Director of Public Prosecutions v Courtney
[2022] VCC 2388
•30 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-01902
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATHLEEN COURTNEY |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF JUDGMENT: | 30 September 2022 |
CASE MAY BE CITED AS: | DPP v Courtney |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2388 |
REASONS FOR JUDGMENT
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Subject: Criminal Law
Catchwords:
Legislation Cited: Jury Directions Act2015 (Vic); Criminal Procedure Act 2009 (Vic); Crimes Act 1958 (Vic)
Cases Cited:Salmon-Urbani v R [2022] VSCA 170; Hudson [2017] VSCA 122; Wade [2019] VSCA 168
Sentence: Guilty by judge alone on Charge 2
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Office of Public Prosecutions |
For the Accused | Mr V. Peters | Marco Man Lawyers |
Trial by Judge-Alone
1Kathleen Courtney is charged on indictment H12813136.2 with using a false document.[1]
[1] Contrary to s 83A(2) Crimes Act 1958 (Vic).
2Ms Courtney has pleaded not guilty to this charge.
3This case is being tried by me as judge-alone. The accused's application to be tried by judge-alone was granted on 29 April 2022 by Judge Mullaly, pursuant to s.420E Criminal Procedure Act 2009 (Vic) (CPA).
4In hearing this matter I may make any decision that could have been made by a jury. My decision will have for all purposes the same effect as the verdict of a jury.
5Section 4A Jury Directions Act 2015 (JDA) applies in this case.
6Section 4A provides that the Court's reasoning with respect to any matter to which Parts 4 and 7 apply must be consistent with how a jury would be directed in accordance with the JDA. Further, I must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.
7I must apply all directions of law to myself that would have been given to a jury in this case.
8In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.[2]
[2] Salmon-Urbani v R [2022] VSCA 170; [48] – [52].
The Issues at Trial
The Prosecution Opening
9Ms Thorp outlined the Crown case as follows:
10The charge relates to a property at 43 Ocean Road, Lorne ('the property').
11David Courtney and the accused Kathleen Courtney were previously married. They divorced in 2011 after approximately two years of marriage. Mr Courtney is now deceased. He has two children from a previous marriage, Sarah and Matthew. The accused has one son, Michael, from a previous marriage.
12David Courtney married Meagan Courtney in 2014. Mr Courtney was diagnosed with cancer in 2013 and died in August 2015.
13Mr Courtney made a Will dated 15 January 2015 ('the Will'). The Will revokes all former Wills and names three beneficiaries – Meagan, Sarah and
Matthew Courtney.
14The executor of the Will was Mr Courtney's brother-in-law, Glen Reed.
15The accused contested Mr Courtney's Will but did not proceed with the contest. Probate was granted in June 2016.
16Mr Courtney purchased the property in 2009. Mr Courtney was the sole registered proprietor.
17On 24 June 2016, the accused's lawyer José Fernandez lodged a caveat on the property. The accused gave oral instructions to Mr Fernandez to lodge the caveat. The accused advised that David Courtney had gifted 13/17ths of the property to her. Mr Fernandez asked for a copy of the agreement. The accused said that there had been a theft and that the document could not be found.
18In August 2016, Meagan Courtney became aware of the existence of the caveat over the property. Meagan Courtney contacted the executor of
David Courtney's estate. In turn, the executor, Glen Reed contacted a lawyer, Chris Jennings, to act on behalf of the executor of the estate in relation to the caveat.
19On 25 January 2017, Mr Jennings requested a copy of the agreement from
Mr Fernandez. No document was provided to him. On 17 February 2017, the caveat was withdrawn by Mr Fernandez on the basis that the agreement referred to by the accused could not be provided. On 20 February 2017,
Mr Fernandez advised Mr Jennings that the caveat had been withdrawn.
20On 21 February 2017, the accused sent the agreement by email to
Mr Fernandez. The agreement purports to gift 13/17ths to the accused and the remaining 4/17ths of the property equally to Sarah, Matthew and Michael.
21Mr Fernandez sent a copy of the agreement to Chris Jennings and re-lodged the caveat on the accused's instructions.
22Antony Macken was David Courtney's solicitor and purportedly witnessed the document which is dated 10 December 2009. Mr Macken states that he:
(a)Did not witness the document;
(b)Did not practice in that area of law; and
(c)First took instructions to act in matters for David Courtney on 11 October 2010.
23The handwriting expert, David Black considers David Courtney's signature on the agreement to be unnaturally written and is the result of a simulation or a disguise process.
24The prosecution case is that the document is a forgery.
Defence Response
25Mr Peters, who appears for Ms Courtney, responded: that the accused believed that she executed the document in front of Antony Macken solicitor. The document was out of her possession for a number of years. She obtained a copy of it. She believed it to be a copy of the document signed by her and her late husband.
26The summary of prosecution opening dated 15 July 2019, filed with the court and read to me, contains assertions at paragraph 3, 4 and 7 which were not adduced in evidence. The defence response as to the accused's belief and loss of the document was not the subject of evidence.
27I will put those assertions from my mind and proceed only on the evidence adduced at trial. I will proceed on the basis that the Crown must prove its case beyond reasonable doubt against the accused.
28I upheld a submission of no case to answer in respect to Charge one on the indictment. I ordered a verdict of not guilty be entered on the records. Accordingly, I will proceed only to consider the remaining charge of using a false document.
General Directions of Law
29I now refer to the general directions given in a criminal trial which I must apply.
Presumption of Innocence
30In all criminal trials an accused person is presumed innocent of the charge unless and until they are proved guilty.
Burden and Standard of Proof
31The prosecution bears the burden of proving the case against the accused. No accused person must prove their innocence. The prosecution always bears the burden of proving the accused's guilt.
32The accused may only be found guilty of a charge if the prosecution has proved its case beyond reasonable doubt; the highest standard known to our law. Proof to any lesser extent must result in a verdict of not guilty.
Decide Solely on the Evidence
The Evidence
33The evidence adduced in this trial is the evidence of each of the witnesses and the Exhibits.
34The witnesses called were:
(a)Glen Reed;
(b)Antony Macken;
(c)José Fernandez;
(d)David Black;
(e)Detective Senior Constable Angie Le Sueur; and
(f)Sergeant Michael Harkin.
35Exhibits received were:
| Number and identifying mark on Exhibit | Short description of Exhibit |
| A | Admission of fact dated 5 September 2022 signed on behalf of Ms Courtney by her counsel and admitted by Ms Courtney in court |
| B | Caveat dated 24 June 2016 caveator is Kathleen Mary Courtney |
| C | Copy of the purported agreement dated 10 December 2009 |
| D | Telephone message dated 11 October 2010 from David Courtney |
| E | Note of two telephone calls on 11 October 2010 the second being with Mr Macken both calls being with David Courtney |
| F | File note of conference between Antony Macken and David Courtney dated 12 October 2010 |
| G | Signed costs agreement dated 13 October 2010 between David Courtney with AG Macken & Co together with the disclosure statement and the cheque dated 13 October 2010 signed by David Courtney – note all documents are copies and not original documents |
| H | Two emails from Kathleen Bruce's email dated 30 June 2008 – message from AJ Macken to Kathleen Bruce's Email addressed to David Courtney dated 20 October 2010 comprising of a single page |
| J | Register search statement showing the withdrawal of caveat AM881064E on 17 February 2017 |
| K | Register Search Statement depicting caveat AN613614L lodged 3 March 2017 |
| L | Email from Mr Fernandez dated 21 February 2017 at 6:42pm to Chris Jennings with attachment |
| M | Statement of David James Black dated 31 October 2018 |
| N | File notes of Mr Black |
| O | Prosecution closing submissions for judge-alone trial dated 6 September 2022 |
| 1 | Caveat dated 18 December 2020 'AT882906P' |
Circumstantial Evidence and Inferences
36I note that the Crown case for guilt relies entirely on circumstantial evidence. This means that when putting all the pieces of circumstantial evidence together, I must take care not to jump to conclusions.
37I may only return a verdict of guilty on the charge if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused's innocence, then the prosecution will not have proved Ms Courtney's guilt beyond reasonable doubt, and I must acquit her.
38The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance.
39I may only consider alternative hypotheses which are consistent with the facts which I find to have been established. I cannot have regard to any hypothesis or explanation which is inconsistent with the established facts.
40I must assess and determine the credibility and reliability of each witness called and I may accept all, some, or none of a witness' evidence. I must base my verdict only on evidence which I find to be credible and reliable.
Assessment of Witnesses
41Mr Peters, who appears on behalf of Ms Courtney, initially submitted that I should give myself an unreliable evidence direction pursuant to s32 JDA.
