Making a false accusation to police in NSW and the ACT.

The news hook.

On 10 September the UK Government announced that the Attorney General had referred a sentence to the Court of Appeal as unduly lenient, and that the court had increased it. The offender had lied to police and named ten innocent men as rapists. The referral power in England has no exact twin in Australia, though the Crown here can appeal a sentence it says is manifestly inadequate. The offence at the centre of the case does have Australian equivalents, and people search for them whenever a story like this runs. This note sets out the Australian law.

Two points are worth stating at the start. First, the offence of making a false accusation is real and it is treated seriously by the courts. Second, it is defined narrowly, and it is charged rarely, for good reason. The law has to protect people who are wrongly accused without deterring people who have a genuine complaint. The way the offences are drafted reflects that balance.

Is it a crime to make a false accusation to police in NSW?

Yes. The main offence is section 314 of the Crimes Act 1900 (NSW). It applies to a person who makes an accusation intending a person to be the subject of an investigation for an offence, knowing that other person to be innocent of the offence. The maximum penalty is 7 years imprisonment. It is a Table 1 offence, which means it is usually dealt with in the Local Court unless the prosecution or the accused elects to have it heard in the District Court.

The offence is not limited to accusations of rape or any particular crime. It covers any offence. It also does not require the accusation to be made to police in so many words. An accusation made to another person, in circumstances where that person would be expected to pass it to police, can be enough.

What must the prosecution prove for a section 314 charge?

The prosecution carries the onus, to the criminal standard, of proving three things. That the accused made an accusation. That the accused intended the person accused to be investigated for an offence. And that the accused knew the person accused was innocent of that offence.

The third element does the heavy lifting. It is not enough that the allegation was untrue, or that it was not made out, or that the accused was mistaken. The Crown has to prove the accused's actual knowledge that the person was innocent. That is a high bar. A person who honestly believed their complaint was true has not committed the offence, even if a court later finds the complaint was wrong. This is where most section 314 prosecutions run into difficulty, and it is why the charge is uncommon.

What is public mischief under section 547B, and how is it different?

Section 547B of the Crimes Act 1900 (NSW) creates the offence often called public mischief. It applies to a person who knowingly makes a false representation to a police officer that an act has been or will be done, or that an event has occurred or will occur, which calls for a police investigation. The maximum penalty is 12 months imprisonment, or a fine of 50 penalty units, or both. It is a summary offence dealt with in the Local Court.

The difference between the two offences is the target. Section 314 is aimed at an accusation against a named or identified innocent person. Section 547B is broader and less serious. It covers a false report that wastes police time and resources without necessarily pointing at anyone. A false report of a robbery that never happened, or a false claim that a car was stolen, sits in section 547B. Section 547B also deems a representation to be made to a police officer where it is made to another person who is reasonably required to pass it on, and does.

How does the ACT treat a false report to police?

The ACT does not use the same sections, but it reaches similar conduct. Giving false or misleading information to a person exercising a function under a Territory law can be charged under section 338 of the Criminal Code 2002 (ACT). The maximum is 100 penalty units, imprisonment for 1 year, or both. Making a false or misleading statement is dealt with under section 337. The information has to be false or misleading in a material particular.

Where the conduct goes further, and is intended to obstruct or defeat an investigation or a prosecution, the ACT can charge an attempt to pervert the course of justice. That is a more serious matter carrying a much higher penalty. As in NSW, the choice of charge depends on the conduct and the intent behind it.

What is the penalty for making a false accusation?

The maximums set the ceiling, not the likely sentence. Section 314 carries up to 7 years. Section 547B carries up to 12 months or 50 penalty units, which in NSW is a fine of up to 5,500 dollars. In the ACT, section 338 carries up to 100 penalty units, which at the current ACT penalty unit is a fine of up to 16,000 dollars, or 1 year, or both.

A court sets the sentence by looking at the harm done and the offender's circumstances. A false accusation that puts an innocent person through arrest, charge, or trial sits high, because the harm is grave. A false report that wastes an afternoon of police time sits low. For a first offender, a plea of guilty, and limited harm, an outcome short of full-time custody is common, and in NSW a court can decline to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 in a suitable case. For a sustained campaign against an identified victim, custody is the usual result.

