R v Gatzka
[2004] VSCA 121
•2 July 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 324 of 2002
| THE QUEEN |
| v. |
| BRUNO GEORGE GATZKA |
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JUDGES: | CHARLES, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
FOR MENTION: DATE OF HEARING: | 15 June 2004 16 June 2004 | |
DATE OF JUDGMENT: | 2 July 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 121 | |
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Criminal Law – Making and using a false document contrary to s.83A of the Crimes Act 1958 – Offence requires proof of two-fold intention – No requirement to prove dishonesty – Whether claim of right can afford a defence to charge under s.83A of the Crimes Act – Whether a claim of right negatives the intentions prescribed by s.83A of the Crimes Act – Whether trial judge should have directed jury that a claim of right to property provides a defence to offences under s.83A of the Crimes Act – Crimes Act 1958, (No. 6231) s.83A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr D.J. Ross, Q.C. | Spagnol Legal |
CHARLES, J.A.:
Having had the advantage of reading the reasons prepared by Chernov, J.A., I agree that the application for leave to appeal against conviction should be dismissed, and for substantially the reasons given by his Honour.
CHERNOV, J.A.:
The applicant, George Bruno Gatzka, who is now aged 53, was convicted on 18 November 2003 by a jury after a trial in the County Court sitting at Melbourne of one count of making a false document (count 1) and one count of using a false document (count 2) contrary to ss.83A(1) and (2) of the Crimes Act 1958. Each offence carries a maximum penalty of 10 years’ imprisonment. The applicant admitted seven prior convictions from two court appearances on 1 February 1974 and 16 October 1992. After hearing a plea in mitigation made on the applicant’s behalf, the judge sentenced him, on 29 November 2002, as follows. On count 1, the applicant was convicted and fined $10,000, and on count 2, he was sentenced to be imprisoned for nine months. His Honour directed that the whole of the term of imprisonment be suspended for a period of three years.
The applicant now seeks leave to appeal against his convictions. In his notice of application for leave, dated 12 December 2002, the applicant set out three grounds on which, he said, he intended to rely in support of his application. Essentially, they were that the verdicts on counts 1 and 2 were unsafe and unsatisfactory, that his Honour erred in his explanation to the jury of the elements of the offences that were the subject of the two counts and that the learned trial judge made certain errors when re-directing the jury. In an affidavit sworn and filed on 11 June 2004, the applicant’s solicitor foreshadowed that an adjournment application would be made when the matter came on for hearing, as listed, on 16 June 2004. More particularly, it was said in the affidavit that application would be made to amend the grounds to include a new ground “based on incompetence of trial counsel”. It was further said that senior counsel, who was then retained by the applicant, did not have sufficient opportunity to prepare submissions in support of this ground and that, consequently, an adjournment would be sought on 16 June 2004.
In response to this intimation, the Court listed the matter for mention on 15 June 2004, at which Mr Ross appeared for the applicant. He informed the Court that the proposed new ground mentioned in the solicitor’s affidavit would not be pursued, nor would the three grounds that are set out in the notice of application for leave to which I have referred. Counsel said that the only ground that would be sought to be argued was a fresh proposed ground, which was in the following terms:
“4.The trial miscarried because the trial judge failed to direct the jury that claim of right was a defence to counts 1 and 2.”
Leave to amend was sought accordingly. There being no objection by the Crown to this application, the Court granted the leave sought and the matter was then adjourned to the following day.
