Brott v The Queen

[1991] HCATrans 225

. -~s'

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M49 of 1987

a e t w e e n -

ISAAC ALEXANDER BROTT

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN J

DEANE J

TOOHEY J

GAUQRON J	MCHUGH J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 27 AUGUST 1991, AT 11.32 AM
Copyright in the High Court of Australia
Brott 1 27/8/91
MR A.J. MYERS, QC:  May it please the Court, I appear with

MR C.G~J. SEXTON for the applicant. (instructed by

Grace & Macgregor)

MR N.A. MOSHINSKY, QC:  May it please the Court, I appear

with my learned friend, MR R.M. READ, for the

respondent. (instructed by J.M. Buckley, Solicitor

to the Director of Public Prosecutions)

BRENNAN J: Yes, Mr Myers.

MR MYERS:  Thank you, Your Honour. There have been prepared

on behalf of the applicant an outline of

submissions which I will ask to be handed to the

Court.

BRENNAN J:	The Court has read that, thank you, Mr Myers.
MR MYERS:	The application book does not contain the

presentment - and copies of the presentment have

been provided by my learned friends this

morning - and I would ask for them to be handed to

the Court. The application book does not contain

any copy of the instrument in question, and again a

copy of the last page of that is provided for the

assistance of the Court.

BRENNAN J:  I take it that the seals are red wafers.

MR MYERS:  Yes, they are. I have seen the original which is

in Court if Your Honours wish to inspect it.

The issue before the supreme court, and the issue in this application, is whether forgery of an

instrument is established where an attesting

witness signs as such when, in fact, the instrument
was not executed in his presence. There is no

Australian decision directly in point. The issue

goes to the nature of the crime of forgery at

common law, yet there is no authority outside

Australia which we can find that is directly in

point. There are some authorities which I will	take the Court to shortly which bear somewhat upon
the issue.

I should draw to the attention of the Court

that since this application was instituted the

crime of forgery at common law and the crime of

uttering at common law have been abolished by

section 6 of the Crimes Legislation (Miscellaneous

.Amendments) Act of 1989 of Victoria.

However, the word "forge", or some part of

that word, is used in a number of statutory

offences in Victoria, and elsewhere in Australia,

without any special definition, so that the issue

of what constitutes forgery is still important for

Brott 2 27/8/91

the purposes of the construction of these statutory

offences.

May I direct the Court's attention to the

particulars of the offence on the presentment.	The
charges were that the applicant:

with intent to defraud forged a guarantee of
lease to wit a guarantee of the lease made

between Centrepoint Custodian Pty Limited -

and so on.	The charge of uttering is to like
effect:

On or about 31st May 1985 with intent to defraud (the applicant) uttered a forged guarantee of lease to wit a guarantee of the

lease made between Centrepoint -

and so on. In my submission, it is important to

consider precisely what it is that the applicant

was charged with. He was charged with forging a

guarantee of lease.

The instrument itself was a guarantee by two

sureties of the obligations of a lessee of a lease
of commercial premises, and the Court will see that

the attestation clause said that:

The sureties -

that is Hains and Wilson -

had executed the instrument, signed, sealed

and delivered it in the presence of Brott.

Now the sureties had not done so.

GAUDRON J: Is that right, or one, or both?

MR MYERS: Both, it appears - GAUDRON J: Had not signed?

MR MYERS:  Had not signed.

GAUDRON J: But one signature is accepted as genuine?

MR MYERS:  Yes, one is accepted as genuine, as it appears

from the unsworn statement and the charge, which is

in the application book. The applicant came back

from court to his office and his client, Mr Hains,

was waiting in the reception area, and he said that

he was waiting for Wilson to come along and execute

the guarantee of lease and he would like Brott to

witness it. He waited there for a long time,

perhaps an hour and a half, and Wilson did not turn

Brott 27/8/91

up. He then told Brott, or Brett's secretary, that

he was going away in a taxi to find Wilson. About

half an hour later he came to Brett's room and

said, "Here it is, will you witness the signatures

of Wilson and Hains" - my own signature and

Wilson's signature.

In fact, as it turned out, Wilson was dead at

that time, having been murdered. But that is

nothing to do with this matter. It is the reason for the investigation of the circumstances of the attestation of Hains's and Wilson's signatures.

The principal submission that we make is that

the false attestation clause said something false

about an extrinsic fact, namely, in whose presence

the guarantee of lease was executed in that words

that the courts have used and judges have used in

charging juries for many years, the instrument did

not tell a lie about itself but rather about an

extrinsic matter. The instrument does not contain

expressly or by implication a false statement about

its own character or effect as a guarantee. Brott

was charged with forging a guarantee. The false

attestation did not alter or affect the validity of
the instrument, its efficacy in law as a guarantee

or the character of the instrument as a guarantee.

The first case that I take the Court to is Reg

v Ritson, (1869) LR 1 CCR 200, which is on the

list. This was a case in which a deed was made and

falsely dated. It was dated a date other than the

date upon which it was executed and became legally

effective. So the deed purported to have legal

effect from a date other than the date on which it

actually had legal effect. The case was reserved

for the decision of the judges. At page 202 the

decision of Chief Baron Kelly begins. He refers to

the old text writers and, at about line 8 on

page 203, he says:

The definition of forgery is not, as has been

suggested in argument, that every instrument

containing false statements fraudulently made is a forgery; but, adopting the correction of

my Brother Blackburn -

which appears opposite on the previous page -

that every instrument which fraudulently purports to be that which it is not is a forgery, whether the falseness of the

instrument consists in the fact that it is

made in a false name, or that the pretended

date, when that is a material portion of the

deed, is not the date at which the deed was in

fact executed. I adopt this definition.

Brott 27/8/91

Baron Martin said he was of the same opinion.

