Brott v The Queen - [1991] HCATrans 225

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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

Brott

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

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…

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 [1991] HCATrans 225
Case: [1991] HCATrans 225
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Isaac Alexander Brott, sought leave to appeal against a decision of the Supreme Court concerning charges of forgery and uttering. The dispute centred on whether the act of an attesting witness signing an instrument, when the instrument was not in fact executed in their presence, constituted forgery at common law.

The primary legal issue before the High Court was the definition of forgery at common law, specifically in circumstances where an attesting witness falsely declared that an instrument was executed in their presence. This question arose because the applicant was charged with forging a guarantee of lease, with the alleged forgery relating to the attestation clause. The applicant's legal team argued that there was no direct Australian authority on point, nor could they find any definitive overseas authority that directly addressed this specific scenario.

The applicant's submissions highlighted that the instrument in question was a guarantee of lease, and the attestation clause stated that the sureties had signed, sealed, and delivered the instrument in the presence of the applicant, who was the attesting witness. However, the sureties had not, in fact, signed in the applicant's presence. The applicant's counsel contended that the act of falsely attesting to the execution of a document, when the execution did not occur as stated, was the core of the forgery charge. It was also noted that while common law forgery and uttering had been abolished in Victoria by subsequent legislation, the principles remained relevant for the construction of various statutory offences that still used the term "forge" or similar.

Orders