In order to give context to this new ground it is necessary to set out briefly the circumstances that gave rise to the applicant being charged with the above-mentioned, and related, offences and their disposition at his trial. In about August 1997, the applicant’s former wife, Dr Susan Carey, acting on his advice, engaged Mr Bradshaw, an accountant, to prepare her taxation returns for the 1996 and 1997 financial years. A few weeks later, unbeknown to Dr Carey and without being authorised by her, the applicant took from Mr Bradshaw documents which Dr Carey had given him for the purpose of preparing the taxation returns and delivered them to another accountant, Ms Griffiths, instructing her to prepare the returns. It was alleged by the Crown that, in order to establish his authority to act for Dr Carey in relation to the preparation of her taxation returns and associated matters, the applicant showed Ms Griffiths what purported to be an enduring power of attorney executed by Dr Carey as donor in favour of the applicant. The Crown contended that the document was falsely prepared by the applicant. Believing the power to be genuine and as establishing in the applicant the necessary authority to act for Dr Carey, Ms Griffiths prepared the returns and, after they were signed by the applicant purportedly on behalf of Dr Carey, submitted them to the Australian Taxation Office. As a result, Dr Carey became entitled to two refund cheques totalling approximately $46,000. The two cheques were received, in the first instance, by Ms Griffiths, but instead of passing them on to Dr Carey, she gave them to the applicant. She said in her evidence that the applicant told her to call him when the refund cheques arrived “because Susan Carey was anxious to get them, and he would ensure that they were relayed to [her] and he was anxious to get them as soon as possible on her behalf”. She said that on each occasion that she received the cheque she rang the applicant who collected it. Ms Griffiths claimed that she handed the cheques over to the applicant because he had shown her the power of attorney and she received all her instructions from him. When she spoke with Dr Carey, said Ms Griffiths, prior to the lodgment of the returns, she was not given contrary instructions. Upon receipt of the refund cheques the applicant first deposited them into his own bank account and shortly thereafter disbursed the funds. He managed to do this by producing the false power of attorney to the bank.
The applicant’s contentions at his trial were these.
(a)At the time in question Dr Carey was indebted to him in a large sum of money, which included a debt of $150,000 that was the subject of a written loan agreement executed by both of them. At his trial, the applicant pointed to a number of factors that he said were supportive of his claim in that regard, including the loan agreement between him and Dr. Carey and that interest in relation to that loan was claimed as a tax deduction in the taxation returns prepared for Dr Carey by Ms Griffiths.
(b)He took the benefit of the proceeds of the refund cheques in the honest belief that he was entitled to those moneys as part payment of the much larger debt that was due to him by Dr Carey.
(c)During the previous year, when he assisted Dr Carey in a property dispute, he was given a general authority by Dr Carey to act on her behalf in relation to her business matters and that authority was extant at the time of the dealings with Ms Griffiths. Thus, the applicant claimed, he considered that he had authority to act for Dr. Carey in relation to her taxation returns.
(d)He did not prepare the power of attorney in question and did not show it to Ms Griffiths as she contended. His case was that, although his signature appears on it, the document was prepared by Hannah Friedman, one of the persons that purportedly witnessed the power. The applicant contended that she produced it to him at a meeting and asked him to sign it, which he did. He claimed that when he signed the document it had already been signed by the donor and by the witnesses. The applicant denied retaining the power of attorney. His claim in that regard was supported by a witness who was called on his behalf at his trial, one Nigel Hutchison Brookes. But for that witness, the applicant called no other viva voce evidence at his trial.
Dr Carey denied that she had given the applicant the power of attorney, or any other authority, to instruct Ms Griffiths to prepare her taxation returns or to deal with her refund cheques. Moreover, she denied that she was indebted to the applicant claiming, in particular, that although he had paid her $150,000, that was provided as part of the settlement of their matrimonial dispute. Dr Carey also claimed that the signature on the power of attorney which purports to be hers is not her signature. The witnesses, whose signatures appear on the document, namely, Ms Friedman and Kristy Manns, similarly denied that they signed it.
When Dr Carey discovered what had occurred with her cheques she reported the matter to the police. The applicant admitted in a record of interview with the police that he had arranged for the preparation of Dr Carey’s taxation returns, but claimed that this was done by arrangement with her pursuant to the general authority to which I have referred earlier. He also agreed that he had collected the refund cheques and used them for his own benefit, but eventually said that they were taken by him in part payment of the money that she owed him.