Mr Justice Blackburn did as well. At the bottom of

page 203 he refers to a definition:

"forgery is where a man fraudulently writes or
publishes a false deed or writing to the

prejudice of the right of another" - not

making an instrument containing that which is

false, which, I agree with Mr. Torr, would not

be forgery, but making an instrument which

purports to be that which it is not. Bacon's Abr., which, it is well known, was compiled -

et cetera -

explains forgery thus: "The notion of forgery

doth not so much consist in the counterfeiting

of a man's hand and seal ... but in the

endeavouring to give an appearance of truth to

a mere deceit and falsity, and either to

impose that upon the world as the solemn act

of another which he is in no way privy to, or

at least to make a man's own act appear to

have been done at a time when it was not done,

and by force of such a falsity to give it an

operation which in truth and justice it ought

not to have."

And then His Lordship points out, about two-thirds of the way down the page:

The date was of the essence of the deed -

as it obviously is because the deed said, on its

face, that it had a legal effect from the date upon

which it was dated.

That distinction between a document which

tells a lie about itself and a document which

merely contains a falsehood about an extrinsic

matter is illustrated, for example, in the Court of

Appeal's decision in Reg v Dodge, (1972) lQB 416.

In that case the defendant induced a person to lend

him some money, saying that he was expecting a

legacy and, in order to support the representation

that he was expecting a legacy, he had a deed

prepared which said that he was expecting a legacy.

The question was whether that deed could constitute

a forgery. The Court of Appeal held that it did

not and, at page 419, about half-way down the page

at point E:

Now the words "making a false document" of course in plain simple language would be wide

enough, I suppose, to cover a document which
contains statements which are untrue, but it

has always been interpreted in a restricted

Brott 27/8/91

sense - the phrase that is used is that the

document must tell a lie about itself.

And then His Lordship refers to a section of some

legislation. Over the page he says this:

The way the matter is really put is this.	Mr
Cockburn, who has put his arguments very
concisely, says this, that any implication

which you can infer from the document that the

parties intended to implement it is a lie as

to the intention of the parties, but is not a

lie as to the document itself. It is a lie

about something that is extrinsic. So in a

very old case, Rex v. Jones (1779) 1 Leach

204, a man called William Jones was indicted

for that he had in his custody a forged paper-

writing purporting to be a bank note, and it

was worded as follows:

"I promise to pay John Wilson, Esq. or bear,

ten pounds," and then it was dated "London,

March 4, 1776, For Self and Company of my Bank

in England." Signed "John Jones,"

and he was charged with forgery on the ground

that this document was in effect a sham. He

had no bank account which warranted his making

out this note. But Lord Mansfield ruled that,

although there may be false representation,

there was no question here of forgery, it was

not a forgery.	The document did not tell a
lie about itself.

In our submission, that is this case; the

guarantee does not tell a lie about itself. There has been appended to the instrument of guarantee a

false statement about the circumstances of its

execution. It could be, for example, as though

Brott had written in the margin of the guarantee,

"This guarantee was executed in my presence" or,

for example, he could have written on a separate

piece of paper and attached it to the instrument of

guarantee, "This guarantee was executed in my

presence". Or he could just have written it on

another piece of paper and put it in the same

envelope. The charge is forging the guarantee.

Has a guarantee been created which tells a lie

about itself?

TOOHEY J:  In putting the matter that way, Mr Myers, are we

to take it that you rely on that line of authority

that draws that distinction between a document that

tells a lie about itself and one that does not, as

opposed to the approach taken by the Chief Justice

in the court below?

Brott 6 27/8/91

MR MYERS:	Your Honour, I also adopt what the Chief Justice said and in a sense the two propositions merge at
some point, because what the Chief Justice said was
that Brott did not forge, that is make or alter,
the document.  He did not make or alter the
guarantee.  I do rely on that line of authorities,
but in the end the two propositions come very close
to each other. One has to ask the question, as the
Chief Justice did, "Did Brott make or alter the
guarantee?", and the answer is, "No."
DEANE J:	Does that mean that if Mr Brott had signed
"Young CJ" as the witness, on your argument it
would not be a forgery of the document?
MR MYERS:	It would not be a forgery of the guarantee,

Your Honour. Now, if he were charged with some

offence - and there are statutory offences of

falsely forging a signature of a witness, that

would be another matter. I think it section 268 or

perhaps it is 259 of the Crimes Act of Victoria,

which Mr Justice Murphy refers to, deals with the

case that Your Honour put to me, that the charge

was forging the guarantee.

BRENNAN J: Well, putting it even on your narrowest basis,

whose seal is it that is on the bottom of that

document?

MR MYERS:	It is the seal of Wilson and Hains.
BRENNAN J:	And is it Wilson's seal?

MR MYERS: Well, I accept the correction that is implicit in

what Your Honour says.	No, it is not his seal; it
is not his signature and it is not his seal.	It
purports to be Wilson's signature and seal.

BRENNAN J:  Who put his seal on it?

MR MYERS:  The evidence does not disclose that. My friend

will correct me if I am wrong, but my reading of

the papers in the application book suggest that the

evidence does not disclose that. It was never put,

at least to the jury, that the affixing of the seal

was critical or important in this matter.

BRENNAN J: Well understandably, I suppose. But is not the

argument against you that the document, on its

face, is a duly executed guarantee?

MR MYERS:  It is a duly executed guarantee without being witnessed. The witnessing is not necessary for its

efficacy as a guarantee or as a deed.

BRENNAN J:	I suppose it is a question of the way in which one approaches the definition of "duly executed
Brott	27/8/91

guarantee", but if it is a duly executed guarantee

because of the form in which it appears, then one

can see that it can be said that the do·cument is

telling a lie about itself.

MR MYERS:  The proposition that the document tells a lie

about itself, obviously leaves unresolved many

issues. It is the way in which it has been put but, by way of answer to Your Honour, I do say that

the document is not duly executed as a guarantee

because it is witnessed. It would be duly executed as a guarantee without being witnessed and it would

be duly executed as a deed without being witnessed. The witnessing or the attestation is not necessary for its validity or effectiveness at law in any

way. The most the attestation does, as

Mr Justice Brooking points out in his reasons, is to facilitate proof in legal proceedings and,

somewhat paradoxically, guard against forgery, but

there, as His Honour says, "practical or commercial

consequences of the attestation". They are not

necessary for its effect in law.

Perhaps I could take the Court to the reasons of the Full Court. The way the application book is

set out is that Mr Justice Brooking's reasons for

decision appear first. They commence at page 37.

