R v Perrin - [2017] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

R v Perrin [2017] QCA 194

PARTIES:

R
v
PERRIN, Matthew David
(appellant/applicant)

FILE NO/S:

CA No 6 of 2017
CA No 20 of 2017
DC No 1083 of 2014
DC No 2552 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 20 December 2016; Date of Sentence: 27 January 2017 (Dick SC DCJ)

DELIVERED ON:

5 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2017

JUDGES:

Morrison and Philippides JJA and Atkinson J

ORDER:

1.   The appeal against conviction is dismissed.

2.   The application for leave to appeal against sentence is allowed.

3.   The appeal against sentence is allowed.

4.   The order as to parole eligibility, imposed on 27 January 2017, is set aside, an in lieu thereof it is ordered that the parole eligibility date is set at 20 June 2020.

5.   Otherwise the sentences imposed on 27 January 2017 are affirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – CONDUCT OF TRIAL JUDGE – where the appellant was convicted of six counts of aggravated forgery and three counts of aggravated fraud – where the appellant contends that the trial judge wrongly decided that the exculpatory provision in s 22(2) of the Criminal Code (Qld), an honest claim of right, would not be left for the jury to consider – where the appellant submits that by failing to leave s 22(2) to the jury, a miscarriage of justice was caused – where there are similarities between the criteria that establish a forgery or fraud offence and the defence in s 22(2) – where the respondent submitted that if an offence of forgery is proven, s 22(2) cannot apply – where case law demonstrates that s 22(2) has three criteria, which must be satisfied with reference to the act constituting the offence – where defence counsel at trial conceded that there was a logical difficulty in satisfying the three criteria, because of the similarities between the defence in s 22(2) and the elements of fraud and forgery – whether the trial judge was correct to conclude that a direction on s 22(2) was not necessary

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to concurrent terms of imprisonment with a head sentence of eight years imprisonment with a parole eligibility date of 20 December 2020 – where the applicant contends that the learned sentencing judge erred in failing to account for his cooperation in the administration of justice – where the applicant made a number of admissions during the course of the trial – where such admissions avoided the need for expert witnesses – where the learned sentencing judge expressly referred to that in her Honour’s sentencing remarks but did not state what discount would be applied because of such cooperation – where the learned sentencing judge set parole eligibility at the default statutory position, after serving fifty per cent of the sentence – where it is possible to conclude that no allowance was considered when setting the parole eligibility date – whether the sentence as whole is manifestly excessive

Crimes Act 1914 (Cth), s 173, s 473
Crimes Act 1900 (NSW), s 173
Criminal Code (Qld), s 22(2), s 408C, s 488
Criminal Code (WA), s 409

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited
Clarkson v Aspinall; Ex parte Aspinall [1950] St R Qd 79, considered
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited
Mathews v The Queen (2001) 24 WAR 438; [2001] WASCA 264, followed
Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, followed
Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580, cited
Peters v The Queen (1998) 192 CLR 493, [1998] HCA 7, followed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited
R v Dale[2012] QCA 303, followed
R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56; [2015] QCA 155, considered
R v Ghosh [1982] 2 QB 1053, considered
R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; [1996] VICSC 45, cited
R v Maher [1987] 1 Qd R 171, considered
R v Mill[2007] QCA 150, distinguished
R v Pollard [1962] QWN 13, considered
R v Senese [2004] VSCA 136, considered
R v Sitek [1988] 2 Qd R 284, cited
R v Waine [2006] 1 Qd R 458; [2005] QCA 312, cited
R v Wiggins[2003] QCA 367, considered
R v Williams [1988] 1 Qd R 289, cited
Roberts v State of Western Australia (2005) 29 WAR 445; [2005] WASCA 37, considered
Welham v Director of Public Prosecutions [1961] AC 103, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

M J Copley QC, with A M Hoare, for the appellant/applicant
G P Cash QC for the respondent

SOLICITORS:

Lawler Magill for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: On 20 December 2016 the appellant, Mr Perrin, was convicted, after a trial, of six counts of aggravated forgery (counts 2, 3, 5, 7, 9 and 11) and three counts of aggravated fraud (counts 6, 10 and 12). The appellant was subsequently sentenced to concurrent terms of imprisonment on each conviction:
(a)eight years on the aggravated fraud counts;
(b)six years on the forgery counts 2, 5, 7 and 11; and
(c)seven years on the forgery counts 3 and 9.
The appellant challenges his convictions on several grounds. The original ground[1] was abandoned at the hearing of the appeal. Instead the grounds[2] pressed were:
(a)the learned trial judge wrongly decided that the exculpatory provision contained in s 22(2) of the Criminal Code (Qld) would not be left for the jury to consider. Alternatively a miscarriage of justice occurred because the learned trial judge wrongly decided that the exculpatory provision contained in s 22(2) of the Criminal Code (Qld) would not be left for the jury to consider; and
(b)a miscarriage of justice occurred because the jury was not directed that verdicts of guilty depended upon satisfaction beyond reasonable doubt that the appellant did not honestly believe he was entitled to put his then wife’s signature on the documents the subject of the forgery counts and did not honestly believe he was entitled to gain the pecuniary benefits the subject of the fraud counts.
[1]That the verdicts are unsafe and unsatisfactory.
[2]As amended during the hearing.
Leave is also sought to appeal against the sentences imposed on the grounds that: (i) they are manifestly excessive, and (ii) the learned sentencing judge erred in failing to take into account the applicant’s cooperation in the administration of justice. The basis for the second ground was that no allowance was made for the applicant’s cooperation in reducing the length of the trial by making admissions as to the forgeries and the fact that his fingerprints were on certain documents, thus avoiding the need for evidence from five witnesses.[3]
[3]Handwriting analysts and fingerprint experts: AB 485.
In the event that leave to appeal against the sentence is allowed, the applicant does not seek to challenge the head sentences, but only that the parole eligibility date be varied, so that he is eligible for parole on 20 June 2020 (after he has served three and a-half years).
The following explains my reasons for concluding that the appeal against the convictions should be dismissed, and the application for leave to appeal against sentence should be allowed.
Background facts
Because the original ground of appeal (that the verdicts were unsafe or unsatisfactory) was abandoned, there is no need to set out an exhaustive account of the facts. The following draws upon those agreed as relevant by the appellant and the respondent.
The appellant and Nicole Bricknell[4] were married in 1996 and their first child was born in 1998. Prior to that birth she gave up work as a beauty therapist. The appellant was a solicitor. They purchased a house and land at Southern Cross Drive, Cronin Island, in about May 1999. The purchase price was about $1.5m. To fund that purchase the appellant and Mrs Perrin obtained a loan secured by a mortgage over the property. The property was put in Mrs Perrin’s name because the appellant’s former partner in a law firm was being sued and the appellant wanted to avoid any possibility of the partner’s actions affecting them. He told her that a lawyer (which he was) puts assets in his wife’s name in order to protect the asset.
[4]At the time of the trial Mrs Nicole Perrin had reverted to her previous name, Nicole Bricknell. For convenience she is referred to in these reasons as Mrs Perrin, or Nicole Perrin where appropriate to understand the evidence.
A company, Christie Qld Pty Ltd, (Christie) was created around 1998. Mrs Perrin and the appellant were the only directors and shareholders. The purpose of the company was to run everything for their family. Christie held all of their cash assets.
Mrs Perrin gave birth to their second child in 2000 and around that time the appellant finalised a transaction to do with a surfwear business called Billabong, which eventually resulted in them receiving $33m. She and the appellant knocked down the house they had purchased at Cronin Island, and built a new house. Sometime after 2001, they purchased the adjoining house and land.[5] They rented that house out for a while but then decided that, due to land tax issues, they would knock it down. They then amalgamated the titles of the two properties into one title, in her name.
[5]Initially this was put in the name of Mrs Perrin’s sister, to hide its true ownership from neighbours: AB 124.
The Billabong shares[6] were in Mrs Perrin’s name.[7] After Billabong was floated they received $8m and that money was put into Christie’s bank account. The money was used to demolish the house at Cronin Island and to fund the construction of the new house, at a cost of $7.4m.
[6]Acquired when the appellant purchased an interest in the business.
[7]She agreed that this was done to protect the shares: AB 143.
Mrs Perrin said she basically ran the household and looked after the children, and she left the appellant in charge of the business affairs.[8] She said that they would discuss things,[9] but business decisions were made by the appellant; he said that he would only give her a brief overview.[10] As to the ownership of properties the appellant said he “thought of everything as ours”.
[8]AB 124.
[9]AB 124, 145.
[10]AB 284, 289, 299, 338.
At all times the appellant and Mrs Perrin banked with the Commonwealth Bank (the Bank). Christie and MDP Consolidated Pty Ltd (MDP), another entity owned by the appellant and his wife, also had accounts with the Commonwealth Bank. The appellant had a line of credit in his name as borrower, provided by the Bank. That line of credit was secured by a mortgage over a property at Hedges Avenue on the Gold Coast.
According to the appellant:
(a)in 2006 they entered into an arrangement to buy overseas properties for $50m; they were 20 per cent of the purchasing entity, and other parties (the Thynnes) held the balance;
(b)the purchase price was to be paid in instalments;
(c)Mrs Perrin knew of and was agreeable to enter into the investment, and contracts were signed;
(d)when the second payment fell due, the Thynnes could not contribute their 80 per cent share; as a result a registered charge was granted over Christie’s assets in favour of the vendor, SAI;
(e)because they were jointly liable on the purchase, the Perrins were liable to pay all of the purchase price;
(f)in February 2007, a payment was not made on time and, on the morning after it was due receivers arrived, demanding payment of the money or they would seize Christie’s assets; the appellant rapidly made arrangements to obtain the required funds; Mrs Perrin was required to sign a Deed of Guarantee and she did so when the appellant brought it to her;[11] and
(g)a further payment was due in June 2007 and an extension was negotiated by the appellant, for which guarantees were signed by the appellant and Mrs Perrin; subsequently the appellant negotiated a priority agreement with the Thynnes, so that the Perrins were to be fully repaid before the Thynnes received anything.
[11]Mrs Perrin admitted that she signed the document.
In April 2008, the appellant requested an increase the credit provided from the Bank, from about $3 million to $5 million. He said it was so he could invest in a company. The Bank required additional security by way of a mortgage over the property at Cronin Island. Additionally, the bank required guarantees from Christie and from Mrs Perrin.
By May 2008 another instalment was due to SAI. Neither the appellant nor Christie had the money to pay it. The appellant said that he told Mrs Perrin that they needed to borrow to retrieve their position, and they agreed he would arrange to get a loan from the Bank.
The Bank prepared the relevant documents, which were then given to the appellant. On 16 May 2008, Mr Parker told the appellant that it was necessary for the mortgage documents to be witnessed by a JP or a solicitor. The appellant accepted that Mr Parker may well have offered the services of one such witness in the Bank’s office.
On or about 16 May 2008, the appellant wrote signatures on a number of the Bank’s documents. Admissions were made that the signatures purporting to be those of Mrs Perrin, which appeared on the following documents, were not her signatures but were written by the appellant:
(a)a Deed of Guarantee by Christie as guarantor;[12]
(b)a Deed of Guarantee by Mrs Perrin as guarantor;[13]
(c)a Mortgage for the property at Southern Cross Drive, Cronin Island;[14]
(d)a Consumer Loan Authority provided by Christie;[15] and
(e)a document entitled “Acknowledgement and Consent - Proof of Identity Details”.[16]
[12]Count 1; the document is Exhibit 1, AB 514-515.
[13]Count 2; the document is Exhibit 2, AB 516-517.
[14]Count 3; the document is Exhibit 3, AB 518-520.
[15]Exhibit 4, AB 521.
[16]Exhibit 6, AB 525.
The documents were returned to the Bank, and the line of credit was increased to $5,000,200.
A couple of days later the appellant requested that his line of credit be increased further, on a temporary basis. The appellant said (again) that it was so he could invest in several companies or one of his existing investments. The Bank agreed, provided further guarantees were given.
The Bank’s documents were taken to the house at Cronin Island by Mr Parker. Mr Parker said he met, and spoke to, Mrs Perrin for the first time when he called at the house, though he initially did not know who she was. She was on her way out and he told her that he had called over to have documents signed. He asked her if the appellant was there, and she said that she was not sure. Mr Parker was about to leave the documents in the letterbox when he saw the appellant on the driveway so he gave them to the appellant. Mr Parker said that the documents were later returned to the Bank.
According to the appellant:
(a)Mr Parker[17] brought documents around to the Cronin Avenue house to sign;
(b)Mrs Perrin was just about to leave to do the school run;
(c)she stopped her car on their driveway; and
(d)the appellant introduced her to Mr Parker and the latter said “I’ve given the documents for you guys to sign” and Mrs Perrin said “great … Matthew, take care of it”.[18]
[17]Mr Parker was Mr Perrin’s personal banker at the Bank.
[18]Mr Parker denied any conversation to this effect: AB 91.
According to Mrs Perrin:[19]
(a)as she was on the driveway, leaving to collect children from school, she spoke to a man she did not know who asked for the appellant;
(b)she said he was inside and to ring the doorbell; there was no further conversation; and
(c)she could not recall any discussion about documents but it was possible that she said to give documents to the appellant.
[19]AB 170.
On or about 20 May 2008 the appellant wrote signatures on a number of documents. Admissions were made that the signatures purporting to be those of Mrs Perrin, which appeared on the following documents, were not her signatures but were written by the appellant:
(a)a Deed of Guarantee by Christie as guarantor;[20]
(b)a Deed of Guarantee by Mrs Perrin as guarantor;[21] and
(c)a letter concerning a “Credit Contract”.[22]
[20]Count 4; the document is Exhibit 8, AB 533-534.
[21]Count 5; the document is Exhibit 9, AB 535-536.
[22]Exhibit 10, AB 537.
As to why Mrs Perrin’s signatures were not on those documents the appellant said: “Nicole and I agreed when the documents are there, if I’m there I’ll sign them. If I’m not there, Matthew, you sign them for me, because we need to get this done”.
As to the documents dated 20 May 2008, the appellant said Mrs Perrin did not sign the documents because she was not available or it was inconvenient. However, at 12.05 pm on 20 May 2008, the appellant sent an email to his personal banker (Mr Parker) stating he had “Nicole on standby” to sign the documents. But the appellant denied doing so to deceive the Bank into thinking Mrs Perrin would sign the documents herself.
The Bank then increased the line of credit to $7m, with that increase to remain in place until 30 July 2008.
On 25 May 2008, the appellant advised Mr Parker that he wanted to have his facility made permanent, not temporary. Mr Parker told him that the arrangements had to change from a line of credit to a business loan. The Bank proposed a BetterBusiness loan, with the appellant as borrower. The Bank indicated it could make a $10m loan, and the appellant requested that. The purpose of the loan was for the appellant’s investment business.
A new set of Bank documents was required, which included a new mortgage over the Cronin Island property and new guarantees from Christie and Mrs Perrin. The Bank prepared the necessary documents. They were returned to the Bank, already signed.
In June 2008 the appellant wrote signatures on the Bank’s documents. Admissions were made that the signatures purporting to be those of Mrs Perrin, which appeared on the following documents, were not her signatures but were written by the appellant:
(a)a Deed of Guarantee by Mrs Perrin as guarantor;[23]
(b)a Deed of Guarantee by Christie as guarantor;[24] and
(c)a mortgage for the property at Southern Cross Drive, Cronin Island.[25]
[23]Count 7; the document is Exhibit 11, AB 540-547.
[24]Count 8; the document is Exhibit 12, AB 548-560.
[25]Count 9; the document is Exhibit 13, AB 561-562.
The Bank made the loan of $10m to the appellant on 27 July 2008.
On or about 4 August 2008, the appellant asked the Bank for a loan of $17m. The appellant said it was so he could make additional investments. The Bank was prepared to lend an additional $3.5m as a separate loan secured in a manner similar to the other loan, with an additional guarantee from MDP.
On the appellant’s version, in August 2008, he told Mrs Perrin that they would have to increase the loan to pay the next instalment. Mr Parker arranged it urgently. The appellant said: “And, again, the same situation, Nicole said if we need it quickly, if I’m here, I’ll sign them. If you’re here, sign them. Just make sure SAI does not come back again.”
In August 2008 the appellant wrote signatures on documents. Admissions were made that the signatures purporting to be those of Mrs Perrin, which appeared on the following documents, were not her signatures but were written by the appellant:
(a)a Consent and Acknowledgement of Guarantee Form;[26] and
(b)a Business Loan Authority with Christie as security provider;[27] and
(c)a Business Loan Authority with MDP as security provider.[28]
[26]Count 9; the document is Exhibit 15, AB 568.
[27]Exhibit 17.
[28]Exhibit 18, AB 576.

