R v O'Hara

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 312 of 2002

THE QUEEN
	v.
MICHAEL JOHN O'HARA

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JUDGES:	BATT, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2004
DATE OF JUDGMENT:	1 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 62

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Criminal Law – Conviction – Making a false document (18 counts) – Whether judge erred in failing to define specifically ‘false document’ and ‘prejudice’ to jury – Crimes Act 1958 s. 83A – Whether trial judge erred in not directing the jury that the prosecution had to prove an intention by the accused to cause ‘actual’ prejudice – Whether verdict unsafe and unsatisfactory – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K.R. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Victoria Legal Aid

BATT, J.A.:

I agree with Vincent, J.A.

BUCHANAN, J.A.:

In my opinion the application for leave to appeal against conviction should be refused for the reasons stated by Vincent, J.A.

VINCENT. J.A.:

The applicant was presented before a jury in the County Court at Melbourne, on 4 September 2002, on 19 counts of making a false document, six counts of using a copy of a false document and two counts of using a false document.

He pleaded not guilty to all charges and a trial was conducted. At the conclusion of the Crown case a submission, made on his behalf that he had no case to answer, was partially successful and the jury were directed to acquit on the counts relating to the use of a false document or a copy of a false document, and one count alleging the making of a false document. He was subsequently convicted on all of the remaining counts.[1]
[1]“The following table, taken from the applicant’s outline of submissions, identifies the relevant documents and counts:

He now seeks leave to appeal against those convictions on the grounds:

“1.The learned trial judge erred in failing to specifically define for the jury the particular limb of the definition of ‘false document’ the prosecution was relying upon for each count.
2.The learned trial judge erred in failing to specifically define for the jury the particular limb of the definition of ‘prejudice’ the prosecution was relying upon for each count.
3.The learned trial judge erred in failing to direct the jury that the prosecution had to prove an intention by the accused to cause ‘actual’ prejudice.
4.The learned trial judge erred in charging the jury by failing to adequately relate the evidence to the law on the issue of whether the applicant intended to cause prejudice to any person when he allegedly made the documents.
5.The verdicts are unsafe and unsatisfactory.”

The Background

Stripped of detail, the Crown contended at the trial that the applicant devised a scheme to sell two pistols, that he had acquired as normal purchases from gun dealers, as weapons in the possession of Adolf Hitler and Eva Braun in the Führerbunker in Berlin in 1945. One, (a 7.65 millimetre Walther PPK self-loading pistol, serial number 803157) was claimed by the applicant to have been owned by Hitler and used by him to commit suicide to avoid capture by the advancing Soviet forces; the other (a Walther pistol, 6.35 millimetre calibre, serial number 457044) he presented as having been given to, but not used by, Eva Braun for the same purpose.

The pistols, according to his scenario, were taken to Moscow after they were found in the possession of Hitler’s valet when he was taken into custody by the Soviet Army. Much later, they were supposedly bought by the applicant who secured them from a KGB source and eventually arranged for their transfer to Australia.

The jury rejected this romantic tale, in part, it would seem reasonable to assume, by reason of the presence of evidence indicating that guns were obtained by the applicant in a far more prosaic manner. The pistol No. 803157 was purchased from a licensed gun dealer in Balwyn, Victoria, for $900, having been imported with a number of others from Canada. The other, No. 457044, was bought in Germany and imported into Australia through Mialls Gun Shop in Victoria.

As part of the scheme, quite remarkable endeavours were made by the appellant to create a history, supported by apparently genuine documents, designed to convince prospective purchasers of the provenance of the pistols. It was the fabrication of these documents that provided the bases of the counts on which he was convicted.

