R v Sewell

[2001] NSWCCA 299

CITATION:	Regina v Sewell [2001] NSWCCA 299
FILE NUMBER(S):	CCA 60373/01
HEARING DATE(S):	3 August 2001
JUDGMENT DATE:	10 August 2001
PARTIES :	Regina v Thomas Joseph Sewell
JUDGMENT OF:	Heydon JA at 1; Simpson J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0232
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	(A) S J Odgers SC & P A Leary (C) M C Grogan
SOLICITORS:	(A) Leary & Company (C) S E O'Connor
CATCHWORDS:	Withdrawal of plea prior to conviction - applicable principles - using false instruments - construction of ss299 & 300 of Crimes Act 1900 - whether evidence sufficient to support charges.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Rules
CASES CITED:	Meissner v The Queen (1995) 184 CLR Maxwell v The Queen (1995) 184 CLR R v Toro-Martinez (2000) 114 A Crim R 533 S v Recorder of Manchester [1971] AC 481 R v Ross CCA unrep 20 April 1994 Liberti (1991) 55 A Crim R Davis NSWCCA unrep 16 December 1993 R v Bargachoun NSWCCA unrep 23 October 1995 R v Foley [1963] NSWR
DECISION:	Extend time for leave to appeal - Leave to appeal granted - Application dismissed.

IN THE COURT
OF CRIMINAL APPEAL

60373/01

HEYDON JA

SIMPSON J

SMART AJ

Friday, 10 August 2001

REGINA v THOMAS JOSEPH SEWELL


JUDGMENT

1   HEYDON JA: I agree with Smart AJ

2   SIMPSON J: I agree with Smart AJ.

3   SMART AJ: Thomas Joseph Sewell seeks leave to appeal against an interlocutory order of 10 May 2001 of Gibson DCJ refusing to allow Mr Sewell to withdraw his plea of guilty to 7 counts of using a false instrument knowing it to be false with intent to induce Westpac to accept it as genuine and thereby credit to Mr Sewell's account a specified sum of money to the prejudice of Westbus Pty Ltd (Mr Sewell's employer). Mr Sewell had also previously asked the judge to take into account 10 similar charges of which Mr Sewell had previously admitted his guilt. All charges were laid under s 300(2) of the Crimes Act 1900.

4   The 17 charges relate to offences which occurred between January 1992 and February 1993 and involve a total of $193,796.85. The police fact sheet alleges that Mr Sewell was employed as a manager of Westbus Pty Ltd in 1989 and that part of his duties involved arranging bus transport to take the place of trains, for example during track upgrades or when there were derailments. Mr Sewell alleged that in about May 1991 he entered into a verbal agreement with one of the owners and a director of Westbus whereby he was to be paid a commission of 5 per cent on turnover for new business which he obtained for the company. Counsel explained that this applied to the provision of bus services in the Blue Mountains.

5   Mr Sewell photocopied some blank invoices and placed details of bus jobs done on the photocopy invoices and delivered these to State Rail. It paid the invoices believing them to be correct and issued a cheque payable to Westbus Pty Ltd. Mr Sewell picked up each cheque, placed a Westbus stamp on the back of each cheque and endorsed it with a signature, making it payable to Prospect Promotions. The bank account of that entity was under the control of Mr Sewell and effectively owned by him. Each of the cheques was paid into that bank account. Subsequently, the proceeds of that account were withdrawn.

6   The Crown alleges that Mr Sewell was not authorised to sign over any of the cheques made payable to Westbus Pty Ltd nor to deposit any of the cheques directly into any account controlled by or owned by him.

7   The Crown alleges that Mr Sewell admitted what he had done as he believed that he was owed the money and this was the only way he could get it. He claimed that he had spent the majority of the money on gambling.