The documents in paragraphs [17](b) and (c), [23](b) and (c), [29](a) and (b), and [33](a) and (c) above were purportedly witnessed by Fraser Perrin. Admissions of fact were made that the signatures purporting to be those of Fraser Perrin on those documents were not his signature but were written by the appellant. The appellant admitted that he had written them without Fraser Perrin’s knowledge or authority.
The appellant acknowledged that as a businessman and former solicitor he appreciated the importance of a witness’s signature on documents such as these. The appellant’s explanation for writing Fraser Perrin’s signature on the documents was that he was compelled by time constraints despite the fact that Fraser Perrin worked in an office one minute’s drive away from the house at Cronin Island where the documents were signed.
The additional $3.5m was made available on 20 August 2008. Shortly thereafter the appellant invited Mr Parker and his assistant (Ms Strathmoore) to lunch. The lunch was on 28 August 2008. The appellant and Mrs Perrin attended. Mr Parker said that the appellant said let’s not talk business or words to that effect. Mr Parker thought the lunch was a form of thanks for their work on the loans. Ms Strathmoore’s evidence was that the appellant said something to the effect of thank you for doing this loan so quickly, we really appreciate it, and Mrs Perrin said words to the effect, yes it was really well done.
In all of the dealings above the appellant was the point of contact for the Bank and gave all the instructions for the transactions. The bank had no contact with Mrs Perrin apart from the lunch referred to in paragraph [36] above.
Evidence was led from an officer of the Bank that had the mortgages and guarantees not been provided then the Bank would not have advanced the funds.[29]
[29]AB 105-106.
The appellant said and did nothing to alert the Bank that he had signed the documents on behalf of Mrs Perrin. The appellant knew that it was a common practice when signing with authority to sign “for” or “on behalf of” the other person. The appellant represented to the Bank that the signatures on the relevant documents had been put there by Mrs Perrin herself. The appellant also represented to the Bank that the purported signatures of Fraser Perrin had been written by Fraser Perrin himself.
On 16 March 2009, the appellant attended at the home of Tracey Hill and in her presence signed and dated a document titled “Statement of Matthew David Perrin”. This document[30] reads as a confessional statement. In it the appellant admitted that he forged Mrs Perrin’s signature on the documents the subject of the charges, that he forged the signatures of the purported witness where necessary, that he kept the paperwork from her, that she was not aware of the mortgages or the extent of liability, and that she did not, and never would, agree to using the house as security. The appellant admitted signing the document but denied he was the author.
[30]Exhibit 32 at the trial.
The extent of the appellant’s financial difficulties was revealed to family members on 20 January 2009. Those present included Fraser Perrin and Mrs Perrin. When the appellant said he had “done some bad things and he was … broke”, and that the house had been mortgaged,[31] the appellant broke down.[32]
[31]Fraser Perrin: AB 114.
[32]Mrs Perrin said he was “a complete mess, shaking and crying”, and she was “not in a really good state”, struggling to deal with what he was saying: AB 136-137. Fraser Perrin described the appellant’s as “visibly upset” and “breaking down”, and Mrs Perrin’s reaction as being “hysterical”: AB 114.
Mrs Perrin’s evidence
Mrs Perrin’s understanding was that their financial position was entirely sound as at January 2008 and that she was never aware of any difficulties in this regard until January 2009. In 2008, she was never made aware that a line of credit had been extended, that guarantees had been given, or that loans for $10m and $3.5m had been obtained. She said that after the Billabong float they “would never have needed to borrow money … for any reason at all”.[33]
[33]AB 146.
She signed some documents that the appellant presented to her on two occasions (at their son’s rugby field and at a swimming pool). The appellant told her that they were connected with the Chinese investment involving the Thynnes, but were guarantees in their favour, and that the lawyers who asked her to sign were their own lawyers, or lawyers for a co-investor.[34] She did not read the document the appellant asked her to sign as she trusted him to tell her what it was.[35]
[34]AB 147-148, 155, 159, 160, 162.
[35]AB 160.
She never gave the appellant any authority, either express or implied, to mortgage the property at Cronin Island, to offer her as a guarantor for loans or lines of credit, or to sign documents on her behalf. She denied that the appellant had been signing her name on documents since 1999 with her permission. She said it was not her signature on a guarantee dated 29 September 2004 which exposed her to a $100m liability[36] and that it was not her signature on an application to construct a jetty.
[36]AB 149, 154.
The appellant’s evidence
He said he had Mrs Perrin’s authority to sign all the documents the subject of the counts of forgery and she had expressly stated that to him. All of the documents for the transactions in May, June and August 2008 were signed in similar circumstances of urgency. He “honestly believed [he] could sign for Nicole”.
From the year 2000 on, Mrs Perrin had said if she was available and it was convenient she would sign documents, but if she was not available or it was inconvenient the appellant was to sign for her.
The appellant said that Mrs Perrin had expressly authorised him to sign documents on her behalf.
Ground 1 – direction as to s 22(2) of the Criminal Code 1899 (Qld)
Senior Counsel for the appellant advanced a number of contentions in support of this ground of appeal, including:
(a)a judge is obliged to leave an exculpatory provision if there is some evidence capable of raising it; the appellant’s evidence raised the provision, in that the appellant believed he had his wife’s authority to deal with their property;
(b)the learned trial judge did not rule whether or not s 22(2) was raised on the evidence, but rather did not leave s 22(2) to the jury because s 22(2) was not needed because the prosecution had to prove dishonesty beyond reasonable doubt; for the fraud counts that was so, but for the forgery counts it was necessary for the prosecution to prove an intent to defraud beyond reasonable doubt;
(c)relying on R v Mill,[37] the learned trial judge should have directed the jury as to s 22(2); and
(d)to the extent that reliance might be placed on R v Dale,[38] which was cited to the learned trial judge, that decision was per incuriam, as that Court was not referred to, and did not consider, Mill.
[37][2007] QCA 150.
[38][2012] QCA 303.
Senior Counsel for the Crown contended that:
(a)for each allegation of fraud or forgery it was necessary to prove, beyond reasonable doubt, that the appellant held an intent to defraud or acted dishonestly; the learned trial Judge so directed the jury;
(b)for s 22(2) to apply the words of the section require that there be both an honest claim of right and an absence of an intention to defraud; if there is an intent to defraud it is difficult to conceive there could be an honest claim of right; all cases which prove that a defendant acted dishonestly or with an intent to defraud will defeat s 22(2);
(c)Mill was distinguishable, and Dale applied; therefore there was no need to direct the jury as to s 22(2);
(d)the directions given were adequate to deal with the real issues at trial;
(e)having regard to the manner in which the trial was litigated, there was no need for the trial Judge to direct the jury concerning s 22(2); and
(f)if it was found that the jury should have been directed concerning s 22(2), no substantial miscarriage of justice has actually occurred and the proviso in s 668E(1A) of the Criminal Code applies; significant to that was the evidence that the appellant had forged his brother’s signatures as purported witness to the other forged signatures.
Discussion – ground 1
The indictment charged a number of offences which can be grouped in this way:[39]
(a)Counts 2, 3, 5, 7, 9 and 11: aggravated forgery; in each case the charge was that the appellant “with intent to defraud, forged a document”, contrary to s 488(1)(a) of the Criminal Code; and
(b)Counts 6, 10 and 12: aggravated fraud; in each case the charge was that the appellant “dishonestly gained a pecuniary benefit for himself”, contrary to s 408C(1)(d) of the Criminal Code.
[39]Counts 1, 4 and 8 were offences of forgery and each was the subject of a nolle prosequi.
The appellant admitted the following facts at trial, as to each of the forged documents:[40]
(a)the purported signature of the appellant’s wife was subscribed, either as guarantor or mortgagor;
(b)the purported signature of the appellant’s brother (Fraser Perrin) was subscribed, as the witness to the purported signature of Mrs Perrin;
(c)none of those signatures were subscribed by Mrs Perrin or Fraser Perrin; and
(d)the appellant wrote all those signatures himself.
[40]Formal admissions, AB 1036.
There was no issue at trial that Fraser Perrin (a solicitor) did not know that his purported signature had been subscribed, nor was it contended that he gave any authority, express or implied, to do so.[41] In cross-examination it was not put to him that he had done so in any way. Fraser Perrin’s evidence was that whenever he was asked to witness a document he was present for the signing, and that was so absolutely without exception.[42]
[41]AB 116 lines 30-35; AB 119 line 7.
[42]AB 116 lines 39-41.
The jury were given particulars of the charges.[43] On each of the forgery charges the act of forgery was “by signing the name of Nicole Perrin” on the relevant document.
[43]AB 932.
Construction of the provisions
It is appropriate to commence a consideration of this ground with the provisions that are central to it. In doing so I will examine the construction of s 22(2) and whether there are two components, one the honest claim of right, and the other the absence of an intention to defraud. As will become apparent, that consideration will assist in understanding what was said in Dale, and other authorities to which I will refer.
Section 488(1) of the Criminal Code relevantly provides:
“(1)A person who, with intent to defraud —
(a)forges a document; or
(b)utters a forged document;
commits a crime.
…
(2)Subsection (1) applies whether or not the document is complete and even though it is not, or does not purport to be, binding in law.
Section 408C deals with the offence of fraud, and relevantly provides:
“(1)A person who dishonestly—
(a)applies to his or her own use or to the use of any person—
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(b)obtains property from any person; or
(c)induces any person to deliver property to any person; or
(d)gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e)causes a detriment, pecuniary or otherwise, to any person; or
(f)induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g)induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h)makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.
Section 22 relevantly provides:
“(1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
(2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.”
To constitute an offence under s 488 the person must forge a document (or utter a forged document) “with intent to defraud”.[44] The critical words for the defence in s 22(2) are those that require the act to be done “in the exercise of an honest claim of right and without intention to defraud”.[45] The similarity between that and what s 488 requires is immediately apparent.
[44]Emphasis added.
[45]Emphasis added.
Subsection 22(2) removes criminal responsibility for an act (done or omitted to be done) when that act meets three criteria:
(a)with respect to property;
(b)in the exercise of an honest claim of right; and
(c)without intention to defraud.
What is clear from the plain words of the section is that the one same act must satisfy all of the criteria.
In this case there was an act, not an omission. For the forgery charges the act was the appellant’s writing his version of Mrs Perrin’s signature on the documents. Put another way, it was the forging of each document by writing her purported signature on it. For the fraud charges, it was the obtaining of the pecuniary benefit for himself.
No issue was raised on the appeal that the offence under s 488 was one “relating to property”, nor that the relevant act was, in each case, “with respect to any property”. That means that on each forgery charge the same act (the writing of the purported signature) had to be in the exercise of an honest claim of right and without intention to defraud. For the fraud charges there was no issue that the act relates to property as it was the gaining of a pecuniary benefit. That means that on each fraud charge the same act (the gaining of the pecuniary benefit) had to be in the exercise of an honest claim of right and without intention to defraud.
Of course the Crown bore the burden of excluding s 22(2). Because the relevant act had to satisfy all of the criteria in s 22(2), the Crown had to prove, beyond reasonable doubt, that when that act was done, it was done either (i) not in the exercise of an honest claim of right, or (ii) with an intention to defraud. However, with respect to excluding that the act was done without intention to defraud, on each charge under s 488 the Crown had to prove that the very same act was done with intention to defraud, and on each charge under s 408C that the same act was done dishonestly.
In Clarkson v Aspinall; Ex parte Aspinall[46] the issue of a defence under s 22(2) was raised in respect of the offence of unlawfully using two heifers, contrary to s 445 of the Code. In the course of his judgment Townley J said:[47]
“It must of course be pointed out that s. 22 requires the claim of right merely to be honest and that done under it to be done without intention to defraud…”
[46][1950] St R Qd 79.
[47]Clarkson at 93; emphasis added.
In Olsen v Grain Sorghum Marketing Board; Ex parte Olsen,[48] Stable J referred to an oft-quoted sentence by Gibbs J in R v Pollard.[49] There, dealing with s 22(2), Gibbs J said: “An accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing.”[50] Stable J observed that what was said by Gibbs J did not state comprehensively what was required under s 22(2),[51] and went on:[52]
“Without going into the implications of the words “and without intention to defraud” in s. 22 of the Code, which words must have considerable significance in the construction of the section, I repeat my clear view that this was not an act done with respect to property within the meaning of s. 22 of The Criminal Code.”
[48][1962] Qd R 580.
[49][1962] QWN 13.
[50]Pollard at 29.
[51]Also held by Mansfield CJ and Hanger J, at 585 and 589-590 respectively.
[52]Olsen at 593; emphasis added.
In R v Maher[53] the Court of Criminal Appeal said:[54]
“As has already been said, it may be doubted that in the circumstances s. 22 arose for consideration. It may also be doubted whether it had any application. Any belief by the appellant that he was doing nothing unlawful affords him no comfort; Olsen v. Grain Sorghum Marketing Board ex parte Olsen [1962] Qd.R. 580 and Walden v. Hensler ex parte Walden [1986] 2 Qd.R. 490. Yet that is what is really being said. There is also the requirement that what is done or omitted [sic] must be without intention to defraud. In any event one applies s. 22 to the facts of the case (count 20 is more particularly considered subsequently) the summing up left the relevant factual issues to the jury and with an application of the significance of the appellant’s subjective state of mind in a charge of a conspiracy to defraud involving dishonesty.”
[53][1987] 1 Qd R 171. Reversed on appeal to the High Court, but on grounds unrelated to this issue: Maher v The Queen (1987) 163 CLR 221.
[54]Joint judgment of Kelly ACJ, Derrington and Moynihan JJ. Maher at 188; emphasis added.
In Dale the Court said of s 22(2):[55]
“For this section to absolve a person from criminal responsibility for an act or omission that might otherwise constitute a property offence, the same must occur both in the exercise of an honest claim of right and without intention to defraud.”
[55]Dale at [34]; emphasis added.
The ordinary approach to statutory construction would support what was said in that respect. The meaning of a statute is derived from construing its text, in context. In addition a court construing a statutory provision must strive to give meaning to every word of the provision.[56]
[56]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at [69] and [71], per McHugh, Gummow, Kirby and Hayne JJ. See also Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42 at [42], [62], [104]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [2009] HCA 41, at [47], per Hayne, Heydon, Crennan and Kiefel JJ.
To focus solely on the words “in the exercise of an honest claim of right” as though the remaining words and criteria in s 22(2) did not exist, or to ignore the conjunctive “and”, does not strive to give meaning to every word of the provision. Those words must be given the meaning that they objectively bear.
Many of the authorities that have considered s 22(2) have done so in cases where there was no issue as to intention to defraud, and therefore the discussion proceeded only in terms of whether the claim of right was honest: see, for example, R v Pollard,[57] R v Waine,[58] and R v Williams.[59]
[57][1962] QWN 13.
[58][2006] 1 Qd R 458; [2005] QCA 312.
[59][1988] 1 Qd R 289.
Section 22(2) has remained in the same terms since Maher and Dale, and therefore those decisions should be followed unless they were plainly wrong.[60] I do not consider that that they are plainly wrong.
[60]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.
Intention to defraud and dishonesty
The meaning of dishonesty has been accepted as explaining an intention to defraud. In Peters v The Queen[61] Toohey and Gaudron JJ said:
“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.”
[61](1998) 192 CLR 493, [1998] HCA 7, at [18].

