Tampering with evidence is a serious criminal offence and is governed by Section 317 of the Crimes Act 1900 (NSW). This offence involves deliberately interfering with evidence in a way that is intended to mislead the court or judicial proceedings. It carries heavy penalties, including up to 10 years of imprisonment.

What Is Tampering with Evidence?

Tampering with evidence refers to any intentional act that affects the integrity or availability of material that could be used in a legal proceeding. This includes:

• Suppressing or hiding evidence
• Destroying or altering evidence
• Falsifying documents or materials
• Fabricating false evidence
• Knowingly using false or fabricated evidence in court

The offence does not include acts of perjury (lying under oath) or encouraging someone to commit perjury, as these are dealt with separately under the law.

Elements of the Offence

To secure a conviction, the prosecution must prove the following beyond a reasonable doubt:

Intent to Mislead

The person must have acted with the deliberate intention of misleading a court, tribunal, or legal proceeding.

Relevance to Judicial Proceedings

The evidence involved must be relevant or potentially relevant to an ongoing or upcoming legal matter.

Deliberate Action

The conduct must be intentional. Accidental or reckless actions do not meet the threshold for this offence.

Examples of Tampering with Evidence

To better understand the scope of this offence, here are some common examples:

• Destroying a document that may be used as evidence in court
• Altering or falsifying a witness statement
• Rearranging items at a crime scene to confuse investigators
• Creating a fake document and submitting it as genuine evidence
• Concealing physical or electronic materials relevant to a case

Penalties for Tampering with Evidence

The severity of the offence is reflected in the maximum penalties available under the law:

• District Court: Up to 10 years’ imprisonment
• Local Court: Up to 2 years’ imprisonment and/or a fine of $11,000

The court will depend on the nature and seriousness of the conduct.

Physical and Electronic Evidence Covered

Importantly, Section 317 covers both physical and digital evidence. This includes anything from documents, devices, and photos to electronic files, emails, and metadata.

Tampering vs. Perverting the Course of Justice

While similar in nature, tampering with evidence is distinct from perverting the course of justice. The latter involves broader conduct that interferes with the legal process as a whole, such as threatening witnesses or obstructing police investigations.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong-Yuan, paralegal.

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