42Mr Peters sought the direction in respect to three pieces of evidence:
(a)Antony Macken produced an email chain where David Courtney sent an email to Mr Macken's office using the email address [email protected] dated 30 June 2008 – some 27 ½ months before Mr Macken swore that he first met David Courtney; thereby significantly affecting the reliability of Mr Macken's evidence;
(b)Mr Peters sought the unreliability direction in respect to the evidence of Sergeant Michael Harkin who gave evidence that he collected an envelope of the 10 original signed documents from the Victoria Racing Club ('VRC') and from Mr Courtney's former personal assistant Ms Fitzmaurice. Mr Peters submits that I cannot conclude that the signatures on those documents are those of David Courtney as there is no evidence either sourcing the documents as signatures or witnessing the signatures as those of David Courtney. As such, there is a gap in continuity; and
(c)The solicitor José Fernandez gave evidence that on 24 June 2016 he lodged a caveat on the property; on the instructions of Ms Courtney. Whilst the title search of the property shows a caveat was lodged, it specifies the Grounds of the Claim to be 'Agreement with the following parties and dated 15/12/2009'. Mr Fernandez lodged the caveat without having seen the agreement as Ms Courtney told him there had been a burglary and she was having trouble locating the document. When the agreement was produced in February 2017, it was dated 10 December 2009. Mr Peters submits that Mr Fernandez's evidence must be regarded as unreliable because he was prepared to lodge a caveat without seeing the underlying agreement and which was calendrically inaccurate. Added to that, Mr Peters also relied on the fact that when the agreement was shown to him, Mr Fernandez lodged the second caveat on 3 March 2017. that caveat also specifies in the Grounds of Claim, an agreement dated 15 December 2009 (my emphasis).
43In discussions with counsel, it became apparent that none of the factors listed in s.31 JDA applied, and there were no further factors Mr Peters could point to in order to suggest that the evidence in question was of a kind that may be unreliable. I therefore decline to give such a direction.[3]
[3] Hudson [2017] VSCA 122; Wade [2019] VSCA 168.
44Rather, I will consider each of these aspects in my overall assessment of the credibility and reliability of the witnesses and the evidence that they gave.
Identification evidence
45Mr Peters also sought that I give myself an identification warning pursuant to s.35 Jury Directions Act. Mr Peters submitted that Sergeant Harkin was told by Ms Fitzmaurice that she had gathered documents with the signature of David Courtney. In effect, Mr Peters submitted that Sergeant Harkin accepted that Ms Fitzmaurice was asserting that she recognised the signature of David Courtney and gathered specimens of it and provided them to the police.
46I do not consider an identification warning is necessary in this case. Rather the question of authorship of the documents collected from the VRC by Sergeant Harkin should be considered in all of the circumstances and the evidence adduced.
Uncontested Expert Evidence
47David Black gave opinion evidence on behalf of the prosecution concerning his comparison of 10 specimen signatures with a disputed signature. His expertise as a handwriting expert and document examiner was not challenged. As an expert with specialised knowledge, training and experience, Mr Black was permitted by law to express his opinion on the comparison.
48As the judge of the facts in this case, and even though Mr Black is an expert in his field, his opinion is merely a piece of evidence like any other, which I may accept or reject.
49I appreciate that Mr Black's expertise was not challenged. Further, Mr Black's ultimate conclusion was not challenged.
50One of the central issues in the case is whether I can be satisfied beyond reasonable doubt that the agreement dated 10 December 2009 is a false document. Specifically, the defence submits that I cannot be satisfied beyond reasonable doubt that Mr Courtney did not sign the document. The defence focused its attack on the provenance of the specimen signatures and disputed whether I can be satisfied beyond reasonable doubt that Mr Black was provided with specimens of David Courtney's signature for comparison with the disputed signature.
51I have been given copies of the documents Mr Black compared. They are found at Exhibit N. The disputed signature also appears at Exhibit C and Exhibit L.
52I am free to make my own comparison of the handwriting in these documents, however I am not a handwriting expert. Further, I bear in mind that Mr Black's ultimate conclusion was that the disputed signature was unnaturally written; and was the result of a simulation or disguise process. Mr Black was unable to give any evidence as to the authorship of the disputed signature.
53As such, the opinion evidence he provides is merely one piece of circumstantial evidence in this case.
Good Character
54In this case, I have heard evidence that Ms Courtney is a person of good character. Ms Courtney has no prior criminal history.
55I accept that Ms Courtney is a person of good character. Therefore I can use this fact when determining the likelihood that Ms Courtney committed the offence charged, as it is presumed that a person of good character is less likely to commit a criminal offence.
56Of course, this does not mean that I must find Ms Courtney not guilty for accepting that she is a person of good character. The fact of good character cannot alter proven facts – it can only assist me in determining whether those facts have been proved.
Defence Did not Call Evidence/Azzopardi
57Ms Courtney did not give or call evidence in this case. That is her right. It is for the prosecution to prove its case beyond reasonable doubt, and the accused is not required to give or call evidence. The onus of proving the accused's guilt always remains on the prosecution, regardless of whether the accused chooses to give or call any evidence.
58This means that the fact that Ms Courtney did not give or call evidence cannot be used as evidence against her. That fact is not evidence in the case and I must decide the case only on the evidence.
59The fact that Ms Courtney did not give or call evidence does not constitute an admission by the accused and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution's case in any way. It proves nothing at all.
60I must not draw any conclusions against the accused because she did not call or give evidence, or even consider the fact that Ms Courtney did not give or call evidence when deciding whether the prosecution has proved its case beyond reasonable doubt.
61I must not speculate about what Ms Courtney might have said if she had given evidence. I must decide this case solely on the evidence which has been given in court.
The Elements of Using a False Document
62To prove this crime, the prosecution must prove the following 5 elements beyond reasonable doubt:
One – That the accused used a document;
Two – That the document the accused used was false. The falsity of a document must be determined by reference to any one of the eight criteria in s.83A(6) Crimes Act;
Three – That the accused knew that she was using a false document;
Four – That the accused used the document with the intention of deceiving a person to accept it as genuine; and
Five – That the accused intended that, as a result of accepting the document as genuine, that person would act in a way that prejudices somebody. An act or omission to a person's prejudice is determined by the exhaustive definition list of circumstances set out in s.83A(8) Crimes Act.
63I shall say more about the elements of the charge in my analysis of the evidence and issues.
The Evidence
Admissions of fact dated 5 September 2022 (Exhibit A)
64The following admissions of fact were made in this case and acknowledged by Ms Courtney before me:
(a)On 10 March 2009 David Courtney purchased the property for $2,802,100;
(b)On 27 June 2009 David Courtney became the registered proprietor of the property;
(c)On 4 May 2012 there was a final property settlement between David Courtney and the accused Kathleen Courtney;
(d)On 15 January 2015 David Courtney signed his Will and revoked previous Wills;
(e)The Will appointed Glen Reed as the executor and Meagan Courtney, Matthew Courtney and Sarah Courtney as the beneficiaries of the estate;
(f)The Will left the property to Matthew Courtney and Sarah Courtney in trust;
(g)In August 2015 David Courtney died;
(h)On 24 June 2016 a caveat was registered on behalf of Kathleen Courtney over the property (‘the first caveat’);
(i)On 17 February 2017 the first caveat was withdrawn; and
(j)On 3 March 2017 a further caveat was registered over the property by the accused Kathleen Courtney (‘the second caveat’).
Witnesses
Glen Reed
65The first witness was Glen Reed (sworn). Mr Reed is married to David Courtney's sister. He had known David Courtney since late 1984. David Courtney asked Mr Reed to be the executor for his (Courtney's) Will.
66The Will was dated January 2015. Mr Courtney asked Mr Reed sometime earlier to be the executor.
67Mr Reed thinks probate was granted at the end of 2015.
68The property was left to David Courtney's two children, Matthew and Sarah.
69A caveat was placed over the property on 24 June 2016. Mr Reed sought legal advice. His lawyer gave Mr Reed a copy of the caveat. (Exhibit B produced) When Mr Reed saw the caveat, he was unaware of the existence of any agreement between David Courtney and Kathleen Courtney. At this time, the property was still in David Courtney's name.
70Mr Reed did not see any agreement this time.
71Chris Jennings, lawyer, sent a copy of the agreement by email to Mr Reed on
22 February 2017. Mr Jennings received a copy of the agreement from another solicitor, Mr Fernandez (Exhibit C produced).
72Mr Reed saw Mr Courtney's Will and the contract for the purchase of the property.
