Making or Possessing Device for Making a False Document

In the ACT, it is an offence to make or possess a device for making a false document. The offence of making or possessing a device for making a false document is contained in section 349 of the Criminal Code 2002 and is punishable by a maximum penalty of 10 years imprisonment and/or a fine of 1000 penalty units.

What must be proven?

For a person to be found guilty of this offence beyond a reasonable doubt, the court must be satisfied that the accused:

• made or changed a device, material or thing; and
• knew the thing was made or changed for making a false document; and
• intended to use the thing themselves or for someone else to use it to commit forgery

or

• knows a device, material or other thing is designed or changed to make a false document; and
• they possessed the device, material or other thing; and
• intended for themselves or someone else to use the thing to commit forgery

What is forgery?

Forgery is when a person makes a false document with the intention that it will be used to dishonestly induce someone to accept it, in order to obtain a gain, cause a loss or influence the exercise of a public duty.

What is possession?

A person can possess something even if it is not physically with them. Legally, a person possesses something if they have knowingly left it with another person, or at a location (whether or not they occupy the location) for their use or for someone’s else’s use.

What if the device was used for another purpose?

A person can be found guilty of making or possessing a device for making false documents even if the device, material or other thing was made or changed for another purpose, if they intended the thing to be used for forgery as well as for the other purpose.

Examples of Making or Possessing Device for Making a False Document

There is a range of actions that may constitute this offence. Some examples are:

• possession of equipment for manufacturing credit cards, drivers’ licences and other identification material; or
• possession of card-printing machines, blank non-embossed cards or a magnetic card reader/encoder.

Defences

It may be possible for an accused person to defend this charge by arguing:

• that it was committed under duress;
• that alleged offender did not make or change the device, material or thing;
• that the alleged offender did not know the thing was made or changed for making a false document;
• that the alleged offender did not possess the device, material or thing;
• that the alleged offender did not intend the device, material or thing to be used to commit forgery;
• that they had a reasonable excuse for possessing the device, material or thing.

Which court will hear the matter?

If a person is charged with this offence, they can be dealt with in either the ACT Magistrates Court or the ACT Supreme Court. If the matter is finalised in the Magistrates Court then the court must not impose a penalty that exceeds a fine of $15,000, imprisonment for five years, or both.

If the person is charged under Section 349(3) or 349(4) then a maximum penalty of two years imprisonment applies and the matter will be dealt with in the Magistrates Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.