The Western Australian Court of Appeal had this to say in Mathews v The Queen,[62] concerning s 409[63] of the Criminal Code (WA):
[62](2001) 24 WAR 438; [2001] WASCA 264, at [17] and [19] per Burchett AUJ, Malcolm CJ and Steytler J concurring. See also Markarian v The Queen [2001] WASCA 393, at [27].
[63]Section 409 made it an offence if a person, with intent to defraud, by deceit or any fraudulent means, gained a benefit.
“[17]But s 409(1) itself contains a mental element, which may involve a question whether an accused person has a belief in the existence of a state of things, by virtue of the words “with intent to defraud”. Also, perhaps, by virtue of the words “by ... any fraudulent means”. Fraud wears many disguises, and the shapes it may take are multiple. It is therefore necessary, in any case of fraud, to analyse the facts in order to identify the aspect of them which is alleged to reveal a fraud. If there is a fraud, there must have been an intent to defraud. That intent may be revealed by knowledge, such as knowledge that a bank account being drawn upon is devoid of funds. However, since Derry v Peek (1889) 14 App Cas 337, it has been established that an intent to defraud is not to be equated with carelessness; so even an unreasonable belief, fortified by no inquiries, that the account is good for the cheques drawn on it, will suffice to repel a suggestion of intent to defraud. In J C Smith and B Hogan on Criminal Law (5th ed, 1983) at p 508, the learned authors, speaking of crimes of fraud in England, take this for granted. “Clearly”, they write, “there would be no offence where D represents as true that which he believes to be true but which, as he ought as a reasonable man to have known, is false.” Similarly, Glanville Williams stated, in his Criminal Law, The General Part (2nd ed, 1961) in s 34:
‘The question of intent to defraud is essentially subjective: it is a question of what the accused intended, not of what a hypothetical reasonable man would have intended, though the intent may be inferred from behaviour.’
And, later in the same section, the distinguished author remarked that “it is accepted legal principle that a person who honestly (though negligently) believes in the truth of his statement does not intend to deceive and therefore does not intend to defraud”.
[Steytler J then referred to the passage in Peters, set out above.]
[19]Under s 409(1), the relevant concepts are “intent to defraud” and “fraudulent means”, rather than dishonesty. But the proper course for a trial judge is of the same kind: the knowledge, belief or intent said to reveal an intent to defraud and fraudulent means should be identified by the judge, and the jury should be instructed to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, what was relevantly done by the accused was so done with an intent to defraud and by fraudulent means.”
The question whether a person holds an intention to defraud is subjective. Thus in Sayed v The Queen:[64]
“[39]The question of whether, for the purposes of s 409(1) of the WA Code, an accused had an “intent to defraud”, is subjective. The question is concerned with the actual intention of the accused. The prosecution must prove beyond reasonable doubt that the accused subjectively had the requisite intent. See Mathews v The Queen [2001] WASCA 264; (2001) 24 WAR 438 [17] - [19] (Burchett AUJ, Malcolm CJ & Steytler J agreeing).”
[64][2012] WASCA 17, at [39] per Martin JA, Buss JA and Hall J. See also Fermanis v Western Australia [2007] WASCA 84, at [183].
The approach of Toohey and Gaudron JJ in Peters was affirmed in Macleod v The Queen.[65] That case concerned s 173 of the Crimes Act 1900 (NSW), which relevantly made it an offence if a person “fraudulently takes, or applies, for his own use and benefit … property of” a company of which they are director.[66] The Court of Criminal Appeal[67] held that held that the fraudulent intent which s 173 required was equivalent to “dishonesty”. Gleeson CJ, Gummow and Hayne JJ said:[68]
[65](2003) 214 CLR 230; [2003] HCA 24.
[66]The similarity between that provision and s 408C(1)(a) of the Criminal Code is clear.
[67]Simpson J, Mason P and Newman AJ concurring.
[68]Macleod at [35]-[38]; internal footnotes omitted. McHugh J and Callinan J at [130] reached the same conclusion.
“[35] In Peters v The Queen, which concerned charges of conspiracy to defraud the Commonwealth under ss 86(1)(e) and 86A of the Crimes Act 1914 (Cth), Toohey and Gaudron JJ said that, ordinarily, fraud involves: ‘the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to ‘some lawful right, interest, opportunity or advantage’, knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests.” (Emphasis added.)
[36]Their Honours explained that the term “dishonestly” in a statutory offence may be employed in its ordinary meaning or in some special sense. The line of authorities concerning the statutory offence of dishonestly obtaining property by deception provides an illustration of the latter.
[37]In a passage that has significance for the present appeal, Toohey and Gaudron JJ stated:
‘In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. ... If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.’
Their Honours rejected any further requirement, derived from R v Ghosh, that the accused must have realised that the act was dishonest by those standards.
[38]A question presented by s 173 of the Crimes Act is whether the taking or application was “fraudulent” or “dishonest” according to ordinary notions. The passage cited above from the joint judgment in Peters indicates the preferred approach to the meaning of the term “fraudulently” in s 173.”
Applying those principles to the present case it can be seen that for s 488 and s 408C offences, to establish the offence the Crown must prove that the act was dishonest. For s 488 the element is “intent to defraud” which Macleod equates with dishonesty. For s 408C the relevant element is “dishonestly … gains a benefit”.[69] However, for the Crown to exclude s 22(2), because the Crown must prove that there was an absence of “intention to defraud”, which is equated with dishonesty, in each case the Crown must prove the act was not dishonest. It is therefore apparent that proof of one eliminates proof of the other.
[69]Only s 408C(1)(d) is relevant in this case.
That conclusion derives support from the way the case on the fraud counts was prosecuted. The Crown relied upon particulars which had been provided for each of the fraud counts.[70] In each case the particulars of the relevant dishonesty were the same:
“He did so dishonestly as he forged the signature of Nicole Perrin on the relevant guarantor documents in relation to Christie Qld Pty Ltd, her personal guarantee, and the Mortgage in relation to 15 Southern Cross Drive, Cronin Island and submitted these documents to the Commonwealth Bank of Australia to obtain the credit.”
[70]Counts 6, 10 and 12; AB 933-935.
Thus, for each of the fraud counts the dishonesty was particularised as being the fact that the documents were forged and submitted to the Bank. That necessarily imported that the dishonesty was because the act was done with an intention to defraud.
As to the question of the proof required in respect of the honest claim to right, in MacLeod Gleeson CJ, Gummow and Hayne JJ held that that question ought to be decided by applying the test according to the standards of ordinary decent people:[71]
“[45]The trial judge reminded the jury of his directions with respect to the meaning of “fraudulently” in s 173 and continued:
‘[I]n assessing the accused[’s] case that he was entitled to use the company money as he did you should apply the same principles, that is whether by ordinary notions the accused was acting honestly by the standards of ordinary decent people. Finally I remind you that again the onus remains on the Crown to establish the elements of the charges beyond reasonable doubt.’
The appellant complains that there was no specific reference to the “subjective” criterion attending a claim of right. But the directions to be given about a claim of right must reflect the elements of the offence charged and the nature of the mens rea required.
[46]Adopting the reasoning in Peters, as we do, and applying it to the offences now under consideration, there is no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To require reference to a “subjective” criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the “subjective” element of a claim of right was neither necessary nor appropriate in this case.”
[71]Macleod at [45]-[46]; McHugh J concurred, [107].
What follows from the authorities above is that in order for the Crown to establish the absence of an honest claim of right in s 22(2), it must prove that the act done under that belief is dishonest. Therefore the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest, and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. In a case under s 488 or s 408C of the Criminal Code the act must be shown to be dishonest according to ordinary notions, and it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.
In other words, intention to defraud is a subjective state of mind of the accused, but to be assessed as dishonest according to the standards of ordinary, decent people, an objective test.
That is distinct from the nature of an honest claim of right itself. According to well-settled authority such a claim: need only be honest, it need not be reasonable, and the belief must be to a legal entitlement, not to an absence of a prohibition;[72] may stem from a belief in a right the law does not recognise;[73] and be both unreasonable and unfounded in law or fact.[74] As was said in Pollard, a person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing.[75] Therefore the relevant state of mind is one subjectively held, and the evidentiary basis for it is proved on a subjective basis.
[72]Walden v Hensler (1987) 163 CLR 561.
[73]R v Williams [1988] 1 Qd R 289.
[74]Walden v Hensler; R v Lawrence (1996) 138 ALR 487.
[75]Pollard at page 29.
Was a direction on s 22(2) required?
It is necessary, in light of the respondent’s contention that the way the trial was conducted is relevant to this issue, to examine the exchange in respect of whether an honest claim of right was raised, and how it was dealt with.
In the course of submissions at the trial, as to what directions should be included in the summing up, defence Counsel raised an honest claim of right.[76] The learned trial judge expressed the view that it was not necessary to direct on s 22(2), saying “… all the prosecution have to prove is that he dishonestly did it. If you’ve raised a reasonable doubt about the dishonesty, that’s the end of it”,[77] and that if the appellant had implied authority, or honestly believed he had implied authority, then he would not be acting dishonestly.[78] As the debate progressed defence Counsel submitted that “an intent to defraud ... coalesces with an honest claim of right”.[79]
[76]AB 404 lines 31-35.
[77]AB 405 lines 9-10.
[78]AB 406 lines 8-11.
[79]AB 406 line 40.
The learned trial judge was given a copy of Dale, with the Crown submitting that what Dale stood for was that “section 22 doesn’t really have any work to do in case because the jury would have to be satisfied … before they could find the charge proved, that the facts are such that it’s already excluded.”[80]
[80]AB 408 lines 11-23.
Defence Counsel handed up written submissions as to directions he sought,[81] and referred to Roberts v State of Western Australia,[82] promising to send a copy to the learned trial judge and Counsel for the Crown. I will refer to Roberts in some detail shortly. At the same time defence Counsel said he agreed with the learned trial judge that “in a case such as this one” there was a “logical hurdle because if the Crown don’t prove dishonesty, that’s the end of the matter. You don’t need to go and look at his honest - his belief or his claim”.[83] Crown Counsel accepted that “all the matters which I’ve raised are led towards that point”.[84]
[81]AB 1041.
[82](2005) 29 WAR 445; [2005] WASCA 37.
[83]AB 410 line 30 to AB 411 line 1.
[84]AB 411 line 5.
On the appeal Senior Counsel urged that the learned trial judge had effectively ruled that a direction on s 22(2) was not necessary. Accepting, for the moment, that to be so, it seems plain that defence Counsel accepted, on the basis of Roberts, the proposition put be the learned trial judge, that if the Crown did not prove dishonesty then there was no need to look to an honest claim of right.
In so far as the learned trial judge said that she was “going to make a ruling on [a] submission”, it seems plain that her Honour was referring to the written submission, which did not seek a direction in terms as to s 22(2), but did seek a direction about honest claim of right in respect of “the transactions that do not create an interest in property”.[85] That, of course, would not comprehend the mortgages which were signed.
[85]AB 410 lines 9-16; paragraphs 6 and 15 of the written submissions at AB 1042 and 1044-1045. Underlining in original.
Proof of intention to defraud and honest claim of right
In Macleod Gleeson CJ, Gummow and Hayne JJ dealt with the issue of an honest claim of right and how that was affected by the issue of dishonesty:[86]
[86]Macleod at [41]-[44]; internal footnotes omitted.
“[41]Against that background, several points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden:
‘It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner - to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs.”
[42]Secondly, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence that, although an honest claim “may be both unreasonable and unfounded”, if it is of that quality then the claim “is less likely to be believed or, more correctly, to engender a reasonable doubt”.
[43]Thirdly, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.
[44]Section 173 of the Crimes Act is such a provision. Hence the observation by Simpson J to the effect that a finding that the appellant acted dishonestly and thus had the necessary mens rea foreclosed a finding that the appellant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did. Her Honour referred to the evidence of the appellant:
‘that he regarded the funds as being funds belonging to Trainex, and himself as being the owner of Trainex, and therefore the owner of the money. He said that he had not, in the early years, drawn a salary but, that, when the company’s financial position was more secure, he was entitled to do so. He said that he believed that the company owed him more than the amount that he borrowed from it.’
The function of the claim of right put forward by the appellant was to seek to engender a reasonable doubt with respect to the overall persuasive burden on the prosecution of proving that there had been the fraudulent taking or application alleged.”
The third proposition referred to in the passage above has relevance to the present case. The offence of forgery under s 488 has the element of intention to defraud. If that was proved it had the necessary quality of dishonesty inconsistent with an honest claim of right to do the act, i.e the forgery. The offence of fraud under s 408C expressly has the element of dishonesty, which, if proved, was necessarily inconsistent with an honest claim of right to do the act. Their Honour’s approval of the statement by Simpson J in the Court of Criminal Appeal also applies here: a finding that the appellant acted dishonestly and thus had the necessary mens rea foreclosed a finding that the appellant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did.
In the present case that is what the learned trial judge said, and what defence Counsel accepted, in the course of the submissions as to whether her Honour ought to direct on s 22(2): see paragraphs [84] to [86] above.
In Macleod, Gleeson CJ, Gummow and Hayne JJ held that specific directions as to an honest claim of right were not required in the circumstances:[87]
“[50]The appellant submitted that the trial judge’s directions were inadequate because they failed (i) to identify the need for dishonest means in the application of the funds, including the absence of informed consent of the “victim” of the fraud; (ii) to specify the facts from which dishonesty was to be inferred; (iii) to identify the need for prejudice to the company; (iv) to advert to the requirement for the prosecution to exclude a bona fide claim of right which involved a genuine, as opposed to reasonable, belief in the claimed right; and (v) to state that the appellant was entitled to be acquitted unless the jury were satisfied that the transactions were not loans.
[51]It will be apparent from what has been said earlier in these reasons that these submissions were misconceived. Section 173 does not impose a requirement for an absence of informed consent on the part of the “victim” of the fraud and specific directions respecting a “claim of right” are not required. The trial judge adequately identified the facts from which dishonesty was to be inferred, by specifying the particular applications which were the subject of each count and by contrasting the prosecution case with what the appellant had claimed was his genuine belief in his entitlement to act as he did. The prejudice to Trainex, being the significant loss of property, did not need specifically to be identified.”
[87]Macleod at [50]-[51]; emphasis added. McHugh J at [58] and Callinan J at [137] reached the same conclusion.

