Tampering with Evidence


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 Might 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.

Possible Defences for the Offence of Tampering with Evidence:

Possible defences to a Tampering with Evidence charge include but are not limited to:

  • You could raise necessity or duress as the reason for your conduct;
  • You did not know that there the evidence may be used in a judicial proceeding;
  • That you had no intent to mislead any judicial tribunal in any judicial proceedings;
  • Maintaining your innocence if you did not commit the act alleged.

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: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.

Intensive Corrections Order (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.

Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. 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 (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). 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. Read more.

Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.

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

Section 10A: A section 10A is a conviction, with no other penalty attached to it. Read more.

Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.

Section 10 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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