National Australia Bank Ltd v Rusu is no longer good law insofar as it holds that the authenticity of a document cannot be proved by consideration of its form or content; inferences as to authenticity may be drawn from the document itself under s 183 of the Evidence Act 1995 (NSW). To establish that an agreement is a sham in a criminal prosecution, the Crown must prove beyond reasonable doubt that both parties to the knowledge of each other intended the agreement to have no legal effect and acted dishonestly; the fact that an agreement is uncommercial or entered into for an ulterior motive does not establish sham. A question trail requiring 'yes' or 'no' answers must not impose a positive burden on the accused to satisfy the jury that the answer is 'no'; the jury must be directed that if not satisfied beyond reasonable doubt that the answer is 'yes', they should acquit.
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