Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
It was recently made even more clear that there is no real justice. A person, be it a party, a witness and/or the legal practitioners, can lie in documents, addresses, submissions and even under oath and have the right to absolute immunity for their gross and, at times, almost unrelenting, dishonesty.
The law is very clear that parties and their practitioners have to be honest, have to refrain from doing anything that would or could mislead or deceive the courts[1], and that action could be taken against them for failures to comply[2].
In addition, legislation[3]is very clear that a witness cannot give false written or verbal evidence without being subjected to the penalties for perjury, and a legal practitioner cannot bring forth, or suborn, perjury without the same penalties applying[4].
The dictionary[5]provides the definition of perjury:
perjury n
1. the telling of a lie after having taken an oath to tell the truth, usually in a court of law
2. a lie told in a court of law by somebody who has taken an oath to tell the truth
perjure vr
to tell a lie in a court of law and therefore be guilty of perjury
perjured adj
1. guilty of telling a lie in a court of law and therefore of committing perjury
2. containing lies and therefore breaking an oath to tell the truth in a court of law
A witness must swear or affirm that they will tell the truth, the whole truthand nothing but the truth; and a person swears or affirms that everything in an affidavit is the truth. Nothingin there gives any allowance for lies, dishonesty or deceptions.
In fact, some judges, legal practitioners, and others, quote those facts:
- Perjury was defined by Justice Pagone when he said in open court where man X and man Y were both present [emphasis mine]:
And what else is lying if not an intention to lie?[6]
Mr Southall’s going to say to me the natural ordinary, and he will probably add the only conceivable meaning of the words “they committed perjury” is that they knowingly and intentionally, consciously knowing what the truth was, said something that was not truthful.[7]
And that’s a criminal offence. If truth had been in issue in the case before me it would be relevant to ask whether he did give false testimony.[8]
To permit that defence to be raised is the one example (of many like examples) to which I have referred, would necessitate an inquiry into the truthfulness of statements made in proceedings in VCAT. It would involve deciding a very serious allegation, namely whether [man X] committed perjury in VCAT.[9]
Thus, his Honour identified that man X and man Y would both know that to lie would be deliberate and to do so under oath was perjury and a criminal offence.
- The 2016 appeal before Santamaria, Kyrou JJA and Elliott AJA [emphasis mine]:
Southall: Your Honours have no doubt picked up, in paragraph 14, that there are alternatives, particularly in criminal law; indeed, they arise under criminal – they can be applied in civil law as too – but the alternative offence of perjury, contempt and perverting the course of justice are always available to be invoked in the appropriate circumstances, such as in this case, if it were proven, if the dishonest factual evidence were proven[10].
Kyrou JA: It’s hard to be accidentally dishonest.
Southall: Yes…[11].
Santamaria JA: It’s sort of the way our legal – you know, it’s a good system we’ve got and part of the system we’ve got is that people come along and give evidence and, in order to ensure that they give truthful evidence– sometimes they don’t – but in order to ensure that he do, our system says nobody can be sued for the evidence that he or she gave.
Me: So, even if they were lying through their teeth and – – –
Kyrou JA: You’d go to gaol for that, you see.
Santamaria JA: You’d go to gaol, but they can’t be sued for it.
Kyrou JA: Sometimes the law provides criminal remedies, sometimes it provides civil remedies, sometimes it provides both[12].
98 Section 17 of the CPA provides that ‘[a] person to whom the overarching obligations apply must act honestly at all times in relation to a civil proceeding’. Section 21 provides that ‘[a] person to whom the overarching obligations apply must not, in respect of a civil proceeding, engage in conduct which is … misleading or deceptive … or … likely to mislead or deceive’.
99 The only time that a person is a witness in a civil proceeding is when he or she swears or affirms an affidavit or gives oral evidence. At those times, the witness has a legal obligation to tell the truth, otherwise he or she may be guilty of an offence. A person who swears or affirms a false affidavit of a kind referred to in s 141of the Evidence (Miscellaneous Provisions) Act 1958 may commit the offence of perjury. A person giving oral evidence who fails to comply with his or her oath or affirmation that the evidence he or she shall give ‘will be the truth, the whole truth and nothing but the truth’[84] may also commit the offence of perjury.
