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7.5.14 - Making or Using a False Document

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Offences

  1. In 1988-89 the common law offences of forgery and uttering were replaced by the statutory offences contained in Crimes Act 1958 s83A. [1] This section now codifies the offences arising out of the making and use of false documents (R v Gatzka (2004) 9 VR 459).
  2. Section 83A creates a series of offences which include:
  3. Due to the substantial overlap in elements between the offences, this commentary addresses all of them. They are, however, discrete offences, and the judge must correctly instruct the jury on the specific offence alleged in the indictment.

    Elements

  4. Each offence has five elements, which address the following issues:
    1. The creation or use of the document;
    2. The false nature of the document;
    3. The accused’s knowledge of the falsity;
    4. The accused’s intention that someone be induced to accept the document as genuine; and
    5. The accused’s intention that acceptance of the document as genuine will result in prejudice to a person.
  5. It is not necessary to show that the accused achieved his or her intended purpose. The gist of the offence lies in intention, rather than consequence. The offence is similar to inchoate offences, in that it punishes preparatory acts (R v Ceylan (2002) 4 VR 208; Attorney-General’s Reference (No 1 of 2000) [2001] 1 WLR 331; R v Garcia (1988) 87 Cr App R 175; R v O’Hara [2005] VSCA 62).

    Making or using a document

  6. The requirements of the first element differ depending on which offence has been charged:

    When does a person "make" or "use" a document?

  7. A person "makes" a document if he or she is ultimately responsible for it coming into existence (Nikolaidis v R [2008] NSWCCA 323 per Simpson J).
  8. A person "makes" a new document when he or she alters an existing document (Crimes Act 1958 s83A(7). See also Nikolaidis v R [2008] NSWCCA 323; R v Ondhia [1998] 2 Cr App R 150).
  9. A person "uses" a document when he or she deploys the document (Sultan v R [2008] NSWCCA 175).
  10. Mere presence at the time a document is deployed by another does not constitute "use". There must be a direct link between the accused and the deployment (Sultan v R [2008] NSWCCA 175).

    When is a document "copied"?

  11. A person "copies" a document by making an exact replica of that document.
  12. If a person makes any modifications to a document in the course of copying it, he or she has not made a copy. He or she has made an original document and should be charged with an offence under s83A(1) (Nikolaidis v R [2008] NSWCCA 323; R v Ondhia [1998] 2 Cr App R 150. See also Crimes Act 1958 s83A(7)).
  13. Thus, in deciding whether the accused has made or used an original document or a copy of a document, the fact that the document appears to be a copy is not determinative. The question is whether the accused made or used a copy of an existing document, or created a false copy of a document him or herself. This may depend on the way in which the accused used or intended to use the document (see Nikolaidis v R [2008] NSWCCA 323; R v Ondhia [1998] 2 Cr App R 150; R v Harris [1966] 1 QB 184).

    What is a "document"?

  14. A "document" includes:
    1. any book, map, plan, graph or drawing;
    2. any photograph;
    3. any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever;
    4. any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;
    5. any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
    6. anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them (Interpretation of Legislation Act 1984 s38).
  15. This definition is substantially broader than the common law definition of "document", or the term "instrument" that is used in the section in the Forgery and Counterfeiting Act 1981 (UK) on which s83A is based. Cases from other jurisdictions must therefore be treated with caution.
  16. This definition may therefore include:

    False documents

  17. The second element the prosecution must prove is that the document the accused made or used (either the original or the copy, depending on the offence charged) was "false".
  18. Section 83A(6) exhaustively defines the ways in which a document may be "false" for the purpose of these offences. According to this section, a document is "false" if it purports:
    1. to have been made in the form in which it is made by a person who did not in fact make it in that form; or
    2. to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or
    3. to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or
    4. to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or
    5. to have been altered in any respect by a person who did not in fact alter it in that respect; or
    6. to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or
    7. to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or
    8. to have been made or altered by an existing person who did not in fact exist.
  19. Where the accused is charged with "making" a false document by altering an existing document, it does not matter if that original document was already false. If the accused alters it so as to make it "false" in any of the respects outlined above, he or she will have made a false document (Crimes Act 1958 s83A(7)).