I do not know why it is set out this way, but it is convenient to deal with His Honour's reasons first.

The submission put by Mr Weinberg was that the

document was not false in itself, that it merely

made a false representation about a matter

extrinsic to the document. Mr Justice Brooking

took counsel's argument and refashioned it as an

argument about materiality. He did that at page 42

and he said that the materiality of the attestation

is crucial in determining whether it is a forgery

or not, that is to say, whether it tells a lie

about itself or it is merely a matter extrinsic.

His Honour concluded, after an exhaustive

examination of the authorities, at page 51 and at

page 54 in this way, at page 51 just below

line 286:

Because frauds are infinitely various, a lie in a document concerning the manner of its

creation, whether related to identity of

maker, time or place of making or mode of

execution, may be material in any one of

innumerable ways. It is material to know

whether a will was signed or acknowledged in

the presence of two witnesses because this
goes to validity. It is (or may be, if the

question is one of fact) material to know

whether a deed was executed in the presence of

a witness because attestation affords a

Brott 27/8/91

practical safeguard against forgery of the

signature of the executing party and also

facilitates proof of execution in legal

proceedings should this become necessary.

And at page 54 His Honour summarizes his reasoning

again at about line 304:

Attestation was material, not because it went

to validity, but because of its practical or

commercial significance as affording both a

safeguard against forgery and a means of proof

in the event of litigation.

In our submission, His Honour erred. The charge

being that of forgery of a guarantee, the question

of materiality should have been put in terms of the

effect of the falsity upon the instrument as a

guarantee. His Honour has taken the requirement of

falsity in a material particular too far. There is

no support at all for the proposition that the law

looks to the practical and commercial significance

of falsity appearing in a document in determining

whether that is a forgery.

TOOHEY J:  Mr Myers, if you are arguing the matter solely on

the basis of the approach taken by the

Chief Justice, what is the role of materiality in

answering this inquiry whether the accused made or

altered a document?

MR MYERS:  The Chief Justice says that it is concerned with the intention to defraud. It may also be concerned

with the relationship of the falsity to the

character of the forgery that is alleged. Thus, if

a person is said to have forged a guarantee, is

this falsity something that pertains to the

character of the instrument as a guarantee of a

particular person, or its operation in law as a

purported guarantee of a particular person?

TOOHEY J: Well, if you wrote at the foot of a commercial

document the result of last week's football match,

in a sense you have altered the document, but it is

surprising to know that you have forged the

document. Why have you not forged it?

MR MYERS:  Because the notation does not pertain to the

character or effect of the document. The notation

does not make the document, the guarantee, tell a

lie about itself.

TOOHEY J: Well, that is sort of getting back into the other

line of approach. I am trying to keep you within

the Chief Justice's approach at the moment.

Brott 9 27/8/91

MR MYERS:  The answer is, perhaps, taking the

Chief Justice's approach, the person who wrote the

last week's football results across the foot of the

guarantee, did not either make the guarantee or

alter the guarantee. It still operates as a

guarantee. Its character, in effect, as a

guarantee is unaffected by the notation.

TOOHEY J: That seems to suggest that it is not a forgery

because what has been written is not material.	Is
that a correct way of looking at it?

MR MYERS:  In my submission, in the end, yes. Whether one

uses the word "material", it does not pertain to the character or effect of the document as being

what it is.

BRENNAN J: Is materiality a function of legal operation of

the document?

MR MYERS:  Not necessarily, Your Honour, because one can

forge a document that has no legal operation. One can forge a reference, for example. If I needed a

reference for a position and I wrote out a document

and signed my junior's name at the foot of it,

that would be a forged reference, again because it

goes to the character or effect, we would

respectfully submit, of it as what it appears to be

as a reference.

BRENNAN J:	Why does this not appear to be a guarantee duly executed?
MR MYERS:	It does appear to be a guarantee duly executed and, indeed, it is, Your Honour.

BRENNAN J:  I will put it another way. Why does it not

appear to be a document executed in the manner

indicated by the signatures?

MR MYERS:  It does appear to be such a document, but the question is, did Mr Brott forge the guarantee?

BRENNAN J: Did he forge the document?

MR MYERS:	No, Your Honour, with respect, did he forge the guarantee? The charge is forging the guarantee.
BRENNAN J:	What is meant by the guarantee?
MR MYERS:	It is a document which has a certain legal

effect. It is not simply the bit of paper because

any alteration to that bit of paper, any notation

on it, for example, after it is executed in a sense

would be an alteration to it but it does not alter

the guarantee.

Brott 10 27/8/91

BRENNAN J: In the presentment, does the word "guarantee"

connote a document which includes the signature of

Mr Brott?

MR MYERS:	No, it cannot, in my submission, Your Honour.
BRENNAN J:	So, Mr Brott simply did not sign the document which is called the guarantee?
MR MYERS:	He did sign that piece of paper but - - -

BRENNAN J: Signed the piece of paper but not the guarantee?

MR MYERS:  No, because his signature does not have any

bearing upon the character of that instrument as a

guarantee nor any affect upon its legal effect as a

guarantee. Another way of saying that is that the

guarantee does not tell a lie about itself. The

document which he is charged with forging does not

tell a lie about itself.

BRENNAN J: Perhaps we are using "document" and "guarantee"

in a shifting meaning, but if we are speaking about

a document which includes his signature, that is

one thing. If we are talking about an instrument

which purports to have a particular legal effect,

dehors his signature, that is another.	Now, which
are you talking about?

MR MYERS:	The document which purports to have a particular legal effect. That is what he is charged with
forging and -

BRENNAN J: That might be an interesting point.

MR MYERS: Well, indeed it is, and one sometimes speaks of -

it is possible to forge a signature. There are

statutory offences, for example, of forging a

signature. There is a different notion involved

there. There is possibly a slightly different

notion involved when one speaks of forging a

document which does not have any legal effect, such

as the reference. But when one speaks of "forging

a guarantee of lease, to wit a guarantee",

et cetera, et cetera, then one is speaking of a

document which has, or purports to have, a

particular legal effect. And the mere attestation,

as a witness, does not alter its character or

effect. There might be other offences that have

been created by a person who falsely witnesses, but

he has not forged the guarantee.