100 The duty of a witness to tell the truth potentially overlaps with the overarching obligations to act honestly and not to engage in misleading or deceptive conduct….[13]
- Further, Southall confirmed in open court where man X and man Y were both present, his personal knowledge that perjury was a crime [emphasis mine]:
You’re not suggesting that giving false evidence on oathis a little crime, are you?[14]
So you were emphasising “proving” that he had committed the criminal offence of perjury at the tribunal[15]
So you imported from one that it proved that he had committed the criminal offence of perjury at the tribunal?[16]
[P]erjured evidence being given at the tribunal is a serious matter. Yes, we agree it would be a criminal offence[17]
- The Victorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Reportstates [emphasis mine]:
The other majoradministration of justice offenceconsidered was perjury[18]
Perjury [– it is] an offence to make a false statement under oath or affirmation[19]
For the offence of perjury, Victorian law has extended the application of common law perjury but has not replaced it. Section 314 of the Crimes Act creates a statutory offence of perjury but it does not define the elements of offence and the common law elements of perjury apply by default. … The mental element currently applicable for perjury provides that it is sufficient that the defendant had a lack of belief in the truth of the relevant statement.
This quotation, taken from the High Court decision of R v Rogerson,explains the terms “justice” and “course of justice” in the context of the offence of perverting the course of justice[20].
The following quotation, taken from a recent decision of the Victorian Court of Appeal, illustrates this point:
It is apparent that the integrity of the operation of the system of courts upon which, it must be remembered, our community depends for the proper determination of matters of fact in both civil and criminal proceedings, may be seriously compromised and the achievement of the ends of justice thwarted by the deliberate making of false statements on oath. It is not always easy or even possible to establish that perjury has been committed. Sometimes, unfortunately, the lie may not be exposed and the injustice which has been occasioned remains unrectified. Not only can this have a serious effect upon those with a direct interest in the outcome of the particular matter, but it may also engender a reduction of confidence in the community in the reliability of court decisions generally. For these and a number of other good reasons, the crime of perjury, particularly when committed in a curial [court] setting, is regarded very seriously indeed[21].
These are perjuryand all related offences such as giving false testimony[22]and attempting to pervert the course of justice…[23]
The classic common law definition of perjury is derived from the following passage in King CJ’s judgement in R v Traino:[24]
The crime of perjury consists in giving upon oath, in a judicial proceeding, before a competent tribunal, evidence which was material to some question in the proceeding and was false to the knowledge of the deponent, or was not believed by him to be true: WO Russell, Crime: a Treatise (12thed, 1964), Vol 1, p. 291. The crime consists in the making of a deliberately false statement in the postulated circumstances.[25][26]
Victorian statutory law has extended the application of common law perjury but has not replaced it. In contrast to the legislation in some other jurisdictions, which we will discuss below, the Crimes Act 1958 (Vic) does not define perjury, leaving this to be ascertained from the common law.[27]
[T]he same section extends the application of perjury, which at common law applies to statements made in judicial proceedings,[28]to oaths, affirmations, declarations or affidavits required or authorised by any Act and section 141 of the Evidence Act 1958 (Vic) is of similar effect.[29][30]
[I]n Victoria perjury has a wider application. The common law position has been extended so that perjury applies to the making of a false oath, affirmation, declaration or affidavit required or authorised under any statute.[31][32]
It should be noted that perjury is also a crime against the administration of justice. It exists to punish false statements made under oath in an adversary system of litigation that depends on litigants giving truthful accounts[33][34]
It is clear … that the common law, which applies in Victoria and the ACT, requires that on a charge of perjury there are at least two witnesses to disprove a material statement sworn by the accused or independent (documentary) evidence to corroborate the falsity of the statement.[35]
Both man X and man Y lied under oath, and did so knowingly, and they did so at the Supreme Court and in the Federal Circuit Court, with man X additionally having sworn falsely[36]at the Victorian Civil and Administrative Tribunal (VCAT). In addition, Smith at VCAT and at the Supreme Court, and Southall at the Supreme Court, suborned false testimony.