In the result, the applicant was presented for trial in the County Court on the two counts to which I have referred, as well as four other counts – counts 3 and 5: obtaining property by deception – and counts 4 and 6: obtaining financial advantage by deception. The latter four counts related to the refund cheques that the applicant obtained and used as I have described. He pleaded not guilty to each of the six counts. After the close of the Crown case the prosecutor conceded that, on the evidence, the jury could not properly convict the applicant on the latter four counts and, accordingly, his Honour directed the jury to return verdicts of not guilty on counts 3 to 6. More specifically, the judge told the jury “… it cannot be said that the Crown have proved beyond a reasonable doubt that Mr Gatzka didn’t have a claim of right to the advantages he is said to have received …”. I mention for completeness that, at the close of the Crown case, his Honour invited the jury to return verdicts of not guilty on counts 1 and 2 if they considered that they could not be satisfied beyond reasonable doubt of the applicant’s guilt on those counts. The jury, however, declined to bring in such verdicts at that time and the trial then proceeded.
As I have mentioned, counts 1 and 2 allege breaches by the applicant of s.83A(1) and (2) of the Crimes Act. Section 83A was introduced into the Crimes Act by s.7 of the Crimes (Computers) Act 1988, which came into operation on 1 June 1988. In 1989 the common law offences of forgery and uttering, and the corresponding statutory offences, were abolished by s.83B of the Crimes Act, which was introduced into that Act by s.6 of the Crimes Legislation (Miscellaneous Amendments) Act 1989 and which came into effect on 22 June 1989. Thus, s.83A became a code which created offences arising out of the making and use of false documents. It was modelled on the English Forgery and Counterfeiting Act 1981. The relevant sub-sections of s.83A for present purposes are sub-sections (1),(2) and (8)(c), which essentially correspond with ss.1, 3 and 10(c) of the English Act. The first two sub-sections of s.83A are in the following terms:
“(1)A person must not make a false document with the intention that he or she, or another person, shall use it to induce another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person’s, or to another person’s prejudice.
(2)A person must not use a document which is, and which he or she knows to be, false, with the intention of inducing another person to accept it as genuine, and by reason of so accepting it to do or not to do some act to that other person’s, or to another person’s prejudice.”
It is plain from the terms of these sub-sections that the intention – the mens rea – which each requires to be proved is two-fold:
(a)The intention that the false statement be used to induce the victim to accept it as genuine; and
(b)The intention to induce the victim, by reason of his or her so accepting it, to do or not do an act to his or her own (or another persons) prejudice.
The meaning of “prejudice” for the purpose of s. 83A is exhaustively defined in sub‑s. (8). We are essentially concerned only with paragraph (c) of that definition which is in the following terms:
“For the purposes of this section, an act or omission is to a person’s prejudice if, and only if, it is one that, if it occurs –
…
(c)will be the result of the person’s having accepted a false document as genuine, or a copy of a false document as a copy of a genuine one, in connection with the person’s performance of a duty.”
It was the Crown's case at trial that the applicant forged the signatures of Dr Carey and the witnesses on the power of attorney and then used it to induce Ms Griffiths to believe it was genuine and, by reason of that, to act to her prejudice within the meaning of that term in s. 83A(8)(c), namely, accept the false document as genuine in connection with the performance of her duty – the preparation of Dr Carey’s taxation returns (without her authority, which put her at risk, at the very least, of not being paid for that work). It was also said by the Crown that the applicant used the fraudulent power of attorney to obtain the refund cheques from Ms Griffiths. The applicant, as I have said, denied these claims. His case at trial was that he did not create or use the power of attorney as alleged by the Crown, or at all, but acted at all relevant times in relation to the preparation of Dr Carey's taxation returns with her authority. He also maintained that he had a claim of right to the proceeds of the refund cheques on the basis that I have described. In his charge to the jury, the trial judge gave comprehensive directions as to the meaning and operation of s. 83A in the context of the evidence before them and no challenge is made by the applicant to the charge other than in the form of the new ground 4.