The documents and their place in the applicant’s scheme were described by the judge, when subsequently handing down sentence, as follows:

“The exciting story about Hitler’s pistols involves Hitler having killed himself with a 7.65 millimetre Walther PPK self-loading pistol, and having provided to Braun, who did not use it, a 6.35 Model 8 self-loading pistol. Both these pistols (and on a variant of the story, another PPK) were taken by Hitler’s valet, Heinz Linge from the Fuhrerbunker and were seized by the Russians who captured Linge as he was escaping from Berlin. The Model 8 pistol was said to have been acquired by Hitler after his release from prison in 1925, and the PPK as a gift from the Walther company about Christmas 1934.
In order to support this story, the prisoner purchased two pistols bearing possibly consistent serial numbers. The Model 8 serial number 457044 was bought in Germany from one Klieber and after some adventures in German courts was imported to Australia by Mialls Gun Shop. PPK serial number 803157 was bought from

R. v. O’Hara3 VINCENT, J.A.

Century Arms of Balwyn, having been imported with a large number of other weapons from Canada.
The prisoner then set about providing evidence connecting these pistols with those reputedly found beside Hitler’s body. Two declarations, allegedly made to Allied interrogators by Emil Maurice, Hitler’s chauffeur before the war, purported to verify the provenance of the Model 8. They are the subject of counts 4 and 5. A letter purporting to come from the armoury of the Nazi party to the Walther company attesting that payment was not due to be made for PPK serial number 803157 because it was a gift (the NSDAP letter) is the subject of count 2. A letter devised by altering a genuine letter form Karl Hoffman of the present day Walther Company and purporting to give further identification of the pistols as having been provided to Hitler is the subject of count 3. Finally, a letter purporting to have been written by Himmler to a Hauptmann Weiveman on Hitler’s staff put both pistols in Hitler’s possession in 1935.
Having provided this evidence connecting the two pistols he had bought to Hitler, the prisoner set about completing their provenance by manufacturing: one, ten photos of the pistols in juxtaposition with identification cards in Russian script (counts 13 and 22). Two, two documents from the archives of the Russian Federation upon which appear in writing only to be read under a black light, the arrangements for the prisoner’s trip to Moscow and a receipt for two ‘souvenirs’ for US$1m. (counts 8 and 9). Three, a document containing elaborate seals and stamps, and annotation purporting to be made from the KGB or NSDAP files of an inquiry into Hitler’s death and asserting that the two pistols, serial nos. 803157 and 457044 have been stolen from the scene of Hitler’s death by Linge (Count 23).”[2]

[2]Sentence T2288-2290 [Slightly edited].

Although well worthwhile relating for its entertainment value, as it contains elements reminiscent of a Robert Ludlum novel, there is no need for present purposes to set out the detail of the extraordinary course of conduct in which the applicant engaged to implement his scheme, his fanciful explanations proffered in response to the prosecution case which were rejected by the jury, or the quite remarkable expenditure of public resources involved in the investigation and eventual prosecution of the matter.

Accordingly, I turn to consideration of the grounds.

Ground 1

The contention was advanced in support of this ground that, as s.83A[3] of the Crimes Act delineates eight ways in which a document could be properly described as false, it was incumbent upon the trial judge to identify for the jury the specific limb of the definition of “false document” upon which the prosecution was relying for each count.
[3]“(6) For the purpose of this section, a document is false if it purports-
(a)to have been made in the form in which it is made by a person who did not in fact make it in that form; or
(b)to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or
(c)to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or
(d)to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or
(e)to have been altered in any respect by a person who did not in fact alter it in that respect; or
(f)to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or
(g)to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or
(h)to have been made or altered by an existing person who did not in fact exist.”

The directions of the trial judge on the element of falsity were expressed as follows:

“The accused stands charged before you upon 18 counts of making a false statement with criminal intent, contrary to [s.83A] of the Crimes Act of Victoria. That statute provides: (1) a person must not make a false statement with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it, to do, or not to do, some act to that person’s, or to another person’s prejudice.
It follows that in order to prove the commission by the accused of this offence the Crown must prove the following elements of the crime: (1) that the accused made a document which is false. There is a distinction which I ought to point out immediately. That does not mean that the document contains statements which are not true. Many documents contain statements which are not true. Indeed, often you would write a letter telling a whole lot of lies. That does not make the letter a forgery or a false document. The essence is that the document should tell a lie about itself, and it should pretend to be some other thing than what it is.
…
The statute provides a special definition of the adjective false. It says, sub-s.(6) ‘For the purpose of this section, a document is false if [it purports]: (a) to have been made in the form in which it is made by a person who did not in fact make it in that form, or; (b) to have been made in the form in which it is made on the authority of a person who did not in fact authorize its making in that form; (c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms, or; (d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorize its making in those terms, or; (e) to have been altered in any respect by a person who did not in fact alter it in that respect, or; (f) to have been altered in any respect on the authority of a person who did not in fact authorize the alteration in that respect, or; (g) to have been made or altered on a date on which, or at a place which, or otherwise in circumstances in which it was not in fact made or altered, or; (h) to have been made or altered by an existing person who did not in fact exist.’
I can tell you that the ingenuity of Parliamentary Counsel, or of some other interested busybody, has set about looking at all the existing cases under the common law, with a view to defining false so as to cover those cases, all of which ultimately said the important thing is the document must tell a lie about itself. That is what is intended to be covered. However, if Parliament has designed to enter the province of the law, we are obliged to follow the precise meaning given to the crime by Parliament. That is what false is according to Parliament”.[4]