Does a withdrawn or unproven complaint count as a false accusation?

No, and this needs to be said plainly. A complaint that is withdrawn, not pursued, or that ends in an acquittal is not a false accusation. The criminal law does not treat every failed complaint as a lie. An acquittal means the prosecution did not prove the charge beyond reasonable doubt. It does not mean the complaint was fabricated, and it is not a finding that the complainant lied.

The point matters for two groups. It matters for a person who has been accused, because the existence of these offences does not give them a shortcut to prove the complaint was invented; they still have to meet the high test of knowledge. And it matters for a genuine complainant, who should not be frightened out of reporting by the fear of a false accusation charge. The law is built so that an honest complaint, even one that fails, does not expose the complainant to prosecution. The offence catches the person who knew all along that the accusation was untrue, not the person whose account was not accepted.

What defences apply to a false accusation charge?

The strongest answer to a section 314 charge is the fault element itself. If the accused genuinely believed the accusation, the offence is not proved, because they did not know the person was innocent. Honest belief, mistake, and confusion about events all bear on that question. So does intoxication, and so does mental health, where it affects the capacity to form the required knowledge or intent.

There is also the ordinary point that the Crown must prove the accusation was in fact false. If the underlying allegation might be true, the false accusation charge cannot stand. And for public mischief, the representation has to be one that calls for an investigation; a vague or trivial statement may not meet that description. Each charge turns on its own facts, and early advice on the elements is the difference between a plea and a defended hearing.

How is a false accusation different from perjury and perverting the course of justice?

These are related offences, and they often appear together in the same brief. Perjury under section 327 is a false statement on oath in a judicial proceeding, and it carries up to 10 years. Perverting the course of justice under section 319 is the broad offence of doing an act intended to obstruct, prevent, pervert, or defeat the course of justice, and it also carries up to 14 years. A false accusation designed to have an innocent person charged can be all three at once. The prosecution chooses the charge that fits the conduct and the available evidence.

A false accusation made in the setting of a family or domestic dispute raises its own issues, and can sit alongside an apprehended violence order. Those matters need careful handling, because the accusation, the protection order, and any related charge all feed into each other.

What we do for clients.

We act for two kinds of client on this topic. The first is a person charged with making a false accusation or with public mischief. The work starts with the elements. We test whether the Crown can prove knowledge and intent, whether the underlying allegation was in fact false, and whether the representation called for an investigation at all. Many of these charges do not survive that analysis.

The second is a person who has been the subject of an accusation they say is untrue. The right response is rarely a rush to have the complainant charged. It is to defend the substantive matter properly, to preserve the evidence that shows the accusation is wrong, and to take advice before making any complaint of your own. A false accusation charge is hard to prove and easy to get wrong. It is a matter for careful advice, not a reflex.

Frequently asked.

Is it a crime to make a false accusation to police in NSW?

Yes. Section 314 of the Crimes Act 1900 (NSW) makes it an offence to make an accusation intending a person to be investigated for an offence, knowing that person to be innocent. The maximum is 7 years. A knowingly false report that calls for an investigation can be charged as public mischief under section 547B, which carries up to 12 months.

What must the prosecution prove for a section 314 charge?

Beyond reasonable doubt: that the accused made an accusation, that they intended the person to be investigated, and that they knew the person was innocent. Knowledge of innocence is the element that most often fails, because the Crown has to prove the accused's actual state of mind.

Does a withdrawn or unproven complaint count as a false accusation?

No. A complaint that is withdrawn, not pursued, or that ends in an acquittal is not a false accusation. The offence requires proof that the complainant knew the accused was innocent. A charge that does not succeed is a normal part of the system and is not evidence of a false report.

How does the ACT treat a false report to police?

Giving false or misleading information to police can be charged under section 338 of the Criminal Code 2002 (ACT), which carries up to 100 penalty units, 1 year, or both. Section 337 covers making a false or misleading statement. More serious conduct can be charged as an attempt to pervert the course of justice.

What is the penalty for making a false accusation?

In NSW, up to 7 years under section 314, and up to 12 months or 50 penalty units for public mischief under section 547B. In the ACT, up to 100 penalty units or 1 year under section 338 of the Criminal Code 2002. The sentence turns on the harm caused and the offender's circumstances.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 11 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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