In the circumstances, it can be taken that, by their verdicts on counts 1 and 2, the jury rejected the applicant’s claim that Dr Carey appointed him as her agent for the purpose of dealing with Ms Griffiths. Importantly, the verdicts also demonstrate, I think, that the jury concluded beyond reasonable doubt that the power of attorney was fraudulently made and was used by the applicant with intention of inducing Ms Griffiths to accept it as genuine and, by reason of that acceptance, to do as he instructed.
It is now the applicant’s case that, given that he had available a defence of a claim of right in respect of counts 3 –6, a like defence was available to him in respect of the s. 83A offences and that his Honour should have directed the jury accordingly. Moreover, it is said, at the very least the applicant’s claim of right should have been taken into account by the jury when they considered if he had the relevant intentions for the purposes of sub-ss. 83A(1) and (2). Failure by his Honour to give directions accordingly, claimed counsel, resulted in a miscarriage of justice.
Claim of right defence
In support of his argument that the defence of claim of right was available to the applicant, Mr Ross referred to a number of cases[1] where a claim of right defence was recognised. I doubt, however, that these authorities establish that a claim of right affords a defence to a s.83A charge. What constitutes the defence of claim of right has recently been canvassed by Wood, C.J. at C.L. in R. v. Fuge[2]. It seems that, ordinarily, a claim of right involves an honest belief by the accused in the right to property which is usually in the hands of another. In those circumstances, it may afford a defence to charges such as larceny or armed robbery even where they are committed by apparently unlawful means, such as assault or use of a weapon.[3] Importantly, where that defence is sufficiently raised, it is for the Crown to establish beyond reasonable doubt that the accused did not have the honest belief for which he contends. Thus, the claim of right may operate as a defence in relation to offences relating to property where dishonest intention is the mens rea of the offence, such as is the case in larceny and armed robbery. In those circumstances, failure on the part of the Crown to prove dishonesty means that the mens rea does not exist.
[1]The Queen v. Lopatta (1983) 35 S.A.S.R. 101; R. v. Skivington [1968] 1 Q.B. 166; Langham v. R. (1984) 36 S.A.S.R. 48; R. v. Bowman (No 2) (1987) 87 F.L.R. 472; Margarula v. Rose (1999) 149 F.L.R. 444; Molina v. Zaknich (2001) 24 W.A.R. 562; R. v. Freeman (1985) 3 N.S.W.L.R. 303; R. v. Williams [1988] 1 Qd.R. 289.
[2][2001] N.S.W.C.C.A. 208 at [24].
[3]This seems to be so notwithstanding the observation of Heydon, J.A. in Fuge at [2] that the claim that a person who is owed arrears of wages after being dismissed by an employer has a defence to a charge of robbing the employer of cash not exceeding the claimed arrears is “an astonishing proposition”. His Honour went on to say: “There are, however, statements of other intermediate courts of appeal which justify it. Those statements call for a reconsideration by this Court in the suitable case, there being no High Court decision preventing that course”. His Honour nevertheless considered that it was not necessary for the decision in that case to reconsider this matter.
The authorities on which Mr. Ross relied were concerned with property offences where, in respect of most of them, a dishonest intent constituted the mens rea of the offence. As I have said, I doubt that this situation can be transposed to a s.83A charge, as Mr. Ross would have it. Such an offence is not concerned with a claim to property and does not have, as an ingredient of it, the requirement to establish a dishonest intent. The element of mens rea of a s.83A offence consists of no more than the two-fold intention to which I have referred and does not, as I have said, involve the element of fraud. Thus, once the Crown establishes that the offender made the false document and used it with the intentions set out in the legislation, its case under s.83A(1) and (2) is ordinarily made out, notwithstanding that the offender may have also intended to use the document to obtain property which he believed belonged to him. If anything, it seems to me, the pursuit of the claim to the property in this way arguably demonstrates the presence of relevant intentions in the offender.