[4]T2126-2128 [Slightly edited].

After providing a brief description of a deal of evidence relating to the origin of the documents, his Honour outlined the respective positions of the prosecution and the defence on this aspect:

“What then out of all this are the issues in the case? One of the relevant disputes is between the Crown and the defence, in short what do you have to decide? The first dispute which applies to all the documents is about whether they are false documents. The Crown says they are all false documents and says there is not and never was a letter about Hitler’s pistols signed by H. Himmler, a letter from the Reich Armoury, the NSDAP to the Walther Factory about payment for PPK Serial No. 803157, any declaration by Emile Maurice about the Model 8, any report about Hitler’s death from the USSR Ministry of Defence, or any genuine photographic record of the pistols in Russian Property Office Archives. The Crown says the whole lot is false.
The Crown says that there was a letter from a Mr Haufmann to the accused, but the one produced, Exhibit C2960 has been fraudulently altered by the accused, and thus is a false document. The Crown says that if Exhibits C2847 and 848 – they are the Russian Federation letters – are letters genuinely sent by the USSR State Archives the accused has made them into false documents by making unauthorised additions to or alterations of them by attaching the messages in invisible ink to them.
…
Well, what does the defence dispute about this? First, the defence says that there are genuine documents, being the Himmler letter, the NSDAP letter, the Emile Maurice declarations, the USSR State Archive letters with their invisible ink notations, and there were genuine photographs of the pistols in Russian hands corresponding to the photographs, the subjects of Counts 13 to 22. As to all of that the defence says they were genuine documents. It goes on to say the accused has produced copies of these documents in some cases, but they are copies of genuine documents, not false documents. It is not of course an offence to make a copy from a genuine document.
The defence agrees that the Haufmann letter has been altered and falsified – Count 3. The defence agree and as to that it has another defence. The defence agrees that the Ministry of Defence document, Count 23, has been altered by attaching false seals, stamps, signatures, initials, ticks and squiggles, and as such is a false document.”[5]

[5]T2143-2145. [Slightly edited.]

Counsel for the applicant took exception to this part of the judge’s charge, arguing that he should have related the specific allegations of falsity being made by the prosecution with respect to each of the documents in question to the provisions of s.83A(6).[6] Initially his Honour accepted that there was force in this submission. However, after hearing from the prosecutor, he declined to re-direct the jury.
[6]See fn.1.

In his report to this Court, his Honour stated:

“I acknowledge the desirability of charging the jury in the manner suggested in grounds 1 and 2. As to ground 1, however, I found it impossible to select one form of falsity as applicable to the particular documents rather than another. Each document seemed (on the Crown case) to be false within most if not all the statutory descriptions. This difficulty was a main reason for my putting the statutory definition before the jury in a written form – a device I concede to be indicative of judicial despair.”

I understand his Honour’s reference to “judicial despair” to be directed to the nature of the task that he contemplated that he would have to undertake in the event that he acceded to counsel’s submission. According to the Crown case, the documents were either total fabrications or had been deliberately altered in a fundamental respect. To take each of them and then to attempt identifying, in a formalistic fashion, the various ways in which each could be said to lie about itself was, he considered, quite unreal in the circumstances and, I would add, when regard is had to the issues in the trial, would almost certainly have constituted little more than a source of bemusement for the jury.

