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Brott v The Queen

Brott v The Queen

Case [1992] HCA 5 25 February 1992

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HIGH COURT OF AUSTRALIA

Brennan, Deane, Toohey, Gaudron and McHugh JJ.

BROTT v. THE QUEEN

(1992) 173 CLR 426

25 February 1992

Criminal Law

Criminal Law—Forgery—Elements of offence—Guarantee—Attestation clause—Witness signing clause falsely asserting signature of surety made in witness's presence—Whether guarantee forged.

Decisions

BRENNAN J. The relevant facts are these: a lessor was willing to grant a lease provided the two directors of the lessee company guaranteed performance of the lessee's covenants. The directors were Daryl Leslie Hains and Brendon Alexander Wilson. A form of lease was engrossed for execution containing the guarantee. The guarantee was purportedly signed by the guarantors and their respective signatures were purportedly witnessed by the applicant on 31 May 1985. The form of execution was as follows:
"SIGNED SEALED AND DELIVERED ) by the said DARYL LESLIE ) (Sgd) D. L. HAINS HAINS in the presence of: )

(Sgd) I. BROTT

SIGNED SEALED AND DELIVERED ) by the said BRENDON ALEXANDER ) (Sgd) B. WILSON WILSON in the presence of: ) (Sgd) I. BROTT"

The lessor required settlement by 31 May 1985. To meet this requirement, the form of lease containing the purportedly executed guarantee was returned to the solicitor for the lessor by the applicant, a solicitor, who had been retained to act for the lessee and for Hains and, perhaps, for Wilson. Hains' signature was genuine; Wilson's was not. Wilson was dead. He had been murdered earlier that day. The purported signature by Wilson was placed on the document by Hains who presented it to the applicant representing that Wilson had signed it. The applicant, believing Wilson's signature to be genuine, had then signed as witness.

2. The question is whether the applicant was guilty of forging the guarantee. By his signature, the applicant certified what was false, namely, that Wilson had signed the guarantee in his presence. But not every document which contains a false statement is a forgery. In Ex parte Charles Windsor (1865) 10 Cox CC 118, at p 123, Blackburn J. said:
"Forgery is the false making of an instrument purporting
to be that which it is not; it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery, because it is reduced into writing." Therefore, to prove the actus reus of forgery at common law, it is necessary to prove not only the "making (of) an instrument containing that which is false ... but (the) making (of) an instrument which purports to be that which it is not" (to adopt his Lordship's words in Reg. v. Ritson (1869) LR 1 CCR 200, at p 203, followed in Reg. v. Roberts (1886) 12 VLR 135, at p 142. Dr Kenny, Outlines of Criminal Law, (1902) p 257, said that "a forgery is a document which not only tells a lie, but tells a lie about itself". His pithy and accurate phrase has been adopted by the House of Lords, Reg. v.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brott v The Queen

Details

AGLC: Brott v The Queen [1992] HCA 5
Case: [1992] HCA 5
Decision Date: 25 February 1992

CaseChat Overview and Summary

The case of *Brott v The Queen* concerned an appeal to the High Court of Australia following a conviction for forgery. The appellant, Brott, had been found guilty of forging a guarantee. The central dispute revolved around whether the attestation clause within the guarantee, which falsely asserted that the surety's signature had been witnessed by the attesting witness, constituted a forged document.

The High Court was required to determine whether the attestation clause, by falsely stating that the surety's signature was made in the witness's presence, rendered the entire guarantee document a forgery at common law. This involved an examination of the elements of the offence of forgery, particularly in relation to documents that contain false statements about their execution.

The Court held that the attestation clause, by falsely representing the circumstances of the signature's execution, did indeed render the guarantee a forged document. The reasoning was that the attestation clause was an integral part of the guarantee, and its falsity meant that the document, as presented, did not represent a true record of its execution. The legal principle applied was that a document is forged if it is made with the intention of deceiving by falsely representing that it is what it purports to be, or that it is made under circumstances in which it was not made.

The appeal was dismissed, and the conviction for forgery was upheld.

Orders