The Offence of Subornation of Perjury in New South Wales

by Sonia Hickey & Ugur Nedim
Amber Heard

The defamation trial between Amber Heard and Johnny Depp may be over, but Australian authorities are still investigating Ms Heard over allegations she lied under oath during her criminal prosecution in Queensland in 2016.

Illegal importation of dogs

In 2015, the then married couple created a furore after Ms Heard brought her two Yorkshire Terriers, Pistol and Boo, into Australia via chartered jet without the required permits and quarantine period, then marked ‘no’ to the relevant question on her immigration form.

Ms Heard came to Australia to meet her husband who was filming a Pirates of the Caribbean movie on Queensland’s Gold Coast. 

Incensed by the conduct, then Agriculture Minister Barnaby Joyce publicly threatened to euthanize the dogs – a threat which made worldwide media headlines.

‘The London trial’

During Johnny Depp’s 2020 libel trial against Rupert Murdoch’s London tabloid newspaper, The Sun, the pair’s former assistance, Kevin Murphy, provided a witness statement to the effect that Ms Heard lied when she told the Queensland court in April 2016 that he informed her that everything was in place to import the dogs.

Mr Murphy further alleged that Ms Heard demanded that he swear a false statement that Heard was unaware it would be illegal for her to bring the dogs into the country, despite the fact she had been repeatedly advised by several people that the relevant paperwork had not been completed.

He asserted that Heard also demanded that he direct another staff member to also lie to cover-up her conduct.

Mr Murphy said Heard told him that his ‘job… [was] on the line’ and, under extreme pressure, acceded to her demand and lied in a statement in October 2015.

He said he did not comply with Ms Heard’s demand that he ask other staff members to also lie to cover up her conduct, and that he felt extreme remorse over his actions.

He later retracted his statement.

Plea of guilty

In July 2015, Ms Heard pleaded guilty in a Queensland court to illegally importing her dogs – a charge which attracts a maximum penalty of ten years in prison and/or a fine of $75,000.

Her sentencing hearing took place in April 2016 and, relying on a range of subjective materials including her apology letter and the affidavit of Mr Murphy, was ultimately given a one-month good behaviour bond.

A criminal conviction was not recorded against her name.

Investigation

In 2020, the chairperson of a Senate Rural and Regional Affairs and Transport Legislation Committee asked the Agriculture Department’s Ms Peta Lane about the nature and status of the investigation, to which Ms Lane replied:

“There was evidence presented in the London court case which suggested false statements were provided in the court case in Australia in 2016, so we are investigating that”.

The chairperson then put to Ms Lane:

“As I understand it the former estate manager of Johnny Depp, Kevin Murphy, said in a witness statement that he was told that he told Heard, and I quote ‘by email, telephone and in person that she could not take the dogs to Australia because the relevant paperwork and permits were not complete and the required ten day quarantine arrangements had not been put in place.’ Mr Murphy continued ‘Ms Heard later told the court in Australia that I had told it was fine to bring the dogs into Australia. That is false, I never told her this.”

Ms Lane replied,

“Yes, senator, we understand that to be the case. All the evidence provided in the London court case and giving a false testimony is an offence under the Crimes Act so that is what we are now investigating”. 

We reached out to the Department of Agriculture, Water and the Environment recently, whose spokesman advised us in an email on 9 June 2022 that:

“The Department… is investigating allegations of perjury by Ms Heard during court proceedings for the 2015 illegal importation of (her) two dogs into Australia. As the matter is ongoing, the department cannot make any further comment.”

Possible perjury charges in the UK and US

While authorities continue to investigate the Australian incident, Ms Heard is also potentially facing another investigation for perjury in the UK, since she admitted to the court in Virginia that she did not donate her entire $7 million divorce settlement to charity – although she had previously testified in the UK High Court that she had. 

While no investigation has been formally confirmed, legal experts are saying that it could only be a matter of time before a probe is initiated. 

She may also face a prosecution over her testimony under both examination-in-chief and cross examination in the Virginia court during the recent defamation trial in the United States, which many believe was full of inconsistencies and untruths.

The offence of subornation of perjury in New South Wales 

Procuring, persuading or inducing another person to lie under oath or affirmation is known as ‘subornation of perjury’ and is an offence under section 333 of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You procured, persuaded, induced or otherwise caused a person to give false testimony, and
  2. That testimony amounted to perjury.

The maximum penalty increases to 14 years where your conduct was intended to procure the conviction or acquittal of a person for an indictable offence.

An indictable offence is one which may be referred to a higher court, such as the District or Supreme Court.

The offence of perjury occurs where:

  1. A person makes a false statement under oath or affirmation,
  2. The statement is in, or in connection with, judicial proceedings,
  3. The statement concerns a matter that is material to those proceedings, and
  4. The person who made the statement knows it was false or does not believe it was true.

A ‘judicial proceeding’ is one in or before which a judicial tribunal can take evidence under oath.

A ‘judicial tribunal’ is any person, including a coroner or arbitrator, or any court or other body authorised by law or by the consent of the parties to conduct a hearing to determine any matter or thing.

Examples of perjury may include:

  1. Falsely stating in court that another person committed a crime
  2. Falsely providing an alibi in relation to proceedings, or
  3. Swearing false evidence in an affidavit.

Duress is a defence to both perjury and subornation of perjury.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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