Obviously an accused person is entitled to have the jury directed in clear terms as to the case that the prosecution advances against him. That is the case on which he has been presented for trial and the only one to which the jury can legitimately direct attention. Where an offence can be committed in a number of different ways, a trial judge will be required to identify for the jury, and with sufficient precision and clarity to enable them to determine properly the issues in the trial, the foundations of law and assertions of fact upon which the prosecution case has been constructed. Seldom would it be sufficient, in the case of the alleged commission of a statutory offence, to do no more than read out the relevant provisions or to give them to the jury in written form[7]. Even, or perhaps increasingly, in these days of the employment of what is euphemistically termed plain English, the interpretation of legislation is not necessarily simple and the potential for misunderstanding of meaning or misapplication of principle badly cannot be ignored.
[7]See R v. Massie [1999] 1 V.R. 542 at 546 [14] – [16] per Brooking, J.A.

Why then did the judge in the present matter, bearing in mind his Honour’s very considerable experience and knowledge of the criminal law, adopt the course that he did? The answer appears to lie in his Honour’s view (which I should add I share), of the unreality of the process in which he was invited to engage. All save two of the documents in question, the prosecution claimed, were brought into existence by the applicant and were not what they purported to be, that is, genuine documents or copies of genuine documents. The remainder, it was contended, had been altered so as to effectively create new documents that lied about themselves.

With respect to the first category, the “Himmler” letter provides a good example. This was a “letter” in German, dated 11 October 1935, that on its face presented as having been written by Reichfuhrer SS Heinrich Himmler on the subject of the “personal pistols of the Führer”. The “letter” described three pistols that the Nazi leader allegedly kept on his person, identifying a pistol numbered 457044 and two further pistols described as 7.65 mm Walther PPK’s with the serial numbers 201287K and 803157, the last being one of the pistols involved in the trial.

The Crown submitted that the German text in the “Himmler letter”, as well as various other documents, was produced not by Himmler but by a woman engaged by the applicant, named Nadja Mack. In 1995, Mack studied at Monash University, and was registered as a German translator at the Monash Job Centre. She was contacted by the applicant and asked to translate an English document into German. He told her he was an investigator for a group of left-minded people hoping to undermine a new-Nazi group in Germany. He told her he wanted the documents translated into “Nazi German”. During the trial, Mack was able to identify the Himmler letter as her German translation of the English text provided to her by the applicant.

Tom McDougall was the owner of the firm, Traditional Stencils. He gave evidence of being approached by the applicant in order to produce stencils of various signatures, including that of Himmler. The applicant told McDougall that he was seeking an automated way of printing on baseball cards and wanted the Himmler signature, including others, as samples. The virtue of the process used by McDougall was that it was less detectable to the naked eye than other automatic reproduction techniques. The first signature stencil attempted by McDougall was that of Himmler, on the copying of which he spent up to 100 hours.

Ben De Jong and Mary De Jong were the proprietors of a business known as Tasman Supply. They gave evidence of the production, for the applicant, of various rubberstamps, including a signature stamp matching that on the Himmler document.

In evidence, the applicant admitted that he had utilised the services of these professionals as described. However he stated that the purpose of these efforts was the production of realistic documents for use in a film project called “The German Connection”. He stated that his dealings with McDougall had been for the purpose of producing comedic “baseball cards featuring Third Reich identities.”

The jury clearly rejected these explanations and concluded that he had engaged the witnesses to create a document that he intended to pass off as genuine and written by Himmler in 1935.

The positions and the issues are similarly clear in relation to the documents in the second category.

These were two letters, dated 10 January (count 8) and 31 January 1994 (count 9), in the Russian language. However when viewed under ultra-violet light each revealed a “secret message”. The first message purported that the State Archive of the Russian Federation had entered into a transaction with the applicant. The second “message” presented that “the State Archive of the Russian Federation now confirms the sale of 803157 and 457044 to [the applicant]”.

It was the Crown case that these items were two genuine and innocuous letters from the State Archive of the U.S.S.R. received by the applicant. They were then subsequently falsified by the addition of Russian language text that was visible only under ultra-violet light.