    The document must "tell a lie about itself"

  20. A document is not "false" simply because it contains untruths. To be "false", the document must purport to be something which it is not (R v Ceylan (2002) 4 VR 208; Brott v R (1992) 173 CLR 426; HKSAR v Muoi [2001] HKCA 95).
  21. While traditionally this has been referred to as a requirement that the document must "tell a lie about itself", that phrase is best avoided as it can be unhelpful and misleading (Brott v R (1992) 173 CLR 426 per Deane J). [3]
  22. The distinction between a document that contains falsehoods and a document that purports to be something which it is not may, in some cases, depend on the manner in which the document was created (see, e.g., Attorney-General’s Reference (No 1 of 2000) [2001] 1 WLR 331). [4]

    Types of falsity

    Non-authorised documents

  23. One way in which a document will be "false" is if it purports to have been made in the form or terms in which it is made, on the authority of a person who did not in fact authorise its making in that form or terms (Crimes Act 1958 ss83A(6)(b), (d)).
  24. This meaning of "false" may be relevant where a document is created in the name of a company. For example, where an employee of a company is not authorised to issue an invoice or receipt in the name of that company, but nevertheless does so, he or she will have made a false document (DPP v Logan-Pye [2007] NSWSC 1492).

    False circumstances

  25. Another way in which a document will be "false" is if it purports to have been made or altered "in circumstances in which it was not in fact made or altered" (s83A(6)(g)).
  26. This definition of falsity applies where:
  27. For example, the following documents have been held to be "false" under s83A(6)(g):

    Documents made by a non-existent person

  28. A third way in which a document will be "false" is if it purports "to have been made or altered by an existing person who did not in fact exist" (s83A(6)(h)).
  29. It is not clear precisely what documents are covered by this meaning of "false". While it would appear to include documents made using a false identity, an alias or nom de plume, decided cases do not support that proposition (see R v More [1987] 1 WLR 1578; R v Fischetti & Sharma (2003) 192 FLR 119; Brott v R (1992) 173 CLR 426 at 446).

    The false document must be clearly identified

  30. The indictment should clearly identify the document that is said to be false. The prosecution cannot expand its case to rely on the falsity of other documents that are attached or annexed to the document specified in the indictment (e.g., supporting documentation for a loan application) (R v Ceylan (2002) 4 VR 208).

    Directing the jury about the meaning of "false"

  31. It is not appropriate for a judge to merely read out the text of s83A(6), or provide the jury with a copy of the statute, and expect the jury to choose an appropriate form of falsity. The judge must instruct the jury on how it may find that a document is "false" (R v O’Hara [2005] VSCA 62; Nikolaidis v R [2008] NSWCCA 323).
  32. The judge should only direct the jury about the types of falsity that are relevant to the circumstances of the case (R v O’Hara [2005] VSCA 62; Nikolaidis v R [2008] NSWCCA 323).
  33. In cases where the nature of the alleged falsity is clear, the judge may instruct the jury that if they accept the prosecution case that the accused fabricated the document, and that the document was not what it purported to be, then they may find this element proven (R v O’Hara [2005] VSCA 62).

    Knowledge that the Document is False

  34. The third element the prosecution must prove is that the accused knew about the falsity (Crimes Act 1958 s83A; R v O’Hara [2005] VSCA 62; Nikolaidis v R [2008] NSWCCA 323).
  35. Precisely which document the accused must have known was false will vary depending on the offence charged:

    Intention

  36. The fourth and fifth elements both focus on the accused’s intention:
  37. The prosecution must prove that these intentions existed at the time the accused made or used the document, depending on which offence is charged (R v Gatzka (2004) 9 VR 459; R v Ondhia [1998] 2 Cr App R 150; R v Tobierre [1986] 1 WLR 125).

    Intention that the document be accepted as genuine

  38. The requirements of the fourth element differ depending on whether the accused is charged with making or using a false document:
  39. This element may be satisfied where the accused intended to cause a machine to respond to a false document (e.g., by using a false credit card or ATM card) (Crimes Act 1958 s83A(9)(a)).
  40. The prosecution does not need to prove that the accused intended that any particular person would accept the document as genuine. The intention may be directed generally, at prospective victims of the accused’s plan (Crimes Act 1958 s83A(10); R v O’Hara [2005] VSCA 62).
  41. Where the accused is charged with making a false document:

    Intention that the victim act to somebody’s prejudice

  42. The fifth element requires the accused to have intended that, due to accepting the document as genuine, or as a copy of a genuine document, the victim would act (or not act) in a way that prejudices somebody other than the accused (Crimes Act 1958 s83A(1) – (4); Nikolaidis v R [2008] NSWCCA 323; R v Gatzka (2004) 9 VR 459; R v Garcia (1988) 87 Cr App R 175; R v Utting [1987] 1 WLR 1375).
  43. Where it is alleged that the accused intended that the victim not act in a certain way, it must be proved that he or she intended that omission to cause prejudice to somebody. It is not an offence to make or use a false document with the intention of inducing a person to refrain from causing prejudice (R v Utting [1987] 1 WLR 1375).
  44. This element will be satisfied where it is intended that a machine will respond in a manner which, if a person did so, would be to a person’s prejudice (Crimes Act 1958 s83A(9)(b)).