The Chief Justice put it in perhaps a more

common sense way, a way that depends more on the

ordinary meaning of words, to say:  "Well, whatever

else Mr Brott did, he did not make or alter the

guarantee. All he did was add a false statement to

Brott 11 27/8/91

the bottom of it". As if he had added a false

statement about last week's football scores.

But undoubtedly this false statement, as

Mr Justice Brooking points out, has some practical

or commercial significance, but the fact of

practical or commercial significance does not make

it a forgery.

Your Honours, may I go briefly to the

authorities, so far as they touch upon this matter.

The absence of any clear authority that a false

attestation is a forgery would be remarkable, if it

were a forgery, given the 500 years of history of

the crime. The first decision to which I take the

Court is State v Gherkin. This is an old decision
of a North Carolina court, before the Civil War, in

1847.

The document there was a bond by which two

persons, Sally Allen and James Gherkin, promised to
pay a sum of money on a particular date. Gherkin

forged, falsely subscribed, the name of

George Stubbs as a witness to the document which he

himself had executed. The question was whether the

document was a forgery. The decision of

Mr Justice Daniel, at page 165, is brief:

A subscribing witness is not material to the

due making of a bond. The putting of the name

of Stubbs to the instrument, as a subscribing
witness, did not vitiate the bond, after it

was subsequently delivered by the obligors to

the obligee. The bond could have been

established (if denied by the obligors) by

proof of their hand-writing ..... It was not an

alteration in a material part of a true

document, by which the obligee was or could be

defrauded of the money mentioned in the face

of the bond.

That decision, old and of another jurisdiction, is,

as a decision, contrary to the decision of the

Full Court in the present matter.

There is another old case, an English case, of

Reg v Hartshorn, (1853) 6 Cox CC 395. The facts

are rather interesting. A local election was

apparently causing a good deal of interest and in

those days, if not now, a number of the persons who

could vote could not write. Voting papers were

taken to their houses. The marksmen did not put

their marks on the voting papers but permitted

other persons to put their marks on the voting

papers and the defendant, Hartshorn, attested those

marks to be marks placed on the voting papers by

Brott 12 27/8/91

the marksmen. On page 401, in the middle of the

page, the facts as stated to the jury are set out:

Upon inquiry -

it is about half-way down the page -

it appeared that a great number of the voting

papers had been filled up for marksmen, and

many of them attested by the defendants, who

were active partisans, and had attended a

meeting at which it was agreed they should go

round to the different houses as soon as the

voting papers were left, obtain them, fill

them up with the names of their candidates,

and replace them in the house, to be ready

when called for. The 25th section of the

Public Health Act provides that if any voter

cannot write, he shall affix his mark at the

foot of the voting paper in the presence of a
witness, who shall attest and write the name
of the voter against the same, as well as the
initials of such voter, against the name of
every candidate for whom the voter intends to
vote. The charge against the defendants was,
that they had, in pursuance of a general
design, signed their names as attesting the
marks of the voters, whereas, in fact, the

voters had not signed, or authorized the

affixing of their names to the voting papers.

The charge was forgery. In the course of the

evidence, His Lordship Mr Justice Crompton, stopped

the case, as appears at page 402. He said:

This does not amount to forgery, although it

is, undoubtedly, an irregular proceeding. It

appears that the voting papers had been filled

up by the defendants, either with the express

or implied consent of the voters, or with the

consent of some person whom the defendants

might reasonably believe to have authority.

The voters were all called upon. It is

possible that the irregularity committed may
be indictable, as it is clear the statute
intended that the voter should affix his mark propria manu, but the attestation in the mode

adopted in this case is not forgery. There is

no false statement implied, and the essence of

the crime of forgery is making a false entry

or signature, knowing it to be without

authority and with intent to defraud. As I

have already stated, I am not at all sure that

some proceeding might not have been framed to

meet this case, but it is certainly not

forgery.

Brott 13 27/8/91

His Lordship's reasons do not entirely help me, it

m~st be said. But, none the less, the facts are on

all fours with this case and it was said that it

was not forgery.

The third authority which might be thought to

bear upon the matter in some sort of direct way is

Welham and Director of Public Prosecutions,

(1961) AC 103. This was a case in which the

defendant was charged with uttering and not

forgery. The defendant attested a forged signature

knowing it was forged, and the forged signature was

on an application for hire purchase. He then sent

or caused to be sent this forged document to a

finance company. The defendant's defence was that

the hire purchase agreements were made up in this

way because there were board of trade credit

restrictions and really everyone knew that this

sort of thing was going on, but if the finance

company received a hire purchase agreement, it

would be able to act upon it because that would

circumvent the credit restrictions, which were

apparently on the lending of money rather than the

financing by hire purchase.

Now the defendant was charged with uttering.

The House of Lords examined the law of forgery,

considering in particular the element of intent to

defraud and the old law that intent to defraud is

an intent to cause a man to act to his detriment

was approved by the House of Lords.

TOOHEY J: Could I just interrupt you there, Mr Myers. I

gather from the context of the judgments and the

other material that we are not concerned with

intent to defraud?

MR MYERS:	No.
TOOHEY J:	And no point is taken by the applicant in that

regard?

MR MYERS:  No.

TOOHEY J: Yes, thank you.

MR MYERS:  The significance of this decision of the

House of Lords is perhaps this: although there was

a false attestation, the charge was uttering. It

seems to have been assumed that the defendant could

not have been charged with forgery for falsely

attesting; he was charged with uttering, knowing

that the execution had been forged. There is

nothing in the speeches of Their Lordships that

suggest that the affixing of the signature, as an
attesting witness, falsely constituted forgery.

There is a discussion of the law of forgery in the

Brott 14 27/8/91

case; it is a case in which there was a false
attestation, admittedly one in which the charge was

uttering and there is no suggestion that the

defendant could have been convicted of forgery for

falsely attesting.

BRENNAN J:  What then was the forgery on which the uttering

was based?

MR MYERS:  The forgery of the signature of the executing

party. The texts, as best our researches reveal,

do not show any case in which a person who was

merely falsely attested has been convicted of

forgery, nor do any discussions of the text writers

so suggest.