In terms of the propositions derived from Macleod, there is no material difference between the provisions considered there and the provision applicable in the present case. Section 173 of the Crimes Act 1900 (NSW) made it an offence if a person “fraudulently” took or applied property for his own use and benefit. That is, in terms, an analogue for s 408C(1)(a). Section 488 of the Criminal Code made it an offence to forge a document with “intent to defraud”. In each the Crown had to establish that the relevant act was done fraudulently, and thus dishonestly.
In my view, applying Macleod to the present case of forgery under s 488 of the Criminal Code, where the act itself is admitted, a finding that it was done fraudulently, and thus dishonestly, foreclosed a finding that the appellant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did. The same is the case under s 408C(1)(d). There was, therefore, no need to direct the jury as to s 22(2) of the Criminal Code.
The Court of Criminal Appeal in Western Australia reached the same conclusion in Roberts v Western Australia.[88] There the appellant was charged under s 473 of the Criminal Code (WA),[89] with forging her husband’s signature on a number of cheques, and altering the amounts and cheque butts on others. She then presented the cheques for payment. She did not dispute that she had signed the cheques or altered them, but gave evidence of an honest claim of right, which, it was contended, attracted the WA s 22[90] which is materially in the same terms as the Queensland s 22(2). She said she had her husband’s authority to sign his name and use the cheques, the proceeds of which were substantially used for household expenses to maintain her husband’s standard of living.
[88](2005) 29 WAR 445; [2005] WASCA 37. Templeman J, McLure and Jenkins JJ concurring.
[89]Which is materially in the same terms as s 488(1) of the Queensland Criminal Code.
[90]Which is materially in the same terms as s 22(2) of the Queensland Criminal Code.
Templeman J referred to Macleod, and to its conclusion that dishonesty is to be decided according to ordinary notions, drawn from Peters.[91] His Honour then said:[92]
[91]Roberts at [25]-[26].
[92]Roberts at [27]-[28].
“[27]In my view, it is difficult – If not impossible – for the defence of honest claim of right to be raised against a charge of forgery. That is because s 473 of the Code defines forging in the following way:
Any person who with intent to defraud —
(a) forges a record; or
(b) utters a forged record,
is guilty of a crime …
(Emphasis supplied.)
[28]It follows that a person accused of forging who had no intention to defraud, could not be guilty of that offence. It would therefore be otiose to raise the defence of honest claim of right to the property acquired by the accused person. However, if the evidence disclosed that the accused might have had an honest belief in his or her entitlement to the relevant property, it would be necessary for the jury to consider whether the prosecution had satisfied it beyond reasonable doubt that the accused had any intention to defraud.”
Templeman J went on to find that as the learned trial judge erred in his directions to the jury, to the extent that he did not direct the jury as to that aspect of the claim of right that depended on the expenditure being for household expenses in order to maintain her husband’s standard of living, and concluded:[93]
“[33]Furthermore, the jury should have been directed that even if the appellant did not honestly believe she was entitled to use her husband's money as she did, she could not be convicted of fraud unless he was prejudiced in some way by her conduct. If the result of the conduct was that Mr Roberts’ money was used to pay for expenses he would have met in any event, he was not defrauded: see R v Kastratovic (1985) 42 SASR 59 at 52 per King CJ, applying Welham v Director of Public Prosecutions [1961] AC 103 at 123.
[34]Clearly, if the appellant did not intend to defraud her husband, or if he was not defrauded in fact, the appellant could not have been convicted on the basis that she intended to defraud his bank.
[35]I therefore conclude that although it would not have been appropriate for the trial judge to direct the jury in relation to s 22 of the Criminal Code, a direction ought to have been given in relation to an honest claim of right in the sense set out above.”
[93]Roberts at [31]-[35].
Plainly Templeman J found that there was no necessity to direct on s 22 where the offence was forgery and the claim of right was no more than to do the act constituting the forgery. Where his Honour considered a direction as to honest claim of right should have been given was in respect of that part of the claim which involved the proceeds being drawn and expended for the benefit of her husband, in respect of expenses he would have met in any event. Those features are absent in the present case.
On this issue McLure J agreed with Templeman J,[94] adding only some comments on a question (irrelevant for present purposes) as to the Crown’s contention that the offence was not one relating to property.
[94]Roberts at [133] and [140].
So too did Jenkins J:[95]
“[165]For the reasons given by Templeman J I agree that it was otiose for the learned trial judge to direct the jury with respect to an honest claim of right pursuant to the Criminal Code (WA), s 22.”
[95]Roberts at [165].
Having examined some aspects of the approach to the proof of fraud in Peters and Macleod, Jenkins J observed that there was no authoritative decision applying the principles in Peters “to a provision in the Code such as s 473[96] which has an element of it a specific intent to defraud, in the light of s 22”. His Honour then added:[97]
“[172]However, my view is that the definition of fraud as stated by Toohey and Gaudron JJ, with the necessary modifications to adapt it to proof of an intent to defraud applies to proof of the intent to defraud element in the Criminal Code, s 473. This means that the prosecution is required to prove that an accused believed that he or she had no lawful right to deprive the alleged victim of their money or property or to prejudice their interests. This definition of an intent to defraud strengthens the arguments for offences under the Criminal Code, s 473 not to be regarded as offences with respect to property for the purposes of the Criminal Code, s 22. This is because if, as I would find, s 473 requires proof that an accused was not acting under an honest claim of right, there is simply no work for s 22 to do.”
[96]The forgery provision.
[97]Roberts at [172].
I pause to note that whilst Roberts was footnoted in the appellant’s outline,[98] the only aspect referred to was in respect of whether forgery offences can be offences relating to property. The reasons of Templeman J on this issue, and the passages set out in paragraphs [96] to [101] above, were not addressed.
[98]Appellant’s outline, paragraph 31, footnote 59.
The decision on this issue in Roberts has since been followed in Western Australia, in Harwood v Western Australia.[99]
[99][2016] WASCA 8, at [120] per Mazza J, Corboy J concurring.
Accordingly there was no need, in the circumstances of this case, to give a direction under s 22(2) of the Criminal Code.
The relevance of R v Dale and R v Mill
At the trial the learned trial judge was referred to this Court’s decision in R v Dale,[100] as support for the proposition that it was unnecessary to direct the jury on s 22(2). That resulted, it was said, because on the forgery counts the Crown had to prove intent to defraud in any event, and if they did there could not be a case for an honest claim of right, because s 22(2) only applied where the relevant act was done “in the exercise of an honest claim of right and without intention to defraud”.
[100][2012] QCA 303.
On the appeal the appellant placed considerable reliance upon this Court’s decision in R v Mill.[101] It was contended that the Court in Dale had not been referred to Mill, and was therefore decided per incuriam and could not be relied upon. It is necessary, therefore, to examine both decisions.
[101][2007] QCA 150.
In Dale the offender was a director of Water at Wooyung Pty Ltd. That company entered into contracts to buy land that Dale wished to develop as a project known as Water at Wooyung. It failed to make payments required under the contracts in respect of vendor finance. The land was sold by the vendors as mortgagee in possession, and the project failed. Before it failed Dale invited clients to invest money in the project. The Crown case was that: Dale was dishonest in what he said to induce the investments, and what he said about the use of the funds; the funds were not applied to the project but to pay out other investors who wished to withdraw from the project; funds were also used by Dale for his own purposes; and in all but one case, where a cheque made out to Water at Wooyung Pty Ltd was endorsed to a company controlled by Dale’s wife, the funds were deposited into Water at Wooyung’s bank account.[102]
[102]Dale at [8]-[19].
What is apparent from that synopsis is that funds were obtained by dishonestly representing certain aspects of the project (such as he owned the land free of encumbrance, when he did not) and what those funds would be used for.
The defence case on appeal was expressed this way:[103]
“In essence the defence case, as put, was that the appellant’s company structure was such that he believed that he could move things around as he liked. As such, when the appellant applied the money as he did, it was open to conclude that he was exercising an honest claim of right.”
[103]Dale at [33].
The Court[104] referred to s 22(2) saying that for it to absolve a person from criminality the act or omission “must occur both in the exercise of an honest claim of right and without intention to defraud”.[105] The Court doubted that the evidence raised s 22(2) at all:[106]
“It is not readily apparent how the defence case as outlined in the appellant’s written submissions would have availed for any of the s 408C(1)(d) counts. They concerned the dishonest gaining of a benefit for Water at Wooyung Pty Ltd to which the respective cheques were payable. That company did not gain the benefit of the proceeds of the cheques by the appellant “moving around” funds within the corporate group.”
[104]Gotterson JA, McMurdo P and Mullins J concurring.
[105]Dale at [34].
[106]Dale at [35].
In any event the Court said:[107]
“[36] Be that as it may, the offences of which the appellant was convicted are all fraud based. Central to each of these offences is the element that the person acted dishonestly. At the trial, the defence was conducted on the basis that there was no dishonesty or intention to defraud. The learned judge directed the jury thoroughly as to the element of dishonesty in respect of all counts. No complaint is made about that.