    Meaning of "prejudice"

  45. The meaning of "prejudice" is defined in Crimes Act 1958 s83A(8):

    For the purposes of this section, an act or omission is to a person’s prejudice if, and only if, it is one that, if it occurs:

    1. will result-
      1. in the person’s temporary or permanent loss of property; or
      2. in the person’s being deprived of an opportunity to earn remuneration or greater remuneration; or
      3. in the person’s being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration; or
    2. will result in any person being given an opportunity-
      1. to earn remuneration or greater remuneration from the first-mentioned person; or
      2. to obtain a financial advantage from the first-mentioned person otherwise than by way of remuneration; or
    3. will be the result of the person’s having accepted a false document as genuine, or a copy of a false document as a copy of a genuine one, in connection with the person’s performance of a duty.
  46. This definition is exhaustive (R v Gatzka (2004) 9 VR 459).

    Prejudice in connection with a duty

  47. To prove that the accused intended to cause the kind of prejudice specified in s83A(8)(c) (prejudice in connection with a duty), the prosecution must prove that the accused intended that:
  48. This type of prejudice primarily (if not exclusively) concerns acts or omissions which represent a deviation from the victim’s existing duties (DPP v Murdoch [1993] 1 VR 406).
  49. Consequently, there may be no prejudice where the victim was already legally bound to commit the act which the accused intended to induce through the use of the false document (see, e.g., DPP v Murdoch [1993] 1 VR 406).
  50. Where it is alleged that there was a pre-existing duty to commit the relevant act, care must be taken to examine the precise scope of the legal obligation. It is possible that the victim will only be legally bound to commit the relevant act if certain requirements are satisfied. [6] Attempting to circumvent those requirements through the use of a false document may constitute an intention to cause prejudice (see, e.g., R v Winston [1999] 1 Cr App R 337).

    Prejudice "will result"

  51. The use of the words "will result" in the definition of prejudice means that it is not sufficient for the accused to intend to induce an act or omission that, if it occurs, may cause prejudice. The accused must intend to induce an act or omission that, if it occurs, must result in prejudice (R v Garcia (1988) 87 Cr App R 175).
  52. It is not, however, necessary to show that the false document was successfully used, or that successful use was imminent or even likely. The focus of the offence is on the creation or use of false documents with the prescribed intention, rather than the outcome of giving effect to that intention (Brott v R (1992) 173 CLR 426; R v Ondhia [1998] 2 Cr App R 150; R v O’Hara [2005] VSCA 62).
  53. The fact that the document succeeded in causing prejudice may be used as evidence of the accused’s intention. Depending on the circumstances, the jury may be able to infer the requisite intention from that fact (Brott v R (1992) 173 CLR 426; R v Ondhia [1998] 2 Cr App R 150; R v O’Hara [2005] VSCA 62).

    The victim may not be the person prejudiced

  54. Unless the accused intends to cause prejudice in connection with a duty (see above), the person who it is intended will be prejudiced does not need to have been the victim (i.e., the person who it is intended will be induced to accept the document as genuine). This element may be met where it is intended that the victim act (or not act) in a way that prejudices a third party (Crimes Act 1958 s83A(1) – (4)).
  55. However, the accused must intend that prejudice will be caused to another person. This element will not be met where the accused intends to cause prejudice to him or herself (R v Utting [1987] 1 WLR 1375).
  56. The prosecution must identify the person who it is intended will be prejudiced. This can be done by either nominating a specific individual, or by specifying a certain class of people who will be prejudiced if they act (or fail to act) due to accepting the document as genuine (see, e.g., R v O’Hara [2005] VSCA 62). [7]
  57. Where a class of people is specified, the prosecution must show that the accused intended that all the people in that class will inevitably suffer prejudice if they act (or fail to act) in reliance on the false document. It is not sufficient that they may suffer such prejudice (R v Garcia (1988) 87 Cr App R 175).
  58. The judge must clearly direct the jury about:

    Need for a causal connection

  59. The accused must have intended that the victim would act (or not act) to a person’s prejudice "by reason of" accepting the document as genuine, or as a copy of a genuine document. This requires the accused to have intended that acceptance of the false document would cause that prejudice to result.

