's baby Azaria was killed by a dingo at Uluru in 1980 delivered this apology whilst sobbing.
“Mr and Mrs Chamberlain, please accept my sincere sympathy for the death of your special and loved daughter and sister.”
After being sentenced to Life Imprisonment in 1982 Mrs Chamberlain was exonerated after a Royal Commission in 1987.
A$1.3 million was paid in compensation for false imprisonment.
Culpable in the conviction of not only Mrs Chamberlain but also Mr Chamberlain were two so-called expert scientific witnesses, United Kingdom forensic scientist James Cameron and Australian forensic biologist Joy Kuhl who had suggested foul play. Both Kuhl and Cameron subsequently conceded being not only wrong but somewhat derelict in their claim of being expert witnesses.
The US National Academy of Sciences (NAS) in discussing the 2,795 exonerations in the United States in the past 30 years with in excess of 25,000 years of imprisonment suffered by innocent people state that even convictions by bad science could not have succeeded but for the perversion of justice by police and prosecuting authorities.
Prosecutions are rare
Discrimination appears to be the reason so few members of the establishment are subject to being charged with perverting the course of justice.
Discrimination could be considered to be at work according to many Human Rights Organisations with regard to the exceptionally few government ministers – prosecutors -lawyers – armed forces personnel – police commanders and expert forensic scientists who are prosecuted for attempting to or succeeding in perverting the course of justice.
It may also be that to reach the benchmark required to prosecute those seemingly beyond reproach is too complex with the next question to be asked is, why is that so?
Human rights & equal opportunity commissions and law reform groups the world over are amongst many criminal justice research organisations which suggest that by prosecuting more of those found to have been so derelict at best but potential offenders at worst will if nothing else enforce more accountability.
Which indeed may be the case in Victoria soon where a special investigator (former High Court of Australia Justice Nettle AC KC) has been appointed on the recommendation of a recent Royal Commission to determine whether charges involving attempting or perverting the course of justice will be laid in relation to those tasked with keeping law and order.
If further facts are required consider the case of UK police in relation to Sheffield Wednesday's football ground Hillsborough where 96 football fans were crushed to death in 1989 and at a subsequent inquiry police of whom one was a solicitor were found to have altered 68 police statements. The police officers and the solicitor were facing perverting the course of justice charges. Lord justice Taylor the judge presiding over the inquiry did not have the powers within his terms of reference to make witnesses attend court for examination. The judge therefore acquitted the defendants.
In a trial in 2019 only one person was found guilty and fined for a safety offence with the legal director of the Crown Prosecuting Service (CPS) similar to Australia's Director of Public Prosecution (DPP) commenting that the judge's ruling suggested that police “can lawfully withhold information from a public inquiry, without sanction of any sort”. This is precisely what has been happening in Victoria in relation to the Royal Commission and subsequently appointed special investigator, a former Justice of the High Court of Australia. The justice has been fighting in the courts for over a year to obtain material required to investigate matters predominantly concerning perverting the course of justice at the utmost highest levels of those tasked with upholding law and order. History repeating itself one may surmise.
The Lawyer X scandal and the Royal Commission
Arguably the largest perverting the course of justice case in history with the main character being a prominent Victorian lawyer, Nicola Gobbo aka ‘Lawyer X', is still ongoing and involves many of the specific sections associated with this offence as listed below.
Evidence was presented to the Victorian Royal Commission into Police Informants which revealed dozens if not hundreds of incidents of perverting the course of justice traits which will form part of investigations of up to 1,000 individuals by the appointed special investigator.
These incidents involved the most senior police officers in the Victoria Police Force including prosecuting authorities and holders of high government office.
Although the special investigator is currently investigating this matter, a Judgment of the High Court of Australia in 2018 will feature prominently in Justice Nettle's deliberations.
“Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF [Lawyer X – Nicola Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully according to law without favour or affection or ill-will.”
The trend of corruption pervades Australian law enforcement
In 2018, Northern Territory Police Commissioner John McRoberts was found guilty of attempting to pervert the course of justice.
2020 saw South Australian Magistrate, Bob Harrap convicted on corruption charges after an Independent Commission against Corruption (ICAC) investigation.
2022 saw two Northern Territory police officers plead guilty to pervert the course of justice.
2022 also saw several NSW police officers charged with perverting the course of justice.
It is predicted by many lawyers who appeared at the Victorian Royal Commission that there will be many Victoria police officers of all ranks up to Chief Commissioner, perhaps also personnel associated with the Victorian Office of Public Prosecutions and others charged with perverting the course of justice offences once His Honour Justice Nettle AC KC makes his ‘Findings'.
A president's attempt to pervert the course of justice
Political scientists and legal experts assert there is evidence that the former President of the United States of America, Donald Trump, attempted to pervert the course of justice when he set in train the storming of the US Congress (Legislature of the Federal Government of the United States) in the Capitol Building on Capitol Hill in Washington DC on 6th January 2021. This matter appears to being played out as this article goes to print.
The offence of perverting the course of justice in New South Wales
Perverting the course of justice is an offence under Section 319 of the Crimes Act 1900 (the Act), which carries a maximum penalty of 14 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You engaged in an act or made an omission, and
- By that act or omission, you intended to pervert the course of justice.
What is ‘perverting the course of justice'?
Section 312 of the Act defines perverting the course of justice as, ‘obstructing, preventing, perverting or defeating the course of justice or the administration of law'.
What conduct may amount to the offence?
Examples of the perverting the course of justice may include:
- Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,
- Falsely swearing or declaring that another person was responsible for an offence,
- Using another's phone or email to manufacture a defence to a crime, and
- Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.
Legal defences
If you have been charged with perverting the course of justice and are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defence does not apply to your case.
If the prosecution is unable to do so, you are entitled to an acquittal; in other words, a verdict of not guilty.
Defences to the perverting the course of justice include:
- Duress,
- Necessity, and
- Self-defence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