73Mr Reed contacted the witness Antony Macken. Mr Macken said he was not aware of the agreement and he would not have put his name to it.
74Another caveat was lodged. The 24 June caveat was removed because the agreement could not be found. The second caveat was lodged when this document (the agreement) was located.
75The property is still held in trust for the beneficiaries. The second caveat has been removed.
Cross Examination
76Mr Reed agreed that he had known David Courtney for a number of years.
77Mr Courtney knew that he had cancer when he asked Mr Reed to be the executor of his Will in January 2015. He died about seven months later. Mr Reed looked after his affairs and agreed that the property was part of the inventory of his assets.
78Mr Reed learned of the caveat over the property in February 2017. A letter was sent to David's wife, Meagan Courtney, at her address in Murphy Street, South Yarra.
79A clause in the Will created a trust in favour of Matthew and Sarah but the property was still in David Courtney's name.
80Mr Reed was not aware of any potential claim by Kathleen Courtney over the property or part of the property. Mr Reed did not know of any relationship between David Courtney and Kathleen Courtney in the time period between the making of Mr Courtney's Will and his death. They had been divorced some years earlier and there was no relationship. Mr Reed was unaware of any relationship or associations between David Courtney and Kathleen Courtney after the time of the property settlement.
81Mr Reed agreed he was a trusted confidant as David Courtney's brother-in-law and executor of his Will as David Courtney wanted him to look after his affairs.
82Mr Reed agreed that he had his own family and affairs to look after and he did not know of any ongoing relationship between David Courtney and Kathleen Courtney. Mr Reed believed there was a considerable angst between them. David Courtney and Kathleen Courtney weren't getting along but he did not know why.
83Mr Reed believed that David Courtney would have mentioned that he had given Kathleen Courtney the property.
84David Courtney was a highflying businessman. He was the CEO of Crown and was on the Victorian Racing Club. He had significant business and social contacts. Mr Reed did not know what went on between David Courtney and Kathleen Courtney over the years.
85Mr Reed received advice on the caveats. A caveat prevents the sale or restricts the dealings with property. The lawyers explained the process for the removal of the caveat. Mr Reed disagreed that he was told that the removal of the caveat may open a Pandora's box. Mr Reed disagreed that he was told to stay away from removal of the caveat.
86Mr Reed telephoned Antony Macken. Mr Macken indicated it was not a document that he would be willing to sign.
87The second caveat was removed. Mr Reed was not aware of the third caveat lodged on 18 December 2020 by Kathleen Courtney. Mr Reed was aware of ongoing proceedings and that he had instructed lawyers on behalf of the estate.
88The third caveat was removed by court order. Kathleen Courtney is seeking to have the caveat reinstated. There are proceedings in the Supreme Court.
89Mr Reed was unaware of an agreement executed by David Courtney in 2009 in favour of Kathleen Courtney.
Re-examination
90Mr Reed stated that he thinks David Courtney would have mentioned the agreement to him. In the last eight months of Mr Courtney's life, Mr Reed visited David Courtney very frequently. David Courtney's mother lived with Mr Reed and he took her each Friday afternoon to see her son. Mr Reed and David Courtney talked about various things. If there was an agreement with Kathleen Courtney he would have told Mr Reed. They talked about Mr Courtney's Will from time to time. The agreement was not mentioned.
91The caveat of 18 December 2020 specifies the reason for lodging the caveat is that the caveator is a beneficiary under the Will. The three beneficiaries under the Will were Meagan, Sarah and Matthew Courtney.
Evidence of Antony Macken
92Mr Macken is a solicitor practising in employment and industrial law. He has never practised in conveyancing, succession or family law.
93Mr Macken knew David Courtney. He was a client of the practice. Mr Macken dealt with him virtually exclusively on the substantive matter and had total involvement in the matter for which David Courtney engaged the firm.
94Mr Macken was shown Exhibit C, the agreement. He stated that these are not his signature or initials on the document.
95The first time he saw the document, which was as a copy, was in February 2017 and it was provided by email by Glen Reed, the executor of David Courtney's estate. Mr Macken had not seen the agreement before that time and has never seen the original. The meeting never took place and there was no meeting for him to witness the signature.
96Mr Macken did not meet Mr Courtney until 10 months after the date of this document. Mr Courtney engaged Mr Macken when he (Courtney) was terminated in his employment as CEO of Crown on 8 October 2010. Mr Courtney contacted the firm A J Macken and Co on 11 October and met in conference with Mr Macken on 12 October 2010. It was Mr Macken's first physical meeting with David Courtney.
97Exhibit D being the telephone message, is the first record of the first contact made by David Courtney with Mr Macken or the firm. Mr Macken spoke to Mr Courtney by phone on 11 October for about 25 minutes, arranging the conference for 12 October (Exhibit E - file note of two telephone calls with David Courtney on 11 October 2020).
98Mr Macken produced a note of the conference on 12 October 2010 (Exhibit F). David Courtney and Kathleen Courtney both attended. Mr Macken then produced a signed costs agreement between David Courtney and A J Macken and Co, together with a disclosure agreement and cheque dated 13 October 2010 and signed by David Courtney.
99Mr Macken saw documents extracted from the David Courtney file and gave them to the prosecution in April 2022. He would have seen them in about 2016 in relation to a message from a solicitor called Fernandez and he might have seen them in connection with an enquiry from the executors of Mr Courtney's estate in February 2017.
100Mr Macken produced an email from Mr David Courtney using the email address [email protected] dated 30 June 2008 (Exhibit H). Mr Macken was concerned to ensure that the prosecution should have this document because of the inconsistency of date.
101The email purports to be dated 30 June 2008 but it is plainly wrong. It refers to Mr Courtney enjoying the book. Mr Macken knows what that refers to and that assists in dating the email to its correct date in 2010.
102The date at the bottom of the [page] is 21 October 2010. That accords with Mr Macken's general recollection. The email refers to a book. The book was called 'Man Bites Murdoch' by Bruce Guthrie which was launched on 12 October 2010. Mr Macken represented Mr Guthrie in suing the Murdoch empire.
103Mr Macken was in no doubt that Mr Courtney's reference to 'enjoying the book' in the email dated 30 June 2008 was a reference to this book which was launched on 4 October and which Mr Macken recommended to Mr Courtney because it describes the structure of an employment case in the Supreme Court of Victoria. The recommendation was made after it was published and before he read it, so in October 2010.
104The date 30 June 2008 is wrong. Mr Macken hadn't met Mr Courtney any earlier than 11 October 2010 and therefore could not be writing him an email or receiving one from him on 30 June 2008. Mr Macken does not recall the attachment referred to in his email of 20 October 2010. The email is headed original message. Mr Macken expects that 20 October 2010 was the date the email was sent. His page of two-way emails came from the record of matters relating to Mr Courtney in Mr Macken's file.
105Mr Macken provided it to the prosecution as a matter of completeness because it seemed to him to be inconsistent with his recollection.
106Mr Macken said that there is absolutely no doubt that he did not meet David Courtney in any circumstances or for any purpose prior to 12 October 2010 – no doubt whatsoever.
107Exhibit H was produced - two emails dated 30 June 2008 and 20 October 2010 comprising a single page.
Cross-examination
108The expertise of the firm A J Macken was in drawing employment contracts rather than general agreements and contracts.
109Kathleen Courtney attended the conference as a spouse and was never a client.
110Mr Courtney attended for advice on the alternative consequences of the termination clause in his contract with Crown.
111Mr Macken made a handwritten note during the conference. He gave it to another staff member who typed it up. Mr Macken typed many file notes but he is not sure in this instance. The handwritten notes were not kept as that would be absurd. It was simply a duplication. Mr Macken looked at the file note. If it looked right, it would be added to the file. He would not check the handwritten note against the typed note. In this instance, there was no necessity to check against the handwritten note - Mr Macken understood Mr Courtney perfectly clearly and vice versa.
112Mr Macken would first see the typed version of the file note about 10 minutes after it was made. It was usual for him to check the file note and see whether he had correctly grasped what the client had said and that she had typed.
113Mr Macken was fairly close to the problem Mr Courtney was presenting. He did not need to set out a reference to the Act and the law. They needed to move with extreme speed.
114The email of 30 June 2008 was from David Courtney about a book. The email was part of Macken's file. Mr Courtney's email was otherwise irrelevant but Mr Macken thought the prosecution should have it.
115The correct date of the email should be about October 2010. There is no doubt about that. The second reason Mr Macken knows the date is wrong is the reference to the book. It was not published until October 2010.