[37]The appellant’s submission that a direction reflecting s 22(2) ought to have been given faces a substantial logical hurdle. The Crown case required it to prove beyond reasonable doubt that the appellant was dishonest. If that was proved, then there was no scope for the operation of s 22(2). The jury could not have found that the appellant acted dishonestly yet exercised an honest claim of right in respect of any of the counts. On the other hand, if dishonesty was not proved, the jury would have no need to consider whether an honest claim of right was exercised. Given those circumstances, a direction concerning honest claim of right was unnecessary.
…
[40]… Given the basis upon which the defence was conducted, there was no material difference between proof beyond reasonable doubt that the appellant was dishonest and disproof to that standard that he was exercising an honest claim of right without intention to defraud.”
[107]Dale at [36]-[37] and [40]; internal references omitted.
In my respectful view that approach is correct, in accordance with Macleod and Roberts, and, as with Roberts, directly applicable to forgery offences under s 488 and the fraud offences under s 408C(1)(d) of the Criminal Code. To succeed the Crown has to prove a necessary element, namely an intention to defraud or dishonesty, which is indistinguishable from proof that excludes the absence of intention to defraud or dishonesty (necessary for the defence under s 22(2)).
The Court in Dale relied upon the Full Court decision in R v Sitek.[108] That case considered the question whether a trial judge, in a s 408C case, erred in not leaving to the jury a defence of honest and reasonable mistake of fact under s 24 of the Code. That court[109] said:[110]
“If the jury took the view that the appellant was dishonest in the manner alleged by the Crown, they could hardly in the circumstances of this case consider that he was nevertheless acting under an honest mistake. The two positions would be contradictory. It was on this basis that the learned trial judge did not allow s 24 to go to the jury, and he was clearly correct in taking that course.”
[108][1988] 2 Qd R 284.
[109]Comprised of de Jersey J (as he then was), with whom Connolly and Carter JJ concurred.
[110]Sitek at p 293.
Mill concerned a charge under s 408C(1)(a)(i) of the Criminal Code, brought against a company director. It was that he had, over three years, “dishonestly applied to his own use or the use of another sums of money belonging to [the company] Suga Pty Ltd and Seiko Suga”. During the period of the offences Mill was the accountant of the company and Mrs Suga. For two and a half years of the relevant period he was the sole director of the company,[111] and the sole signatory on the company’s bank account. His own company (Mill Corp) was a 20 per cent shareholder in Suga Pty Ltd.
[111]The other director, Mr Suga, died on 26 January 1999. The charged period was from April 1998 to June 2001.
He requested money from Mrs Suga, purportedly for use in supporting the restaurant business operated by the company. There were a number of transactions by which money went to Mill or entities associated with him,[112] including money paid by Suga Pty Ltd to Mill Corp by cheque, direct transfers from Mrs Suga, direct transfers from Mrs Suga’s daughter, deposits by Mrs Suga from finance arranged by Mill, and use of Mrs Suga’s credit card to pay for work done at the restaurant.
[112]Mill Corp or Mill Partners (evidently his accountancy firm). The transactions are set out in Mill at [9]-[18].
The issue at trial was whether Mill’s role in the transactions was dishonest.[113] The defence case was that the payments made to Mill’s firm or company were payments of fees for his services or reimbursement for services rendered or payments made by him on behalf of Suga Pty Ltd as the operator of the restaurants. He also contended that, to the extent that he signed documents as Mrs Suga, that was consistent with a practice within the family where one family member would sign the name of another in business transactions.
[113]Mill at [10].
The Court in Mill held that the summing up given to the jury was inadequate to reflect what was required under the exculpatory provision of s 22(2). The relevant part of the summing up was set out in the appeal judgment:[114]
“Well, now, the thrust of the defence case, at least in part, appears to be that Mill, being the driving force behind the setting up of the restaurants dealt with in the evidence or at least the expansion into Earlville Stockland, was entitled to and did, in effect, pay himself back out of Suga Pty Ltd for that effort or if he hadn’t got around to paying himself out that he was entitled so to do and that a lot of what’s described as defalcations could be explained that way.
Now as to the balance of funds that the Crown alleges are the subject of fraudulent dealing it might be the case that they constituted regular loans to him or his company or Mill entities or partners and so on which were taken on a loan arrangement with the knowledge and acquiescence, in effect, of the Sugas.
Well, now, you’ll remember the test of dishonesty that I directed you about. There were the two things, dishonest according to the standards of the community and further dishonest, according to those standards, to the knowledge of the accused. So the defence case which you need to consider would be even if he wasn’t so entitled strictly speaking that is what he believed and so he would contend the Crown could not prove that second requirement that I spoke of earlier, that he knew what he was doing was dishonest by community standards. So that’s what you need to consider and decide what you make of that. If you are left with uncertainty about whether that was the position then that would seem to constitute a reasonable doubt about the element of dishonesty but it’s a matter, of course, for you to assess and apply the necessary standards.
In other words if money is taken by somebody with knowledge of the owner, be that owner a natural person or a company which is a legal entity, on the basis to the knowledge of the owner of the property it was an agreed loan or an agreed knowledge about payment for effort then one could hardly conclude that that would be dishonest according to the objective standard. That’s the standard of the ordinary, honest people let alone that an accused in that situation knew it was dishonest according to that standard, that’s the subjective test, and you would have to acquit if you are in that situation, you understand. Now it is only if you, the jury, are satisfied to the contrary of that position that I’ve just described and gone through, and satisfied of dishonesty according to the tests that I’ve directed you about that you could convict.
Well, now, that as I understand it is the gist of the defence case.”
[114]Mill at [77]; emphasis added.
As can be seen from the highlighted parts of that passage, the jury were instructed to consider the defence case (that Mill believed he was entitled to make the payments) by applying the objective standard of dishonesty according to community standards, but also by applying the second step, that he knew what he was doing was dishonest by community standards.
Keane J[115] referred to that part of the summing up, and, observing that the learned trial judge did not expressly advert to s 22(2), set out the Supreme and District Courts Benchbook standard direction. What his Honour observed as significant about that direction was “its focus is upon the belief of the accused person to do that with which he or she is charged”.[116] Keane J was referring to this part of the standard direction:[117]
“‘To defraud’ in this context means to do [or omit to do] something dishonestly, so the requirement that the claim of right be honest and the requirement of the absence of an intention to defraud are really two ways of saying that the defendant must have honestly believed himself to be entitled to do what he did [or omitted to do].
There is no burden on the defendant to prove that he made an honest claim of right without intention to defraud. The prosecution must satisfy you beyond reasonable doubt that he did not do so. So if the prosecution has failed to satisfy you beyond reasonable doubt that when [the defendant] [details of act or omission, e.g., took the suitcase owned by ‘X’] he [did not honestly believe he was entitled to [act or omission, e.g., take it], you must find the defendant not guilty.”
[115]With whom de Jersey J and Lyons J concurred.
[116]Mill at [81].
[117]Supreme and District Court Bench Book, No 76.1.
Keane J then turned to the question whether the direction actually given was adequate to satisfy what was required in respect of s 22(2). His Honour said:[118]
“[83] It was essential, as a fundamental aspect of the appellant’s right to a fair trial according to law, that the jury be instructed that the appellant should be acquitted unless they were satisfied beyond reasonable doubt that the appellant did not honestly believe that he was entitled to apply the moneys in question by way of payment of fees due to him or by way of reimbursement of expenses incurred by him for Suga Pty Ltd.
[84]The learned trial judge’s directions to the jury explained the notion of “fraudulent application” in terms of “dishonesty”, and his Honour explained that concept in terms of activity which is dishonest by the standards of ordinary people. In R v Lawrence, Callaway JA, with whom Southwell AJA and Smith AJA agreed, said that “[n]o one would choose that language to explain to a jury the elementary proposition that a person cannot fraudulently misappropriate property that he believes to be his own …”. Callaway JA went on to explain that:
‘[i]f an accused person asserts a belief that is clearly inconsistent with dishonesty, it can only confuse the jury and put the accused in uncalled-for peril to instruct it to judge that belief by reference to the ordinary standards of reasonable and honest people and whether the accused must have realised that what he was doing was dishonest by those standards … It would be absurd for a judge to instruct a jury to consider whether, in accordance with the ordinary standards of reasonable and honest people, a person may appropriate his own property or take money owing to him in a manner authorised by his debtor …’
[85]These observations are applicable here. Even though Callaway JA was not speaking about the provisions of the Criminal Code, his remarks encapsulate the inadequacy of the learned trial judge’s direction to the jury in this case. The appellant’s right to a fair trial according to law included the fundamental entitlement to have the jury instructed that if he honestly believed that he was entitled to apply the moneys the subject of count 1 to his own use, then, however unreasonable that belief may have been, he should be found not guilty of the charge in count 1 on the indictment. The jury were not directed in these terms.”
[118]Mill at [83]-[85]; internal references omitted.