8   The matter has had a long history:

(a) Mr Sewell was arrested and charged on 29 January 1996.
(b) On 20 November 1998 he pleaded guilty in the District Court to 20 counts of using a false instrument under s 300(2) of the Crimes Act. He was represented by counsel.
(c) On 26 February 1999 Judge Karpin imposed various sentences, the majority of which involved a not insignificant term of full time custody.
(d) Mr Sewell appealed to the Court of Criminal Appeal against both conviction and sentence. He sought to withdraw his plea of guilty on the basis that he was entitled to raise a claim of right in answer to each charge, that is to claim an honest belief in his entitlement to act in the way he did notwithstanding that objectively such belief appeared to be unreasonable. Counsel for the Crown on that appeal conceded that such a claim of right was, as a matter of law available to the applicant and that it would not be in accordance with principle to deprive the applicant of the opportunity to put that defence before a jury. On 27 September 1999 the convictions were quashed and a trial was ordered.
(e) On 8 May 2000 Mr Sewell was indicted in the District Court on 44 counts of using a false instrument. The trial aborted and a fresh trial commenced on 9 May 2000 before another judge.
(f) Mr Sewell was again indicted and the trial proceeded. At the end of the mid-morning adjournment the Crown Prosecutor advised counsel for Mr Sewell that he intended to lead evidence from Mr R Ash, Group Controller of Westbus as to the quantum of the claim of right. It was designed to show that any claim of right would be for a much lesser sum than that appropriated by Mr Sewell. It was said that there were varying levels of profit and turnover on the contracts. The Crown conceded at the trial that if Mr Ash's evidence was accepted it would make a very significant difference to the amount that Mr Sewell may be able to say that he was owed. He now had a quite different case to meet. The Crown accepted that there would be a lot of work involved in meeting the changed case. The back up calculations to support Mr Ash's statement would take some weeks to do. The jury was discharged. The materials suggest that the executives of Westbus produced the further figures to the Crown at a very late stage. The matter was adjourned for mention until 10 May 2000. It is a pity that the detailed financial investigation was not done prior to the first sentence hearing and the earlier hearing before this Court.
(g) During the course of the afternoon of 9 May 2000 and the morning of 10 May 2000 extensive discussions took place. As a result of discussions the Crown Prosecutor had with her instructing solicitor, Mr Ash and Det Compton on the afternoon of 9 May 2000 the Crown accepted that the accused had a possible claim of right to slightly less than $31,000. The Crown Prosecutor and her instructing solicitor conferred with the counsel and solicitor for Mr Sewell and the Prosecutor outlined the extent of the claim of right which would be accepted by the Crown and how the figure was calculated. She offered to accept a plea of guilty to 17 counts of using a false instrument from the original indictment which contained 20 counts. Three counts totalling $32,290.70 were removed from the indictment. The remaining 17 counts were divided into an indictment containing 7 counts and a Form 1 containing 10 counts. Counsel and the solicitor for Mr Sewell conferred with him. Just prior to luncheon on 10 May 2000 the Prosecutor was informed that the accused would plead guilty to the 7 counts in the indictment, acknowledge his guilt as to the 10 counts on Form 1 and ask that they be taken into account.
(h) When the matter came on before the trial judge on the afternoon of 10 May 2000 Mr Sewell entered pleas of guilty to the 7 counts on the indictment and the Form 1 containing 10 counts and signed by him was handed up. As neither the Crown nor Mr Sewell was ready to proceed with the sentence hearing the matter was adjourned for sentence to 12 July 2000.
(i) On 12 July 2000 as a result of the instructions counsel received prior to the sentence hearing he withdrew. The hearing was adjourned to 27 July 2000. On that day Mr Sewell filed a notice of motion seeking to withdraw his pleas of guilty. The hearing of that motion was stood over to 10 November 2000. On that day fresh counsel for Mr Sewell withdrew the notice of motion and the Court dismissed it. The matter was listed for sentence on 10 January 2001 with the judge directing that an updated pre-sentence report be obtained from the NSW Probation and Parole Service. Mr Sewell was directed to attend that Service's Windsor office within seven days.
(j) On 10 January 2001 the fresh counsel and his solicitor withdrew as they felt unable to continue to appear for Mr Sewell due to something which had arisen in conference that morning. Mr Sewell then applied to have the matter stood over for sentence. The judge was unavailable due to other commitments to continue with the matter so it was listed before the Chief Judge on 25 January 2001. On that day Mr Sewell appeared for himself, and stated that he would be represented by another named barrister who was not available that day. The matter was listed for mention on 1 March 2001 to fix a hearing date for sentence.
(k) On 1 March 2001 Mr Sewell again applied for leave to withdraw his plea of guilty. That motion was stood over to 26 March 2001 when it was listed for hearing before Judge Gibson on 10 May 2001. On that day he refused Mr Sewell's application and set a sentence hearing date of 29 June 2001.
(l) On 18 June 2001 the application for leave to appeal to this Court was filed. It is out of time as Rule 5B of the Criminal Appeal Rules requires it to be made within 14 days of the interlocutory order. The application for an extension of time was based upon Mr Sewell being preoccupied with a serious medical condition (malignant tumour of the rectum). The Crown did not contend that an extension of time should be refused.

