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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 which carries a maximum penalty of 14 years in prison.

The prosecution is required to prove a number of facts beyond a reasonable doubt in order to establish the offence, and a person is entitled to an acquittal if they are unable to do so.

There are also a number of legal defences available to those who are going to court for the offence.

If you have been charged with making or using a false official instrument to pervert the course of justice, call Sydney Criminal Lawyers anytime on 02 9261 8881 to arrange a free first conference with an experienced criminal defence lawyer who will review the allegations and advise you of your options and the best way forward.

Read on for more information about the laws about the offence, including the offence itself, the matters that the prosecution needs to prove, your options, the available defences and the applicable penalties.

The Law

What is the Offence of Making or Using a False Official Instrument to Pervert the Course of Justice?

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.

What are the Penalties?

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:

What Does the Prosecution Have to Prove?

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.

What are the Defences?

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.

Your Options in Court

Pleading Not Guilty

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.

Pleading Guilty

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 apologycharacter 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.

Frequently Asked Questions

What is an Official Instrument?

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.

What is a Public Officer?

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.

What is a Judicial Tribunal?

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.

What is a False Document?

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.

What is Perverting the Course of Justice?

‘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.

Why Choose Sydney Criminal Lawyers®?

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. Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    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.

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