In 1997 Robert Chesney, Leonard Bashford and William Duffy were employees of security printing firm Leigh-Mardon. Chesney gave evidence about how he was approached by the applicant in March 1997 with his queries about printing text that could be viewed only by someone aware of the nature of the printing. The firm had the use of products known as “invisible fluorescent inks” which could be viewed only when presented under ultra violet light. Chesney met with the applicant and showed him what could be done. Subsequently, the applicant attended the premises with documents in Russian text, and further documents the text of which he wished to be printed invisibly on the first documents. The additional text was in Russian and there was a translation in English. During the trial, Chesney was able to identify two exhibits as the documents that the applicant had provided to be printed with the invisible text. He also stated he was not a Russian reader, but had obtained translations of the main letters, and subsequently supplied those to the police.

Bashford was the production manager at Leigh-Mardon and was involved in the printing of the invisible text. He also identified two exhibits as being “very similar” to the documents upon which he was instructed to print the “secret message”. He was also able to identify one exhibit as being very similar to the negative used for producing the invisible text. He was not a Russian reader.

Duffy was a printer at Leigh-Mardon and was involved in the overlaying of invisible Russian text on a Russian document. Although he was able to recall working on one document only he recognized two exhibits, tendered during the trial, as being similar to that document but could not identify the document on which he had worked.

In evidence the applicant stated that he had engaged Leigh-Mardon to produce a single Russian document printed with invisible ink, but it was not one of those produced by the Crown. Rather, it was a document prepared by him with an apparently nonsensical coded message in Russian which he sent to Iran as part of a plan to get agents of the Jewish Defence League out of that country “one step ahead of its secret police”.

As a practical proposition, the questions to be considered with respect to the falsity of the various documents by the jury could not have been simpler. The case raised none of the difficulties addressed by the High Court in Brott[8] or this Court in Ceylan[9]. Whatever else may be encompassed by the definition, documents which are found to be total fabrications but purport to be genuine and are brought into existence by an accused are clearly false within the meaning of the provision. Whilst his Honour was correct in his view that more than one of the limbs of the statutory definition could be regarded as applicable to the different documents, according to their purported author and contents, he should not have presented the jury with the bald definition and said to them, in effect, “take your pick”. In the particular circumstances, it would have been quite sufficient to instruct them that, if they accepted the Crown assertion that the applicant had fabricated the documents encompassed by the respective counts and they were simply not what they purported to be, they were entitled to find that they were false in the relevant sense. I confess to difficulty in understanding why he did not do this.
[8]Brott v. R. (1992) 173 C.L.R. 426.
[9]R. v. Ceylan (2002) 4 V.R. 208.

However, there was realistically no potential for confusion in the minds of the jury, as to the task which they were to undertake, that can be detected in the circumstances or arising from the manner in which the issues were left for their consideration. Nor, I should add, has any been drawn to our attention by counsel for the applicant in his oral or written submissions to this Court. When pressed on this aspect, he did not argue that the manner in which the trial judge charged the jury carried the risk of a miscarriage of justice, but submitted that counsel at the trial was right to insist that the particular heads of falsity upon which the prosecution relied were identified.[10]
[10]In his written submissions, counsel argued:
“It is submitted that the trial judge’s reasons for not providing further direction are not satisfactory. Given that the element of falsity was in issue in respect of all documents, and that the Crown had sought to rely on particular heads of falsity, defence counsel was right to insist that the jury be directed in clear terms as to the basis on which the Crown case was put.”

Although the manner in which the issue was left for consideration was unsatisfactory, in the particular circumstances the intervention of this Court is not required.

Ground 2 and 4

A similar complaint to that advanced in support of ground 1 is made with respect to the trial judge’s instructions to the jury concerning the element of prejudice in the offence created by s.83A of the Crimes Act.

Again, his Honour read the statutory definition without explanation or elaboration of its various limbs, or making any attempt to identify the particular limb or limbs upon which the prosecution relied.