9   In his affidavit of 25 July 2001 Mr Sewell said that during a break in the trial in May 2000 his barrister stated that he had been shown some documents which he had not seen before and which may put a different light on his case and that if Mr Sewell wished he could apply to vacate the hearing. This led to the discharge of the jury. His barrister later that day said that having looked at the documents and the figures the case did not look very good for Mr Sewell. It was his word against that of a number of others. Also the figures shown to him by the Crown did not seem to be consistent with Mr Sewell's figures. Mr Sewell said that he inquired as to his options. He discussed with his counsel the implications of his plea of guilty and acknowledged that his counsel told him at some stage that the Crown was prepared to reduce the charges from 44 to 17.

10   Mr Sewell said that he was feeling extremely distressed and overwhelmed by being in court and wished to get the proceedings over as quickly as possible. He therefore informed his counsel that he wished to change his plea to guilty. His counsel explained that if he changed his plea to guilty he was admitting all the facts of the matter and that he intended to take the money. That meant that he would be abandoning his claim of right. Mr Sewell replied that he did take the money. He further said:

"… I misunderstood the explanation … in that I assumed that a plea of guilty was simply admitting … that I had physically taken the money and admitting all the facts in relation to negotiating the cheques through my bank account and I assumed that the admission of intent was the intent to literally take the money, not an intent to take the money to the detriment of Westbus knowing that I was not entitled to it. I also assumed that the abandoning of my claim of right meant that I could no longer use it as a defence to the charges. I certainly did not realise that I could not use a claim of right as an explanation of the charges as a mitigating circumstance in relation to sentencing.
I always maintained a claim of right with respect to the money taken, right from the first time I was interviewed by the police"

11   Mr Sewell asserted that his mental state was clouded by the fact that his wife suffered from cancer and became extremely upset every time the case was mentioned and when he had to go to court. Mr Sewell said that it was in these circumstances and because he believed that it was only by changing his plea to guilty that the number of charges would be reduced that he decided to make that change and raise the circumstances of his claim of right as a mitigating circumstance on sentencing.

12   Mr Sewell said that when he saw the Probation and Parole officer who was preparing his pre-sentence report he (Mr Sewell) raised his claim of right. Mr Sewell said that when he saw his barrister on 6 July 2000 his barrister regarded Mr Sewell's claim of right as inconsistent with his plea of guilty. On 10 July 2000 at a conference with his barrister and his solicitor the position was further explained and his barrister stated that he proposed to withdraw.

13   Mr Sewell said:

"I now understand that I cannot maintain a guilty plea and still maintain that I have a claim of right over the funds taken. Had I fully understood this at the hearing of this matter I would never have changed my plea to guilty, as I never intended not to raise those issues in litigation".

