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7.5.14.1 - Charge: Make False Document

Click here to obtain a Word version of this document for adaptation.

 

This charge should be used when the accused is charged with making a false document under Crimes Act 1958 s83A(1).

The charge may be adapted if the accused is charged with making a copy of a false document under Crimes Act 1958 s83A(3).

If the accused is charged with using a false document, or using a copy of a false document, see Charge: Use False Document.

 

The Elements

I must now direct you about the crime of making a false document. To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:

One – That the accused made a document;

Two – That the document the accused made was false;

Three – That the accused knew that s/he was making a false document;

Four – That the accused intended that somebody would use the document to deceive another person to accept that it was genuine;

Five – That the accused intended that, as a result of accepting the document as genuine, that person would act in a way that prejudices somebody. [1]

I will now explain each of these elements in more detail. [2]

The Accused Made a Document

The first element that the prosecution must prove is that the accused made a document.

[If it is alleged that the accused altered an existing document, add the following shaded section]

This does not require the accused to have created a new document from scratch. The law says that any time a person alters an existing document, he or she "makes" a new document.

In this case it is alleged that the accused made [identify document]. I direct you as a matter of law that [describe document, e.g., "a photograph"] is a document. [3] This element will therefore be satisfied if you find that [identify document] was made by NOA.

[Summarise relevant evidence and arguments.]

The Document was False

The second element that the prosecution must prove is that the document NOA made was false.

The law says that a document is not "false" merely because it contains untrue or incorrect information. To be "false" for the purposes of this offence, the document must purport to have been:

[Select the relevant form[s] of falsity from the list below. Only include types of falsity that are relevant to the circumstances of the case:

The word "purports" means "pretends". So what the prosecution must prove is that the document pretends to be something that it is not. In this case, the prosecution argued that [describe relevant document] is "false" because it pretends [describe relevant form of falsity in terms of the facts of the case, e.g. "to have been made by John Smith"]when in fact[describe true state of affairs, e.g. "it was made by the accused"].

[If it is alleged that the accused altered a existing document that may already have been false, add the following shaded section]

It does not matter if the document already purported to be something that it was not before the accused altered it. If s/he altered it to make it false in some other respect, s/he will have made a "false document".

 

[Summarise relevant evidence and arguments.]

The Accused Knew the Document was False

The third element that the prosecution must prove is that, when the accused made the [identify document], s/he knew that s/he was making a false document.

For this element to be met, it is not enough for the prosecution to prove that NOA should have known that s/he was making a false document. They must prove that NOA was aware that the document s/he was making was false.

[Summarise relevant evidence and arguments.]

Intention that the Document be Accepted as Genuine

The fourth element that the prosecution must prove is that, when the accused made the false document, s/he intended to use it to deceive someone to accept that it was genuine, or intended that someone else would do so.

[If the accused intended to induce a machine to accept it as genuine, add the following shaded section]

The law says that this includes intending to cause a machine to accept the document as genuine.

[If it is not alleged that accused intended to induce a particular person, add the following shaded section]

The prosecution does not need to prove that the accused intended that any particular person would be deceived into accepting the document was genuine. The intention may be directed generally, at prospective victims of his or her plan.

In this case it is alleged that when NOA made the [identify document], s/he intended that he/she/NO3P would use it to deceive [identify intended victim or class of victims] to accept that it was genuine.

[Summarise relevant evidence and arguments.]

Intention that the Victim Act to Somebody’s Prejudice

The fifth element also focuses on the accused’s intention. The prosecution must prove that s/he intended that [describe intended victim or class of victim of the deception] would, as a result of accepting the document as genuine, act to somebody’s prejudice. [4]

The term "prejudice" has a technical legal meaning. An act will prejudice someone if it will:

[Select and explain the relevant form[s] of prejudice from the list below. Only include types of prejudice that are relevant to the circumstances of the case:

The person the accused intended would be prejudiced may be the same person s/he intended would be deceived into accepting the document was genuine, or may be someone else.

[If the accused intended to cause a machine to respond to a document, add the following shaded section]

The law says that this element will be satisfied if the accused intended to cause a machine to respond in a manner which, if a person did so, would be to that person’s prejudice.

[If it is not alleged that accused intended that a particular person would be prejudiced, add the following shaded section]

The prosecution does not need to prove that the accused intended that any particular person would be prejudiced. The intention may be directed generally, at prospective victims of his or her plan.

For this element to be satisfied, it is not sufficient for the accused to have intended that someone would act in a way that may cause prejudice. The accused must intend that someone would act in a way that must result in prejudice.

However, that does not mean that you must find that someone actually was prejudiced as a result of accepting the document as genuine. The focus here is on the accused’s intention at the time s/he made the document. If s/he intended that, due to accepting the document as genuine, a person would act in a way that would prejudice somebody, this element will be met regardless of whether that in fact happened.

In this case, it is alleged that NOA intended that, as a result of accepting that [identify document] was genuine, [identify intended victim] would act in a way that would prejudice [him/herself / NO3P], because it would result in [explain nature of prejudice].

[Summarise relevant evidence and arguments.]

Summary

To summarise, before you can find NOA guilty of making a false document the prosecution must prove to you beyond reasonable doubt:

One – That NOA made a document;

Two – That the document NOA made was false;

Three – That NOA knew that s/he was making a false document;

Four – That NOA intended that [s/he / identify relevant person] would use the document to deceive [identify intended victim] to accept that the document was genuine; and

Five – That NOA intended that, as a result of accepting the document as genuine, [identify intended victim] would act in a way that would prejudice [identify intended target].

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of making a false document.

 

Notes

[1] Where the prosecution alleges that the accused intended that a person would cause prejudice by failing to act, the description (and discussion) of this element should be modified.

[2] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[3] This charge is based on the assumption that it is clear that the relevant item is a "document". It should be adapted if that matter is in dispute. See the Making or Using a False Document for guidance on the meaning of the term "document".

[4] Where the accused intends that the victim of the deception would act to his or her own prejudice, the judge may tell the jury that "the accused intended that, due to accepting the document as genuine, a person would act to his/her prejudice."

 

Last updated: 3 December 2012

See Also

7.5.14 - Making or Using a 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