BRENNAN J: In Welham's case, who had affixed the false

signatures?

MR MYERS:	Some other person, Your Honour.
BRENNAN J	To the knowledge of Welham?
MR MYERS:	Yes, to the knowledge of Welham.  That was why he

could be guilty of uttering.

BRENNAN J: Yes.

MR MYERS:  If Mr Justice Brooking were correct, and whether

a forgery had occurred depended upon the commercial

or practical significance of the false statement,

it would render the law very imprecise; one would

assume that there would be expert evidence about

the commercial and practical significance of

certain documents or certain false statements, and

in the end there is simply no authority for the

view and it is contrary, as we would have it, to

principle. Mr Justice Murphy, who was the other

member of the majority, although his reasons were

differently expressed, in our respectful

submission, in the end his decision was based upon

the same considerations as Mr Justice Brooking,
namely that the false statement was material, as

being an inducement to the lessor to enter into the

lease and hence it was a forgery. At page 61 that

appears to be what His Honour says, line 342:

In the present case, the false attesting

was made as an authentication of the signature

of and of the due execution by Wilson of the

guarantee, which in turn was to be used to

induce the lessor to grant to the lessee a

lease, confident that, should the lessee

default in its obligation to pay rent,

recourse might be had to the guarantor Wilson.

There could be no other purpose in the

attestation.

Brott 15 27/8/91

Then His Honour went on to add a further reason,
which we say is wrong. At the bottom of the page
His Honour said:

Forging a "name, handwriting or signature of a witness attesting the execution of any

deed" is made an indictable offence by

section 268 of the Crimes Act 1958 (Vic.).

Over the page:

Similarly forging, "Any name, handwriting

or signature purporting to be the name,

handwriting or signature of a witness
attesting the execution of any power of

attorney" for the transfer of stock is made an

indictable offence by section 259 of the said

Act.

His Honour went on:

It appears difficult to avoid the

conclusion that it is at the very least open

to find that falsely signing one's own name as

being present at the due execution of a deed

is forgery, if the document then falsely

asserts that the signature of the guarantor

Wilson and the due execution of the deed can

be proved by calling the witness.

But of course the statutes which His Honour refers

to refer to forging the signature of the witness

and not falsely subscribing one's signature and

they simply, in our respectful submission, do not

bear upon the matter.

Finally, the reasons for the decision of

His Honour, the Chief Justice. He would have

allowed the appeal on quite simple grounds, and we

adopt those grounds as part of our submission, that

Mr Brott did not make or alter the guarantee, he

merely added a false statement. That is common

sense, a view that depends upon the ordinary

meaning of the words which, in the absence of any

authority to the contrary, is a good indication of

the scope of the common law offence.

Furthermore, that approach is akin to the

approach that ,would look at the materiality of what

is done by way of adding writing to the document.

Does the writing that is added make that which one

is charged with forging a guarantee? Answer, no.

Alter that which one is charged with forging?

Answer, no.

BRENNAN J:  Mr Myers, I have never understood that a forgery offence which related particularly to the character

Brott 16 27/8/91

or legal effect of a document but rather it related.

to the physical thing which is the document. Is

that a basic misconception?

MR MYERS:  No.

Obviously the forgery has to affect the

physical character of the document because that is
the nature of forgery, changing the document or
altering the document, but - - -

BRENNAN J:	Or making it.
MR MYERS:	Or making it.

BRENNAN J: Applying the Chief Justice's approach to this

document, there is no doubt that in part it was

made by Mr Brott, was it not?

MR MYERS:  The paper was, in part, made by Mr Brott, but not

the guarantee.

BRENNAN J: Well, that is where I am having difficulty in

corning to grips with your argument because I have

not understood that forgery relates to anything but the paper, that the offence of forgery relates only

to paper.

MR MYERS:  But to alter the date - to take a simple example,

Your Honour: to put a false date on a document is

forgery because the document tells a lie about the

date it becomes legally effective.

BRENNAN J: Well, it may. But if I write a letter and date

it tomorrow, is that a forgery?	I mean, that is
only on the question of date.

MR MYERS:  No, it is not, because the effect of that does

not mislead any person about the nature, character

or effect of the document.

TOOHEY J: But is that to say any more than that there has

been no intent to defraud?

MR MYERS:  Yes, it is, in my submission, Your Honour,

because -

TOOHEY J:  Is that the intent that seems to be an essential

ingredient of the common law offence? As I
understand it, it is not a requirement of the Code

provisions.

MR MYERS:  It is an element of the common law offence and,

for example, Welham's case makes that clear. The

texts also make it clear, and there are no doubt

other authorities. But Welham's case - the House

of Lords stated that it is intention to defraud

Brott 17 27/8/91

which is the mental element which is required of a

common law forgery.

TOOHEY J: But the Code provisions might point up the

presiding judge's question even more if there is no

requirement of intent to defraud. What is it that

prevents the postdating of a letter or the making

of some immaterial alteration not a forgery?

MR MYERS:  Because it does not affect its character as what

it says it is - a letter.

TOOHEY J: Well then, on that basis forgery does not lie in

altering the document, or does not lie merely in

making or altering the document. It lies in doing

something that somehow affects the legal character

of the document itself.

MR MYERS:  In my submission, yes. If the document has a

legal character or effect, as it were, the false

testimonial, the forged testimonial or the forged

reference is none the less a forgery,

notwithstanding that it does not have any effect in

law because it, on its face, says something false

about itself as a testimonial. It says it was a

testimonial executed by Mr Sexton when, in fact, it

is not. It is that the falsity affects the

character of that which is made or altered.

TOOHEY J: Well that really, I suppose, is putting it on the

basis of those authorities that do speak of the

document telling a lie about itself.

MR MYERS: It is, Your Honour, yes. If the Court please,

they are the submissions on

TOOHEY J:  Mr Myers, could I just ask you a question about

this matter? When the application for special
leave was filed, the basis of seeking special leave

was that the decision had implications for the

common law. Subsequently, the Parliament enacted a

statutory offence which is not reflected in the
affidavit, but which you would say does have a
bearing upon a grant of special leave. Is that

because the statutory offence raises precisely the

same sort of problem that this application raises?

