R v George

[1992] QCA 428

IN THE COURT OF APPEAL  [1992] QCA 428

SUPREME COURT OF QUEENSLAND                   C.A. No. 235 of 1992

T H E   Q U E E N

v.

QUENTIN DOUGLAS GEORGE

(Appellant)

REASONS FOR JUDGMENT OF THE COURT
             Delivered the 11th day of December 1992

The appellant was convicted in the District Court on 7 August 1992 of perjury; that is, that on 24 November 1989, in the course of the hearing of the Commission of Inquiry into the activities of particular Queensland unions, he knowingly gave false testimony to the effect that on or about 15 October 1986 at Brisbane he was in possession of a document produced by him to the Commission and that the false testimony was material to a question then pending in or upon that proceeding.  The document in question was in form a letter of authority dated 15 October 1986 from Federated Engine Drivers and Firemens Association of Australasia ("FEDFA") to Q.D. George Hillhouse & Co. authorising it to deduct and pay from its trust account an American Express bill for $665.50.  We will discuss the terms of that letter in more detail later.  Q.D. George Hillhouse & Co. was at all material times a firm of solicitors of which the appellant was a partner.  From and including 1986 up to some time in 1989 it acted for FEDFA.  However by the time the appellant gave evidence the subject of the indictment for perjury there was a dispute between two factions of the union and the firm was apparently acting for one of those factions.  The appellant appeals against the above conviction.

Some of the relevant events occurred in 1986.  In September of that year the appellant attended an executive meeting of FEDFA at the Gold Coast.  On the night of 10 September 1986 he stayed at the Chevron Hotel on the Gold Coast with other delegates to that meeting.  One of the delegates engaged girls from a local escort agency, who it seems were prostitutes, to provide services to some of the men.  Although the appellant did not, apparently, use those services, he agreed to pay for them and signed a number of charge slips on his American Express account.  The total of these was $665.00.  Prior to 15 October 1986 the appellant received an American Express statement which included that sum and on that date he drew a cheque on the firm's trust account in payment of that sum.  It was signed by the appellant and was drawn against money in the trust account standing to the credit of FEDFA in an account entitled "FEDFA - Incorporation of Company".  The cheque butt contained the notation "American Express FEDFA sale of 366 Upper Roma Street".  It was debited to the above account.

On or about 27 October 1989 the police executed a search warrant on the premises of Q.D. George Hillhouse & Co. in which they seized the ledger sheet for the above transaction and the above cheque butt.  Before handing these over, the firm took and kept photocopies of them which it then kept in a single file.  During the course of the execution of that warrant two partners of the firm, Mr Whitton and Mr Hillhouse, noticed that there did not appear to be a written trust account authority for the disbursement of the above sum of $665.00 and set about trying to find one.  A detailed search failed to fine one.

They then decided to speak to Mr Goodhew, the branch secretary of FEDFA.  They did so and two partners of the firm, Messrs Whitton and Burrough, accompanied Mr Goodhew to the offices of FEDFA and, after leaving them in one of the rooms there for a short time, Mr Goodhew returned with copies of a document which appeared to be a duplicate of a letter on FEDFA letterhead dated 15 October 1986 in the following terms:

"Dear Sir,

I refer to our phone discussions today and authorise you to deduct from your Trust Account moneys to pay your American Express Account being $665.50 which I will have reimbursed to the Union. 

Yours faithfully,

(Signed)K.W. Goodhew

K.W. Goodhew

BRANCH SECRETARY"

The letter did not have an addressee.  This was not the document the subject of the indictment.  The above events occurred within a few days of 27 October 1989.

Whitton told the appellant that he had found the copy of the authority.  The appellant nevertheless apparently continued to search for the original by searching files relating to companies incorporated either shortly before or shortly after the company the subject of the ledger account.  The partners other than the appellant were apparently satisfied with the sufficiency of the copy found.

On Saturday 4 November Mr Whitton was working in the boardroom of the firm's office.  There were in that room a large number of files in three boxes on the boardroom table which, according to the evidence which the appellant gave before the Inquiry, he had had brought in there in the course of his search for the letter of authority.  According to that evidence the appellant was searching through files of companies incorporated immediately before and immediately after the company the subject of the ledger heading.  Mr Whitton noticed one of these files open and sitting on top of it was a document on the letterhead of FEDFA which was in form an original letter dated 15 October 1986 in the following terms:

"Q.D. George Hillhouse & Co.

2/457 Upper Edward Street,

BRISBANE, QLD. 4000

ATTENTION: Q.D. George

Formation of New Company/366 Upper Roma Street Sale

Dear Sir,

Referring to your call today I concede the authority sent may not be sufficient.  I therefore advise the following:

I hereby authorise and direct you to deduct and pay from your Trust Account/Accounts for your American Express Bill for $665.50.

I again advise that these moneys will be repaid by myself immediately to the Unions's account.