116Mr Macken is not technically proficient and could not comment on the release date shown at the bottom relating to the Macken email of 20 October. Mr Courtney was not referring to another book. Mr Macken's firm did not generally correspond with clients about their reading matter. There is no doubt it was a reference to Bruce Guthrie's book.
117The photocopy agreement was provided to Mr Macken in February 2017 by the executor of David Courtney's estate after a brief telephone conversation between Macken and Reed. Mr Macken agreed that it was purported to be signed by him on behalf of A J Macken and Co, but it was not signed by him. It could not have been signed by anyone else in the office. No one in the firm met Mr Courtney until 10 months after the date on the document.
118Documents were not signed or executed in the office on behalf of the firm by others and certainly not a document that purports to be signed as a witness. 'You can't impute to the firm something that can only be done by a person witnessing…the signature on the document itself. You can't vicariously witness something…'
119Mr Macken did not see and is not aware of the existence of the agreement. Mr and Mrs Courtney did not attend at his office. Mr Macken does not know Michael Courtney. The only meeting to take place between any of the parties to this was on 12 October 2010 and Michael Courtney was not there.
Re-examination
120Mr Macken cannot say which of the two emails on Exhibit H was sent first. He is not technically proficient. Any other member of the firm would be able to answer this question.
José Fernandez
121In June 2016, Mr Fernandez met Kathleen Courtney. A client wanted to obtain a loan from Ms Courtney and they asked Mr Fernandez to prepare the loan documents.
122Ms Courtney mentioned she had problems with a property that was willed or given to her by her husband. The property was 43 Ocean Road, Lorne. Mr Fernandez lodged the caveat in respect of the property on Ms Courtney's instructions. The caveat was lodged on 24 June 2016. The caveat was to protect her interest in the property. She told Mr Fernandez that her husband had given it to her or a large portion of it was given to her by her husband. Other members of the family 'were claiming it or something' and she wanted to file a caveat to protect her interest.
123Mr Fernandez did not see the agreement the first time he lodged the caveat.
124The caveat was withdrawn by Mr Fernandez on 17 February 2017 ( Exhibit J).
125After the caveat was withdrawn, Ms Courtney told Mr Fernandez that she was still looking for the agreement.
126Ms Courtney contacted Mr Fernandez again to say that she had found the agreement. Mr Fernandez said he wanted to see the original, and she showed him the original. He made a copy and sent it off to Mr Chris Jennings, lawyer, at Baker and Jones. This occurred on about 21 February 2017.
127When Ms Courtney showed Mr Fernandez the agreement, she gave him instructions to re-file the caveat to protect her interests in the property. (Exhibit K -registered search statement showing caveat AN613614L.)
Cross-examination
128When Ms Courtney initially attended, she did not give instructions to file a caveat but told Mr Fernandez about the property. Then she gave instructions to lodge a caveat.
129Mr Fernandez told Ms Courtney that she needed to produce the document. Mr Fernandez lodged the caveat without seeing the document as Ms Courtney told him that the property was going to be sold and she needed to file the caveat urgently. The caveat was filed on her oral instructions.
130The grounds for lodging the caveat were that there was an agreement between her and her ex-husband Mr David Courtney.
131Mr Fernandez could not remember if Ms Courtney told him the date of the agreement. He stated, ‘I don't think she did. I can't remember'. Mr Fernandez put the date of 15 December 2009 as the date of the agreement. Mr Fernandez stated the date would probably have been given to him by Ms Courtney. He could not have guessed it but he did not recollect now how he got the date. He did not see the document before he first lodged the caveat.
132Mr Peters in cross-examination suggested that Mr Fernandez did see an agreement. Mr Fernandez agreed that he did see the agreement, the second time around.
133Mr Fernandez was satisfied that it was a binding agreement. There were two signatures and he believed it was sufficient to establish a claim against the property. Mr Fernandez believed it was a legitimate binding document as it was witnessed by a solicitor and both parties.
134Mr Fernandez sent a copy of the document to the estate's lawyers,
Baker and Jones, and stated his intention to them to file a second caveat.
Re-examination
135Exhibit L: email from Mr Fernandez dated 21 February 2017 at 6:42 PM to Chris Jennings with attachments; the attachment being a copy of the agreement.
David Black
136Mr Black is a forensic document examiner with Victoria Police. He has 35 years' experience in document examination. His qualifications were not challenged.
137Mr Black examined the signature 'David Courtney' on the agreement dated 10 December 2009 (Exhibit C). He enlarged the signature. He compared that signature with 10 documents containing specimen signatures with the name David Courtney.
138Mr Black's conclusions are contained in his statement dated 31 October 2018 (Exhibit M). Mr Black's file notes contained the specimen signatures in the name of David Courtney were tended as Exhibit N.
139Mr Black concluded that the signature on Exhibit C (the agreement) was unnaturally written and is the result of simulation or disguise process. Due to the nature of such signatures it was not possible to determine their authorship.[4]
[4] Exhibit M, p.2. Expressed in similar terms at TS 108.
140Mr Black detailed his examination of the dissimilarities between the questioned signature and the specimen signatures.[5] It is unnecessary to set out the findings as they were not the subject of direct challenge in cross examination. Rather, I refer to that passage of the transcript and I adopt it as part of my reasons.
[5] (see TS 110 line 9 – 112 line18, referring to 003260/189 DJB of Exhibit N).
141Mr Black concluded that the specimen signatures are complex formation signature.
142Mr Black could only examine a photocopy of the question signature. As such he could not make an assessment of the line quality. Nevertheless, he was still able to express a strong support for the conclusion he expressed.
143There are studies on how medication may affect a signature. It depends on the medication. The questioned signature does not appear to be affected by alcohol. Mr Black did not see anything to suggest that the signature was affected by fatigue.
144A simulation occurs where a writer other than the owner of the signature attempts to imitate the signature. It is a forgery or a drawing of another person's signature. A disguised signature is when the owner deliberately introduces changes into the signature for the purpose of disavowing it at a later date.
145The specimen signatures were gathered from documents dated between
February 2013 – October 2013. 10 specimen signatures is a sufficient sample to make a comparison.
146A signature is like a golf swing. It is called an open-loop behaviour, once learned it becomes second nature and the writer doesn't have to think about each move as they are doing it. Once you start it just flows through.
Cross-examination
147Mr Black confirmed he had only ever examined a photocopy of the questioned signature. Mr Black cannot comment on the surface on which the signature was written. For example whether the agreement was balanced on a book or a newspaper or on a person's knee. Those factors can make variations in the signature.
148All of the specimens were original documents from 2013.
149An adult's signature from 2009 is likely to be the same as the signature of the same person in 2013. Handwriting and signatures can be variable in teenage years but once it settles down in the adult years, the rate of change is very small. It is only once someone enters into cognitive decline in their later years that the rate of change starts to increase again.
150Mr Black agrees that a person's motor control can decline in a person with a terminal illness. There are an infinite number of variables connected with drug treatment for an illness.
151Mr Black did not see David Courtney sign any documents.
152Mr Black was provided with specimen signatures. He does not say they are the signatures of David Courtney. They were submitted to him as being signatures of David Courtney.
153Mr Black does not assign authorship. He concluded the questioned signature was unnaturally executed; so it is either an imitation or a disguise.
Re-examination
154With cognitive decline, there is generally an irregular form of tremor and pen pressure becomes much lighter. Mr Black cannot tell the pressure on a photocopied signature but there does not appear to be any tremor associated with a lack of motor control on the signature on Exhibit C.
Evidence of Sergeant Le Sueur
155Sergeant Le Sueur is the informant.
156Sergeant Le Sueur received the agreement by email from Glen Reed in 2017.
157Ms Courtney was arrested on 3 September 2017. There was no record of interview conducted.
158Ms Courtney has no prior convictions.
Evidence of Sergeant Michael Harkin
159Sergeant Harkin took over from the informant for a short period of time.
160Sergeant Harkin obtained 10 signatures from David Courtney's personal assistant after Mr Courtney passed away. Sergeant Harkin contacted Racing Victoria and spoke to Mr Courtney's former personal assistant, Ms Judith Fitzmaurice. Ms Fitzmaurice explained the process of how they award contracts and that Mr Courtney had the final signoff and she was able to produce 10 authenticated signatures for police collection.
161Sergeant Harkin collected the envelope. It contained 10 separate documents; not single pages. Sergeant Harkin gave the 10 documents to David Black.
Cross-examination
162Sergeant Harkin is aware that Ms Fitzmaurice was able to collect and provide him with the samples of original signatures that he asked for. Ms Fitzmaurice assured Sergeant Harkin that they were signed and witnessed signatures of David Courtney. It was put that they were not witnessed signatures. Mr Harkin thought some of them were.
