Witnesses, statements, and the line between assistance and influence.

A criminal charge produces a set of decisions for the people around the accused. The partner. The parents. The friends. The work colleagues. People who are not themselves charged but who are witnesses to events, or who know witnesses, or who care about the outcome. They want to help. The instinct to help is right; the question is what kind of help is lawful. This note sets out the line between assisting a witness (lawful, ordinary, frequently necessary) and influencing one (a serious criminal offence in itself). It is for the families and friends of accused persons, and for accused persons working out what they can and cannot ask of them.

The offences that police the line.

Part 7 of the Crimes Act 1900 (NSW) creates the offences that catch the wrong side of the line. The four that matter here are these.

Section 312 / 319: perverting the course of justice. Section 312 defines "pervert the course of justice" as obstructing, preventing, perverting or defeating the course of justice or the administration of the law. Section 319 makes it an offence to do any act, or make any omission, with intent to do so. The maximum penalty is 14 years imprisonment. It is the broadest and most serious of the public-justice offences and catches conduct ranging from the destruction of evidence to the fabrication of an alibi to the procurement of a false witness statement.

Section 315: hindering investigation. Doing any act intending to hinder the investigation of a serious indictable offence committed by another person. Maximum 7 years.

Section 317: tampering with evidence. Suppressing, concealing, destroying, altering or falsifying anything knowing it may be required as evidence; fabricating false evidence; or knowingly using fabricated false evidence. Maximum 10 years.

Section 325: preventing, obstructing or dissuading a witness or juror from attending. Wilfully preventing, obstructing or dissuading a person called as a witness from attending or from producing things on a summons or subpoena. Maximum 5 years.

The offences operate independently and frequently overlap. Conduct that amounts to dissuading a witness under section 325 will often also amount to perverting the course of justice under section 319 at the higher 14-year maximum. The Crown can charge either or both. Convictions on these offences attract custodial sentences in most cases; the conduct is treated by the courts as a direct attack on the administration of justice.

What family and friends can do.

The list of lawful things family and friends can do for an accused person is long. The instinct that there is "nothing to be done but wait" is wrong. The lawful contributions are real and most successful defences depend on them.

Provide moral support to the accused. Phone calls, visits, meals, accommodation, transport to and from court. None of this is regulated; all of it matters to the accused's mental health through the months of proceedings.

Provide character references for the subjective case at sentence. A character reference written by a person who knows the accused well, addressing the offending honestly, explaining the kind of person the accused is and the contribution they make to family or community, is part of the orthodox sentencing brief. The lawyer will brief the referee on how to write one. Character references that pretend the offending did not happen are useless; references that acknowledge it and put it in context are highly useful.

Provide their own evidence where they are themselves witnesses. A family member or friend who was at a relevant event and saw what happened can be a defence witness. They give their statement to the lawyer, who works through it with them in the same way the lawyer would work through it with any witness.

Help with practical matters. Picking up the brief from the law firm, attending listings with the accused, looking after dependants while the accused is in conferences, sourcing supporting material (medical records, employment letters, school reports, treatment records), paying legal fees. All of it lawful, all of it ordinary, all of it useful.

What family and friends should not do.

The unlawful list is short and the items on it are taken seriously by police and the courts.

Contact prosecution witnesses to discuss the matter. A family member or friend who phones, messages, visits or speaks with a prosecution witness about the matter risks a section 325 charge (dissuading a witness) and, depending on the content of the contact, a section 319 charge (perverting the course of justice). The prohibition is not absolute. Where the witness is a family member of the accused (a parent, sibling or child), incidental family contact about other matters continues to be lawful. The line is contact about the matter, with anything that looks like a suggestion that the witness change their evidence, withdraw their statement, or fail to attend court. Even a question framed as "are you sure that's what happened?" can be enough.

Make payments to witnesses or hold out a benefit for cooperation. Offering money, employment, accommodation, or any other benefit to a witness in exchange for an account favourable to the accused is the textbook section 319 offence. The payment does not need to be cash; offering to forgive a debt, drop a separate proceeding, or provide a service is enough.

Destroy or alter material that may be evidence. Deleting text messages, wiping a phone, destroying clothing, altering a vehicle, removing CCTV footage, or deleting social media posts after the matter has been charged engages section 317 (tampering with evidence) and section 319 (perverting justice). The point at which "preserving privacy" becomes "tampering with evidence" is the point at which the conduct is directed at material the person knows or ought to know may be required as evidence.

Coach a witness on their evidence. Drilling a witness on the words they should use, the chronology they should give, the answers they should provide to anticipated questions, or the inconsistencies they should explain is coaching. Coaching shades into fabrication; even where the resulting evidence is true, the process can produce a section 317 offence (using fabricated evidence) and, in any case, makes the witness easy to cross-examine. Lawyers' rules prohibit coaching for both reasons. Family members who attempt to do informally what the rules prohibit lawyers from doing formally produce the same problem with the additional risk of a criminal charge.

Where the line sits in family violence matters.

The line is harder to walk in family violence matters because the parties are often still living in the same home, sharing children, or maintaining contact for practical reasons. Where an AVO and a criminal charge run in parallel, the accused and the complainant are usually subject to non-contact conditions on bail or on the AVO itself. Family contact through children, lawyers, mediators, or specified family members is sometimes carved out of the conditions. The carve-outs are narrow.

Where the complainant signals that they want to withdraw, the lawful path is for the complainant to contact the police and tell them. The accused, the accused's family, and any intermediary should not be the channel for that message. A police-facing approach is lawful; an accused-facing approach is a section 325 risk. The same point applies to messages relayed through children ("tell your mother she should withdraw"). Children carrying messages from one parent to another about the criminal matter is one of the routes by which a family violence matter compounds into a public-justice charge.

What the lawyer does with witnesses.

The lawyer is the lawful channel for contact with defence witnesses. The lawyer takes a statement from the witness, working through what they saw, what they remember, and what they will be able to say if called. The lawyer prepares the witness for the experience of giving evidence: where to stand, how to address the court, how to wait between questions, when to ask for a question to be repeated, when not to volunteer information. None of that is coaching. It is the orthodox preparation of a witness for the unfamiliar process.

The lawyer does not contact prosecution witnesses about the matter unless the prosecution agrees or the witness initiates the contact and confirms they want to speak. The conventions on this are stricter than the statute requires; they exist because any contact with a prosecution witness produces a perception of pressure that the lawyer will not want to defend at the bar table.

One last note.

The family and friends of an accused person have a substantial lawful role in the defence of a criminal matter. The role is not silent and it is not passive. The references at the sentencing brief, the practical support through the proceedings, the witness evidence where the family or friend was a witness, the funding of the legal team, are all real contributions. The contributions that look like helping but are actually influencing produce serious criminal exposure for the helper and material damage to the accused's case. The line is policed by the public-justice offences in Part 7 of the Crimes Act 1900; the safe way to stay on the right side of it is to take any concern about a witness, a piece of evidence, or a contact, through the lawyer first.

This note is general information about the public-justice offences in NSW and is not legal advice for any particular case. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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