Brott v The Queen

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.