In any event, I doubt that these authorities apply to the present situation. It is plain enough, as I have said, that a claim of right only operates as a defence if it is sufficiently raised as such in the course of the trial. I consider that, unsurprisingly, the applicant did not raise such a defence at his trial in respect of counts 1 and 2, notwithstanding that it was put in relation to counts 3 to 6. I say “unsurprisingly” because the applicant’s case at trial in respect of counts 1 and 2 was, as I have said, that not only did he not make the false power of attorney, but he did not show it to Ms Griffiths. In order for the applicant to have relevantly raised this defence at his trial he would have had to concede that the power of attorney was shown by him to Ms Griffiths and that this was done for the purpose of giving him access to the refund cheques. Such a concession would necessarily involve the admission that he showed her the document with the intent that she accept it as genuine and, by reason of that, she prepared Dr Carey’s taxation returns (and handed the cheques over to him), being acts which were clearly to her prejudice. Such a concession would, of course, virtually amount to an admission that the applicant breached s.83A(1) and (2). Thus, it is unsurprising that no such position was taken up by the applicant at his trial.
Claim of right allegedly negatives prescribed intention
Mr Ross then submitted that, in any event, it would have been open for the jury to find that the applicant’s honest claim of right to the refund cheques was inconsistent with possession by him of the alleged prescribed intentions and that this afforded him a defence to counts 1 and 2. In support of this submission, Mr Ross relied on what Dawson, J. said in Walden v. Hensler[4], namely: "It is, of course, always necessary for the prosecution to prove an intent which forms an ingredient of a particular crime and any honestly held belief, whether reasonable or not, which is inconsistent with that intent will afford a defence." Reliance was also placed by the applicant on like statements by the majority in Macleod v The Queen[5]. It seems to me, however, that even if it could be said that a claim of right may, in certain circumstances, which are not apparent to me, negative the prescribed intentions which the Crown seeks to attribute to the offender, and thus afford him a defence to a s.83A charge, such an argument could not succeed here given the way the defence case was run at the trial in respect of counts 1 and 2. The applicant’s case was, as I have said, that he did not produce or use the impugned document and no claim of right was made by him that related in any way to the production and use of the power of attorney. The claim of right was raised by the applicant only in response to the charges of obtaining property (the cheques) and financial advantage (the cheques and/or the proceeds of them) by deception. Thus, the claim of right went to the allegation that he practised deception in relation to the cheques and not to the creation and use of the impugned document. In order for the applicant to have relied on the argument that his claim of right to the cheques negatived the prescribed intention on his part as alleged by the Crown, at the very least, he had to establish a relevant relationship between the claim of right and the making and use of the impugned document. In other words, the claim of right in respect of counts 1 and 2 could only have been put forward by way of confession and avoidance – the document was created and used as alleged but it was so used for the purpose of obtaining cheques in the honest belief that he had an entitlement to them.[6] But no such case was put by the applicant at his trial. On the contrary, as I have noted, he denied any relevant connection with the power of attorney
[4](1987) 163 C.L.R. 561 at 591.
[5](2003) 77 A.L.J.R. 1047 at [41]-[43] per Gleeson, C.J., Gummow and Hayne, JJ.
[6]Once the applicant admitted the use of the document, if he wanted to rely on his claim of right to the cheques as a defence, he would have had to admit also that he intended Ms. Griffiths to treat the Power of Attorney as genuine and on that basis do what he requested of her.
Consequently, I consider that it would not have been open to him to argue at his trial that his claim of right negatived the proscribed intentions that the Crown sought to attribute to him.
