The notion of public documents and private writings in the law of forgery

by Josianne Cardona

Define ‘public document’ and ‘private writings’. Are there any differences in the material and subjective elements of offences of forgery of a public document and offences of forger of a private writing?

According to our law, for a document to subsist for the offence of forgery, it must contain three important elements: content, writing and author. Although all documents for the purpose of this offence need these qualifications, one must make a difference between what constitutes a private writing and a public document.

According to Crivellari, a public document is that document which has as its aim and effect the attribution of faith in the eyes of everyone and is created in those forms which constituted as a guarantee to all.

In fact according to Manzini public documents are those documents which are:

drawn up by a public officer or by a person employed in the public service, made up in due form for a public law purpose inherent in the exercise of public function or in the public service.
and also, those writings which contain private declaration of the will or attestation of the truth competently received with the necessary formalities by a Notary or by another public officer authorized to attribute public faith to the document.

The public officer must be vested by the law to attribute public faith to the document.

Our Criminal Code does not give a definition of what constitutes a public document. According to Section 1232(2) of the Civil Code, a public deed is an instrument drawn up or received, with the requisite formalities, by a notary or other public officer lawfully authorized to attribute public faith. The document is a guarantee to all, that it contains the truth.

What gives the document its importance is its form rather than the nature of its substance. A transaction might be of a public nature but it may not be a public document, since it lacks the faith which is attributed to public documents, however it thus remain a public writing.

According to the case Queen v. Giuseppe Zahra 1953 it was held that a driving license is a public document, because it was an act intended to give public faith to its contents made with the necessary formalities and issued by a public officer who according to law was authorized to give public faith to the document.

Thus we can say that a public document, as soon as it is altered or counterfeited, the offence of forgery arises, because what is being abused of, is the attribution of public trust and faith that lies within a public document.

The second type of document is that of a private writing, atti privati. Antolisei defines private writings by elimination:

"Ogni documento che non presenta le caratteristiche di documento publico e’ un atto privato."

However Manzini gives a substantive definition, by saying that private writings are those writings:

which are drawn up by private persons without the intervention of a certifying public officer; or

those writings which are substantially private, received or drawn up by a public officer not competent or not capable to do so or outside the exercise of his function; or

those which do not have the form of public acts, due to a defect in form.

The Criminal Code and the Civil Code do not give a definition of private writings. Although a definition can be found in Section 633 of the COCP, and in Section 1232 and 1233 of the Civil Code, it does not suffice for the purpose of private writing, which subsists for the offence of forgery.

However this does not mean that private writings are not protected by law, as long as they are the originals. Copies made by private persons of the original one have no probatory value not they are of any juridical relevance. The original private writing must be produced, for the copies cannot form the subject matter of forgery.

Writings may be made in duplicates, and duplicates must not be confused with copies. A duplicate signed by the parties, constitutes juridical relevance, as it is considered as an original.

The intent for the offence of forgery in both types of documents, i.e. private writings and public documents, is not clearly expelled out. Some say that the mental element consists in the intent to deceive only, others use the dolus in res ipsa approach, i.e. the criminal intent is intrinsic in the forgery itself. Other authors say that it requires a specific intent, as a generic one is not enough. The generic criminal intent is the knowledge and the will to alter what is in the document. However some make a distinction with regards to the intention needed for forgery to subsist between a private writing and a public document.

According to Kenny, at Common Law, the intent to deceive is enough in the case of forgery of writings of a public document, while on the other hand, in relation to private writings, the intent for the element of forgery is that to defraud, which is always necessary.

According to our law, unless the law specifies so, the intention to defraud is not an essential ingredient of the mental element. Thus besides the conscious and voluntary alteration of the truth, the specific intent to deceive by making a document to be false, could be required.

Our law tends to follow Italian jurisprudences, that is, the intent to deceive as the intent to defraud or to injure the rights of others is innate in the very fact of alteration. The criminal intent can be inferred from the law itself. Therefore according to our law, public documents, for the purposes of forgery need the generic intent and also the aspect of deceit, whereas private writings, apart from the generic intent, they need also the material element of the tendency to cause injury or to procure gain as stated in Rex v. Manwel Gauci 1942.

For private educational use only. Any other use is strictly prohibited under Maltese law and international treaties. The article does not purport to give any legal advice.