MR MYERS:  No, not exactly, Your Honour. The amendment to

the law of Victoria by that miscellaneous amendment

legislation that I mentioned earlier was to abolish

the common law offence. It did not create new
offences. It simply abolished the common law

offence. That amendment was made to the law after

this application was instituted.

Brott 18 27/8/91

TOOHEY J:	Yes, I understand that, but what then are the implications of a decision in this case for the
statutory offence?
MR MYERS:	There are a lot of statutory offences from

section 252 to section 289 of the Crimes Act, all

or the meaning of those, statutory provisions.

of which one would generically call forgery and
their offences, or many of them, are in these
terms, "It shall be an offence to forge a power of
attorney. It shall be an offence to forge a bill
of exchange", and so on, so that the statutory
offences use the word "forge" and, in my respectful
submission, just pick up the common law notion of

forgery without specially defining it, so that the

BRENNAN J: That may be so, but if, for example, those

offences are defined in terms of forging a bill of
exchange, or forging a will or something of that

sort, obviously then the question is to the nature

and legal effect of the document which gives it

that character.

MR MYERS:  Yes, Your Honour.

BRENNAN J: That may raise a different problem from the

present case.

MR MYERS:  In my respectful submission, it does not because

the common law - I am repeating myself,

Your Honour - has looked to the legal character or

effect of documents which have a legal character or

effect. ·

BRENNAN J:  Can you tell me, why is it that this case has

taken so long to reach the Court?

MR MYERS:  I do not know. I am aware that the applicant was

seriously ill for a very considerable period but I

know no more than that, Your Honour.

TOOHEY J: It has some implications for the question of a

grant of special leave in so far as the penalty

imposed. Being a bond, it has, of course, long

since expired.

MR MYERS:  Yes, it has. The applicant, of course, is a

solicitor and naturally he is concerned that he

should not have a conviction for forgery. One

might think that there are many solicitors who have
done the same thing, that is to say, attested as a

witness to signatures that they did not actually

see placed upon a document. One can only speculate

about these things but it may well be a matter of

fairly common practice.

Brott 19 27/8/91

BRENNAN J: That might be a substantial argument against the

grant of special leave, Mr Myers.

MR MYERS: If Your Honour pleases.

BRENNAN J: Yes, Mr Moshinksy?

MR MOSHINSKY:  If the Court pleases, may I hand up an

outline of the respondent's submissions.

If Your Honour pleases, I would like at the

outset just to say a few brief words about the

history of the crime of forgery. There is a very
good analysis of the history of the crime in

Russell on Crime, 12th ed, chapter 72, which is

referred to in my learned friend's list of

authorities, part B.

It seems, looking at that history, that the

origin of the crime of forgery is somewhere in the
18th century and that the source of the crime of

forgery was found in the law of treason and, in

particular, in the manifestation of the crime when

it had made it a felony to fabricate royal seals or

counterfeit royal coinage. Eventually,
counterfeiting of other documents became prohibited

and the star chamber applied these cases to

non-official document, documents which were

falsified.

Over a period of development, in due course, the law reached the stage where the proposition

referred to in paragraph 2 in our outline came to

be established, and that is the proposition my

friend has referred to as the basis of the law of

forgery, with which I do not take exception, namely

that the common law definition of forgery requires

proof of a particular kind of falsehood, namely
proof of the falsification of a document itself and

not merely the making of a false statement in the

document or about the document.

However, our respectful contention,

Your Honours, is that in order to determine whether

the falsity alleged with respect to the document

can be characterized as a forgery, the court must

examine not only the document itself but also

surrounding circumstances and, in particular, the

use to which it has been put or intended to be put.

In this way, the court can then isolate whether the

false statement contained in the document is a lie

about itself or whether it is something which

relates to extrinsic material.

Before I elaborate this, I would like to turn

to a number of accepted definitions of the crime of
forgery at common law, partly because they explain

Brott 20 27/8/91

this concept and partly because it is submitted
that these definitions do not speak in terms of

making or altering a document - except in the case

of Blackstone's Commentaries.

One case that sums up the definition well is

the case of Roberts, (1886) 12 VLR 135. In that

case, Roberts borrowed money on the security of a

forged transfer, upon a sham scrip of shares in a

mining company. Mr Justice Higinbotham said, at

pages 141-142, more particularly at page 142, about

a third of the way from the bottom of the page:

Forgery is not the making of an instrument containing that which is false, as was pointed out in Reg v Ritson, but the making of an

instrument which purports to be that which it

is not, with intent to defraud.

TOOHEY J:	Does that mean, Mr Moshinsky, that the document
has to be an instrument before it can be forged?

MR MOSHINSKY:  With respect, no, Your Honour. We contend

that the cases show that any document can be forged

if the document is something which is forged with

intent to deceive. For example, there are cases

involving forging of references. One case in our

list of authority involves a case where a man
forged a reference about his own standing in order

for him to sit for an exam as a mariner.

TOOHEY J:  What about all the lover letters that

Cyrano de Bergerac wrote to Roxanne, were they

forgeries?

MR MOSHINSKY:  Perhaps they did not intend to have that sort

of commercial element which -

TOOHEY J: Well, that is why I ask you the question. Is the

document only a forgery if it involves a commercial

transaction?

MR MOSHINSKY:  No, with respect, Your Honour. We say - - -

TOOHEY J: Well, if it does not then one wonders about the

scope of the offence.

MR MOSHINSKY:  We contend that it has a very wide scope as

is revealed from comments in Blackstone - which is

a passage quoted in our list of authority - where

the definition is that forgery involves the

fraudulent making or alteration of writing to the prejudice of another man's right: paragraph 3 in chapter 17. That is a definition widely accepted.

For example, it is a definition quoted in the case

of Reg v Riley, (1896) 1 QB, a case involving

Brott 21 27/8/91

forgery, at page 312.	So Reg v Riley follows that
definition.

We have also found in our researches one

High Court case, a decision of this Court	in 1906,
where that definition was also followed.	That is

the case of White v R, (1906) 4 CLR 152 at 161.