163Sergeant Harkin stated that Judith Fitzmaurice provided evidence of continuity of the signatures and I note Ms Fitzmaurice was not called.
164The prosecution then closed its case. The defence did not call any evidence.
Crown Closing Address
165Ms Thorp submitted that the Crown had proved beyond reasonable doubt all of the elements of the charge. Specifically, Ms Thorp submitted:
Use false document
166Initially, the accused instructed her solicitor Mr Fernandez to lodge a caveat over the property to protect her interest. Mr Fernandez did not see the agreement or a copy of it when he lodged the first caveat or at any time up until he withdrew that caveat.
167In February 2017, the accused showed an original document to Mr Fernandez and he lodged a further caveat over the property.
The false nature of the document
168The agreement (Exhibit C) was not signed by David Courtney and is a false document. This may be inferred from all of the circumstances from first:
(a)Antony Macken who is a credible witness. He gave evidence that:
i.He did not sign/witness the agreement;
ii.He did not meet with David Courtney and/or Kathleen Courtney on
10 December 2009;
iii.He did not meet David Courtney until 12 October 2010 and his firm did not have any dealings with Mr Courtney until the day before that; and
iv.The date on the email of 30 June 2008 is wrong. Mr Macken brought the matter to the prosecution's attention.
169Continuing on Crown submission that the document was false could be inferred from all of the circumstances, Ms Thorp submitted that:
(b)Mr Macken's evidence is supported by that of Glen Reed. In February 2017, Mr Macken told Mr Reed that he was not aware of the document and would not have put his name to it;
(c)The court should be satisfied that the specimen signatures are those of David Courtney. The signatures were supplied by his former employer, Racing Victoria and sourced by his personal assistant. As the documents come from his former place of work, and from his assistant, they are a reliable source for comparison and of his authorship;
(d)The property was not given to the accused in the property settlement of
4 May 2012 after the divorce. It is obvious that Mr Courtney retained ownership of the property after settlement as it is now held on trust for his children. It is reasonable to expect that it was referred to in the property settlement;
(e)Glen Reed was Mr Courtney's executor. Mr Reed frequently visited Mr Courtney in the last months of his life. They discussed matters relating to Mr Courtney's Will from time to time. Mr Courtney did not mention the agreement. It is reasonable to infer that if such an agreement had existed Mr Courtney would have mentioned it to Mr Reed; and
(f)Finally, Ms Thorp submitted the property was left to Mr Courtney's biological children. The accused is not mentioned in the Will.
170Next, Ms Thorp submitted I could be satisfied that:
The accused knew the document was false
171Antony Macken gave clear evidence that he did not sign the document or meet
Mr Courtney at all before 12 October 2010.
172Kathleen Courtney did not sign the document in Mr Macken's presence;
Ms Courtney produced the document; the document was to her advantage, and she knew therefore the document to be false.
The accused intended that someone be induced to accept the document as genuine
173Ms Thorp submitted that Mr Fernandez repeatedly asked Ms Courtney to provide the document. She did not, and the first caveat was withdrawn.
174Then, Ms Courtney produced the document and instructed Mr Fernandez to file a further caveat. She thereby intended that Mr Fernandez would accept the document as genuine.
The accused intended that acceptance of the document as genuine will result in prejudice to another person
175Ms Thorp submitted that prior to instructing Mr Fernandez to lodge the first caveat on 24 June 2016, Ms Courtney told Mr Fernandez that the property was going to be sold and she needed him to file the caveat urgently to protect her interests in the property. Mr Fernandez acted on her instructions and filed a further caveat.
176Mr Courtney understood that this would prevent the executor of the estate from selling the property and this would cause prejudice to the beneficiaries of the estate.
177The Prosecution relies upon ss.83A(8)(a)(i) and 83A(8)(a)(iii).[6] Specifically, the intended prejudice to the beneficiaries of the estate is not being able to sell the property whilst the caveat is in place and this is intended to cause the beneficiaries:
[6] Crimes Act 1958 (Vic).
178A temporary or permanent loss of property loss which is included in the definition in the Crimes Act as being: 'loss by not getting what one might get or parting with what one has'; or
179Beneficiaries being deprived of an opportunity to obtain a financial advantage by selling the property or the property being sold on their behalf.
Defence Closing Address
180Mr Peters submitted on behalf the defence that I should have a reasonable doubt on all of the evidence. Principally, the Crown relies on pieces of evidence which are either unreliable, or simply give rise to a reasonable doubt.
181Mr Peters submitted that Glen Reed stated in evidence that Mr Courtney would have told him about the existence of such an agreement. Mr Reed was Mr Courtney's brother-in-law, he had his own wife and family to look after and his own interests to look after. Although he was sympathetic to David Courtney and he accepted the responsibility of executor of Mr Courtney's Will, he did not know or have a close relationship, or day-to-day working relationship with
David Courtney. Mr Reed accepted that David Courtney was a busy businessman who, in 2009, was not confiding everything in Glen Reed. As such, Mr Reed's statement amounts to no more than opinion.
182Then Mr Peters submitted that Mr Macken's evidence should be treated with caution. Although he was a legal practitioner of 60 years and he had no motivation to lie, his evidence crisscrossed between fact and speculation.
183Mr Peters submitted that I, as the trier of fact, seemed to have made an assumption about the order in which the emails in Exhibit H were received but there is no evidence of that. The document requires better explanation or evidence.
184Mr Macken gave evidence that he first met Mr Courtney on 11 October 2010.
185Mr Macken gave further evidence about Bruce Guthrie's book launch at the same time and yet there was reference by David Courtney to a book in the email dated 30 June 2008. There is no evidence apart from Mr Macken's memory of the precise launch date of Mr Guthrie's book. (I interpolate and pointed out during Mr Peter's address that Mr Macken stated the book was launched on either 4 or 12 October 2010).
186Mr Peters submitted that without further evidence on the actual date of publication for the provenance of the book, I may infer that the email of
30 June 2008 was the genuine date of the email. As such, Mr Macken's evidence must be given less weight.
187Mr Macken's file notes were not checked against his handwritten notes. So Mr Peters submitted that in other words, whilst he may have been diligent in relation to employment contracts, he did not check the accuracy of the typed file notes against his handwritten notes.
188Then, Mr Peters submitted, when it came to the email purportedly dated
30 June 2008, Mr Macken stated it was wrong. Mr Macken could not say how it got on the file but could only assert that it was wrong because the date on the email below it (being 20 October 2010 and the release date shown as
21 October 2010) must have made it so.
189Mr Peters submitted there must be significant doubt about Mr Fernandez's evidence:
(a)Mr Fernandez lodged a caveat though he stated he had not seen the agreement;
(b)The first caveat lodged on 24 June 2016 specifies the date of the agreement gifting the property as 15 December 2009;
(c)Mr Fernandez placed great emphasis on the need to see the document. That is misleading, as a caveat may be lodged without a written document. Mr Peters gave examples under the Family Law Act[7] and the creation of constructive trusts where interests may be created without a written document; and
[7] 1975 (Cth).
(d) Mr Fernandez took personal responsibility for removing the caveat.
190Mr Peters submitted the Crown has not proved the element of prejudice. A caveat simply raises a flag to say that a person has an interest. The beneficiaries may equally deny it and request the registrar to remove the caveat.
191Mr Peters submitted that Mr Fernandez could not specify how he got the agreement date of 15 December 2009 for the caveat. Mr Fernandez stated that he did not have a document, but he lodged the caveat and inserted a date of the agreement as 15 December 2009 in the body of the caveat. When he lodged the second caveat, having seen the document, he still lodged the document specifying the date of the agreement as 15 December 2009.
192Mr Peters submitted Sergeant Harkin gave evidence of collecting the specimen signatures from the VRC and from Ms Fitzmaurice but there is a gap in continuity. It cannot be proved that the signatures are those of David Courtney.
193It was then submitted Mr Black simply received signatures for comparison. He cannot speak as to authorship of the signatures.
194Then it was submitted, there is no evidence as to the authorship of the agreement (Exhibit C). Mr Fernandez states that he saw the original document at the time, but there is no other evidence about it.
195A caveat would not hold up a sale. There is no prejudice, Mr Peters submitted. There needs to be a further step to show disadvantage to the estate. The caveat is not a financial impediment to the estate and no loss has been demonstrated by the estate as a consequence of the caveat being lodged.
196I turn now to my analysis. The first element that the accused used the document.
