R v Nicholas - [1988] TASSC 63

Serial No 62/1988
List “A”

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Nicholas [1988] TASSC 63; A62/1988

PARTIES:  THE QUEEN
  v
  NICHOLAS

FILE NO/S:  C240/1986
DELIVERED ON:  6 December 1988
JUDGMENT OF:  Neasey J

Judgment Number: A62/1988
Number of paragraphs: 10

Serial No 62/1988

List "A"

File No C240/1986

THE QUEEN v NICHOLAS

REASONS FOR JUDGMENT NEASEY J

6 December 1988

I am required in the following circumstances to give a ruling as to the proper interpretation of s108 of the Evidence Act 1910, which concerns the giving of evidence by witnesses as to comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to be genuine. The accused is charged on four counts. The first alleges conspiracy with two other persons to defraud the lawful heirs or beneficiaries of the estate of a deceased person ("the deceased") by agreeing to falsely represent that a forged document which they knew to be forged was the validly executed last will of the deceased. Counts 2, 3 and 4 are counts of uttering this false document, knowing it to be forged and with intent to defraud.

In the course of presentation of the Crown case, three documents have been tendered in evidence each of which is admitted by the defence for the purpose of the present issue to contain a genuine signature made by the deceased. These are, an admission form to St Mary's District Hospital which a witness saw the deceased sign, an admission form to St Vincent’s Hospital at Launceston which a witness saw him sign, and a signature in an autograph book which the deceased signed also, according to a witness. In addition there have been tendered in evidence, as part of the banking records of the deceased, produced by his bank, two cards purporting to show specimen signatures by him, and three cheque forms purportedly signed by him, which had been presented at his bank at St Marys and honoured by the bank. These banking records were tendered pursuant to s40A of the Evidence Act, and their admission was not objected to provided it was upon the limited basis that they were simply part of a set of banking records relating to an account operated by the deceased, and containing signatures which purported to be his. There has been no proof that these documents were in fact signed by the deceased. For my part, on the basis of this limited consent, I admitted the documents as having prima facie relevance, assuming that in due course further evidence would be presented which would give significant relevance to them.

However, when the Crown presented its first handwriting expert, objection was immediately taken by the defence to this witness giving any evidence concerning the genuineness or otherwise of the signatures on the banking documents. It then emerged that the Crown would be seeking to use s108 of the Evidence Act for the following purpose. Upon the basis of an assumption that the three "genuine"…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nicholas

Details

AGLC: R v Nicholas [1988] TASSC 63
Case: [1988] TASSC 63
Decision Date: 6 December 1988

CaseChat Overview and Summary

The Supreme Court of Tasmania was called upon to interpret section 108 of the Evidence Act 1910 in the case of R v Nicholas. The accused faced four counts of conspiracy and uttering a forged document with intent to defraud. The Crown sought to use handwriting comparison to prove the genuineness of certain signatures. The defence objected to the Crown's proposed use of section 108, which allows comparison of disputed handwriting with genuine writing. The defence argued that the bank documents, which the Crown intended to use as genuine writing, were not genuinely proved and thus section 108 could not be applied.

The court considered whether section 108 could be used to validate the bank documents for comparison purposes. The court held that section 108 could only be used to compare genuine writing, which must be proved to the satisfaction of the judge, with disputed handwriting relevant to the issues in the case. The bank documents, which had no relevance to the case other than for comparison purposes, were not "disputed handwriting" within the meaning of the section. The court ruled that section 108 could not be used to validate the bank documents for comparison, as they were not genuinely proved. The court relied on the decision in Adami v The Queen, which held that additional documents could only be admitted if they were inherently part of the circumstances of the case.

The court's interpretation of section 108 was that it could only be used to compare genuine writing, which must be proved, with disputed handwriting relevant to the issues in the case. The bank documents were not genuinely proved and were not relevant to the issues in the case, except for comparison purposes. The court held that the Crown could not use section 108 to validate the bank documents for comparison, as they were not "disputed handwriting" within the meaning of the section. The court's decision was based on the principle that section 108 could only be used to compare genuine writing, which must be proved, with disputed handwriting relevant to the issues in the case.

The court's ruling meant that the Crown could not use section 108 to validate the bank documents for comparison purposes. The court held that the bank documents were not genuinely proved and were not relevant to the issues in the case, except for comparison purposes. The court's decision was based on the principle that section 108 could only be used to compare genuine writing, which must be proved, with disputed handwriting relevant to the issues in the case. The court's interpretation of section 108 was that it could not be used to validate unconnected documents for comparison purposes. The court's decision was significant in clarifying the proper use of section 108 and ensuring that it was not used to validate unconnected documents for comparison purposes.

Orders