Yours faithfully

(Signed)K.W. Goodhew

K.W. GOODHEW

BRANCH SECRETARY"

This was the letter the subject of the indictment.  It was admitted by the appellant at the trial that it was not in existence on or about 15 October 1986; that it was typed at the office of FEDFA by or at the direction of Ken Goodhew, branch secretary of FEDFA, on a date between 1 November 1989 and 5 November 1989.  However, it was asserted by the appellant that he did not know those facts at the time he gave evidence to the Commission on 24 November 1989.

There are some obvious differences between the two forms of letter.  We have mentioned already that the first did not have an addressee.  The second is addressed to Q.D. George Hillhouse & Co. and marked for attention Mr George.  The first does not identify a subject matter whereas the second states as its subject matter paraphrases of both the heading of the relevant ledger sheet and the endorsement on the cheque butt.  As to the first of these, the phrase "Formation of New Company" is used whereas the ledger heading was "Incorporation of Company"; a paraphrase more likely to be used by a lawyer than a layman.  The phrase "I concede the authority sent may not be sufficient" is also one more likely to be used by a lawyer than by a layman.  There are other textual differences, the most notable being a promise in the second letter to repay the money "immediately".  Both letters mis-state the amount as "$665.50". 

Mr Glynn, who appeared for the appellant, submitted that there were two issues at the trial and on this appeal.  The first was, he said, whether the appellant in fact testified to the effect set out in the indictment; that is, that on or about 15 October 1986 at Brisbane he was in possession of the second of the above documents.  He submitted that that question should be answered in the negative because the appellant's evidence before the Commission on this question was a reconstruction only; he did not say that he had the document in his possession on 15 October 1986 but merely that he must have done so.

The second issue, according to Mr Glynn, was whether, if his evidence was to the effect that on that date he was in possession of that document, he knew that to be false at the time he gave the evidence.  The submission in this respect was that there was no evidence or insufficient evidence on which the jury could have concluded that the appellant knew his testimony to be false.

The two issues are closely related, too closely related to be resolved separately and sequentially as contended for by the appellant.  If the jury were entitled to conclude, and such conclusion would not have been unsafe or unsatisfactory, that the appellant was a party to the creation of the false document then the appellant was plainly not, in giving his evidence before the Commission of Inquiry, reconstructing events but purporting to swear positively that the document was in his possession on 15 October 1986.

Neither Mr Goodhew nor the appellant gave evidence at the trial.  The defence case was, as it had to be, that Mr Goodhew alone was responsible for the creation of the false document.  To that end, the defence adduced in cross-examination evidence from Messrs Burrough, Whitton and Hillhouse that during the months of October and November 1989 Mr Goodhew, due to his involvement in substantial litigation and the Inquiry, had access to the firm's boardroom and that such access was sometimes unsupervised.

But more than that is, in our view, needed to raise an hypothesis consistent with the appellant's innocence.  No one except the partners, and possibly some staff, had access during that period to the copies of the ledger account and cheque butt and it is almost inconceivable that anyone other than the appellant and his partners would have realised that the notations on the cheque butt and on the ledger sheet did not coincide.  Yet, as we have mentioned, both appeared on the falsified letter.  And we have already mentioned the paraphrasing of the heading from the ledger sheet in the letter and the other language which was at least more likely to have been composed by a lawyer than by a layman.

The appellant had a motive to prove two things.  The first was that he had, in writing (thus avoiding any possibility of misunderstanding), a clear authority both to write the cheque which he did and to debit it to the account to which it was debited.  The second, because the cheque was plainly not for any business of FEDFA, was that he had the plainest statement that the amount so debited would be immediately matched by a credit from those persons on whose behalf the money was expended.  The appellant in retrospect could not cure the breach of trust but he could at least cover these other aspects.  The document which Mr Goodhew had produced did not authorise any specific file or account to be debited and did not emphasise the immediacy with which the money would be reimbursed.

The jury were justified in concluding, in our view, that the appellant was the only person with both the motive and the knowledge to compose the falsified letter and that, though it was typed at Mr Goodhew's direction, it was from information supplied and perhaps even in a form dictated by the appellant.  Having reached that conclusion the jury would not have had any difficulty, in our view, in concluding that what he was saying when he gave evidence before the Commission was that he had that document in his possession on 15 October 1986. 

The appellant, when giving evidence before the Commission, did say that he could not recall the discussion which he had with Mr Goodhew in 1986 about the American Express bill and that therefore he had to reconstruct what happened.  When speaking of the written authority, however, his evidence was, we think, equivocal in that some parts of it are more consistent with a specific recollection by him of receipt of the written authority which he produced to the Commission but which at the trial was acknowledged to be false; other parts are more consistent with his having no specific recollection of the receipt of that, or any authority, but that because his practice was always to receive one he thought he must have done so.  We do not see any point in analysing this evidence in detail by referring to those parts of it which are more consistent with one view and those which are more consistent with the other.  It may even be correct to say, as Mr Glynn submitted, that looked at as a whole the evidence was more consistent with reconstruction than with actual recollection.  But the point fades into insignificance in our view once it is accepted as the jury were, we think, justified in accepting, that the appellant for the reasons which we have mentioned must have played a part in falsifying the relevant document.

For these reasons the verdict was not unsafe or unsatisfactory and we would dismiss the appeal.