The relevant part of his Charge reads:

“You will note also the use of the word ‘prejudice’. It also is given a statutory meaning by the following provision, sub-s.(8). ‘For the purposes of this section, an act or omission is to a person’s prejudice if, and only if, it is one that, if it occurs, (a) will result: (1) in the person’s temporary or permanent loss of property, or; (2) in the person’s being deprived of an opportunity to earn remuneration or greater remuneration, or; (3) in the person’s being deprived of an opportunity to obtain a financial advantage otherwise than by way of remuneration, or; (b) will result in any person being given an opportunity: (1) to earn remuneration or greater remuneration from the first mentioned person, or; (2) to obtain a financial advantage from the first mentioned person, otherwise than by way of remuneration, or (c) will be the result of the person’s having accepted a false document as genuine, or a copy of a false document, as a copy of a genuine one, in connection with a person’s performance of a duty.’
Bearing these elaborations of meaning in mind, the legal definition of the crime is constituted by its elements which the Crown has proved. The Crown, in order to obtain the conviction of the accused in this crime, must prove beyond reasonable doubt: (1) that the accused made a document which was false within the meaning of the statute; (2) that he did so with an intention: (a) to induce another to accept the document was genuine, and; (b) that by reason of accepting it as genuine that other person would act, which includes omitting to act, to his or someone else’s disadvantage or prejudice.”[11]

[11]T2128-2129.

Given the basis of the Crown case, again I find it difficult to understand why his Honour approached the element of prejudice in this fashion. All save one (that set out in s.83A(8)(a)(i)) of the limbs of the definition were clearly inapplicable to the case in hand as the trial judge acknowledged when exception was taken by counsel to this portion of his charge, and the prosecution contention could not have been more straightforward. Indeed, his Honour put the position immediately after the provision of his instruction relating the various documents to the specific counts as follows:

“The Crown says that the purpose of this activity [the making of false documents] was to induce others to believe the document in each case was genuine, thereby to induce someone to pay over a million US dollars for the two pistols, thereby acting to his prejudice by losing permanently probably but certainly temporarily, property, namely a considerable sum of money.
…
[The defence contended that] the documents were intended to be used first as props in the making of an elaborate documentary film, the prototype of which was to be called, ‘The German Connection’; (2) as bait to flush out neo-Nazi and anti-Semitic people of sufficient wealth to be dangerous to the security and wellbeing of people of Jewish faith or culture. These are the broad issues in the case.”[12]

[12]T2131.

The case advanced by the prosecution with respect to the element of prejudice involved no complicated notion, relationship, or definitional complexity and rested entirely on the claim that the applicant had fabricated or altered the documents encompassed by the respective counts for the purpose of inducing the ultimate victim of his enterprise to hand over a large sum of money for two pistols of small value and accordingly act to their prejudice.

Attributing to the members of the jury even a modicum of common sense, this would have been apparent to them if the trial judge had said nothing at all on the matter. However, if any doubt could exist on this aspect, on more than one occasion in identifying the issues in the trial his Honour drew their attention to the prosecution case indicating clearly the prejudice that they asserted that the applicant intended to cause through his activities.

Whatever “despair” may have led the trial judge to deal with the element of falsity in the manner already discussed, there was no reason whatever for reading to the jury irrelevant parts of the definition of prejudice in sub-s.(8).

However, in the particular circumstances the risk that the inclusion of these irrelevancies may have induced a degree of confusion into the jury deliberations, to have diverted their attention from the issues in the trial or possibly resulted in the adoption by them of some impermissible line of reasoning concerning the guilt of the applicant, can be put to one side.

If the jury accepted beyond reasonable doubt that the applicant had acted with the intention of inducing someone to part with a substantial amount of money for items of relatively little worth, then the necessary mental element was established. It appears to me to be clear beyond dispute that that is what happened. The introduction of irrelevant forms of prejudice was unfortunate but cannot be seen to compromise the jury verdicts. These grounds also fail.

Ground 3

In support of this ground, the argument was advanced that the jury should have been instructed that the prosecution had to establish beyond reasonable doubt that the applicant had acted with an intention to cause actual prejudice and not just to create a situation in which the possibility that someone might be prejudiced in a relevant sense would arise. On any view of the matter, it was said, there existed only the possibility of a sale of one or both of the pistols. Accordingly, there were a number of further steps that had to be taken before a desire to effect a sale, if such a desire could be attributed to the applicant in any event, could be found to have crystallized into an intention to cause actual prejudice.

The argument was claimed to find support in two English cases dealing with equivalent provisions in s.3 of the Forgery and Counterfeiting Act 1981. In the earlier of them, Tobierre[13], the Court of Appeal decided that a recorder had incorrectly directed a jury that it was sufficient for the prosecution to establish only that the accused intended that the document in question be accepted by a recipient as genuine, after which -
[13]R. v. Tobierre [1996] 1 All.E.R. 346.