14   The reasons advanced by Mr Sewell in his affidavit in support of his application are not easy to accept.

15   On 10 May 2000 Mr Sewell signed this document which was witnessed by his solicitor:

"THOMAS JOSEPH SEWELL

10 May 2000 PARRAMATTA DISTRICT COURT

On Tuesday 9 May a jury trial commenced before Price DCJ & a jury of twelve. I had pleaded not guilty to 44 counts under section 300(2) of the Crimes Act. This trial was terminated following an application by my counsel when the Crown sought to introduce fresh evidence not previously raised. Subsequent to the trial aborting I understand the Crown are prepared to offer a different indictment which contains 7 counts and 10 matters on a Form 1.
My counsel has explained to me that if I plead guilty to these counts that I do so having abandoned my defence of "Claim of Right" to all counts. I have been informed that by pleading guilty I am admitting all relevant elements of the offence - which includes I acted consciously to obtain the money alleged for my own purposes to the prejudice of Westbus without any entitlement to this money on my own part. I have been informed that the Crown will indicate that periodic detention as a sentence would be inappropriate having already served a previous sentence of this type. My counsel has informed me that because of my record it is highly probable that I will be again sentenced to a period of full time custody".
These are unusually detailed instructions and easy to understand. There is an explicit acknowledgment by Mr Sewell that he had no entitlement to any of the moneys the subject of the 7 counts in the indictment and the subject of the 10 counts in Form 1.

16   In his oral evidence before Judge Gibson Mr Sewell was not as restrained as the terms of his affidavit. He said that his counsel showed him a document, told him he had no hope of winning with the Group Accountant and the Bosnjacks (the proprietors of Westbus Pty Ltd) against him and that he would have to change his plea to guilty. A little later counsel added "Well, we'll change the plea". Mr Sewell thought that the reduction in the number of charges sounded a lot better. He said that he honestly believed that he could still put the case of what had actually happened before the court.

17   Mr Sewell stated that at the time his case was before the Court in May 2000 he was getting a lot of headaches and was taking Codeine and Panadeine. He said that after he signed a document counsel told him he would finish back in gaol again.

18   In his evidence in chief it emerged that Mr Sewell had written in a document supplied to the Probation and Parole Service that the arrangement always was that he was to be paid a commission of 5 per cent on turnover. He wrote that he could not explain the discrepancy which emerged from a document dated 22 July 1991. That document was headed "Consulting Package Submission - Prospect Promotion". It referred to "A Consultancy Fee of 5 per cent on Gross Profit" payable on any of four specified items or contracts for four specified areas of work. The document contained a formula for calculating the gross profit. The arrangement did not apply if the gross profit was less than 25 per cent of the amount invoiced. Prospect was to submit an invoice each two weeks. The arrangements were to endure for two years from 1 July 1991.

19   Mr Sewell claimed that when he was shown the document of 22 July 1991 by his barrister at court he could not remember until about a week later why he wrote the document. Mr Sewell insisted that it was unrelated to the original deal. Mr Sewell stated that he would probably have made a different decision if he had been thinking clearly around 9 and 10 May 2000. He insisted that he had made a mistake in pleading guilty believing that he could present the circumstances as to what had happened.

20   Mr Sewell told the judge that he was the contract development manager at Westbus Pty Ltd and was with that company for three years. He set up a new division in the company. He agreed that he was a fairly intelligent person with that kind of work. In answer to the judge Mr Sewell said that he did not even ask his counsel if he could run his defence and that he did not recall hearing or seeing that the Court of Criminal Appeal had held that he was entitled and able to run his defence of a claim of right.

21   Mr Sewell stated that he had made Westbus $11-million. He received about $18,000 to $20,000 from Westbus. He was badly done by and should have been getting 5 per cent of it in accordance with the original agreement. The implication was that he took the steps now under challenge to recover the money owed to him and had to do so to obtain such money.