    Directing the jury about prejudice

  60. When directing the jury about this element, a judge should not read out the whole of s83A(8) and leave it to the jury to identify which forms of prejudice are relevant in the case. He or she should:
  61. As the definition of prejudice in s83A(8) is exhaustive, the judge must not specify any forms of harm that are outside that definition (R v Garcia (1988) 87 Cr App R 175).

    No Need to Prove Dishonesty

  62. Unlike offences such as theft and obtaining property by deception, making or using a false document does not require proof of a dishonest intent (R v Gatzka (2004) 9 VR 459).
  63. The lack of any need to prove dishonesty means that the accused cannot rely on a defence of claim of right (R v Gatzka (2004) 9 VR 459).
  64. However, in exceptional circumstances, the existence of a claim of right may be relevant to proof of the fifth element (compare R v Gatzka (2004) 9 VR 459 and Attorney-General’s Reference (No 1 of 2001) [2003] 1 WLR 395. See also DPP v Murdoch [1993] 1 VR 406; R v Winston [1999] 1 Cr App R 337).

 

Notes

[1] Section 83A commenced operation on 1 June 1988. The offences of forgery and uttering were abolished on 25 June 1989 (but continue to apply to offences committed before that date) (Crimes Act 1958 s83B).

[2] Four further offences are created by ss83A(5)-(5C). It is not anticipated that those offences will be addressed in the Charge Book. However, some aspects of this commentary (e.g., the meaning of "false") will be relevant to those offences.

[3] For example, Deane J notes that a biased document that describes itself as "unbiased" may "tell a lie about itself", but is not a "false" document for the purpose of this section.

[4] For example, in Attorney-General’s Reference (No 1 of 2000) [2001] 1 WLR 331 a bus driver operated a machine that created an automated record suggesting that someone else had been driving at a certain time, when in fact he had been. It was held that if the accused had hand-written a record wrongly noting that someone else had been driving at that time, that would not have been a "false" document. However, because of the use of the machine, the driver had purported to make a document in circumstances in which it was not in fact made, and so fell within the scope of the English equivalent of s83A(6)(g).

[5] Contrary to the situation with other forms of prejudice (see below), where the prosecution relies on the definition of prejudice in s83A(8)(c), the person who is induced to perform an act or omission (the victim) must be the person who performs the duty (R v Winston [1999] 1 Cr App R 337).

[6] For example, while the accused may be entitled to payment of a certain benefit, he or she may only be entitled to that payment upon provision of the appropriate documentation (see R v Winston [1999] 1 Cr App R 337).

[7] For example, where the accused has falsely created documents designed to convince prospective purchasers about the provenance of an item that is for sale, the prosecution may identify the prospective purchasers as the people who it is intended will be prejudiced (see R v O’Hara [2005] VSCA 62).

 

_ Last updated: 3 June 2011

In This Section

7.5.14.1 - Charge: Make False Document

7.5.14.2 - Checklist: Make False Original Document

7.5.14.3 - Checklist: Make False Copy Document

7.5.14.4 - Charge: Use False Document

7.5.14.5 - Checklist: Use False Original Document

7.5.14.6 - Checklist: Use False Copy Document

See Also

7.5 - Dishonesty and Property Offences

7.5.1 - Theft

7.5.2 - Robbery

7.5.3 - Armed Robbery

7.5.4 - Burglary

7.5.5 - Aggravated Burglary

7.5.6 – Home Invasion

7.5.7 – Aggravated Home Invasion

7.5.8 – Carjacking

7.5.9 – Aggravated Carjacking

7.5.10 - Handling Stolen Goods

7.5.11 - Recent Possession

7.5.12 - Obtaining Property By Deception

7.5.13 - Obtaining a Financial Advantage By Deception

7.5.15 - Blackmail

7.5.16 - Criminal Damage

7.5.17 - Criminal Damage Intending to Endanger Life

7.5.18 - Criminal Damage With a View to Gain

7.5.19 - Arson

7.5.20 - Arson Causing Death

7.5.21 - Intentionally or Recklessly Causing a Bushfire