Tampering with Evidence (NSW)

In NSW, it is an offence to tamper or interfere with evidence. The offence specifically criminalises a person who suppresses, conceals, destroys, alters, falsifies, fabricates or uses fabricated evidence (or something which may be required to be used as evidence) while intending to mislead a Court. It does not capture ‘fabricating’ evidence by way of Perjury, which is a separate offence. 

The offence carries a maximum penalty of 10 years imprisonment.

What is the Offence of Tampering with Evidence?

The offence of Tampering with Evidence is contained in section 317 of the Crimes Act 1900 (NSW) 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

(b) 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.

The offence criminalises doing such whereby the intention is to mislead a “judicial tribunal” in any “judicial proceedings”. 

“Judicial tribunal” means a “person (including a coroner and an arbitrator), Court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, Court or body authorised to conduct a committal proceeding.”

“Judicial proceeding” means a proceeding in or before a judicial tribunal in which evidence may be taken on oath.

The following acts may constitute an offence of Tampering with Evidence:

• A police officer taking a statement from a witness but not providing it to the accused persons representatives because they think it is unhelpful to the prosecution;
• A business owner deleting or destroying financial records that have been requested by the legal department of another company in relation to a civil dispute that may end up in Court;
• A lawyer learning that their client had photoshopped a photograph of injuries to make them look worse, but using the photograph in Court anyway; or 
• A person accused of domestic violence offences using AI to alter home CCTV from a doorbell camera to suggest that they had left the house and weren’t at home at the time of the alleged assaults (when they in fact were at home).

What Must be Proven?

For a person to be found guilty of Tampering with Evidence the prosecution must prove each of the following matters beyond a reasonable doubt:

• That you did one or more of the following:
  • suppressed, concealed, destroyed, altered or falsified anything knowing that it is or may be required as evidence in any judicial proceeding, or
  • fabricated false evidence; or
  • knowingly made use of fabricated false evidence,
• That you intended to mislead a Judicial Tribunal in a Judicial Proceeding.  

Which Court Will Hear the Matter?

This offence is a Table 1 offence, which means the matter will be finalised in the Local Court unless either the Prosecution or the Accused can elect to have it dealt with in the District Court. 

Possible Defences to Tampering with Evidence

The following defences may be available for a Tampering with Evidence charge:

• To argue that you were not the person who committed the crime;
• To argue that the actions you engaged in do not amount to one or more of the following:
  •  suppressed, concealed, destroyed, altered or falsified anything knowing that it is or may be required as evidence in any judicial proceeding, or
  • fabricated false evidence; or
  • knowingly made use of fabricated false evidence,
• To argue that while you did suppress, conceal, destroy, alter or falsify something, you didn’t do so knowing that it was required as evidence or may be required as evidence;
• That you did not intend to mislead a Judicial Tribunal in a Judicial Proceeding; or
• To argue necessity or duress.

Common Questions about Tampering with Evidence

Will I receive a criminal conviction?

Probably. Where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is very likely. However, it remains possible to avoid a conviction. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living and any need to travel. It is important to get legal advice if you think an offence like this would impact your future. 

Will I go to Gaol?

Possibly. It is possible to receive a Gaol sentence for this offence, however it’s more likely that a person receives a non-custodial outcome (such as an intensive corrections order or community corrections order). Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.