iv) Criminal Intent

deposition is required135 . It is the mere possibility of injury to the administration of justice that alone characterises this crime and the event is not considered except, in certain cases, for the purpose of the assessment of punishment.

"Compiuta dunque la falsa deposizione, compiuta e' del pari l'esecuzione del reato, ne' occorre punto attendere la sentenza sulla causa per far dipendere dall'esito di questa l'applicazione della pena"136 .

Finally, for a charge of this crime it is not absolutely essential that the evidence impeached as false shall have been taken down in writing. What the witness has said may also be proved by parole evidence137 .

(iv) Criminal Intent

The intentional element of this crime of false testimony is the consciousness of uttering a falsehood or of concealing the truth. Any error or forgetfulness excludes the criminal intent in this crime. In other words, the falsity must be deliberate and intentional, for, if incurred into from inadvertence or mistake, it cannot constitute this crime. Therefore, this crime is not committed by a witness who testifies a falsehood, honestly believing it to be the truth. A man who was an eye-witness of a fact may, by misapprehending the essential circumstances thereof, deceive himself in good faith, and often one is under the impression of having seen or heard things which in reality never took place; often also fear or fright or strong emotions as well as the mistaken perception of the senses play tricks on sight or hearing. Consequently, in order that the crime in question may subsist it is necessary to prove in addition to the actual falsity and the possible injury to the due administration of justice, the criminal intent, a strong presumption of which arises when some advantage accrues to the deponent from his false deposition or if he was corrupted138 .

On the other hand, however, this criminal intent need not consist in the wish to injure any particular person. Indeed, in the case of criminal proceedings, the crime subsists

135 Vide in this sense Criminal Appeal Police vs Zammit, 14/3/1949, Law Reports, Vol. XXXIII, Part IV, pg. 840 136 Roberti, para. 461 137 Vide judgement by Montanaro Gauci J. in Criminal Appeal Police vs Galea, 29/3/1952 138 Vide Chaveau et Helie, op. cit., No. 3072

whether the false testimony is given against or in favour of the accused, and, in the case of civil proceedings, whatever is against one of the contending parties is naturally in favour of the other. The motive of the offender is, as in most other crimes, immaterial:

“E’ indifferente, per la natura del reato per qual motivo l’autore della falsa testimonianza abbia agito: basta che abbia agito in male fede o con intenzione criminosa. E vi ha intenzione criminosa quando anche il testimonio non avesse alcuna intenzione di nuocere al tale o al altra parte. Siccome l’oggetto o la materia del delitto sono la verità in quanto il testimonio la conosce, ed il diritto che ha la giustizia di saperla da lui, l’intenzione esiste appunto perchè contraviene scientemente a questa obbligazione che ha di dire il vero”139 .

The question whether there was this criminal intent is one of fact the solution of which depends on the particular circumstances of the case.

The point is not settled among the authorities whether a person is liable to the punishment for false testimony who makes a false deposition to save himself. The Italian Code of 1889 contained an express provision on the said subject. Article 215 thereof exempted from all punishment any person who, by manifesting the truth would inevitably expose himself or a close relative to a grave injury to his liberty or his reputation140: but granted only a reduction of punishment when the false testimony exposed another person to criminal proceedings or to a sentence of condemnation.

Among French writers the point is controverted. The Court of Colmar had declared a false witness to be excused from guilt on the ground that he could not be compelled to declare a fact which would have exposed him to criminal proceedings. This decision was annulled by the Court of Cassation for the reason that the law did not make any exception and the sanctity of the oath did not allow any to be made; therefore, the witness, simply on account of having invoked the Deity to confirm his statement, could not, by reason of any personal consideration, be excused from the obligation of discharging the sacred duties imposed on him by the oath. This decision was criticised by Chaveau et Helie as well as by Rauter and Carnot, but supported by Dalloz.

139 Rauter, para. 491 140 A similar provision is made by Article 384 of the present Italian Code.

Under our law, the position would appear to be as follows: As regards the accused himself we have already seen that he is a competent though not a compellable witness. If he chooses to give evidence, he is liable to be cross-examined notwithstanding that such cross-examination may tend to criminate him of the offence with which he is charged. All the provisions relating to witnesses shall, in such case apply to the accused giving evidence on oath. Therefore, if he makes a false deposition, he becomes guilty of the crime of false testimony.

As regards all other witnesses, including the parties to a civil action, the general rule laid down both in the Code of Organization and Civil Procedure (Section 588) and in the Criminal Code (Section 639) is that no witness can be compelled to answer questions which might subject him to a criminal prosecution. Therefore, a witness to whom any such question is put has the right to claim the privilege; if, however, he does not claim and avail himself of this privilege and gives his reply on oath, he cannot alter or pervert the truth, and if he does, he is guilty of false testimony141 . The same rule, it is submitted, applies also to the accused with regard to the replies which might incriminate him of an offence other than that with which he stands charged. But if “ex hypothesis” a witness has claimed the privilege but was wrongly compelled by the Court to give a reply, then if he gives a false answer, it does not seem that he could be held guilty of a crime.

What we have said applies only to depositions which might expose the witness himself to criminal proceedings. There is no doubt that if the witness gives a false testimony to save somebody else even if from criminal proceedings or to avoid, whether to himself or to others, any other injury (that is other than a criminal charge, for example an injury to property, reputation etc.) he would be guilty of the crime and no absolute privilege covers any such testimony. Only, Section 629 of the Criminal Code gives a discretion to the Court to excuse a witness from giving evidence against close relatives, and Section 640 likewise gives a discretion to the Court to exempt a witness from replying to a question if the reply might tend to manifest his own turpitude. But if the Court does not see fit to use its discretion in this sense, the witness is bound to

141 Vide Criminal Appeal Police vs Vassallo, 8/3/1948, Law Reports, Vol. XXXIII, Part IV, pg 664