22   In cross-examination Mr Sewell said that he did not really read the document of 10 May 1991 (the written instructions). He conceded, however, that it was read to him and that he was spoken to about it and that he signed it to confirm his instructions to counsel. A little later, after counsel for Mr Sewell before Judge Gibson said he could not read the writing, Mr Sewell volunteered that he could not read it at the time (10 May 2000). Mr Sewell said that since 10 May 2000 he had realised that the document of 22 July 1991 in his handwriting had nothing to do with the agreement that Westbus made with him in May 1991.

23   Mr Sewell said that when he sued Westbus in 1993 for moneys which he claimed it owed to him he did not disclose that he had taken close to a quarter of a million dollars.

24   The judge placed some emphasis on the document of 10 May 2000. He noted that Mr Sewell gave instructions to his current barrister not to cross-examine counsel who had appeared for Mr Sewell in May 2000. The judge found that, despite Mr Sewell's problems and those of his wife, he came across as somebody who was astute and smart. That is also apparent on reading the transcript.

25   The judge stated:

"I do not believe that he did not understand that he was abandoning his claim of right. I am satisfied, as I have to be in this case, on the balance of probabilities that he did so understand. He had been sent to gaol and been let out of gaol on the basis that he could run a defence that he claimed he had. As he said himself, the material had been put before the court on the first occasion in the plea, and the Court of Criminal Appeal said no, it was a claim of right that had to be put before the jury. To say that he was not aware of that, in my view, is just unacceptable.
If it had not been for that fact, I might have taken a different view, but in relation to the evidence, I am satisfied on the balance of probabilities that at the time he knew that he was admitting his guilt, he was prepared and did admit his guilt, realising that he was abandoning his claim of right. Because of that, the authorities, when they talk about miscarriages of justice, do not speak in vacuo, they speak in relation to a number of different ways in which this miscarriage of justice can occur, and one of them is if there is not a genuine consciousness of guilt or an acceptance of guilt.

In my view, there has been such a conscious acceptance of guilt in this case, and in the totality of the evidence I would on that alone refuse the application"

26   The judge also relied on the history of the matter subsequent to 10 May 2000 and, in particular the withdrawal in November 2000 of the application for leave to withdraw the plea of guilty and the arrangements made to conclude the sentencing hearing. The judge pointed out that by November 2000 the applicant was aware that he should not have withdrawn his plea and was sorry that he did.

27   The judge held that at the time Mr Sewell entered his pleas of guilty on 10 May 2000 he did have a genuine understanding of his own guilt and that the plea was an expression of that guilt.

28   The findings of fact made by the judge were reasonably open on the evidence. They were not challenged by counsel.

29   Appeal Ground 1 reads:

"… Gibson DCJ erred in law in refusing the application to withdraw the applicant's plea of guilty".

30   The applicant submitted that the judge had a very broad discretion to permit such a withdrawal and that it was not constrained by the principles applicable to an appeal against conviction where it had been held that a conviction entered upon the basis of "… a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it": per Dawson J in Meissner v The Queen (1995) 184 CLR 132 at 157.

31   The application was argued before Gibson DCJ on the basis that the relevant test was whether the refusal to allow an accused to withdraw his plea of guilty would amount to a miscarriage of justice. The judge was referred to Meissner (the joint judgment of Brennan, Toohey and McHugh JJ), Maxwell v The Queen (1995) 184 CLR 501 and R v Toro-Martinez (2000) 114 A Crim R 533. Gibson DCJ observed that when the authorities spoke of a miscarriage of justice they did not do so in the abstract but in relation to a number of different ways in which this miscarriage can occur. Relevantly, he identified one of them as being if there is not a genuine consciousness or acceptance of guilt. On that factual issue the applicant failed. Much depends on what is meant by a miscarriage of justice in the particular context.

32   In S v Recorder of Manchester [1971] AC 481 at 488 Lord Reid said:

"It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by evidence or otherwise".