Another way in which the crime has been

expressed is in the case of Welham, (1961) AC 103,

where Lord Denning, at page 131, says, just over

half a page down the page - His Lordship says that:

In 1796 all the judges of England laid down
the definition of forgery as "the false making
of a note or other instrument with "intent to
defraud": and ever since that time it has been

held that the very essence of forgery is an

intent to defraud, and it must be laid in the

indictment.

So, His Lordship there expressed the definition in

even a wider form.

Although most of these definitions talk in

terms of the making of a document, they do not

appear to talk in terms of altering a document. We

note that so that when we deal with His Honour the

Chief Justice's argument we can refer to these

definitions. But it is true, as my friend has

contended, that generally the common law

characterization of forgery was to only limit it to

documents which were a lie about themselves.

We contend, as I have stated, that one must

look at surrounding circumstances, and I would like

to refer to a New Zealand case as an example of

this, the case of Haskett. In that case Haskett,

on 9 April 1973, was in possession of a stolen

cheque which had been drawn in favour of her

mother, C.A. Clark. She opened a savings account

and signed a withdrawal form with the name

C.A. Clark written on it for $100. She gave a

different address to that of her mother when

opening the account, and a different christian

name. Page 31 has a summary of the facts.

It seems that in order to open the account she

had to sign a ledger card and she signed the name

C.A. Clark. She ~hen signed a withdrawal form with

the signature C.A. Clark for $100.

At page 32, lines 24 onwards, the court there

quotes from Kenny's Outlines of Criminal Law:

"A writing is not a forgery when it

merely contains statements which are false,

Brott 22 27/8/91

but only when it falsely purports to be itself

that which it is not. The simplest and the

most effective phrase by which to express this

rule is to state that for the purposes of the

law of forgery the writing must tell a lie

about itself."

Then in the following paragraph:

There is, however, no authority of which

we are aware which requires the question

whether a material part of a document purports

to be made by a person who did not make it to

be judged solely by reference to the document

itself without regard to the surrounding

circumstances at the time when it was made. Then there is a reference to the preceding case.

We say that in the end the court did find that

there was forgery in this particular case.

Another illustration of this approach is the

case of Hassard and Devereux, (1970) 2 All ER 647.

In that case, a company's bookkeeper drew 21
cheques marked "Account payee only". They were

drawn in favour of a customer with the initials BSA

and they were signed by a director of the company.

After that, the name of the payee was altered to

B.S. Andrews, who was a fictitious person. The

cheque was then handed to a Mr Hassard. Mr Hassard

apparently had an arrangement with a friend,

Miss Devereux. He then gave a cheque to

Miss Devereux who posed as B.S. Andrews, opened a bank account in that name and paid six of these cheques into that account. Miss Devereux then drew a number of these cheques and then paid then back

to Mr Hassard.

She was charged and convicted of forging a

valuable security with intent to defraud, namely,
one of the cheques that she paid to Hassard.	She

was not charged with some forgery involving opening
the account in her own name. Her conviction was

upheld on appeal, and I turn to the comments of

Lord Parker at page 649 between d and e, where
His Lordship says:

As I have said, the argument for the appellants is simple. It is said that this

document was not made otherwise than by the

authority of the person who made it, namely

the appellant Devereux in her assumed name,
and that this is not a case of it being made

by or on behalf of a fictitious person. Apart

from that, the argument is that there was no

intent to defraud.

Brott 23 27/8/91

In the opinion of this court one has to

look at the reality of the position here.

Here were cheques which when they were passed

to the appellant Devereux by the appellant

Hassard were made out to a fictitious payee,

BS Andrews, marked 'Account payee only'.

They could only therefore go into an account

of BS Andrews and here we find the appellant

Devereux going to her bank and assuming for

this purpose only the fictitious name of BS

Andrews in order to get the bank to open an

account in her name and to give her a cheque

book. She is perpetrating a deception, and

indeed a fraud on the bank at that stage.

When she comes to draw the cheques, she is

continuing that fraud and indeed a fraud on

the bank, by signing a cheque, as she has to,

in the name of BS Andrews. It is, in the

opinion of this court, quite impossibly to say

that this is a case of a woman who has assumed

a name different from her own, and assumed

that name, as it were, at large.

So I refer to that case as illustration of our

contention that one must look at surrounding

circumstances.

BRENNAN J: That really goes to the meaning of "fictitious

person" in the statute, does it not?

MR MOSHINSKY:	It does, Your Honour, but we say that there also was a charge relating to forging and when
looking at all the circumstances, the same
considerations would apply to a case such as this.
That is, one would have to look beyond the document
itself in order to judge whether or not there was a
falsehood of the kind common law characterizes as
forgery, not merely the document itself.

We say there are a number of cases which

illustrate this proposition, and I just want to

briefly refer to the illustrations of this

principle. For example, in the case of Parkinson,

(1896-7) XXII VLR 73, the court was concerned with

a case of a man who signed a cheque, in the

presence of a shopkeeper, in the name of his
brother, and received goods and cash in exchange.

At page 78, Mr Justice Hood said, about a third of

the way down:

If a person writes a fictitious name to a

document with intent to deceive, prima facie

this is forgery, but the writer's guilt may

depend upon some other circumstance. If

nothing more appeared the jury might convict.

If, however, it was proved that the document,

though made in a fictitious name, was really

Brott 24 27/8/91

given as the prisoner's own, the jury should

acquit of forgery unless there was evidence to

show that the false name was assumed by the

prisoner for the purpose of fraud.

So we say that is illustrated by many

different cases where one looks at the intent of

the person signing and one goes beyond the document

itself. For example, there is a list of some of

these cases in part Bin our list of authority.

If I could just, without asking for those

cases to be produced, briefly refer to some of
these circumstances in those old cases. Marshall

is one case which is marked as No 11 in our list.

That was a case where a man wrote a false name on a

bill of exchange when tendering it as part payment for a horse. He did not usually use that name and

that was regarded as forgery.

Dunn was a case where a woman placed her mark

on a promissory note claiming a false name to get

access to wages due to a deceased seaman claiming to

be his wife when that was untrue. That was held to

be forgery.

