Degrees of forgery

Judges don't always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majority of four judges held that text and purpose coincided, while the Chief Justice dissented. The text was s 256(1) of the Crimes Act 1961[NZ], which defines an offence of forgery:

"Every one 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."

Here the appellant had been convicted on counts of making false certificates of qualifications and selling them to people who knew they were false documents.

The majority held that this wording was clear and that there was no need for an intent to deceive the person who provides the payment. This places on an equal footing, as far as maximum penalty is concerned, those who make a false document intending to obtain valuable consideration with those who use such a document to obtain such consideration (s 257(1)(a)). The act of selling the false document to a knowing recipient is a making use of the falsity of the document if the seller knows that it will be used deceptively (69). This contrasts with an innocent copying, of a famous picture for example, where the maker believes the purchaser has no intention of using it deceptively (joint judgment at 67, and Elias CJ at 53).

How could anything be more simple, you might wonder. On what basis could the Chief Justice dissent?

She found (4) it difficult to construe the section – a sure sign, I suggest, that something is about to go wrong. She didn't like the idea that this serious offence could be committed without deceiving the purchaser of the false document. The majority at 52-53 explain why that is not a bad thing.

Central to Elias CJ's approach is a perception of reduced culpability on the part of those who do not deceive their purchasers (30, 41), but the joint judgment sees no such distinction (53). Elias CJ considers that on the majority's approach it was sufficient for the judge to direct the jury that an intention to sell the document to a person who was not deceived would be sufficient for liability (39), but that is not the entirety of the majority's conclusion (69) which recognises that the judge's direction may technically have been incomplete in its omission of a need for proof that the accused intended the purchaser to use the document deceptively.

The appellant had made a concession (apparently in pleadings, not mentioned in argument) that destroyed her opportunity for a retrial. She had acknowledged that she should have been convicted of a lesser offence (s 256(2)). However, as the majority pointed out, that acknowledgement cured any defect in the judge's direction (69) and her appeal was dismissed.