That observation is pertinent to s 408C, as is the Court’s observation that particular considerations arise, with respect to a provision, such as that being considered in Macleod, where fraud being inconsistent with a claim of right made in good faith to do the act complained of, “that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions”.[220]
[220]Macleod at [43].
The function of the claim of right put forward by the appellant in Macleod was to seek to engender a reasonable doubt with respect to the overall persuasive burden of proving that there had been the fraudulent taking or application alleged.[221] That is, as to whether the accused had used dishonest means to prejudice the rights or interests of another.[222] Since there was no requirement for the offence under s 173 of the Crimes Act that the appellant himself must have realised that the acts in question were dishonest by “current standards of ordinary, decent people”, it was held that to require “reference to a ‘subjective’ criterion of that nature when dealing with a claim of right would have deleterious consequences”.[223] A direction about the subjective element of a claim of right was thus neither necessary nor appropriate.[224] The accused’s subjective belief as to whether the conduct was dishonest according to ordinary standards was not relevant. It was open to the jury in Macleod, determining the matter by ordinary notions, to conclude that the appellant knew of his lack of entitlement to take or apply the funds for his own use or benefit and that on that basis his acts were dishonest.[225]
[221]Macleod at [44].
[222]Macleod at [34] referring to Spies v The Queen (2000) 201 CLR 603 at 630-631.
[223]Macleod at [46].
[224]Macleod at [46].
[225]Macleod at [47].
The decision of Dillon
In conformity with the approach taken by the High Court, Dillon held[226] that the term “dishonestly” in s 408C did not have a “special meaning” importing “that, to be found guilty, the accused person must obtain the property without a belief in a legal entitlement to it”.[227] Having its “ordinary meaning”, the prosecution is required to prove only that what the accused did was dishonest by the standards of ordinary honest people and was not, additionally, required “to prove that the accused person must have realised that what he or she was doing was dishonest by those standards”.[228]
[226]Dillon at [48].
[227]Dillon at [47], referring to the test in Salvo.
[228]Dillon at [48], referring to the Ghosh test.
As mentioned, in Macleod,[229] it was emphasised that “dishonesty” is not to be equated with an absence of a belief of legal right, except where used in its special sense. It follows, that since “dishonestly” is used in s 408C in its ordinary sense, there remains room for the application of s 22(2) in the case of fraud under s 408C. As was stated by McMurdo P in Dillon,[230] the construction of the term “dishonestly” to connote and require that the conduct in question be dishonest only according to ordinary honest standards, works harmoniously with the defence provision of s 22(2). Accordingly, where there is evidence that the accused actually had an honest belief (no matter how unreasonable or wrongheaded[231]) as to a legal entitlement to act as he or she did, to secure a conviction, the prosecution must disprove that honest belief beyond reasonable doubt in order to negative the defence of honest claim of right under s 22(2).[232]
[229]Macleod at [39], endorsing Peters at [111].
[230]Dillon at [48].
[231]The unreasonableness of the belief may be relevant in considering whether the belief was honestly held: R v Lawrence [1997] 1 VR 459 at 467.
[232]Dillon at [48].
The decision in Mill
Furthermore, where an honest claim of right to property is raised on the evidence, a direction as to the subjective element of dishonesty in terms of the Ghosh test can never be a sufficient direction for the purposes of s 22(2). It is in that context that it is informative to turn to Mill.
Although it preceded Peters, the decision highlighted the inadequacy of the Ghosh test as apt to focus the jury’s attention as to the subjective nature of an honest claim of right. The trial judge had directed as to the test of dishonesty in terms of the Ghosh test (that the jury consider whether what the accused did was “dishonest according to the standards of the community and further dishonest, according to those standards, to the knowledge of the accused”[233]). On appeal, it was not disputed that an arguable case of exculpation under s 22(2) was raised at trial, even though the appellant had not adverted to the provision in his address. Rather, the issue was whether that part of the direction as to dishonesty, which directed the jury’s inquiry to the accused’s own belief as to whether he acted dishonestly according to the standards of ordinary people, was a sufficient direction for the purposes of s 22(2).
[233]Mill at [77].
The circumstances of the fraud count in question in Mill related to the transfer of money from Suga Pty Ltd, a company of which Mill was a director, to other entities that he owned or controlled. The evidence of complex arrangements, both personal and business, gave rise to a real issue as to whether Mill honestly believed he was legally entitled to transfer the money; by way of payment of fees due to him or by way of reimbursement of expenses incurred by him.
It was held by Keane JA[234] that the appellant was entitled to have the jury instructed that he should be acquitted, unless they were satisfied beyond reasonable doubt that he did not honestly believe that he was entitled to apply the moneys to his own use (by way of payment of fees due to him or by way of reimbursement of expenses incurred by him for Suga Pty Ltd). In other words, the jury should have been directed that if the appellant honestly believed he was entitled to apply the moneys to his own use then, however unreasonable that belief, the defendant should be found not guilty.[235] In so finding, Keane JA applied the dicta of Callaway JA in R v Lawrence,[236] that directions as to the element of dishonesty, in terms of activity which was dishonest by the standards of ordinary people, was incapable of explaining to the jury the proposition that a person cannot fraudulently misappropriate property that he believes to be his own.[237] The directions given by the trial judge were therefore inadequate. They did not clearly raise for the jury’s consideration the proposition that the appellant was entitled to be found not guilty if the prosecution failed to establish that the appellant did not honestly believe he was entitled to apply the moneys in question to his own use.[238]
[234]Mill at [83].
[235]Mill at [85].
[236][1997] 1 VR 459.
[237]Mill at [84].
[238]Mill at [86].
The significance therefore of Mill, which the appellant’s submissions overlooked, is that it illustrates how the language of the second limb of Ghosh is inadequate for the purposes of properly directing the jury as to the exculpatory effect of s 22(2) in respect of a count of fraud under s 408C(1)(a)(i), where a claim of right is raised on the evidence.
The decision in Dale
Counsel for the appellant sought to contrast the decision in Mill with that made in Dale, which was considered by the trial judge as to the application of s 22(2). In arguing that it was wrongly decided, it was contended that Dale[239] appeared to stand for the proposition that, in relation to a charge of fraud, a direction under s 22(2) is not required because there is no scope for the provision where the prosecution is endeavouring to prove an offence of fraud under s 408C, which necessarily involves proof of dishonesty.
[239][2012] QCA 303.
Dale concerned a count under s 408C(1)(a)(ii) of the Code of dishonest application to the use of another of property in his possession subject to a condition and counts under s 408C(1)(d) of the Code of dishonest gaining of a benefit. The charges concerned investments made in “the Water at Wooyung project”. The Crown alleged that the appellant dishonestly persuaded people to invest in the project and dishonestly dealt with their money. The Crown case relied upon false assertions by the appellant that he “owned” the land in question free of encumbrance and representations by him that investors’ money was to be applied to the project.[240] The Crown case maintained that investors’ moneys were not applied to the project and that they were dishonestly used by the appellant for private purposes or to repay other investors who wished to withdraw from the project. The Crown case also referred to false statements made to investors, after they had invested, including that the invested moneys were sitting in an account unspent, whereas, in fact, significant portions of them had been used for private purposes and for repaying other investors who had wished to withdraw.[241]
[240][2012] QCA 303 at [16].
[241][2012] QCA 303 at [17].
Gotterson JA stated:[242]
“It is not readily apparent how the defence case as outlined in the appellant’s written submissions would have availed for any of the s 408C(1)(d) counts. They concerned the dishonest gaining of a benefit for Water at Wooyung Pty Ltd to which the respective cheques were payable. That company did not gain the benefit of the proceeds of the cheques by the appellant ‘moving around’ funds within the corporate group. Perhaps that is why this ground in its unamended form related only to count 1 which concerned a cheque payable to Water at Wooyung Pty Ltd which the appellant endorsed for payment to Antrim Corporation Pty Ltd.”
[242]Dale at [35] (the other members of the Court agreeing).
His Honour continued:[243]
“The appellant’s submission that a direction reflecting s 22(2) ought to have been given faces a substantial logical hurdle. The Crown case required it to prove beyond reasonable doubt that the appellant was dishonest. If that was proved, then there was no scope for the operation of s 22(2). The jury could not have found that the appellant acted dishonestly yet exercised an honest claim of right in respect of any of the counts. On the other hand, if dishonesty was not proved, the jury would have no need to consider whether an honest claim of right was exercised. Given those circumstances, a direction concerning honest claim of right was unnecessary.”
[243]Dale at [37].
His Honour concluded that:[244]
“Given the basis upon which the defence was conducted, there was no material difference between proof beyond reasonable doubt that the appellant was dishonest and disproof to that standard that he was exercising an honest claim of right without intention to defraud.”
[244]Dale at [40].
I do not accept that Dale was decided per incuriam. In both Mill and Dale, a s 22(2) direction had not been sought at trial. However, it is important to bear in mind that, as with Mill, Dale was decided prior to this Court’s decision in Dillon, so at a time when the elements of the offence of fraud required proof of “dishonesty” by reference to the Ghosh test including that the accused believed he was acting dishonestly according to ordinary standards. Accordingly, the submission that a 22(2) direction was required, as Gotterson JA noted, faced “a substantial logical hurdle” given what “the Crown case required it to prove” and the “basis on which the defence was conducted”.[245] Gotterson JA’s statement as to the lack of scope for the operation of s 22(2) should be understood in that context. While it is true that Mill was not considered in Dale, there was no cause to do so. Nor was there any need to consider the statements in Walden to which the appellant referred.
[245]In Mill, there was an evidential basis raised for the proposition that the appellant honestly believed he had a legal entitlement as a director of the company to do what he did, even if what he did had not been authorised by others with an interest in the company. On the other hand, the appellant in Dale took money from investors and applied it to his own use or to the use of other companies in which he was concerned on the basis he could “move around” the funds to the benefit of other corporate entities or to his own.
The mental element of intent to defraud for forgery in s 488 of the Code
As to what Morrison JA has written at [76]-[81], I agree that the term “to defraud” for the purposes of the forgery offence in s 488 equates with “dishonestly” as that term is used in s 408C. For the purposes of fraud, the standard by which the accused’s conduct is assessed as dishonest is that of the ordinary honest person and whether the accused has the requisite mental element is determined by those standards not any subjective belief concerning those standards.
By contrast, the mental element of an “intent to defraud” required under s 488 is concerned with the accused’s actual intent to induce another to act to their prejudice by means of the act of forgery in issue. To defraud for the purpose of s 488, requires that the accused did the act in issue dishonestly in that he or she had the subjective intention to induce another to act to their prejudice in respect to an entitlement in or with respect to property. Such a subjective intention necessarily connotes an absence of belief as to a legal entitlement in or with respect to the property.
Intent to defraud needed for forgery and a claim of right under s 22(2) of the Code
Accordingly, in the case of forgery, it is, as Templeman J observed in Roberts,[246] difficult, if not impossible for the defence of honest claim of right to arise, given that a subjective intention to defraud another must be proved as an element of the offence. A person accused of forging, who lacked an intention to defraud (that is, an actual intent to induce another to act to thereby that person’s prejudice) could not be guilty of the offence of forgery, such that it would be otiose to raise an honest claim of right to the property.[247] However, as his Honour stated:[248]
“… if the evidence disclosed that the accused might have had an honest belief in his or her entitlement to the relevant property, it would be necessary for the jury to consider whether the prosecution had satisfied it beyond reasonable doubt that the accused had any intention to defraud.”
[246](2005) 29 WAR 445; [2005] WASCA 37 at [27]-[28].
[247]Roberts at [28].
[248]Roberts at [28], McLure J at [140], Jenkins J at [167].
In Roberts, the appellant’s case was that, in signing Mr Roberts’ name on his cheques and in altering them, she acted under an honest and reasonable, but mistaken, belief that she had his authority to do so.[249] Templeman J observed that, although the jury were directed as to the need for proof of an intention to defraud, the trial judge did so by reference only to the issue of authority and consent and did not refer to the appellant’s evidence that she had used the cheques to pay for household and other expenses which she believed she needed to meet in order to maintain the standard of living Mr Roberts required.[250] Templeman J considered that this was a significant omission.
[249]Roberts at [29].
[250]Roberts at [31].
Firstly, while the appellant did not assert an entitlement to the money, there was evidence from which the jury might have concluded that the appellant honestly believed she was entitled to use her husband’s money to pay for household expenses and other expenses which she believed it necessary to incur in order to maintain his required standard of living.[251] The issue of whether the appellant had an honest belief as to an entitlement to use the money in that way went to the absence of an intent to defraud.[252]
[251]Roberts at [19]-[21].
[252]Roberts at [32].
Secondly, even if the appellant was found not to have an honestly held a belief as to her use of the money, the evidence before the Court raised as an issue whether Mr Roberts was in fact defrauded. That issue concerned whether the appellant’s conduct did or did not result in Mr Roberts being prejudiced in some way (because the money was used for expenses he would have had to meet).[253] His Honour cited Welham,[254] where it was explained that defrauding involves doing something to someone, and although it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect on the person who is the object of the fraud that ultimately determines its meaning.
[253]Roberts at [33]-[34].
[254][1961] AC 103 at 123.
Accordingly, Templeman J held[255] that the jury should have been directed that they could not find an intention to defraud unless satisfied that the appellant did not honestly believe she was entitled to use the money as she did or if Mr Roberts was not defrauded in fact. It was in those circumstances that Templeman J concluded[256] that, although it would not have been appropriate for the trial judge to direct the jury in relation to s 22 of the Code, a direction ought to have been given in relation to an honest claim of right in the sense set out above.
[255]Roberts at [33]-[36].
[256]Roberts at [35].
McLure J, agreeing with Templeman J, observed[257] that an accused may have an honest belief as to property even if dishonest means were used to access the property and concurred with Templeman J “that the jury should have been directed that it could not convict the appellant unless satisfied beyond reasonable doubt that she did not have an honest claim to, or with respect to, the moneys the subject of the relevant cheques”.
[257]Roberts at [140].
Roberts does not advance the appellant’s grounds of appeal in the manner expanded upon in oral submissions. The present case is not one where there could be any question that, if the bank was induced to extend the line of credit by the use of the forged documents, that the appellant’s gain was not reflected in a detriment to the bank. Further, whether the appellant’s claim that he himself honestly believed he was entitled to do what he did (sign his wife’s signature on the documents and to present them to the bank to obtain the line of credit, having done so before), such that there was an absence of intention to defraud, was sufficiently addressed in the directions given by the trial judge which specifically dealt with the opposing cases as explained below.
Ground 1 – whether s 22(2) should have been left to the jury
Irrespective of whether a ruling was or was not made as to s 22(2), there was no error in not leaving that provision for the jury’s consideration in relation to the offences of fraud or forgery.
For the forgery counts, the property, with respect to which the acts were said to be done in the exercise of an honest claim of right, were “the valuable securities and the property the subject of the valuable security” and “the mortgage and the property the subject of the mortgage”.[258] For the fraud offences, the property was identified to be the pecuniary benefit (the extension of a line of credit by the bank).
[258]See Transcript 1-8.11-12.
As to the forgery counts of which the appellant was convicted,[259] the prosecution was required to satisfy the jury beyond reasonable doubt that the appellant had a subjective intention to induce the bank to act to its detriment by making the false documents constituting the mortgage and guarantee in his wife’s name. Given what was required to be proved for the forgery counts, there could be no requirement to direct the jury that they needed to be satisfied beyond reasonable doubt that the prosecution had disproved an honest claim of right.
[259]As the respondent submitted, the position was arguably different in relation to the guarantees given by Christie Pty Ltd, which were the subject of counts 1, 4 and 8 upon which the jury were unable to agree. The appellant’s case as to those counts was that he was involved as a director and shareholder in the company Christie Pty Ltd and guarantees bearing the purported signature of Nicole Perrin as director of Christie Pty Ltd. They were the only counts where it might be said the appellant lacked an intent to defraud.

