Forgery and Associated Offences (Module)

Question 1

What are the elements of the offence ‘Forgery’?

Answer 1

s256 CA61

(1) Everyone is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service pecuniary advantage, benefit or valuable consideration
(2) Everyone is liable for a term of imprisonment not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in anyway be used or acted upon, whether in New Zealand or elsewhere, as genuine

Question 2

What are the two circumstances where the offence of forgery complete?

Answer 2

s256(3) CA61

Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2)

2256(4) CA61
Forgery is complete even though the false document is incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.

Subsection (4) means that forgery may be complete and the offence committed even though the document is not completed (eg an intended signature has not been affixed) or is not in a legally effective form.

Question 3

Does the offence require use of the forged document?

Answer 3

There is no requirement that the defendant used the document, as long as the intention to do so is present, The defendant must know that the document is false.

Question 4

What is the definition of a false document?

Answer 4

s255 CA61

A false document means a document -

(a) of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person; or
(b) of which the whole or any material purports to be made by or on behalf of any person who did not authorise its making, or on behalf or a fictitious person; or
(c) of which the whole or any material part has been altered, whether by addition, insertion, deletion, obliteration, erasure, removal, or otherwise, and that purports to have been altered by or on behalf or a person who did not alter it or authoise its alteration, or by or on behalf of a fictitious person; or
(d) that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person; or
(e) that is made in the name of a person, either by that person or by that persons authority, with the intention that it should pass as being made by some other person who did not make it, or by a fictitious person

Question 5

What is the requirements of a false documents?

Answer 5

For a false document to have been forged, it must meet the definition of ‘false’ and ‘document’.

Essentially a false document must lie about itself. However, just because a lie is put in writing does not mean that the document on which it is written is a forgery. The document itself must lie about itself, or intend to convey a lie in cases where it has been written by someone intending to pass it off as have been written by someone else. These various forms of lies make a document false.

Question 6

How do you make a false document?

Answer 6

By making any material alteration to a genuine document. Such alterations might include:

• additions
• insertions
• deletions
• obliterations
• erasures
• removal of material or otherwise

Question 7

When is an alteration a material alteration?

Answer 7

An alteration is a material alteration if it increases the value or negotiability of a document or instrument. A false document can be made by making material alterations to a genuine document.

Question 8

Is a photocopy of a false document a false document?

Answer 8

No - the photocopy of a false document merely claims to be a copy and therefore does not tell a lie about itself.

Question 9

Under s256, what must the prosecution prove for Forgery?

Answer 9

To prove a charge under s256(1), it must be proved that, at the time of the alleged act:

• the defendant made a false document, and
• intended to use it to obtain property, service, privilege, pecuniary advantage, benefit or valuable consideration

To prove a charge under s256(2), it must be proved that, at the time of the alleged act:

• The defendant made a false document, and
• The defendant knew that the document was false, and
• intended that in any way the false document be used or acted upon as genuine

Question 10

Under what circumstances does s256(2) CA61 apply?

Answer 10

Where there is no intention to obtain any financial or other specified advantage. The defendant must have intended that the document be used to misled.

Question 11

What are examples of forgery?

Answer 11

• writing an examination paper in the name of another person who is required to sit the exam
• pre-dating a deed to give it priority over another
• forging letters of recommendation for inclusion in a CV that are necessary to obtain a position
• falsely completing a statement of service on a witness summons

Question 12

What are the elements of the offence “Using Forged Documents”?

Answer 12

s257 CA61

(1) Every one is liable to imprisonment for a term not exceeding 10 years who, knowing a document to have be forged, -
(a) uses the document to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or
(b) uses, deals with, or acts upon the document as if it were genuine; or
(c) causes any other person to use, deal with, or act upon it as it it was genuine
(2) For the purpose of this section, a document made or altered outside New Zealand in a manner that would have amounted to forgery if the making or alteration had been done in New Zealand shall be deem to be a forged document.

Question 13

Under s257 CA61, what must the prosecution prove for Forgery?