However, in spite of the demands of legislation and of some common law precedents and the Victorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Report, a number of courts, including the High Court, have dismissed the law and granted immunity for any person who lies in court, including under oath or affirmation.
In a further affront, legal practitioners can’t be sued for all the lies they tell because they claim an advocates’ immunity, even when they have not been an advocate for those seeking redress for their dishonesty – and the courts often cover for them and generally allow them to get away with whatever the legal practitioners want to get away with (we have to remember that, almost without fail, the judges used to be legal practitioners such as those who now stand before them).
How can courts function properly when, on the one hand they say that lying under oath or affirmation is perjury which is a criminal office, and on the other hand they can’t and won’t take action so as to abide with the law against the perjurers or those who suborn perjury, and they won’t allow impacted parties to take action for all the lies and resulting injustices because of the claimed immunity from prosecution?
The law is very clear on the fact that perjury and suborning of perjury are both criminal offences. Imagine a world where an oath or affirmation was always taken seriously and there were always legal repercussions for failing to comply with those affirmations and/or oaths! Imagine a world where legal practitioners always actually only told the truth and there were always legal repercussions for failing to comply with the demands for honesty and integrity! Imagine a world where courts always took the side of right instead of granting those immunities in breach of the law!
Justice cannot be obtained by ignoring the law and by believing that people are above the law. I won’t hold my breath, but I would love to see those who breach the law actually be held accountable for it.
Perjury, and suborning perjury, are determined by law to be crimes, yet, clearly, the law is a joke. Well, only a joke to those courts supporting the persons causing the injury, breaking the law and lying to the court in order to gain the results they want – it is absolutely no joke to those severely impacted by the actions of the perpetrators and when courts cover for the criminal actions of the perpetrators.
[1] See ss.17 & 21 of the Civil Procedure Act 2010(Vic) (the “CPA”)
[2] See ss. 28-31 of the CPA
[3][3] See ss. 314 & 315 of the Crimes Act 1958(Vic)
[4] A maximum sentence of 15 years in jail
[5] Encarta® World English Dictionary © 1999 Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc
[6] T442:22-23(16 April 2013)
[7] T444:5-10 (16 April 2013)
[8] T212:1-3(12 April 2013)
[9] His Honour’s Judgment on amended defence, May 2013, Reasons at [6]
[10] T104:23-31 (11 October 2016)
[11] T115:15-22 (11 October 2016)
[12] T124:3-17 (11 October 2016)
[13] Judgment of Kyrou, Santamaria JJA and Elliott AJA, dated 14 December 2016
[14] T389:25:26 (16 April 2013)
[15] T392:28-29 (16 April 2013)
[16] T393:4-6(16 April 2013)
[17] T500:31–T501:2 (17 April 2013)
[18] Forewordpage vii
[19] Executive summary, pages xxv & xxvi
[20] Page xxix
[21] R v Schroen[2001] VSCA 126, para 14
[22] E.g. Crimes Act 1914(Cth), s. 35
[23] Pages 9 &10
[24] R v Traino(1987) 45 SASR 473
[25] Ibid, p. 475. This definition is cited in Butterworths Concise Australian Legal Dictionary, above note 11, p. 333
[26] Ibid, Page 189
[27] Ibid, Page 189
[28] See definition in R v Traino(1987) 45 SASR 473
[29] Freckelton, Criminal Law Investigations and Procedure, above note 28, para 1.9.30. Section 141 of the Evidence Act 1958 (Vic) provides: “any person who upon or in any oath examination affidavit affirmation or declaration whatsoever which is required authorized or permitted in or by or under any provision of this Act wilfully and corruptly makes any false statement whether oral or in writing shall be deemed to be guilty of wilful and corrupt perjury. This section shall apply notwithstanding that such oath examination affidavit affirmation or declaration may be required authorized or permitted by or under any other Act whether passed before or after the commencement of this Act.”
[30] The Victorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Report. page 189
[31] Crimes Act 1958, section 314(3).
[32] The Victorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Report. page205
[33] Benjamin Lindner, submission no. 8, p. 8
[34] The Victorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Report. page220
[35] Ibid. page236
[36] With man Y and CASACIR’s admitted full knowledge and approval of what was falsely sworn to