In respect of the assertion by the appellant to be honestly entitled to deal with property at Cronin Island, senior counsel sensibly did not advocate that the honest claim could be put any higher than that, although the property was registered in his wife’s name, the appellant had paid for that property and described it as his. It is understandable that no direction was sought as to so untenable a claim of an honest belief as to a legal entitlement to deal with the property.
The directions given by the trial judge concerning what was required to be proved for an intent to defraud to which reference has already been made, combined with the following further directions were more than sufficient to focus the jury’s attention on the defence case in relation to the element of the appellant’s subjective intention to defraud, which was the true issue for the jury’s consideration:[260]
“I will go now to the counsel’s arguments… So Defence counsel spoke to you and said you would be satisfied his ex-wife did authorise him to sign her signature. There are good reasons to think so. He spoke about the exhibit in which he wrote her signature but Matthew Perrin underneath. It’s a matter for you, if you think that was a mistake, or whether you think that does indicate that he was letting the bank know that he was signing her signature.
His Defence counsel said that is consistent with his belief that he was authorised, expressly or impliedly, to sign her signature, and that the bank would be accepting of that, and that he was entitled to do what he did. And you will remember that he gave evidence, ‘I’ve done it before’. It is up to you. Is that because he honestly believed that the bank would accept those signatures, or because he got away with it before? But you need to think about it, because that is state of mind.
…You will remember that was the conversation in the driveway. He talked about the lunch with the bank officials, or officers, and he said thanking them for help with the loans, if that happened, was inconsistent with her not authorising him, and inconsistent with an intention to defraud.” (emphasis added)
[260]Given in response to a question from the jury: AB at 425.19-41.
The trial judge additionally gave the following redirection:[261]
“… I will just remind you about intent to defraud, which is relevant to the charges of forgery…
If, therefore, there is an intention on the part of the accused to deprive another person of a right – not of a thing, of a right – or to cause him or her – this is the bank – to act in a way to his or her or the bank’s detriment or prejudice – or contrary to what would otherwise be the bank’s duty, an intent to defraud is established notwithstanding there is no intention to cause pecuniary or economic loss. It is not necessary to prove an intent to defraud any particular person, but the Crown case here is it’s to defraud the bank.
So to defraud is to deprive by deceit, and it’s a deceit to induce someone to act other than to change their course of direction. So here the Crown case is: a false pretence was made to the bank by the forged signatures, and that was to get the bank to hand over the money, and the bank would not have done that if they had known the signatures were false.
The other questions you have relating to your inability to reach a concluded position in respect of the express or implied authority from Nicole Perrin: they are matters of fact. That is for you. You need to resolve that. Intent to defraud means intending to get someone to act in a way they wouldn’t have acted if it had not been for the false pretence.”
[261]AB at 443.26-444.03.
These directions were relevant in identifying the subjective nature of an intention to defraud which necessarily negated a claim of right under s 22(2).
As to the fraud charges, it was necessary for the trial judge to identify the facts from which dishonesty was to be inferred, by specifying the particular knowledge, belief or intent alleged to render the conduct in obtaining a pecuniary benefit dishonest according to ordinary notions and by contrasting the prosecution case with what the appellant claimed was his genuine belief in his entitlement to act as he did.[262] The further directions and redirections did so at some length.
[262]Macleod at [51].
As was the case in Macleod, the function of the claim of right put forward in relation to the fraud offences was to seek to engender a reasonable doubt with respect to the overall persuasive burden of proving that the pecuniary benefit was obtained fraudulently. That is, as to whether the appellant intentionally used dishonest means to induce the bank to act to its detriment in providing a line of credit to which he knew he had no entitlement. In those circumstances, there was no requirement to direct the jury as to a subjective claim of right pursuant to s 22(2).
Ground 2 – The absence of a s 22(2) direction
Given what I have said in relation to ground 1, it is clear that no direction as to s 22(2) of the Code was required. The directions and redirections given adequately dealt with the real issues in the trial and with the law the jury needed to understand to resolve those issues.
The application for leave to appeal against sentence
The appellant was sentenced to concurrent terms of imprisonment as follows:
(a)for the aggravated fraud counts (6, 10 and 12) – eight years imprisonment;
(b)for the forgery counts relating to the mortgages (3 and 9) – seven years imprisonment; and
(c)for the forgery counts relating to the guarantees (2, 5, 7 and 11) – six years imprisonment.
The appellant contended that the sentence was manifestly excessive and obtained leave to add as a ground that the sentencing judge erred in failing to take into account the appellant’s cooperation in the administration of justice. The application for leave to appeal against sentence was directed only to the failure to impose a parole eligibility date earlier than the statutory halfway point.
In imposing sentence, the sentencing judge gave consideration to circumstances in which the offending arose; the appellant had been a successful businessman but had resorted to criminal conduct when he encountered financial difficulties. Her Honour noted the considerable loss sustained by the bank that was then in the vicinity of $9m. Her Honour also commented that, while the appellant initially expressed of remorse to his family (in January 2009), that remorse dissipated over time. Her Honour remarked that it was “disturbing” that the appellant persisted in contending that his former wife knew and approved of the loans, and that the submissions at sentence revealed that the appellant blamed not only his former wife, but the bank and his former business partners. Her Honour concluded that the appellant still had “no self-realisation” or “remorse”.
Her Honour noted that the appellant had made admissions to the forgeries, but that he did so in the face of considerable evidence against him. As the sentencing judge noted, no allowance could be made for a plea of guilty. Her Honour took into account that the publicity the case had attracted, which contributed to the public shaming of the appellant. Her Honour noted, in relation to the delay between his first confession to family in 2009 and his being charged in 2012, that it was attributable to the investigation and requests by the appellant to adjourn the trial. However, her Honour also noted that no offences had been committed in the intervening period. Her Honour took into account that the appellant had been a significant contributor to charities and the community and references were provided on his behalf.
At sentence, the submission was made on behalf of the appellant, as a factor in mitigation, that his “significant admissions” shortened the trial “considerably”.[263] The prosecutor contended that the length of the trial was “somewhat shorter” due to the appellant’s cooperation in making “extensive admissions about the signatures and fingerprints”, which obviated the need to call evidence from five witnesses.[264] The appellant’s counsel argued that the appropriate sentence was seven years with moderation of the period in custody to reflect, inter alia, the “admissions made on trial”.[265]
[263]AB at 900 [13b].
[264]AB at 485.10-485.13.
[265]AB at 904 [17].
The appellant’s complaint before this Court was that no allowance was made for his cooperation which was “substantial” in the sentence imposed. It was submitted, relying on R v Wiggins,[266] that it was a factor that should have been taken into account and the sentencing judge erred in not doing so. On that basis, it was submitted that this Court should exercise the sentencing discretion afresh. It was submitted the sentences imposed should be varied in terms of the custodial component of the sentences by ordering that the date the appellant is eligible for parole be 20 June 2020,[267] that is after he has served three and a half years imprisonment rather than four years of the eight year term.
[266][2003] QCA 367 at 8.
[267]The appellant began the period of imprisonment on 20 December 2016 when remanded in custody on, the period between that date and the day of sentence being declared as time served under the sentences.
For the reasons given by Morrison JA, I agree that the contention that the sentencing judge had no regard to the appellant’s cooperation in imposing the head sentence is not made out. Her Honour expressly referred to the fact that the appellant “made admissions” but, as mentioned, observed that that had occurred in the face of “considerable evidence”. Nor do I consider that error is demonstrated in the approach taken in not imposing a parole eligibility earlier than the half way point.
As Morrison JA has stated at [170], once it is rejected that no allowance was made for the appellant’s admissions, there are difficulties in a contention that the sentence imposed was manifestly excessive because insufficient allowance was made for that factor. In my view, that applies to the sentences as a whole, comprising the head sentences and the refusal to impose a parole edibility date before the usual halfway point.
I am unable to join in the view that the position is otherwise when one analyses the outcome with respect to the parole eligibility date. In pronouncing, at the conclusion of the sentencing remarks, the terms of imprisonment imposed, her Honour stated that the terms were imposed “concurrently” and that the appellant would be “eligible to be considered for parole after the statutory period of half the sentence”, before making a declaration as to time served. It is not uncommon for sentencing judges to make an order as to the parole eligibility date (although not strictly necessary where a date inconsistent with the statutorily imposed period is not being made) to explain to the prisoner the parole eligibility position which follows as a matter of statute where no earlier or later date is ordered and to put the matter beyond doubt.
In my view, it is not open to interpret the experienced sentencing judge’s order as to parole eligibility as indicative of an error in the exercise of the sentencing discretion because of a failure to properly take into account the factor of the admissions made. Her Honour was merely articulating the position that followed in terms of parole eligibility in the absence of an order for earlier parole. Furthermore, it was entirely within the sentencing discretion not to order an earlier parole eligibility date and the failure to do so did not demonstrate error, or that the sentences imposed were manifestly excessive so as to permit this Court to interfere with the sentences imposed.
Orders
I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
ATKINSON J: I agree with the orders proposed by Morrison JA and with his Honour’s reasons.