Answer 13

You must prove:

• The document was false
• The defendant knew that the document had been made with the knowledge and intent required under s256 CA61
• That the defendant knew the document was a forgery at the time of the physical act of using, dealing with or acting upon

Question 14

What are the elements of the offence “Altering, concealing, destroying, or reproducing documents with intent”?

Answer 14

s258 CA61

(1) Everyone is liable to a term of imprisonment not exceeding 10 years who, with intent to obtain by deception any property, service, privilege, pecuniary advantage, benefit or valuable consideration, or to cause loss to any other person, -
(a) alters, conceals, or destroys any document, or causes any document to be altered, concealed or destroyed; or
(b) makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document

Question 15

When is an offence under s258 CA 61 complete?

Answer 15

258(2) CA 61

(2) An offence against subsection (1) is complete as soon as the alteration or document is made with the intent referred to in that subsection, although the offender may not have intended that any particular person should -
(a) use or act upon the document altered or made; or
(b) act on the basis of the absence of the document concealed or destroyed; or
(c) be induced to do or refrain from doing anything

Question 16

What is the definition of alteration?

Answer 16

Alteration is not defined within the act, but it is suggested that it carries its normal meaning “that a document is altered if it is changed in some manner”.

Question 17

What is the definition of conceal?

Answer 17

Concealed is not defined within the act but in Police v Boyd, it was held that the word conceal in the predecessor section included:

(a) the actual hiding of a document
(b) the denial of its existence; and
(c) the withholding of it in the face of a positive duty to produce it

Question 18

What is the definition of Destruction?

Answer 18

Destruction is not defined within the act and for the purposes of s258, should be taken to mean “to end the existence of”.

Question 19

What is the definition of reproduction?

Answer 19

Reproduction is not defined within the act and for the purposes of s258, should be taken to mean “producing a copy or representation of, or made in imitation”.

Question 20

How can a defendant cause a document to be altered, concealed etc?

Answer 20

A defendant may cause a document to be altered, concealed, or destroyed either through arranging for the necessary actions by another person or by the use of a computer program or other device which will operate to alter, conceal, or destroy the document.

Question 21

What are the two alternative mental elements for an offence under s258 CA61?

Answer 21

• The first is an intention to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration (there must be an intention to obtain by deception)
• The alternative mental element is an intention to cause loss. There is no requirement the loss is intended to be inflicted by deception (i.e the destruction of a document so as to deprive another of something of value)

Question 22

What are the elements of the offence “Using altered or reproduced document with intent to deceive”?

Answer 22

s259 CA61

(1) Everyone is liable for a term of imprisonment not exceeding 10 years who, knowing any document to have been made or altered in the manner and with the intent referred to in section 258, with intent to obtain by deception an property, privilege, service, pecuniary advantage, benefit or valuable consideration, or to cause loss to any other person. -
(a) uses, or deals with, or acts upon, the document ,or
(b) causes any person to use or deal with, or act upon, the document
(2) For the purpose of this section, it does not matter that the document was altered or made outside New Zealand.

Question 23

What is the conduct required for an offence under s259 CA 61?

Answer 23

The conduct element of the offence is simple in that it only requires the defendant to have uses, dealt with, or acted on the document, or causes any person to deal use, deal with, or act upon it.

Question 24

What conduct is not included for an offence under s259 CA61?

Answer 24

The presence of the requirement of deception arguably means that the use of the document for the purposes of s259 would not include transactions with others who are aware of the documents nature.

Although the prosecution must prove that the document in question had been previously altered with intent to deceive, it seems there is no need to identify the person or persons who altered it.

Question 25

What are the three mental elements for an offence under s259 CA61?

Answer 25

• Firstly the defendant must know that the document had been altered with intent to deceive
• Secondly, the defendant must have intended, by the employment of the document or by causing another to use or rely on it, to obtain by deception any property, privilege, service, pecuniary advantage, benefit or valuable consideration, or to cause loss to any other person. Obtain or carries the extended meaning provided in s217, therefore an intention to retain such property will suffice.
• Thirdly, there must be an intention to acquire or retain the property etc, or to cause loss “by deception”.

It is suggested all that is required is that there be an intention to deceive another person by a lie (or a statement which it is known may not be true) or a deliberate failure to comply with a duty to disclose the truth.