Attorney General’s Reference (No. 1)
Finally, counsel submitted that an honest claim of right is capable of affording a good defence to a s.83A charge was recognised by the Court of Appeal in Attorney General’s Reference (No. 1 of 2000)[7] and, therefore, it was said, like recognition should be given to the fact that the applicant had an honest belief that he was entitled to the cheques. So far as is relevant, the Court of Appeal in that case said,[8] by way of dicta, that in some cases a demonstrated existence of a claim of right at the time when the false document was used may negative an intention to cause another to act to his prejudice. But this dictum does not assist the applicant's argument in this case. In that case, a fund was administered by trustees into which money had been paid by donors whose contributions were intended to defray the legal expenses of the defendants' daughter. The fund also received donations for the defendants’ use as they saw fit. The defendants presented to the trustees for payment a forged invoice for accommodation expenses allegedly incurred by them in connection with their daughter's legal proceedings. In fact, the accommodation was provided to the defendants free of charge. It seems to have been common ground that the amounts contributed for the defendants’ own use exceeded the amount of the invoice, although the two sets of moneys formed the one trust fund. In reliance on the forged invoice the trustees issued a cheque for the amount claimed. So far as is relevant, the defendants were charged with using a false instrument contrary to s. 3 of the English Forgery and Counterfeiting Act which, as I have said, corresponds to s. 83A(2) of the Crimes Act. It is important for present purposes to note that at their trial the defendants accepted that the invoice was forged, although they raised the defence that they had an honest belief that they were entitled to the money claimed because it would come from that part of the pooled funds to which they were entitled. The trial judge held on a no case submission that, since the defendants were entitled to payment out of the fund of an amount equal at least to the claim in the invoice, the trustees had not been induced to act to their prejudice within the meaning of s. 10 of the 1981 Act (which relevantly corresponds to s. 83A(8) of the Crimes Act). On a reference by the Attorney-General, the Court of Appeal found that the judge had erred. It considered that, where a defendant is charged with using a false instrument with intention of obtaining money, it is not necessary for the prosecution to prove that the defendant has no legal entitlement to the money in question. Their Lordships went on to decide that, since there was evidence that the defendants had intended the trustees to accept the false invoice as genuine and had intended thereby to cause them to authorise and execute a cheque, both elements of the mens rea prescribed by s. 3 were present and the submission of no case to answer should not have succeeded. The Court of Appeal said that it was irrelevant that the defendants may have intended to deprive the trust funds of no more than they would have obtained if they had pursued their claim in the proper way.
[7][2003] 1 W.L.R. 395.
[8]At 409 per Kennedy, L.J. with whom the other members of the Court agreed.
It is true that, as I have mentioned, the Court of Appeal said that in some cases a claim of right at the time when the false document was used may negative an intent to cause another to act to his prejudice. But that was said by way of dicta and the court did not explain on what jurisprudential basis, or in what circumstances, it could be said that a claim of right negatived a relevant intention. Be that as it may, I doubt that the Court of Appeal intended to say that the use by an offender of a false document in order to claim property to which he believes he is entitled can give rise to the prototype defence of claim of right which, once raised, requires the Crown to establish beyond reasonable doubt that no such belief existed. Rather, I think, their Lordships meant to say no more than that there may be circumstances where the claim of right may negative the existence of a relevant statutory intention on the part of the offender in respect of conduct that is the subject of a s.83A charge.
It seems to me that a claim of right was sought to be raised in this way in R. v. Tobierre[9], a case to which reference was made by Mr Ross and the Court of Appeal in Attorney General’s Reference. Unsurprisingly, the Court of Appeal in Tobierre decided that, in order to establish a breach of s. 3 of the English Act, both prescribed intentions must be established by the prosecution and failure by the trial judge to make that clear to the jury amounted to a miscarriage of justice. The appellant in that case was paid money by the Secretary of State for Social Services by way of child allowance in accordance with a claim he made, in his wife's name, in a document in which he forged his wife's signature. Because the appellant's wife and children were then living abroad, he was not entitled to the money. The appellant's defence to the charge under s. 3 of the English Act was that he genuinely believed that he was entitled to draw the money. It was accepted by the accused that he forged his wife’s signature and the evidence made it apparent that the appellant intended the Secretary of State to accept the vouchers as genuine. The question on appeal was whether it was a defence to a charge equivalent to a s.83A charge that the defendant did not intend the victim to act to his prejudice. The Court of Appeal answered that question in the affirmative and, since the jury were not told that they had to be satisfied beyond reasonable doubt of the existence of such an intention, the conviction could not stand. Thus, the Court of Appeal effectively left open the possibility that an honest claim of right could be taken into account for the purpose of determining, in relation to a s.83A charge, whether the offender had the two-fold statutory intention as alleged by the Crown. This possibility was not necessarily rejected in Attorney General’s Reference because, as I have said, the court only decided that the judge erred in accepting the no case submission.
