The Offence of Make or Use False Document in Victoria
Updated: Apr 26, 2022
Previous articles explored the elements, penalties and defences of prevalent property offences including Obtain property by deception and Obtain financial advantage by deception. Here, we provide an overview of Make false document, an offence prosecuted under the Crimes Act 1958 (Vic).
What is the offence of Make or use a false document?
What must the prosecution prove?
If the prosecution lay a charge of Make or use false document, they must prove the following elements beyond reasonable doubt:
An accused has made a false document, or used a false document;
An accused knows that he or she has made a false document;
An accused intends that he or she will the false document to induce another person to accept it as genuine
and the acceptance of that false document causes prejudice to the person who receives it, or another person.
What is a 'document' for the purposes of the offence?
The word 'document' is defined under s. 38 of the Interpretation of Legislation Act 1984 (Vic) as including the following:
(a) any book, map, plan, graph or drawing;
(b) any photograph;
(c) 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;
(d) 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;
(e) 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
(f) 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.
How is a document 'made' and how do the prosecution allege it was 'false'?
In Nikolaidis v R  NSWCCA 323 (per Simpon J), the court held that a person “makes” a document if he or she is ultimately responsible for it coming into existence.
It was also observed by the Court in Nikolaidis, that a person "makes" a new document when he or she alters an existing document (see also section 83A(7) f the Crimes Act 1958 (Vic).
A person “uses” a document when he or she deploys the document (Sultan v R  NSWCCA 175).
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  NSWCCA 175)
Section 83A(6) provides an extensive definition of "false document" A document may be alleged to be false if it purports:
(a) 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
(b) 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
(c) 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
(d) 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
(e) to have been altered in any respect by a person who did not in fact alter it in that respect; or
(f) 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
(g) 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
(h) to have been made or altered by an existing person who did not in fact exist.
Several cases have established that 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  HKCA 95)
What is the penalty of Make false or use a false document?
Section 83A(1) provides a maximum penalty of 10 years imprisonment.
What Court can hear the Offence of Make or use a false document?
Depending upon the circumstances of the case and the degree of prejudice caused as a result of reliance on a false document, Make or use false document can be heard in the Magistrates' Court.
Where the circumstances raise aggravating features, such as severe detriment caused as a result or making or using a false document, an allegation may proceed to the County Court for determination.
What are the sentencing outcomes for the offence of Make or use a false document?
While each case turns on its own particular facts, the Sentencing Advisory Council has published the sentencing outcomes for this offence (when finalised in the Magistrates' Court for the period 1 Just 2016 - 30 June 2019:
Imprisonment - 40.2%
Community Correction Order - 29.8%
Fine - 16.6%
Other - 2%
What are the defences to Make or use a false document?
As discussed above there are many elements to the offence. The prosecution must establish each and every element of the offence on the available evidence. Consequently, a defence may arise based on a factual dispute, for example
- an accused did not 'make' a document
- the document was not a 'false document'
- an accused was unaware that the document made or used was false (lack of intention)
- the document although relied upon did not cause prejudice to another person
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