Analysis
The Accused Used a Document
197I emphasise that the charge of using false document relates to the use of the agreement of 10 December 2009. So far as it is alleged that that document was used to procure a caveat over the property, the caveat in question is Exhibit K – the caveat lodged 3 March 2017.
198The first element that the prosecution must prove is that the accused used a document. The document in question is the agreement dated 10 December 2009 purportedly signed by David Courtney and the accused Kathleen Courtney; and witnessed by Antony Macken.
199Ms Courtney is charged with 'using a document' etc. under s.83A(2) Crimes Act, as opposed to using a copy of a document under s.83A(4). In other words, it must be proved that the document used was an 'original'.
200In order to use a document, the accused must deploy the document. It is not sufficient if she is present when another person uses or deploys the document. In Sultan [2008] NSWCCA 175, the New South Wales Court of Appeal examined the meaning of the word 'use' in the New South Wales equivalent legislation. After reviewing the authorities, Spigelman CJ concluded that 'use' may be constituted by actual dealing, active employment or an actual carrying into effect.
201It is necessary to examine the evidence of José Fernandez. Further to that, it is necessary to consider the sequence of events leading to February 2017.
202As I have already set out, José Fernandez is a legal practitioner. On 24 June 2016 he was instructed by the accused to lodge a caveat over the property. The accused stated to him that she had been given a large portion of the property by her husband David Courtney.
203Mr Fernandez did not see the document constituting the agreement when he lodged the caveat in June 2016. Under 'grounds of claim', the caveat specified 'agreement with the registered proprietor'.
204The caveat remained in place until February 2017 when the estate’s lawyers demanded to see proof of the existence of the agreement. Mr Fernandez told Ms Courtney by email that if he did not get the agreement, he would have to withdraw the caveat. Mr Fernandez withdrew the caveat on 17 February 2017 when Ms Courtney could not produce the agreement. After the withdrawal of the caveat, Ms Courtney told Mr Fernandez that she was still looking for the agreement to show that she had rights over the property.
205Mr Fernandez did not recall the date, but Ms Courtney told him that she had found a document that showed David Courtney had given her 13 / 17ths of the property. Mr Fernandez identified Exhibit C as a copy of the original document he saw. He then stated in evidence
… Can't remember exactly but it was around the time when she said she found it and I can only remember that I wanted to see the original and she showed me the original. I made a copy and I sent it off to Baker and Jones, Mr Chris Jennings.
… Probably 21 February 2017.
… I decided to file a caveat over the property and because the document… She sent me an agreement. It looked like a document. Surely, she had an interest…
She showed me, and she gave me instructions when she came to see me with the document and said to refile the caveat… to protect her interests in the property.
206The second caveat was filed on 3 March 2017.
207From the context and background to the production of the document it is reasonable to conclude that:
(a)The first caveat was lodged but withdrawn after estate lawyers demanded to see the documents and none was produced;
(b)The accused was made aware by her lawyer Mr Fernandez of the importance of producing the original document:
i.The accused produced the agreement to Mr Fernandez and gave instructions to him to lodge a further caveat to protect her interests in the property; and
ii.Mr Fernandez provided a copy of the agreement to the estate lawyers and lodged a further caveat.
208I am satisfied that the accused's actions constitute 'using' a document in that:
(a)The document was produced to her lawyer;
(b)The accused instructed the lawyer to act on the document;
(c)Two consequent actions were taken:
i.A copy of the agreement was provided to the estate lawyers to in effect assert the accused's interest in the property; and
ii.The second caveat was lodged.
209In my view, it does not matter to this analysis that Mr Fernandez specified the date of the agreement as 15 December 2009 in both the caveat of 24 June 2016 (that is, before he saw the agreement) (Exhibit B) and in the caveat of 3 March 2017 (after he saw the original agreement) (Exhibit K). Mr Fernandez identified Exhibit C as a copy of the document he saw when the accused provided to him the original agreement and gave him instructions to 're-file the caveat'.
210I turn now to a consideration of the second element.
The false nature of the document
211The second element that the prosecution must prove is that the document
Ms Courtney used, the agreement of 10 December 2009, was false. The prosecution must prove the document is false under one of the ways specified in s.83A(6) Crimes Act.
212It is insufficient to merely prove that the document contains untruths. The essence of each of the paragraphs of s.83A(6) is that the document must purport to be something which it is not.
213In this case, the Crown submits that s.83A(6) is satisfied because:
(a) Antony Macken did not witness the agreement;
(b) The agreement is false in purporting to gift 13/17ths of the property to the accused; and
(c) David Courtney did not sign the document.
214It is obvious that the second and third factors are critical to proving the falsity of the document.
215I turn now to the first aspect.
Macken did not sign the document
216Antony Macken gave evidence that:
(a)He did not sign the document;
(b)It was not signed by a member of his firm, or on behalf of his firm;
(c)As at 10 December 2009, he had not met and did not know David Courtney;
(d)He only met David Courtney on 12 October 2010 after Mr Courtney engaged his firm to provide legal advice upon Mr Courtney's termination from Crown Casino; and
(e)He had not seen a copy of the agreement until February 2017 when he was contacted by Mr Courtney's executor, Glen Reed.
217Mr Macken gave clear and precise evidence. I assessed Mr Macken as a witness of truth. There were however two attacks made on the reliability of Mr Macken's evidence; both in cross-examination and in submissions. It is necessary to consider them both. First, Mr Macken gave evidence that after his conference with David Courtney and Kathleen Courtney on 12 October 2010, he dictated a file note from his handwritten notes. Mr Macken checked the typed note about 10 minutes later without referring to the handwritten notes. Further, he did not keep his handwritten notes. Mr Macken stated that he was up-to-date on the point of law involved in Mr Courtney's case and he checked that the file note reflected that he had grasped what the client had said.
218I do not accept the submission that a failure to compare the typed note to the handwritten notes, or the failure to retain the handwritten note shows a carelessness on Mr Macken's part that should somehow impugn his reliability as a witness. It was not suggested (and nor could it have been) that the agreement of 10 December 2009 was either drafted by Mr Macken on this occasion or that the agreement was signed at that meeting.
219In the absence of suggesting (let alone establishing) that the agreement was signed at the October 2010 conference, the cross-examination about the file note and Mr Macken's practice with regard to making final notes is really somewhat removed from, and irrelevant to, the matters under consideration.
220In my view, this argument can be put aside.
221The second principal attack on Mr Macken's reliability was based on his (Macken's) production of Exhibit H. The email from David Courtney suggests that David Courtney emailed Mr Macken on 30 June 2008.
222As Mr Macken himself acknowledged, it is important as it potentially casts doubt on Mr Macken's evidence that he did not meet David Courtney until 12 October 2010, and his evidence that there was no opportunity to witness the agreement on 10 December 2009 because he did not know Mr Courtney at that time.
223Mr Macken gave precise evidence that there was no contact between, and he did not meet David Courtney until 11 or 12 October 2010 and that:
(a)He produced the telephone message of David Courtney's first contact with the firm on 11 October 2010;
(b)He produced the file notes of his telephone conference with Mr Courtney on 11 October, and his file notes of his conference with Mr Courtney on 12 October 2010;
(c)He recommended a book 'Man Bites Murdoch' by Bruce Guthrie to
David Courtney as an insight into how employment actions were fought in court. Mr Macken had acted for Mr Guthrie. The book was published in October 2010; and
(d)David Courtney's email referred to that book and no other.
224Mr Macken stated that the date 30 June 2008 on Mr Courtney's email was wrong.
225Mr Macken stated that he produced the email out of a sense of fairness to the accused in the matter.
226I am satisfied that the reliability of Mr Macken's evidence before me was not impugned by the production of this email. I am satisfied that Mr Macken had a clear recollection of the circumstances in which, and when, David Courtney engaged the firm. There is no evidence that Mr Macken otherwise socialised with Mr Courtney or discussed other books and reading matter with Mr Courtney. The book raised was a very specific reference. Mr Macken was very clear in his evidence about the publication of Mr Guthrie's book.
227I then turn to consider the email itself. The printed page Exhibit H came from Mr Macken's file of the Courtney matter of October 2010.
228Mr Peters for Ms Courtney submitted that I cannot be satisfied of the order in which the emails on page were received. I disagree.
229If the email of 30 June 2008 is calendrically accurate and was actually received by the firm before the email of 20 October 2010 was sent by Mr Macken, it stands without evidence of context or purpose. Mr Macken stated that he did not know and was not engaged by Mr Courtney before October 2010. The 2008 email stands alone, isolated and (as I say) without purpose. To then accept that the 20 October 2010 email was the next email sent in the chain (that is as an answer to the 30 June 2008 email) is nonsensical.
