Criminal Lawyers for Making or Using False Official Instrument to Pervert the Course of Justice | Section 318 Crimes Act 1900

Making or using a false official instrument to pervert the course of justice is an offence under section 318 of the Crimes Act 1900.

Section 318(2) states that a person is guilty of making a false official instrument to pervert the course of justice if he or she:

1. Makes a false official instrument, or makes a copy of an instrument he or she knows to be a false official instrument,
2. Intends by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
3. Intends by that acceptance to pervert the course of justice.

Section 318(3) states that a person is guilty of using a false official instrument to pervert the course of justice if he or she:

1. Uses an instrument,
2. Knows the instrument was a false official instrument or was a copy of a false official instrument,
3. Intends by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
4. Intends by that acceptance to pervert the course of justice.

An ‘official instrument’ is one that is made or issued by a person in his or her capacity as a public officer or by a judicial tribunal.

A ‘public officer’ is one that has any power, authority, duty or function conferred by any level of the Australian government, or under delegation by any level of the Australian government.

A ‘judicial tribunal’ is any person, including a coroner or arbitrator, or any court or other body authorised by law or by the consent of parties that may conduct a hearing to determine any matter or thing.

A ‘false document’ is one that is purported to have been:

• Made in a form or in terms by a person who did not make it in that form or in those terms,
• Made in a form or in terms, or altered in any way on authority, by a person who did not authorise it or did not exist, or
• Made or altered on an incorrect date or at an incorrect place.

‘Perverting the course of justice’ is defined by section 312 of the Act as: “obstructing, preventing, perverting or defeating the course of justice or the administration of the law”.

Example of perverting the course of justice may include:

• Attempting to bribe police or judicial officer to avoid being prosecuted or punished,
• Falsely swearing or declaring that another person was responsible for an offence,
• Using another’s phone or email to manufacture a defence to a crime, or

Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.

The maximum penalty for making or using a false official instrument to pervert the course of justice is 14 years in prison.

However, is important to bear in mind that this is the maximum sentence that can be imposed, and that the court can apply any of the following penalties for the offence:

• Section 10 Dismissal
• Conditional Release Order
• Fine
• Community Correction Order
• Intensive Correction Order
• A shorter prison term

For a person to be found guilty of making a false official instrument to pervert the course of justice under section 318(2), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

1. The defendant made a false official instrument, or made a copy of an instrument he or she knew to be a false official instrument,
2. The defendant intended by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
3. The defendant intended by that acceptance to pervert the course of justice.

The prosecution will fail if it cannot prove each of these elements to the required standard.

For a person to be found guilty of using a false official instrument to pervert the course of justice under section 318(3), the prosecution must establish each of the following ‘elements’ (or ingredients) of the offence beyond a reasonable doubt:

1. The defendant used an instrument,
2. The defendant knew it was a false official instrument or knew it was a copy of a false official instrument,
3. The defendant intended by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
4. The defendant intended by that acceptance to pervert the course of justice.

Again, the prosecution will fail if it cannot prove each of these elements to the required standard.

In addition to the requirement to prove each element of the offence, the prosecution must also disprove any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another

It must disprove any such defences beyond all reasonable doubt.

Before you can be found guilty of making a false official instrument to pervert the course of justice under section 318(2), the prosecution must prove beyond reasonable doubt that:

1. You made a false official instrument, or you made a copy of an instrument you knew to be a false official instrument,
2. You intended by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
3. You intended by that acceptance to pervert the course of justice.

There are a number of ways to defend making false official instrument charges, including raising the fact that:

1. The prosecution cannot prove you made an instrument, or you made a copy of an instrument,
2. The prosecution cannot prove that any instrument you made or copied was an official instrument,
3. The prosecution cannot prove the instrument or copy amounted to a ‘false’ official instrument,
4. The prosecution cannot prove you knew the instrument made or copied was a false official instrument,
5. The prosecution cannot prove you intended by your conduct to induce another to accept the instrument or the copy as genuine,
6. The prosecution cannot prove you intended by any such acceptance to pervert the course of justice, or
7. You have a valid legal defence which the prosecution is not able to disprove beyond a reasonable doubt.

If any of these matters prevail, you must be found not guilty of the offence.

Before you can be found guilty of using a false official instrument to pervert the course of justice under section 318(3), the prosecution must prove beyond reasonable doubt that:

1. You used an instrument,
2. You knew it was a false official instrument, or you knew it was a copy of a false official instrument,
3. You intended by doing so to induce another to accept the instrument as genuine, or to accept the copy as that of a genuine official instrument, and
4. You intended by that acceptance to pervert the course of justice.

There are a number of ways to defend using false official instrument charges, including raising the fact that:

1. The prosecution cannot prove you used an instrument, or used a copy of an instrument,
2. The prosecution cannot prove that any instrument you used was an official instrument or a copy thereof,
3. The prosecution cannot prove the instrument or copy you used was to a ‘false’ official instrument,
4. The prosecution cannot prove you knew the instrument or copy used was a false official instrument,
5. The prosecution cannot prove you intended by your conduct to induce another to accept the instrument or the copy as genuine,
6. The prosecution cannot prove you intended by any such acceptance to pervert the course of justice, or
7. You have a valid legal defence which the prosecution is not able to disprove beyond a reasonable doubt.

Again, if any of these matters prevail, you must be found not guilty of the offence.

A good lawyer will be able to make written submissions to the prosecution with a view to having the case against you withdrawn, or fight to have it thrown out of court if it proceeds to a defended hearing or trial.

Where the prosecution evidence is very strong, you may decide to plead guilty to the offence.

In that case, your lawyer may be able to negotiate the police ‘facts’ to reduce the seriousness of the offence.

Your lawyer can also guide you on obtaining materials that can be handed up to the court during your sentencing – including a letter of apology, character references and any documents from counsellors or health care professionals you have consulted.

These materials, together with persuasive verbal submissions by your lawyer in the courtroom, can help to ensure you receive the most lenient penalty that is possible in the circumstances.

By pleading guilty at an early stage, you will also be entitled to a ‘discount’ of up to 25% on your sentence – which can lead to a less serious type of penalty being imposed; for example, a section 10 dismissal or a conditional release order rather than a more serious penalty.

You will also be spared the time, expense and stress of a defended hearing or trial.

An ‘official instrument’ is one that is made or issued by a person in his or her capacity as a public officer or by a judicial tribunal.

A ‘public officer’ is one that has any power, authority, duty, or function conferred by any level of the Australian government, or under delegation by any level of the Australian government.

A ‘judicial tribunal’ is any person, including a coroner or arbitrator, or any court or other body authorised by law or by the consent of parties that may conduct a hearing to determine any matter or thing.

Under section 250 of the Crimes Act 1900 (NSW), a ‘false document’ is one that is purported to have been:

• Made in a form or in terms by a person who did not make it in that form or in those terms,
• Made in a form or in terms, or altered in any way on authority, by a person who did not authorise it or did not exist, or

Made or altered on an incorrect date or at an incorrect place.

‘Perverting the course of justice’ is defined by section 312 of the Act as: “obstructing, preventing, perverting or defeating the course of justice or the administration of law”.

Example of perverting the course of justice may include:

• Attempting to bribe police or judicial officer to avoid being prosecuted or punished,
• Falsely swearing or declaring that another person was responsible for an offence,
• Using another’s phone or email to manufacture a defence to a crime, or
• Encouraging or bribing another person to plead guilty to a crime they did not commit, or to provide a false alibi, or give false testimony in court.

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.