This passage was quoted with approval by Dawson and McHugh JJ in Maxwell at 509. It is a matter for the court's discretion and that discretion is a wide one: R v Ross , CCA, unrep. 20 April 1994 per Badgery-Parker J.

33   On occasions when a judge is looking for a general term to describe what is required it has been said that the applicant must establish a miscarriage of justice: see, for example, Mahoney JA in R v Ross, CCA unrep, 20 April 1994. In Maxwell at 531 Gaudron and Gummow JJ said that ordinarily an application for a grant of leave "involves a consideration of the circumstances in which the plea was made, with leave being granted if the plea resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require". In Maxwell at 511 Dawson and McHugh JJ said:

"The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance".

34   In Ross, when discussing the setting aside of a conviction Mahoney JA said:

"It is accepted that, where a plea of guilty has been induced by fraud, threats, certain kinds of mistake or has been entered for unacceptable reasons, an appeal may be brought against the resultant conviction … it is not every kind of threat or pressure which will be a ground for setting aside a conviction".

Similar considerations apply to an application for leave to withdraw a guilty plea.

35   In Liberti (1991) 55 A Crim R 120 Kirby P at 121-122 when dealing with the power of the court to set aside a conviction following a plea of guilty stated that it has the power to do so if:

(b) the appellant, upon the admitted facts, could not in law have been convicted of the offence charged".

36   Similar principles apply when a judge is considering an application for leave to withdraw a plea.

37   In Boag (1994) 73 A Crim R 35 at 36 Hunt CJ at CL with whom McInerney and James JJ agreed held that the test to be applied in determining whether an accused should be permitted to withdraw his plea of guilty was whether the accused had shown that a miscarriage of justice had occurred. That may occur in many different situations. He said at 37:

"Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty".

Hunt CJ at CL adopted the statement of Badgery-Parker J in Davis, NSWCCA, unrep 16 December 1993 that "there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt". These decisions were followed in R v Bargachoun NSWCCA unrep 23 October 1995.

38   It was suggested that the earlier decision of this Court in R v Foley [1963] NSWR 1271, where the decision of the primary judge refusing to allow the accused to withdraw his plea of guilty was reversed, propounded a broader principle. The primary judge had held that the accused's explanation was not bona fide and that he had no defence on the merits. The Court of Criminal Appeal had appreciably more evidence before it than was before the judge. That established that the application was bona fide and that there was a defence which had merit. It was in those circumstances that the Court said that the desirability of the accused being tried by a jury, if requested, was of fundamental importance. The Court held that the additional facts and material before it warranted it exercising its own discretion.

39   Foley is not a departure from principle but an illustration of a case where the addition of further material made a compelling case for leave to be granted. The interests of justice required it. Foley also illustrates the variety of circumstances which may arise and the difficulty in trying to fit all cases within one verbal formula. An accused seeking leave to withdraw a plea of guilty prior to conviction must establish a good and substantial reason for the Court taking that course. The cases reveal many specific examples of when an accused is permitted to withdraw his plea of guilty prior to conviction and I have mentioned some of them. The categories are not closed. The general statement that an accused must show that a miscarriage of justice will occur if he is not given leave to withdraw his plea of guilty or that an accused must show that it is in the interests of justice that leave be granted provide a useful principle against which to evaluate new categories or new factual situations.

40   The judge has not failed to apply and follow correct principles in refusing to grant leave. His assessment of Mr Sewell's evidence and findings of fact preclude a conclusion that Mr Sewell did not fully appreciate what he was doing and the effect of what he was doing. The judge's findings that Mr Sewell entered his plea having a genuine understanding of his own guilt and that the plea was an expression of guilt cannot be overlooked.

41   Appeal Ground 2

This was raised at the hearing and is to the effect that the evidence available to the Crown is insufficient to support the counts in the indictment.

42   This point was not taken before Gibson DCJ. The Court allowed it to be argued rather than have it arise at a later stage.