230Further, such a reading is contrary to the natural reading of the document. The email from Mr Macken to Mr Courtney dated 20 October 2010 occurs after
Mr Macken states that the firm had been engaged. It is generated as the
(and you need to refer to the document itself) '— Original Message —'. The email of 30 June 2008 is an incoming message. The printout at the bottom of the page states that the incoming message was released by the antivirus check on '10/21/10 18:34:00'; that is, on 21 October 2010 at 6:34pm.
231When read in this way, the sequence of messages becomes clear. Further, the reference to the book may naturally be read as a reference to the book described by Mr Macken.
232It follows that I may reasonably infer that the message of 30 June 2008 is incorrectly dated.
233As I have stated, I am satisfied that Mr Macken's evidence was credible. I also consider that his evidence was reliable in that he was not mistaken when he stated that:
(a)He did not sign the agreement dated 10 December 2009;
(b)There was no meeting between he and David Courtney and
Kathleen Courtney at which the agreement was signed;
(c)He did not meet David Courtney until 12 October 2010; and
(d)The first time he saw a copy of the agreement was in February 2017.
234I am therefore satisfied that witness clause to the document (that is the agreement of December 2009) was not signed by Antony Macken or a member of his firm.
Observations about the document
235It is apposite to make some observations about the agreement document itself.
236It is plainly amateurish:
(a)It bears the date in three different spots;
(b)It twice refers to the address of the property as 43 Ocean RD, that is in capitals, as opposed to Road or Rd. In the same document it refers to
43 Ocean Rd as capital 'R', small 'd';
(c)The first child is referred to as 'sarah' with a small 's' rather than a capital 'S';
(d)The names of the other children are capitalised;
(e)The witness clause is typed in part and handwritten in part;
(f)The handwritten part of the witness clause states 'for and on behalf of AJ Macken and Co'; and
(g)It is unclear if the handwritten 'Melbourne' is misspelt or cut off by the copy.
237Apart from the disjuncture between 'for' and 'behalf', the handwritten aspect of the witness clause is nonsensical. The agreement was either witnessed by
Mr Macken, or by someone else. The firm has no part to play. Further, for the fact that this part of the clause was handwritten purports that it was inserted by a lawyer from the law firm. Mr Macken himself adverted to the fact that a person could not witness a document on behalf of the law firm.
238In my view, the nature of the document as I have described it, and the handwritten portion to the witness clause, are factors which add weight to
Mr Macken's evidence and to my conclusion that he did not sign the document as a witness. I accept also on the basis of the evidence given by Mr Macken that the document was not signed by any member of his firm.
Consideration of the key circumstances up to the date of production of the document
239The following key dates were provided in evidence:
27 June 2009 David Courtney became the sole registered proprietor of the property;
(a)10 December 2009 is the date of the agreement;
(b)4 May 2012 final property settlement between David Courtney and
Kathleen Courtney;
(c)15 January 2015 David Courtney signed his Will leaving the property to his two children Matthew and Sarah;
(d)August 2015 David Courtney dies;
(e)It was suggested by Mr Reed that probate was granted at the end of 2015;
(f)24 June 2016 the first caveat lodged;
(g)17 February 2017 the first caveat withdrawn;
(h)21 February 2017 the agreement was shown to the lawyer Fernandez, who then emailed it to the estate's lawyers; and
(i)3 March 2017 the second caveat lodged.
240There was evidence from Glen Reed that David Courtney and Kathleen Courtney were married at some time, divorced and that there was angst between them after the divorce. Despite questions and suggestions made during cross-examination of Mr Reed, there is no evidence that Mr Courtney and the accused maintained contact, let alone regular contact in the years after the property settlement and up to the date of his death.
241There is evidence that David Courtney was married to Meagan at the time of his death and that she is named as one of the three beneficiaries under his Will.
242Mr Reed gave evidence that he spoke to Mr Courtney on a regular basis in the months preceding Mr Courtney's death. They spoke from time to time about
Mr Courtney's affairs and his Will. The existence of an agreement gifting a share of the property to the accused was never mentioned.
243The final property settlement between David Courtney and Kathleen Courtney was not adduced in evidence. There is no evidence as to whether it mentions the property or not. I can infer that, whether it did so or not, the property settlement did not effect the gift to Kathleen Courtney because as at the date of David Courtney's death, the property was still registered in his name and his Will bequeathed the property to his children Matthew and Sarah on trust. Further, when I examine Exhibits B and K, the accused relied on the agreement and not on the property settlement as the basis of her interest in the property for the purposes of lodging a caveat.
244I note that the third caveat lodged 18 December 2020 (Exhibit 1) specifies the grounds of claim as 'beneficiary under the will…'. I note that there is evidence produced before me that Kathleen Courtney was not a beneficiary under the Will. At this point I am careful to avoid engaging in reasoning which in any way reverses the onus of proof.
The signature
245The evidence of David Black is that the questioned signature 'David Courtney' on the agreement is unnaturally written and is the result of either simulation or disguise. Mr Black could not express an opinion on authorship.
246Mr Black outlined the differences between the questioned signature on the agreement and the 10 specimen signatures supplied to him. Mr Black gave evidence that over the course of an adult's life, a signature settles into reasonably defined parameters. Whereas Mr Black found the specimen signatures to be reasonably consistent, those ten specimen signatures differed from the questioned signature.
247The attack made on the evidence of David Black, and on that of
Sergeant Harkin, who gathered the specimen signatures, was as follows:
(a)First, because Mr Black could not express an opinion on the authorship of the questioned signature, he could not exclude the reasonable possibility that David Courtney did sign the agreement; and
(b)Secondly, Harkin could not say with certainty (that is, I could not be satisfied beyond reasonable doubt) that the specimen signatures he collected were those of David Courtney.
248First, it is true that Mr Black could not express an opinion excluding
David Courtney as the author of the questioned signature on the agreement. Nevertheless, I may look at all of the circumstances raised on the evidence to make my determination.
249As a layperson, I may make my own comparison of the questioned signature to the specimen signatures. It is not clear however whether I may compare the questioned signature on the agreement and the specimen signatures,
David Courtney, to the signature 'David Courtney' on the cheque and costs agreement (Exhibit G). I therefore refrain from doing so.
250There was no evidence adduced as to the circumstances in which the agreement was signed; except, as I have already concluded, that Mr Macken did not meet David Courtney and Kathleen Courtney to witness the agreement and he did not in fact witness the agreement. I will not speculate on the circumstances in which it was signed. It was suggested in cross-examination to Mr Black that it might have been signed by Mr Courtney on a newspaper, on his knee or on a book. There is no evidence of any of these circumstances.
251Further there is no evidence that in 2013 Mr Courtney's signature was affected by illness or medication.
252Mr Peters, for Mr Courtney, submitted that there is a gap in continuity relating to the collection of the signatures, such that I cannot be satisfied beyond reasonable doubt that the specimen signatures provided to the police were actually those of David Courtney.
253I refer back to the evidence given by Sergeant Harkin. The signatures were collated by Mr Courtney's personal assistant from when he was employed at the VRC, that is Judith Fitzmaurice.
254Sergeant Harkin stated that the signatures were collated from whole documents provided to the Victoria Police. Exhibit N did not provide whole documents; rather the commitment approval page which although redacted, purported to commit the VRC to contract with third parties. Each of these pages was signed
'David Courtney'. Then, the contract signing page is attached with a signature 'David Courtney' and (apparently) other signatures for third parties were applied.
255Accordingly, several documents signed 'David Courtney' were signed either on behalf of the VRC or signed by 'David Courtney' as CEO of the VRC.
256Given Mr Black's conclusion that the specimen signatures are consistent with each other, I do not consider that there is a reasonable possibility arising that over the course of 2013 (that is, the dates over which the specimen signatures were gathered that another person, but not David Courtney, was regularly applying the signature 'David Courtney' to binding agreements with third parties and on internal documents as the CEO of the VRC.
257I consider this conclusion is reinforced by the fact that the signatures and documents were collated by Ms Courtney's personal assistant from the time he was the CEO of the VRC.
258I am therefore satisfied that Mr Black was comparing specimen signatures of
David Courtney to the questioned signature on the agreement.
259I am also satisfied that the questioned signature was unnaturally applied and was a simulation applied by another person and was not a disguise applied by
David Courtney.
260For the reasons already outlined, I am satisfied that Mr Macken did not know
David Courtney in December 2009.
