The law, defences and penalties for making a false accusation in NSW
It has been reported that a 19-year old British student is facing up to 12 months in prison after being convicted of ‘public mischief’ for falsely claiming that 12 Israeli men gang-raped her in Ayia Napa, a resort town on the southeast coast of Cyprus.
A Cypriot judge found that the woman had manufactured the claims due to her ‘embarrassment’ after being filmed by several of the men having consensual sexual intercourse with them.
‘The defendant gave police a false rape claim, while having full knowledge that this was a lie’, the judge remarked, adding ‘[t]here was no rape, or violence’. He described the woman’s accusations as ‘grave’ and refused a defence request to adjourn her sentencing proceedings.
But the woman’s supporters have questioned the verdict and called upon the British Prime Minister Boris Johnson to intervene.
She has been on bail since the end of August 2019 after spending a month behind bars.
Her sentencing is scheduled to take place on 7 January 2020.
The crime of making a false accusation in NSW
Section 314 of the Crimes Act 1900 (NSW) (‘the Act’) makes it an offence punishable by up to seven years in prison to make a false accusation.
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Made an accusation against another person,
- By doing so, intended the other person to be subjected to an investigation,
- Knew accusation was false, and
- Knew the accused person was innocent.
The offence encompasses situations where a person makes a false complaint to police, knowing the person they are accusing is innocent of the accusation.
The crime of public mischief
Alternatively, section 547B of the Act prescribes a maximum penalty of 12 months in prison for the offence of public mischief.
To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Knowingly made a false representation that an act had been done, or would been done, or that an event had occurred,
- The representation was made to a police officer, and
- The representation called for an investigation by the police officer.
The offence covers situations where:
- The representation was made to a person other than a police officer,
- The nature of the representation reasonably required the person to communicate it to a police officer, and
- The person did communicate it to a police officer
The charge may be preferred to one of ‘false accusation’ in situations where the prosecution is unable to prove that the accuser intended another person to be prosecuted, or knew the other person was innocent.
The crime of perjury
If the accuser testified in court or swore a statement under an oath or affirmation, they may be prosecuted for the offence of perjury under section 327 of the Act, which carries a maximum penalty of 10 years’ imprisonment.
To establish the offence, the prosecution must prove beyond reasonable doubt that he or she:
- Made a false statement under oath or affirmation,
- It was made in, or in connection with, judicial proceedings,
- It concerned a matter which was material to those proceedings, and
- The defendant knew the statement was false or did not believe it was true at the time it was made.
The maximum penalty for perjury increases to 14 years where the complainant intended to procure the conviction or acquittal for a ‘serious indictable offence’ – which is one that carries a maximum penalty of at least five years in prison.
The crime of perverting the course of justice
And section 319 of the Act prescribes a maximum penalty of 14 years in prison for perverting the course of justice.
To establish that offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Engaged in an act or made an omission, and
- By doing so, intended to pervert the course of justice.
The definition of ‘perverting the course of justice’ is ‘obstructing, preventing, perverting or defeating the course of justice or the administration of law’.
Examples of 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 a victim’s phone or email in an attempt to create a defence to a crime,
- Encouraging or bribing another person to plead guilty to an crime they did not commit, or
provide a false alibi, or give false testimony in court.
Defences
A number of defences may apply to the above charges, including:
- Duress,
- Necessity, and
- Self-defence.
Alternatively, it may be possible to have the charged dismissed on mental health grounds under section 32 of the Mental Health (Forensic Provisions) Act 1990.
Written by Ugur Nedim. Republished with permission of Sydney Criminal Lawyers.