R v Jeremy Nguyen

[2010] ACTSC 123

R v JEREMY NGUYEN [2010] ACTSC 123 (28 September 2010)

EX TEMPORE JUDGMENT

Criminal Code 2002 (ACT), ss 344, 347

No. SCC 220B of 2009

Judge:              Penfold J
Supreme Court of the ACT

Date:               28 September 2010

IN THE SUPREME COURT OF THE       )
  )          No. SCC 220B of 2009
AUSTRALIAN CAPITAL TERRITORY    )          

R

v

JEREMY NGUYEN

ORDER

Judge:  Penfold J
Date:  28 September 2010
Place:  Canberra

THE COURT FINDS THAT:

1. The evidence proposed to be led in the trial will not be sufficient to establish one of the elements of the offence, namely that the document is a false document as defined in s 344 of the Criminal Code 2002 (ACT).

Background

1. Jeremy Nguyen has been arraigned on one count of using a false document knowing that it was false with the intention of dishonestly inducing someone else, namely Sergeant John Paul Dougan, to accept it as genuine and with the intention of dishonestly influencing the exercise of a public duty because Sergeant John Paul Dougan accepted it as genuine.

1. The document in question is said by the prosecution to be an ACT driver’s licence showing a photograph of the accused but with the identification details being the name and date of birth of the accused’s brother.  There is no allegation that the driver’s licence has been tampered with since it was issued.

Is there a false document?

Definition of “false document”

1. The charge arises under s 347 of the Criminal Code 2002 (ACT). That section relies among other things on a definition of “false document”. That definition is found in s 344 of the Criminal Code. Section 344(1) says that a document is false only if the document or any part of it purports to have any of certain characteristics that are set out in paragraphs (a) to (i) of s 344(1).

1. The prosecution relies on paragraph 344(1)(b), so that the prosecution says that the document is false because it:

... purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form.

Is a licence “issued on the authority” of the licence-holder?

1. The licence in question purports to be issued by the Road Transport Authority and there is no argument raised that that is incorrect.  The prosecution says however that paragraph (b) applies more generally to the authority for the issue of a document, and in this case that it applies specifically to the issue of a driver’s licence such that a driver’s licence not only purports to have been issued on the authority of the Road Transport Authority but also can be said to purport to have been issued on the authority of the person whose name is shown on the licence.

1. On this argument, the driver’s licence in question purports to have been issued on the authority of the accused’s brother whose details are shown on it.  The prosecution intends in this case to call evidence to establish that that proposition is not correct, that is that the driver’s licence was not issued on the authority of the named brother.

1. However, I do not accept the argument put by the DPP in relation to the meaning of paragraph 344(1)(b).  There is nothing on a driver’s licence that indicates any intention that the licence indicates that it has been issued with the authority of the named person.  It might in fact be the case that a person who knows about the procedure for getting a driver’s licence would reasonably infer that a driver’s licence is issued on application by the apparent holder—the named holder of the driver’s licence—but that is not enough in my view to establish that a driver’s licence purports to have been made on the authority of the person whose details are shown on it as the holder of the licence.

1. Counsel have drawn my attention to some cases about other aspects of the definition of “false”, and both counsel and I have examined the Explanatory Statement for s 344, but nothing has emerged from any of those cases, or from the explanatory material, to suggest an intention that s 344(1)(b) has a meaning broader than its apparent reference to the authority issuing the document.

Conclusion

1. This means that in this case the prosecution will not, on the basis of the evidence that it proposes to call, be able to establish that the driver’s licence is a false document for the purposes of the definition in s 344, and therefore for the purposes of s 347 under which the charge is brought.

   I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold

   Associate:
   Date:     13 October 2010

Counsel for the Crown:  Mr J Hiscox
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr J Pappas
Solicitor for the accused:  Ben Aulich & Associates
Date of hearing:  28 September 2010
Date of judgment:  28 September 2010