CITATION:	R v Perrin [2017] QCA 194
PARTIES:	R v PERRIN, Matthew David (appellant/applicant)
FILE NO/S:	CA No 6 of 2017 CA No 20 of 2017 DC No 1083 of 2014 DC No 2552 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 20 December 2016; Date of Sentence: 27 January 2017 (Dick SC DCJ)
DELIVERED ON:	5 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2017
JUDGES:	Morrison and Philippides JJA and Atkinson J
ORDER:	1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is allowed. 3. The appeal against sentence is allowed. 4. The order as to parole eligibility, imposed on 27 January 2017, is set aside, an in lieu thereof it is ordered that the parole eligibility date is set at 20 June 2020. 5. Otherwise the sentences imposed on 27 January 2017 are affirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – CONDUCT OF TRIAL JUDGE – where the appellant was convicted of six counts of aggravated forgery and three counts of aggravated fraud – where the appellant contends that the trial judge wrongly decided that the exculpatory provision in s 22(2) of the Criminal Code (Qld), an honest claim of right, would not be left for the jury to consider – where the appellant submits that by failing to leave s 22(2) to the jury, a miscarriage of justice was caused – where there are similarities between the criteria that establish a forgery or fraud offence and the defence in s 22(2) – where the respondent submitted that if an offence of forgery is proven, s 22(2) cannot apply – where case law demonstrates that s 22(2) has three criteria, which must be satisfied with reference to the act constituting the offence – where defence counsel at trial conceded that there was a logical difficulty in satisfying the three criteria, because of the similarities between the defence in s 22(2) and the elements of fraud and forgery – whether the trial judge was correct to conclude that a direction on s 22(2) was not necessary CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to concurrent terms of imprisonment with a head sentence of eight years imprisonment with a parole eligibility date of 20 December 2020 – where the applicant contends that the learned sentencing judge erred in failing to account for his cooperation in the administration of justice – where the applicant made a number of admissions during the course of the trial – where such admissions avoided the need for expert witnesses – where the learned sentencing judge expressly referred to that in her Honour’s sentencing remarks but did not state what discount would be applied because of such cooperation – where the learned sentencing judge set parole eligibility at the default statutory position, after serving fifty per cent of the sentence – where it is possible to conclude that no allowance was considered when setting the parole eligibility date – whether the sentence as whole is manifestly excessive Crimes Act 1914 (Cth), s 173, s 473 Crimes Act 1900 (NSW), s 173 Criminal Code (Qld), s 22(2), s 408C, s 488 Criminal Code (WA), s 409 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Clarkson v Aspinall; Ex parte Aspinall [1950] St R Qd 79, considered Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, cited Mathews v The Queen (2001) 24 WAR 438; [2001] WASCA 264, followed Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, followed Olsen v Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580, cited Peters v The Queen (1998) 192 CLR 493, [1998] HCA 7, followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited R v Dale[2012] QCA 303, followed R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56; [2015] QCA 155, considered R v Ghosh [1982] 2 QB 1053, considered R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; [1996] VICSC 45, cited R v Maher [1987] 1 Qd R 171, considered R v Mill[2007] QCA 150, distinguished R v Pollard [1962] QWN 13, considered R v Senese [2004] VSCA 136, considered R v Sitek [1988] 2 Qd R 284, cited R v Waine [2006] 1 Qd R 458; [2005] QCA 312, cited R v Wiggins[2003] QCA 367, considered R v Williams [1988] 1 Qd R 289, cited Roberts v State of Western Australia (2005) 29 WAR 445; [2005] WASCA 37, considered Welham v Director of Public Prosecutions [1961] AC 103, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	M J Copley QC, with A M Hoare, for the appellant/applicant G P Cash QC for the respondent
SOLICITORS:	Lawler Magill for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent