iii) Falsity

"The solemn declaration or affirmation of any person authorised by law to make a declaration or affirmation instead of taking an oath, shall for the purposes of any punishment established in the preceding sections of this Sub-Title, have the same effect as if the person making such declaration or affirmation had been sworn according to law" .

By Section 15 of the English Act above quoted, oath, similarly, includes affirmation and declaration. As to who are the persons authorised to make a declaration or affirmation in lieu of taking an oath, Section 127 of the Code of Organization and Civil Procedure lays down that in the case of Quakers, Moravians, Separatists or others of their conviction as regards the taking of oaths, a simple affirmation shall be equivalent to an oath.

The authorities that are competent to administer the oath are those expressly indicated by the law. Section 126 of the Code of Organization and Civil Procedure gives such power to every Court and every judge and magistrate.

Finally, it may not be amiss to mention that by Section 110 of the said Code of Organization and Civil Procedure:

"The Court before which an oath is to be taken, shall have power to warn the person about to take the oath as to the obligation of the oath and the consequence of perjury."

This provision is applied to the Criminal Courts by Section 513 of the Criminal Code (Vide also Section 625 of the Criminal Code).

(iii) Falsity

In English law, a person commits a perjury who, being lawfully sworn as a witness in a judicial proceeding, wilfully makes a statement material to that proceeding, which he knows to be false or does not believe to be true; the matter sworn must either be false in fact or, if true, the defendant must not have known it or not have believed it to be

so127 . Section 124 of the Italian Code afore quoted makes guilty of the crime of false testimony any person who, before a judicial authority, affirms what is false or denies what is true or fails to disclose, in whole or in part, that which he knows about the facts of the case. Our law does not define in what the falsity of the testimony may consist, but it is obvious that the same rule laid down in the Italian Code applies. A person perverts the truth in the first place when he affirms what is false or denies what is true. There must be a statement made and therefore the mere refusal to give evidence or to answer any question cannot constitute this crime:

“Ed in vero, non può aversi falsa testimonianza se non quando siasi fatta una dichiarazione: ora il niego di fare la dichiarazione non può tenersi come la dichiarazione stessa, e poi, il testimone non inganna mica la giustizia, egli non fa che negarsi a darle quei lumi che potrebbe”128 .

Such refusal is made the subject of a special provision in the Code (Section 515) which gives power to the Court to order the arrest of any witness who shall refuse to be sworn or to depose and to detain him as long as may be necessary or the Court may think proper, having regard to the insubordination of the witness and the importance of the case. It may also constitute the crime under Section 130 where the witness for the purpose of withholding his service to the competent authority when so required alleges an excuse which is found to be false. But, as has been said, the mere refusal to make any statement cannot constitute the crime of false testimony.

Such refusal must not, however, be confused with the failure to disclose, in the course of the evidence, anything the witness knows about the facts of the case in which the evidence is given, even though he may not have been specially questioned on the point. The oath is taken to speak the whole truth and, as Rauter says, the duty of the witness is to say the truth as far as he knows it: he expressly promises on oath to fulfil this duty and the fulfilment of such duty is required of him in the interest of law and justice: therefore if he leaves out something he knows or says he knows nothing, he fails in this duty, and if he does it in bad faith or with criminal intent, he is guilty of the crime of false testimony. This would be, for instance, the case of a witness who, being called to give evidence concerning a fact wrongly imputed to a person other than the

127 Archbold, op. cit., pg. 1222 128 Chaveau et Helie, no. 3056

culprit, does not declare the innocence of that person which is known to him. It is clear that this silence gives to his evidence a meaning which is contrary to the truth, to the detriment of the defendant.

The same thing may be said with regard to negative statements, that is, those in which the witness denies having seen or heard the facts on which his evidence is required. It is true that in such cases the absence of good faith may be difficult to prove, because it may happen that this witness, although he was in a position to have seen or heard, may have in fact not noticed: but if it is proved that he had actually seen or heard and that his denial was intended to destroy such proof it is evident that he commits the crime of false testimony.

Indeed, a witness may have averred something which is in fact true and yet be guilty of this crime if he must not have known it or not have believed it to be so. So in England it was held that where a man swears to a particular fact without knowing at the time whether the fact is true or false, it is as much perjury as if he knew the fact to be false, and equally indictable129 and that if a man swears that J. N. revoked his will in his presence, if he really had revoked it, but it was unknown to the prisoner that he had done so, it is perjury130 . The same principle is affirmed in continental doctrine:

“Scientificamente si insegna che può essere falso testimonio anche chi attesti una cosa in se stessa vera, quando falsamente narra di averla veduta; il falso qui non consiste nel fatto, ma nel non essersi il fatto stesso veduto dal testimonio. Il criterio della falsità della testimonianza non dipende dal rapporto fra il detto e la realtà delle cose, ma dal rapporto fra il detto e la scienza del testimonio. Aliud est mentiri aliud dicere mendacium”131 .

But in all cases, in order that the crime of false testimony may subsist, it is necessary that the falsity be material to the cause: this is expressly required in the Perjury Act, 1914. But it applies equally to our law. The law aims at ensuring the integrity of judicial trials and it 1 s in the violation of such integrity that the injury caused by the crime subsists. If therefore the falsity falls upon circumstances which are entirely irrelevant to the cause and which, whether true or false, could in no way influence the result, the

129 R. V. Mawby, C. T. P., pp. 619, 637 130 Allen vs. Westley, Hetley 97 131 Carrara, Programma, Parte Speciale, Vol. V, paras. 2678 & 2698

crime could not arise because no possibility of injury which alone justifies the punishment would exist.

Roberti says:

“Ben dunque diceva sul proposito, il profondo Raffaelli, che per indossare alla falsa testimonianza il carattere di criminosa non basta dire che sia falsa, ma dopo e' rinvenirla ancora influente a far pronunziare un falso giudizio. Perciocchè priva essa d'ogni influenza a tale scope, sarà reprensibile come mendacio, ma non punibile come falsità”132 .

And Maino says:

"Perchè sussista la falsa testimonianza - delitto funesto in vista dell’inganno nel quale per esso vien tratta o potrebbe essere tratta la giustizia – e’ necessario che le circostanze falsamente asserite o maliziosamente taciute siano pertinenti alla causa o influenti sulla decisione di questa"133 .

The law itself in Sections 557 and 559 of the Code of Organization and Civil Procedure applied in criminal matters by Section 513 of the Criminal Code requires that all evidence must be relevant to the matter in dispute, and enjoins the Court to refuse to admit any evidence which it considers irrelevant or superfluous.

What is or is not “material” in the particular case depends upon the circumstances of that case and no ‘a priori’ rules can be laid down. In England, it was held that even a man's testimony as to the credit of a witness is "material"; and every question in a cross-examination which goes to a witness’ credit as, whether before he was convicted of felony, is material for this purpose134 .

If the falsity is material, that is to say could have affected the decision one way or the other, it does not matter that it has not in fact influenced such decision. All the authorities are unanimous that a crime of false testimony is complete so soon as a false deposition is made which is calculated to mislead the Court. No actual injury resulting from an erroneous judgement pronounced in consequence of such false

132 Op. cit., para. 460, n. 13 133 Loc. cit., para. 1113; Confer also Carrara, loc. cit., paras. 2620 - 2681; Chaveau et Helie, Vol. IV, No. 1781; Impallomeni "Codice Penale Italiano Illustrato", Vol. II, pg. 257 134 Vide Archbold, pg. 1220