[9][1986] 1 W.L.R. 125.
In my view, however, neither case assists the applicant here. The relevant situation in those cases was materially different from the circumstances that are present here. Importantly, in each of Attorney General’s Reference and Tobierre, the accused accepted that the document was forged and that he intended the victim to accept it as genuine and, by reason of that, pay to the accused the money claimed by him (an act which constituted “prejudice” as defined in the legislation). Here, on the other hand, the applicant did not accept at his trial that the power of attorney was forged by him or that he used it with the intention that Ms. Griffiths accept it as genuine and act accordingly.
No error by his Honour
But even if I am wrong in this analysis and a defensive claim of right is available, in the sense contemplated by the dicta in the Attorney General’s Reference, to a person charged with a s.83A offence who makes and uses a false document with the requisite intent in order to obtain property to which he honestly believes he is entitled, for the reasons I have given, such an argument would not have been open to the applicant at his trial in relation to counts 1 and 2 given the case that he actually put to the jury.
Moreover, in light of the applicant’s case at his trial in respect of these counts, there is no sensible basis on which it can be said that his Honour failed to direct the jury as the applicant now contends in his new ground 4. Such a direction would have been inconsistent with the applicant’s case before the jury. Thus, even if, conceptually, the applicant could have contended that his claim of right negated his intention as alleged by the Crown, that was never his case before the jury. Consequently, the trial judge could not have given the direction contended for by Mr Ross because it would have been inconsistent with the applicant’s case. His Honour's obligation was to ensure that the applicant received a trial that was not unfair.[10] In that context, the judge was required to assist the jury by explaining the real issues raised in the case, to summarise the case put by the parties and to apply the law to the facts of the case.[11] This obligation did not extend to his Honour giving a direction based on a far-fetched defence for which the applicant’s experienced trial counsel did not contend.
[10]See R. v. Rich [1998] 4 V.R. 44 at 47 per Brooking, J.A., with whom Winneke, P. and Buchanan, J.A. agreed; Azzopardi v The Queen (2001) 205 C.L.R. 50 at 105 per McHugh, J.
[11]See, for example, R. v. De'Zilwa (2002) 5 V.R. 408 at 416-417 per Charles, J.A., with whom Ormiston, J.A. and O'Bryan, A.J.A. agreed. See also Doggett v. The Queen (101) 208 C.L.R. 343 at 346, per Gleeson, C.J., a case to which I was referred by Charles, J.A.
The only basis on which his Honour could have drawn the jury's attention to the applicant's claim of right in relation to the cheques for the purposes of counts 1 and 2 was on the assumption that the jury disbelieved the applicant’s denials of the allegation that he made and used the false power of attorney in relation to
Ms Griffiths. But given the way the applicant conducted his defence, for his Honour to have told the jury that they might disbelieve him on his abovementioned denials, would have been forensically disadvantageous to him, and his Honour could only have given a direction if there was agreement to such a course from the applicant’s counsel. The prospect of obtaining such agreement would have been almost non-existent because, had the jury been asked to consider counts 1 and 2 on the basis that the applicant had made the power of attorney and used it to persuade Ms Griffiths to act as she did, the very fact that he did so in order to obtain the cheques would have effectively established that he intended Ms Griffiths to believe that the power of attorney was genuine and, by reason of that, act as he wanted her to. This, in turn, would have established breach of s.83A by the applicant. It is obvious, therefore, that his Honour did not err as the applicant’s counsel contended.
For these reasons, I consider that ground 4 must fail and that the application for leave to appeal against conviction should be dismissed.
EAMES, J.A.:
For the reasons given by Chernov, J.A., I agree that the application for leave to appeal against the convictions in this case should be refused.
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