261The proposition that David Courtney actually signed the agreement and intended 13/17ths of the property to pass to the accused, gives rise to a number of scenarios:
(a)First, if the document was actually signed by David Courtney on
10 December 2009, it is frankly incomprehensible to reason that he would be a party to the fraudulent application of the signature or initials of a man he had not met - Antony Macken;
(b)Secondly, if David Courtney signed the document but it was not signed until, say October 2010, then it remains incomprehensible that he would backdate the document and be a party to the false witnessing of the document by a person he knew but who did not actually witness the document; and
(c)I do not consider there is any reasonable scenario open to argue (and I note, that it was not argued) that David Courtney sought to dupe
Kathleen Courtney by disguising his signature and applying the false witness signature of Antony Macken.
262On the whole of the circumstances of this case and taking into account my reasoning in my analysis of the next element of the charge:
(a)I am satisfied that questioned signature 'David Courtney' on the agreement was not signed by the registered proprietor of the property, David Courtney. Rather, I am satisfied that the agreement was falsely signed by another person; and
(b)I am therefore satisfied that the document is false in that it purports to gift 13/17ths of the property to the accused Kathleen Courtney when no such gift was actually made.
The Accused Knew the Document was False
263The third element that the prosecution must prove is that when the accused used the document, she knew that she was using a false document.
264Again, there is no direct evidence of this matter. I must look at all the circumstances raised on the evidence.
265In my view, the starting point for this aspect of the analysis should be the evidence of Mr Macken. It is apparent that the document was not prepared by
Mr Macken and the accused knew that to be the case. As I have already outlined repeatedly, I am satisfied that:
(a)There was no meeting held with Mr Macken to sign the document;
(b)Mr Macken did not witness the document;
(c)Mr Macken did not know David Courtney on 10 December 2009;
(d)David Courtney only met Mr Macken in professional circumstances to do with advice in relation to the termination of employment in October 2010. That advice did not include anything whatsoever to do with preparation of, or witnessing the agreement; and
(e)The accused was not ever a client of Mr Macken or his firm and only attended one conference with Mr Macken on 12 October 2010.
266From this starting point, I am satisfied that the accused knew that the agreement was false. I do not intend to (again) repeat all of my reasoning on this point. It is sufficient to say that the key circumstances arising from the evidence include:
(a)When the accused produced it to Mr Fernandez in February 2017, the production was made in circumstances where the agreement was only produced after the estate's lawyers asked for proof of the existence of the agreement and the first caveat had been withdrawn;
(b)The accused knew that the final property settlement of 4 May 2012 did not effect the gift or the transfer of the share in the property to her;
(c)It was apparent that Mr Courtney's Will did not bequeath the share in the property to her; and
(d)As I have just concluded, I am satisfied that the questioned signature on the agreement was not that of David Courtney.
267In these circumstances, I am satisfied that the accused knew that the document she produced to her lawyer José Fernandez on about 21 February 2017 was false in that it falsely purported to make a gift of a share of the property to the accused.
Intention that the Document be Accepted as Genuine
268The fourth element that the prosecution must prove is that the accused used the document intending to deceive someone to accept that it was genuine.
269As I have already set out, Mr Fernandez gave evidence that, after the estate's lawyers demanded proof of the agreement specified in the caveat of
24 June 2016, the accused produced to him the original agreement dated
10 December 2009 and gave him instructions to 'refile the caveat'.
270Mr Fernandez stated that he decided (on instructions) to file a further caveat because 'it looked like a document. Surely she had an interest…'. And, 'that it was a document that gave an interest in a property sufficient [for Mr Fernandez to lodge a caveat]... 'A binding document'. 'It was sufficient to establish a claim against the property'.
271Mr Fernandez considered it binding and it was witnessed by a solicitor. On this basis, Mr Fernandez sent a copy to the estate's lawyers (Exhibit L). The email specifies that he would again lodge a caveat 'based on the agreement'.
272Of course, the focus here must remain on the accused's state of mind. I am satisfied that the accused's conduct on approximately 21 February 2017, when she produced the original agreement dated 10 December 2009 to her lawyer, Mr Fernandez, constituted the use of the false document with the intention of deceiving Mr Fernandez to accept it as genuine. The point is not to focus on the lawyer's state of mind, but rather to emphasise that the accused produced the document in response to the request to provide proof of the agreement gifting her an interest in the property, together with her giving instructions at the time of production of the document to refile the caveat. It is in this way that I am satisfied that this element is proved.
Intention that the Victim Act to Somebody's Prejudice
273The fifth element requires that the accused intended that the acceptance of the document will result in prejudice to another person.
274Prejudice to a person is exhaustively defined in s.83A(8) Crimes Act.
275The Crown submits that the accused intended to prejudice the estate in the manner set out in s.83A(8) (i) and/or (iii) in that:
(a)Mr Fernandez would accept the agreement as genuine and therefore act on her instructions to lodge a caveat on the property, thereby prohibiting dealings in the property. Such a restriction on dealings on the property would prevent the effective sale of it, and thereby cause prejudice to the estate by at least the temporary loss of the financial advantage of selling the property;[8] and
(b)Ms Courtney further intended that the estate of David Courtney would accept the agreement as genuine; thereby causing prejudice to the estate by depriving it of 13/17ths of the value of the property.[9]
[8] s.83A(8)(a)(iii) Crimes Act 1958 (Vic).
[9] s.83A(8)(a)(i) Crimes Act1958 (Vic).
276Mr Peters on behalf of Ms Courtney submitted that the prosecution cannot prove prejudice to the estate. Essentially, Mr Peters submitted that lodging the caveat amounts to no more than a restriction on the registration of dealings on the property. In this way, the property could still be sold and, before settlement, the estate could apply to have the caveat removed. In other words, the caveat serves to do no more than to signal a 'red flag' as to the caveator's interest; but of itself does nothing to deprive a registered proprietor of their interest or the opportunity for financial advantage through sale.
277It is appropriate to deal with the submission for prejudice under s.83A(8)(i) first. In my view, the production of the agreement to Mr Fernandez was intended by the accused, not simply to support the lodging of the caveat, but to stand as a binding agreement, which if accepted as genuine, would result in the loss to the estate of 13/17ths of the value of the property.
278In this way, the accused used the agreement to more than simply provide instructions for lodging the caveat. She produced the document as proof that she was entitled to a significant share of the property. She intended that the agreement would be accepted as genuine; not just by Mr Fernandez and the Registrar of Titles, but by the estate. In this way, I am satisfied that Ms Courtney intended a permanent loss to the estate.
279I conclude that the intended permanent loss to the beneficiaries of the estate constitutes a prejudice under s.83A(8)(i).
280In the circumstances, I do not need to consider whether the prejudice contended under s.83A(8)(iii) is proved. For completeness, I find:
(a)The accused used the false document intending to induce Mr Fernandez to accept it as genuine and to lodge the caveat on 3 March 2017 (Exhibit K); and
(b)The caveat specifies that it absolutely prohibits dealings in the property.
281In my view, this aspect of the element will be made out when it is proved that the accused intended that the agreement be accepted as genuine and for the caveat to prevent the registration of any transfer of the property. In this way, the accused used the false document with the intention of in effect 'freezing' the property.
282The prejudice required to be proved under (iii) of s.83A(8) is one that will result in 'the person's being deprived of an opportunity to obtain a financial advantage…'.
283The evidence before me was that the property was held on trust for the beneficiaries. In other words, although the property was bequeathed to the beneficiaries, it had not been transferred to them; nor had it been sold. As at 3 March 2017, the property was still registered in the name of the deceased David Courtney.
284The caveat (without more) therefore prevented the beneficiaries from obtaining the benefit of the financial advantage arising from either the transfer of the property into their names or the sale of the property.
285I am therefore satisfied that this limb of s.83A(8) is also made out on the evidence.
Conclusion
286Accordingly, I find that the charge that at Melbourne in Victoria between
21 February 2017 and 3 March 2017, Kathleen Mary Courtney used a false document which was, and which Kathleen Mary Courtney knew to be, false, namely a document purporting to be an agreement between
Kathleen Mary Courtney and David Graeme Courtney gifting to
Kathleen Mary Courtney a share in the sum of 13/17ths of the property at
43 Ocean Road, Lorne, and gifting to Michael Courtney a share in the sum of 1.33/17ths of the property at 43 Ocean Road, Lorne, with the intention of inducing another person to accept it as genuine and, by reason of so accepting it, would do or not do some act to the Beneficiaries of the Estate of
David Graeme Courtney's prejudice. I find the charge proved.
287I order that the verdict of guilty be entered on the records of the court.
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