TOOHEY J: But do those cases, Mr Moshinsky, say any more

than, or are they any more than illustrations of

intent to deceive or to defraud?

MR MOSHINSKY:  Yes, we contend that they are illustrations

of intent to deceive but also that the court looks
to the circumstances of the alteration or the

placing of the name beyond the document itself to

determine whether there is intent to defraud and

whether also the character of the document has been

altered to a significant extent.

It is not a bare or arid examination of the four corners of a piece of paper, as my friend's
argument seems to imply.	Even though the

definition of the common law has restricted forgery

to a document lying about itself, in these very old

cases and more recent ones one must look at the

surrounding circumstances to see what use is to be

put of a document in order to determine whether the

forgeries of that character lie about itself.

TOOHEY J:	Do you mean "what use is to be put" or "what use has been put" or perhaps both?
MR MOSHINSKY:	Perhaps both, Your Honours, yes. So that the

way in which the document is actually used or intended to be used is a way in which one can

determine whether the lie falls within the category

the common law regards as a forgery, and that is

why we have this list of cases in part B. All of

Brott 25 27/8/91

them are illustrations of that, and we also have

some Australian cases which the Court - - -

McHUGH J:  Mr Moshinsky, in the traditional case, the

document falsely represents when or by whom or

where it was executed. Now here the issue seems to

be whether it is in the concept of forgery that the

document falsely represents how it was executed.

MR MOSHINSKY: Yes.

McHUGH J: Are there any cases which go outside the three

categories which I mention, namely that the

document falsely represents when, by whom or where?

MR MOSHINSKY: Unfortunately I am not able to find any such

authority and I also agree with my friend's

statement that there does not appear to be any case

that we have found which factually is the same as
this; that is that forgery has been held to be

applicable to this kind of situation. But our
contention, with respect, is that, looking at the

existing boundaries of forgery, it must make sense

that the principle underlying these particular

cases would apply to this particular case in

itself, because in all these cases the court dealt

with specific cases where the intent to deceive was manifest by looking outside the document and seeing

how it was used. In this case we say that clearly

this is a lie about the characteristic of an

essential document. This is how we put the case

for the respondent.

An essential characteristic of this document

was whether or not a signature of the guarantor was

affixed in the presence of an attesting witness;

this was a matter, which as Mr Justice Murphy has

outlined in his reasons, was of great commercial

and practical significance. Indeed, evidence was

called at the trial on this very issue, namely that

the lessor relied upon the attestation in this

case.

BRENNAN J:  Mr Moshinsky, you will take a little time, I

take it - - -

MR MOSHINSKY:  A little bit more time, but not a great deal

more.

BRENNAN J: Well, we will adjourn until 2.15.

AT 12.51 PM LUNCHEON ADJOURNMENT

Brott	26	27/8/91
UPON RESUMING AT 2.16 PM:
BRENNAN J: Yes, Mr Moshinksy.
MR MOSHINSKY:	Thank you, Your Honour.	In summary, we say

that in this case the lie which is the subject of the prosecution is a lie which affects the making of the document; it is a lie which goes to the

characteristics of the document in question.

To pick up a point raised in discussion with

my learned friend, my friend raised the concept of

the guarantee as being somehow independent of the

actual document upon which it was written.

Although the term "guarantee" is used in the presentment, we say that the correct way to view it

is to link it to the actual document which is in

this case and that the way in which the forgery has

occurred is to use that document, to use it to

perpetuate the forgery by the use of the document
because without that document the attestation

clause would have absolutely no significance.	When
the lessor picked up the guarantee document and

looked at it, one of the factors about the document

which gave him comfort was the fact that there was

an attestation clause in the usual form and that it

purported to say that a person who was a guarantor

signed in the presence of the attesting witness,

that is, that Brott saw Wilson sign the deed.

TOOHEY J:  Does that mean, Mr Moshinksy, that whether or not

there is a forgery depends upon the sequence in

which the parties to a document sign it?

MR MOSHINSKY: That may be one of the factors, we say, that

could be relevant in the course of a particular case, but the ultimate question is a matter for the	Court to determine whether in all the circumstances	the writing on the document is material from the
point of view of forgery, material in the sense
that it identifies a feature of the characteristics
of the document. We contend that there is a broad
underlying principle which underpins the false date
and false signature cases and that is that they
become forgeries because that particular form of
lie in the document is linked conceptually to the
character of the document in itself, the character
being the document looked at as an independent
entity and also in relation to surrounding
circumstances, how it has, in fact, been used.

direct you that a forgery is the making or

altering of a document so that it tells a lie

about itself. Given that we are confined to

the second allegation upon which the Crown

relied at the start, the Crown case here, and the one that you are required to consider, is

that this document, that is the lease, -

Well it was a guarantee of lease, in fact -

tells a lie about itself because it purports

to be what it is not and that is a lease signed by a party in the presence of the

accused. It says on its face that the party

to the guarantee, that is Wilson, was alive

and in Brett's presence when the signature was

affixed. The real position, says the Crown

here, is otherwise and that is that Brott was

not present when the document was signed.

And so on. So that Mr Justice Brooking, in my

respectful submission, is correct in that regard.

The second matter to which I wish to advert in

reply is this, that in the course of my friend's

submission this afternoon and in the course of the

Brott 45 27/8/91

Bench's discussion with him, there was repeated reference to the mental element of forgery being

intent to deceive. The authorities are that it is

intent to defraud and Welham's case makes that very distinction between intent to deceive and intent to

defraud. I do not suggest that it is particularly

material to any of the submissions except that I

would not wish Your Honours to be left with the

impression that the requisite mental element is

intent to deceive rather than intent to defraud.

BRENNAN J:  And the intent here, is that which was outlined in the judge's charge at page 14?

MR MYERS:  Yes, Your Honour. As regards offences that refer

to forge or the notion of forgery, statutory

offences in jurisdictions other than Victoria,

references to them are gathered together in the

Australian Halsbury, at Cl324 and following.	May
it please the Court.

BRENNAN J:  Thank you, Mr Myers. The Court will consider

its judgment in this matter.

AT 3.10 PM THE MATTER WAS ADJOURNED SINE DIE

Brott 46 27/8/91