7. Fabrication or Production of False Evidence

principale [...] quella non seguita da effetto e’ punita solo se commessa mediante minaccie, doni o promesse”152 .

This is a special form of attempt which is committed so soon as, with intent to suborn a witness, referee or interpreter, threats are used, or gifts are offered, or promises made independently of the effect produced or of the acceptance or otherwise of the witness, referee or interpreter153 . The said means used by the offender have been considered by the legislator sufficiently grave and so dangerous and scandalous as to constitute in themselves in the “iter criminis” a commencement of execution and to produce a danger to the proper administration of justice154 .

The point is discussed whether to constitute subornation it is essential that the person suborned should have already at the time of the subornation assumed the judicial character of witness, referee or interpreter. Under the Italian Code it is generally held that it is not so essential, it being sufficient that the offender knows that the person suborned will be later called or appointed. Maino agrees with this view for the fact does not change its nature by reason of the circumstance that the subpoena or citation of the person suborned has already been issued or is merely anticipated. However, this writer goes on, every ground of incrimination fails if the person suborned and who, it was thought, would be called or appointed is not, in fact, subsequently called or appointed at all:

“poichè in simile ipotesi il subornato non avrebbe rivestito mai la qualità di teste, interprete o parito, richiesta dell’articolo 218 (ours 180) e sarebbe di fatte mancata ogni potenzialità di danno”155 .

7. Fabrication or Production of False Evidence

Documentary evidence plays a very important part in most judicial trials. Therefore Section 101 lays down that:

152 Maino, op. cit., art. 218, para. 1131 153 Vide Tuozzi, “Corso di Diritto Penale”, Vol. III, pg. 334, 335; Crivellari, “Il Codice Penale”, Vol. VI, n. 152, Tit. IV, p. 574 154 Vide Rex vs Curmi, 21/3/1924, Law Reports, Vol. XXV, Part IV, p. 264 155 Op. cit., para. 1123

“Whosoever, in a civil or a criminal proceedings, shall cause a false document to be prepared or shall knowingly produce a false document, shall be liable to the same punishment as the forger thereof.” The old Italian text spoke of:

“Istruire e produrre carte false”: “Istruire la carta talea in un causa qualunque non e’ che raccorla, ordinarla, o addattarla alia causa per farla servire alla decisione della medesima, nella stessa guisa in cui nel raccorrei registrare ed ordinare le prove, consiste appunto l’istruzione della prova nel senso delle nostre leggi di procedura penale”156 .

Any person, therefore, who prepares, puts together or gets up any false document for the purposes of any civil or criminal proceedings and any person who knowingly produces any false document although he may not have himself prepared or got up such document, are dealt with by the law as if they had themselves originally forged the document.

What constitutes "forgery" and how it is punished will be seen later on. Section 107 imposing the application of interdiction applies also to a conviction of this crime.

156 Roberti, op. cit., Vol. V, para. 529