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Wednesday, 28 July 2010

Documents that lie about themselves

The offences at 83A of the Crimes Act 1958 can be committed in a variety of different ways, though the most common forms allege either the making of a false document or the use of a false document.



Charges of making and using a false document are distinct and punishment on both is not double jeopardy: R v Frugniet [1999] VSCA 59 [at 90]. (Hat-tip to the anonymous contributor from the Double Jeopardy post for pointing that out.)



A common misconception concerns when a document is properly considered false. The offences created at s 83A were called forgery prior to 1988. Typical examples include fake bank notes, bogus identity papers, dodgy transactables, and the like. A document that merely has false information on it (eg. a loan application where the applicant has deliberately overstated their earnings, etc.) may be the subject of a charge under s 81 or 82 of the Crimes Act but it's not a false document.



Winneke P in R v Ceylan [2002] VSCA 53 [in 4]:



The sub-sections of s.83A of the Crimes Act are not easy to construe or apply and require close attention to detail in the manner of presentation of charges alleging offences against them. The essence of the crime of "making a false document" contrary to s.83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document "tells a lie about itself" in the sense that it purports to be something which it is not (that is, not "an authentic document"). Thus, the gravamen of the offence is to be found in sub-s.(6) which sets out the various ways in which a document can be "made false" for the purposes of the offence, and which marks the offence out from related offences such as "false accounting" (s.83) and "obtaining financial advantage by deception"(s.82).




Giving a document the appearance of having been created or added to by one person when this was done by another person can 'lie about the nature of a document'. In the case of a will, contract or similar document this would probably fall within the ambit of s 83A.



The identity crime provisions that came in last year duplicate and expand existing forgery offences. They are found at Division 2AA of the Crimes Act (between ss 192A and 192E) and significantly overlap with s 83A.

8 comments:

Anonymous said...

Here's a question: if I get a parking fine, and then the next day go and park in the same spot, and leave the fine on, in the hope that an inspector will not fine me again, thinking that he or she has already fined me for the day, am i caught by any of these provisions, and if not, what am I caught by?

Dr Manhattan said...

Nice hypothetical. Any takers?

Matt said...

Here's my take on it: The offence in question is attempted obtaining financial by deception (combination of s82 and s321M).

You are doing all that you need to do, and have the relevant intention, in order to use a deception to dishonestly obtain a financial advantage for yourself.

I don't think the false document provisions would be in issue, unless you modified the fine notice to change the time of issue.

Jeremy Gans said...

Classifying 'avoiding a fine' as a 'financial advantage' strikes me as controversial. If a suspect gives a false alibi to the police, are they also breaching s82 by avoiding (inter alia) a potential fine?

I'm not sure there're any crimes being committed here.

Lucas Geary said...

Wouldn't work. Parking tickets have dates on them so the grey ghost would see it wasn't the same date.

So whatever it is it would have to be an attempted crime under 321M of the Crimes Act.

CheckMate69 said...

Section 72 of thwe Road Safety Act:-

72. Forgery etc. of documents and identification marks

(1) A person is guilty of an offence if that person-

(a) forges; or

(b) fraudulently alters or uses; or

(c) fraudulently lends or allows to be used by any other person-

any notice, registration label, certificate, licence, permit or other document
or any identifying number or general identification mark that is authorised by
or required by or under this Act. Penalty: 10 penalty units or imprisonment
for 2 months.

(1A) A person is guilty of an offence if that person-

(a) forges; or

(b) fraudulently alters or uses; or

(c) fraudulently lends or allows to be used by any other person-

any vehicle identifier, engine identification number, identification plate,
manufacturer's build plate or any other plate, label or mark that uniquely
identifies a vehicle and sets it apart from similar vehicles. Penalty: 60
penalty units or imprisonment for 6 months.

(2) A person is guilty of an offence if that person makes, uses, knowingly has
custody or possession of, sells or utters any paper or other material
purporting to be a notice, registration label, certificate, licence, permit or
other document or any identifying number or general identification mark that
is authorised or required by or under this Act.

Penalty: 10 penalty units or imprisonment for 2 months.

Jeremy Gans said...

Nice work, uh, Checkmate69.

Note that (1A) isn't aplicable as it doesn't cover fine notices. (2) isn't applicable as it only applies to the use of something 'purporting to be a notice'. I assume that this means that it only covers documents that lie about themselves, as opposed to the hypothetical where the notice is used to lie about something else.

But that leaves (1)(b): 'fraudulently... uses... any notice... or other document... authorised... under this Act'. That assumes (correctly, I assume) that parking fine notices are either a notice or a document and that they are authorised by the RSA or one of its gazillion regulations.

Poisonberry said...

I vote for Matt. This isn't a court appearance the defendant is dodging it's a fine with a fixed statutory amount. By using the ticket he is trying to avoid the debt that he knows he'd get otherwise. And he would have to change the details on it.