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Tampering with evidence

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW, tampering with evidence is an office that carries a maximum penalty of ten years imprisonment.

THE OFFENCE OF TAMPERING WITH EVIDENCE

The offence of tampering with evidence is contained in section 317 of the Crimes Act 1900, which states: A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence is liable to imprisonment for 10 years.

WHAT ACTIONS MIGHY CONSTITUTE TAMPERING WITH EVIDENCE?

  • Parties to proceedings altering or concealing evidence, such as, but not limited to:- statements by victims or witnesses; business records; medical reports/results; CCTV footage, or; drug testing results, knowing that it is or might be evidence.
  • Parties to proceedings finding out that certain evidence is altered or fabricated and still relying on it in proceedings in a court or tribunal.
  • There is also case law that states that "false evidence" for the purpose of an offence under is section is not limited to a physical item, and could include false statements, for example, those made by Police officers, even if a typed copy of that statement was not tendered to court, included in evidence or served on the defendant.

WHAT THE POLICE MUST PROVE

In order to convict you of an offence under this section, the Prosecution must prove beyond reasonable doubt:

  • That you, with intent to mislead any judicial tribunal in a judicial proceeding;
  • Either:
    • Suppressed, concealed, destroyed, altered or falsified anything, knowing that it was or might have been required as evidence in any judicial proceeding; or
    • Fabricated false evidence: or
    • Knowingly made use of fabricated false evidence.

WHAT COURT WILL HEAR MY MATTER?

This is a Table 1 offence and will be dealt with in the Local Court unless you or the Prosecution elect to have the matter heard in the District Court. If the matter is dealt with in the District Court, it will give rise to harsher penalties.


Types of penalties:

Jail for a tampering with evidence charge: This is the most serious penalty for the charge of tampering with evidence and involves full time detention in a correctional facility. Read more.

Intensive correction order for a tampering with evidence charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Periodic detention for a tampering with evidence charge (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Suspended sentence for a tampering with evidence charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order for a tampering with evidence charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond for a tampering with evidence charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. .

Fines for a tampering with evidence charge: When deciding the amount of a fine for a tampering with evidence charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10 for a tampering with evidence charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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