“it [would be] simply an objective question whether that person, by accepting the instrument as genuine, in fact acted or omitted to act to his own or some other person’s prejudice.”[14]

The Court held that it was necessary for the prosecution to establish the presence of what was referred to as a -
“double intention, the intention to induce and an intention that the other person shall act or omit to act to his own or someone else’s prejudice.”[15]

This approach was applied shortly afterwards in the second of the cases Garcia[16] which was also decided in the Court of Appeal.

[14]At p.349 per Tudor Evans, J.

[15]At p.349 per Tudor Evans, J.

[16](1988) 87 Crim.App.R. 175.

As the trial judge found, the argument in the present case was misconceived and based on a misreading of these judgments. There was no need for the prosecution to demonstrate that a sale was imminent or even likely. The section did not create some variant of the offence of attempting to obtain money or property by deception. Rather it was concerned with the making of a false document for one or more of a number of designated purposes. His Honour accepted that the authorities supported the view that the relevant acts had to be performed with the intention that prejudice will be occasioned and not simply with the recognition that it might result. The present case raises no question of this kind, and there is no need to explore this aspect. As I have earlier indicated, if the jury accepted that the documents were made as part of a scheme to extract money from an as yet unascertained purchaser, the necessary mental element was established. Whether or not that purpose was ever likely to be achieved is not to the point.

His Honour subsequently instructed the jury:

“The case that is raised by the Crown here is really that the accused was making these documents with a view to putting them into the hands of gun dealers with a view to getting them to accept that they were genuine, with a view to getting them to persuade somebody else, some Arab or somebody with a fair bit of money, to buy the pistols as though they were Hitler’s pistols when they were not.
…
… it is not a matter of the accused possibly intending something or arriving at some possible result or something like that. His state of mind must be a guilty state of mind at the time when he makes the document and it will only be a guilty state of mind if present in that mind is this intention to induce somebody to accept the document as genuine and also that person or somebody else, will be prejudiced thereby. If he doesn’t have that intention he is not guilty.”[17]
[17]T2189-2190.

This instruction was quite adequate in the circumstances.
Ground 5

There is no need to set out the detail of the evidence adduced against the applicant. It is, I consider, sufficient to state that bearing in mind the responsibility of this Court, identified by the High Court in M v. R.[18], to conduct its own review of the sufficiency and reliability of the case mounted against the applicant on each of the counts on which he was convicted, the verdicts of guilty were amply supported by the evidence and could not sensibly be described as unsafe and unsatisfactory in the circumstances.
[18](1994) 181 C.L.R. 487.

In summary, I would dismiss this application.

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‘Count Datea Description of document/Exhibit number

1 13.05.94 to Letter purporting to have been made by

31.01.96 Heinrich Himmler dated 15 October 1935

2 01.03.95 to Letter purporting to have been made by Reich

03.09.97Armoury of the National Socialist German Workers Party dated 22 January 1935

3 19.03.95 to Letter by Mr Hoffman of Carl Walther GMBH who

28.06.99 did not make it in those terms dated 19 March 1992

4 01.07.95 to Statutory declaration with letterhead purporting to

24.01.96 have been made by Emile Maurice

5 01.07.95 to Statutory declaration without letterhead purporting

24.01.96 to have been made by Emil Maurice

8 03.03.97 to Letter by the State Archives of the USSR purporting

12.03.97 to contain a hidden message dated 10 January 1994

R. v. O’Hara1 BATT, J.A.

BUCHANAN, J.A.

VINCENT, J.A.

9 03.03.97 to Letter by the State Archives of the USSR purporting 12.03.97 to contain a hidden message dated 31 January 1994

13 to 01.06.97 to Photographs of Walther pistols bearing USSR

22 07.01.99 identification (x 10)

23 06.11.98 to Report of the USSR Ministry of Defence dated 29

18.01.99 January 1958

__________

aThis column sets out the dates between which the relevant document was alleged to have been brought into existence or altered.”

R. v. O’Hara2 VINCENT, J.A.

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R v O'Hara [2005] VSCA 62

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[2005] VSCA 62

1 April 2005