43   The fact sheet reveals that Mr Sewell photocopied 25 blank invoices and placed details of bus jobs done on the photocopied invoices and delivered them to the State Rail Authority which paid them by drawing cheques in favour of Westbus Pty Ltd, believing the photocopy invoices to be correct. Mr Sewell personally collected the cheques.

44   The applicant submitted that it was not suggested that these invoices were fraudulent. It was submitted that the Crown relied on the applicant endorsing each cheque with his signature making it payable to his account and stamping each cheque with a Westbus stamp. The applicant contended that the gravamen of the offences is that the applicant was not authorised by Westbus to sign over any of the cheques.

45 The applicant submitted that each cheque, while an instrument as defined in s 299(1) of the Crimes Act 1900, was not a "false instrument" as defined in s 299(2).

46 Section 300(2) of the Act provides:

"(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:
(a) to accept the instrument as genuine; and
(b) because of that acceptance, to do or not to do some act to that other person's, or to another person's, prejudice,
is liable to penal servitude for 10 years".

47 The term "instrument" is defined in s 299(1):

"(a) any document, whether of a formal or informal character; or
… "

48   Section 299(2) provides:

(2) For the purposes of this Chapter, an instrument is false if it purports:

(a) to have been made in the form in which it is made by person who did not in fact make it in that form; or

(b) to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or

(c) to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or

(d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or

(e) to have been altered in any respect by a person who did not in fact alter it in that respect; or

(f) to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or
… "

49   By s 4 of the Act "Person" includes any society, company or corporation. It would thus include Westbus Pty Ltd.

50   It was submitted that none of the subparagraphs of s 299(2) applied in the present case, and, alternatively this was at least arguable and the matter should go to trial.

51   The Crown relied on several of the provisions of s 299(2). First, it relied on s 299(2)(a). The cheque as originally drawn payable to Westbus is not a false instrument. This case is concerned with the affixing of the Westbus stamp and the endorsement. They made it seem that Westbus had authorised the payment to Prospect Promotions. That is the "purporting". Westbus did not affix the stamp or make the endorsement. That was done by the applicant for his own purposes and not on behalf of Westbus.

52   Section 299(2)(b) also applies. As the cheque was made payable to Westbus Pty Ltd and was presumably marked "not negotiable", it was Westbus Pty Ltd which had to authorise any endorsement. Westbus Pty Ltd did not authorise the applicant to endorse any of its cheques in favour of himself or Prospect Promotions (his firm or company). The cheques should have been paid into the account of Westbus. It follows that the instrument purported to have been in the form in which it was made on the authority of Westbus Pty Ltd, but Westbus Pty Ltd did not in fact authorise its making (that is, the stamped endorsement) in that form.

53   Further, for similar reasons s 299(2)(d) applies. The cheque was made payable to Westbus. The stamp and endorsement purported to have been made in the terms in which it was made on the authority of Westbus but it did not authorise the endorsement making the proceeds of the cheque payable to the applicant or Prospect Promotions.

54   Section 299(2)(f) is also capable of applying. The applicant submitted that it did not apply because the alteration was purportedly done on the authority of the applicant who authorised the alteration in that respect. I am unable to agree with this approach. An instrument is false if it purports to have been altered in any respect on the authority of a person. The instrument purported to have been altered on the authority of Westbus, the payee, by means of the Westbus stamp and the endorsement. However, Westbus did not authorise any endorsement which permitted the proceeds of the cheque to be paid into the account of the applicant or Prospect Promotions.

55 The argument that the materials do not support that there was a false instrument and therefore counts under s 300(2) of the Crimes Act is not sustainable.

56   This Court did not have the fullest factual materials before it and I would anticipate that Gibson DCJ will have fuller materials. There was, however, sufficient material to enable me to reach the conclusions stated.

57   I would grant Mr Sewell the extension of time sought. However, Mr Sewell's application should be dismissed.

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