Can you Influence a Witness Not to Attend Court?
Influencing a witness not to attend Court or influencing their evidence in Court is a serious offence. It is a more serious offence than an accused may be initially charged with, for example, common assault.
The Law
Influencing a witness is an offence under section 323(a) of the Crimes Act 1900 and carries a maximum penalty of 7 years in prison.
The prosecution must prove beyond reasonable doubt that:
- You engaged in any act, and
- You did so intending to procure, persuade, induce or otherwise cause any person called, or to be called, as a witness in judicial proceedings to give false evidence, withhold true evidence, not attend as a witness or not produce anything in evidence under a subpoena or summons.
Statistics show most prosecutions under this legislation result in a full-time custodial sentence.
Domestic Relationship
The charge of influencing a witness usually occurs in a domestic relationship. It is common to see an accused ask their partner not to go to Court against them. That is, not providing evidence against them, which is usually a crucial ingredient in the police case against the accused. Similarly, where there is an AVO in place restricting contact, an accused may ask another person to speak to their partner.
For an accused, such conduct is fraught with danger. Where the accused, if convicted, may be facing a non-custodial sentence. A prosecution for influencing a witness will almost certainly result in full-time custody.
Suppose an accused believes reasonably that their partner may not attend Court. They should speak to their criminal defence lawyer. Under no circumstance should they contact the alleged victim or have another third party contact them.
Recent Cases
In Burton [2008] NSWCCA 128, where the accused subjected their partner to domestic violence – while in custody, made several persistent telephone calls to their partner attempting to influence her to withdraw charges. Received 3 years of full-time custody with a non-parole period of 2 years.
In Cross (32) [2016] NSWCCA 214, the accused was on remand for reckless wounding against a female ex-partner. He made numerous phone calls to persuade the victim to give false evidence, withhold true evidence and not attend as a prosecution witness. Received 3 years and 6 months of full-time custody, with a non-parole period of 2 years.
