R v Nicholas
[1988] TASSC 63
•6 December 1988
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" documents, namely the two admission forms and the autograph signature, would have been proved to my satisfaction to be genuine, the handwriting expert would give evidence that the signatures on the banking documents are in his opinion made by the same person who signed the "genuine" documents, and are therefore signatures made by the deceased. The witness would then seek to give further evidence using the banking documents as "genuine documents" for the purpose of s108.
Learned counsel for the defence submitted that on its proper interpretation, s108 could not be used in this way, in that the specimen or standard writing must be proved to be genuine before s108 can come into operation. The Crown on the other hand contends that the evidence of the handwriting expert is relevant and admissible to prove to my satisfaction, within the terms of s108, that the banking records contain genuine writing by the deceased.
Section 108 provides as follows:
"Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge or person acting judicially to be genuine may be made by witnesses, and such writings and the testimony of witnesses respecting the same may be submitted to the court or such person and the jury or assessors, if any, as evidence of the genuineness or otherwise of the writing in dispute."
This is the common provision which has counterparts in all the Australian States, and which is founded on s8 of "Denman's Act"; that is, s8 of the Criminal Procedure Act 1865 and s27 of the Common Law Procedure Act 1854, of England. It enables a witness to give evidence comparing a disputed writing with any writing proved to the satisfaction of the judge to be genuine, whereas at common law this cannot be done unless the genuine or standard specimen is relevant and admissible in respect of some issue in the case apart from the question of authorship – see Adami v The Queen (1959) 108 CLR 605 at 616; and Gillies, Law of Evidence in Australia, p530. There is no evidence that the bank documents which purport to be signed by the deceased are relevant to any issue in this case, so as to enable them to be admitted according to the common law of evidence. If the Crown submission is correct, it would enable s108 to be used as a foundation or stepping stone for permitting any number of documents which purportedly contain writing made by the person in question to be treated as "genuine" within the meaning of the section, by comparison with an original "genuine" sample, and then for s108 to be used again to enable the writing on any or all of those documents to be compared with the disputed writing. This is certainly not the intention of this provision, but the simple proposition which in my opinion prevents it being done in the present case (and generally) is that the bank records are not "disputed handwriting" for the purpose of the section. Section 108 only allows comparison by witnesses of genuine writing by the person concerned, which is not otherwise relevant to the issues in the case, with "disputed handwriting".
The expressions "disputed handwriting" and "writing in dispute", in s108 must mean in my view handwriting which is in dispute in some way relevant to the issues in the proceedings. You cannot turn any unconnected alleged piece of writing by the person concerned, which is not relevant to any issue in the case, into disputed handwriting merely by producing it and contending that it is a genuine piece of the person’s handwriting. In this case the only disputed handwriting is the signature on the purported will, which is alleged by the Crown to be forged.
Adami's case, already mentioned, supports the above interpretation of the meaning of "disputed handwriting" The appellant was charged on counts of having forged and uttered two Savings Bank withdrawal forms, by tendering them at the bank where the account was held. He was paid, after some investigation by a bank official who doubted the authenticity of the signature. Evidence was given that three other withdrawal forms on the same account, not the basis of any charge, bearing signatures which appeared to be the same as those on the first two, had been paid without question, and those three forms were admitted in evidence and their authenticity canvassed during the case. A piece of genuine writing made by the owner of the account was tendered in evidence, and the signatures on all five of the withdrawal forms were compared with it during the trial. There was no specific evidence connecting the three additional forms with the accused.
The court, consisting of Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ, held that the three additional forms had been properly admitted, but only because they were "facts inherently forming part of the circumstances out of which the case grew and upon which the counts and the information were founded". By means of the five withdrawal slips together, all of which appeared to have been signed by the same hand, the whole of the money in the bank account had been withdrawn. The court said:
"The withdrawals all took place between 3rd and 17th December 1958 and comprised the whole sum deposited. That means that the withdrawals covering the amount at credit within a period of 14 days were obviously inter–connected. Assuming that it was open to the judge to treat all five withdrawal forms as presumptively attributable to the prisoner because of the learned judge’s view of the similarity of all five withdrawal forms or perhaps more precisely of the three the admissibility of which is now in question, it seems to have been open to the learned judge to admit them in evidence on this footing and submit them to the jury. ........................ But except to give coherence and intelligence to what really was an entire transaction in relation to C....'s bank account the additional three withdrawals were not really of probative strength in showing that he was [the forger]."
On the footing that the three additional withdrawal slips were thus inter–connected within the context of the case, and where in fact disputed, their Honours held that they were "disputed documents" for the purpose of the counterpart provision to our s 108 of the Evidence Act. But in the present case there is no such inter–connection. The bank records have no relevance to the issues other than in respect of their possible use for comparison purposes with the signature on the purported will. Section 108 cannot be invoked in respect of them.
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