R v Wilmore

[1996] QCA 190

IN THE COURT OF APPEAL	[1996] QCA 190
SUPREME COURT OF QUEENSLAND

C.A. No. 86 of 1996

Brisbane

Before Fitzgerald P.
McPherson J.A.
Williams J.

[R. v. Wilmore]

T H E Q U E E N

v.

DESMOND JOHN WILMORE

(Appellant)

Fitzgerald P.
McPherson J.A.

Williams J.

Judgment delivered 18/06/96

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION ALLOWED, THE CONVICTION ON COUNT 4 IS

SET ASIDE AND A VERDICT OF ACQUITTAL IS ENTERED ON THAT COUNT.

CATCHWORDS	CRIMINAL LAW - False pretences - Inconsistent verdicts - Accused signed partner's name to alleged "valid guarantee" and then presented the "guarantee" to obtain credit - Acquitted of forgery, but convicted of false pretences.
Counsel:	A Rafter for the appellant M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Public Prosecutions for the respondent
Hearing Date:	23 May 1996

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 18th day of June 1996

The appellant Desmond John Wilmore was brought to trial in the District Court on an indictment containing four counts. They were: (1) a false pretence; (2) forgery; (3) uttering; and (4) another false pretence. The jury returned verdicts of not guilty on the first three counts, but of guilty on the fourth. He now appeals against his conviction on that count.

The facts proved at the trial may be summarised as follows. The appellant succeeded in interesting two other men named van Draanen and Yooung in a project to export essences (which appear to have been a form of flavouring for foods) to Papua New Guinea. On 23 July 1993 a handwritten form of partnership agreement (ex 1) was signed by all three of them. The agreement provided for profits and losses to be shared equally (one third each). It also specified a "funding requirement" of $20,000 to pay for the purchase of the goods, freight, airfares and overheads. It was to be "provided from funds" allocated by Paul van Draanen for Ausfoods Pty. Ltd. The agreement went on to say that "should the funds not be available for repayment to Ausfoods ... then all parties agree to fund the $20,000 equally ...". It seems that they also agreed that their venture should trade under the name Supreme Foods.

van Draanen took steps to transfer $13,000 into the account of Ausfoods to provide a deposit for the purchase of the essences. He then went on a visit to New Zealand. While he was there the appellant communicated with him and asked that he provide a guarantee for $36,000. van Draanen declined to do so, saying that, because under the agreement each of the parties was entitled to one third of the profits, he was prepared to guarantee only one third of the amount required.

It was nevertheless arranged that, while he was in New Zealand, van Draanen would sign and return a facsimile document to be sent to him by the appellant. When the facsimile reached him on 5 August, it consisted of the following:

"Enclosed please find details of the personal guarantee for Paul van

Draanen.

Paul Nicholas van Draanen

[address given]

Place of birth:	Jakarta, Indonesia
Date of birth:	27 May 1949
Bank:	Metway, Aspley Commonwealth, Toowong.

Signed

P. van Draanen

Kind regards.

D.J. Wilmore

Managing Director"

van Draanen signed the document after writing on it the words "Des, guarantee is for _

(one third) equal share in Supreme Foods venture to PNG only". On 7 August 1993 he
returned the the document to the appellant. It or a copy became ex 2 at the trial.

In the meantime the appellant had approached a Mr Friend, who was a director of Davtine Pty. Ltd., trading as Supreme Products, which manufactured and sold a form of cooking essence. In July 1993, Friend had received a telephone call from the appellant, the effect of which was that he wished to buy a quantity of the essence for export. Friend told the appellant that, for an order of 4,000 litres costing $28,000, he would require a deposit of $5,000 and a guarantee that the balance of $23,000 would be paid within 30 days. The deposit was paid, but Friend would not deliver the goods ordered until he received the guarantee. On 4 August the appellant sent Friend a fax (ex 6) saying that van Draanen, who was in New Zealand, would be guaranteeing payment. Then on 5 August the appellant sent a further document (ex 3) to Friend. On the faith of that document, Friend allowed the goods to be delivered to the appellant, or at his direction, without first having received payment in full.

The document ex 3 sent to Friend on 5 August was in the same form as ex 2 sent by van Draanen from New Zealand except that it did not contain the handwritten additions purporting to limit van Draanen's guarantee to one third. It bore van Draanen's name as signatory, but the signature had been placed there not by van Draanen but by the appellant himself.

The prosecution case was that the appellant had forged van Draanen's signature on ex 3, and had then uttered the document to Friend as the guarantee on which he had insisted. These were the acts of forging and uttering alleged as counts 2 and 3, to which the jury returned verdicts of not guilty. The explanation for those verdicts can almost certainly be seen in the evidence given by the appellant at his trial. He testified that on 5 August 1993 he had spoken by telephone to van Draanen while the latter was still in New Zealand, and had told him that Friend required a guarantee before the purchase of the goods could proceed. According to the appellant's account of it, van Draanen, in the course of that telephone conversation, authorised the appellant to sign van Draanen's name on ex 3.

The appellant's evidence was capable of raising a reasonable doubt in the minds of the jury leading them to acquit on those two counts. It might perhaps have been expected also to have led to his acquittal on count 4. It charged the appellant with the offence of falsely pretending to Friend "that a personal guarantee given by Paul Nicholas van Draanen dated 6 August 1993 was valid", thereby inducing Friend's company Davtine Pty Ltd to deliver the goods ordered by the appellant on behalf of the partnership. However instead of acquitting him of the offence charged in that count, the jury found him guilty.

The basis on which the jury arrived at this verdict is not altogether clear. However, at a stage of the trial before counsel's addresses had been taken, the jury asked the trial judge the question, "Is a document signed on someone's behalf using their name with their permission a legally binding document?" They also asked, evidently as an aspect of the same question, "whether such a document could be presented as signed by the person without indicating it has been signed on their behalf?". Although it is perhaps not perfectly clear, it is a fair inference from those questions to the judge that what the jury were interested in knowing was whether the appellant could be found guilty of the offence of false pretences charged in count 4 if he had passed off ex 6 as a guarantee signed by van Draanen, when in fact it had not been signed by him personally but had been signed in his name by the appellant acting on his behalf and with this authority.

If what the jury had in mind was a distinction between representing that ex 3 bore van Draanen's signature, and representing that the signature on ex 3 was one that the appellant was authorised to subscribe there, it is enough to say that it is not supported by anything in the evidence of the witnesses at the trial. In particular, Mr Friend testified simply that he or his company parted with the goods because he believed that ex 3 was "a valid guarantee" and that he would not have done so if the guarantee "was a forgery or a false document". A distinction of the kind mentioned was never part of the prosecution case at the trial, and the jury were not directed in terms of it.

On the other hand, it may be that their purpose in asking the question was to determine the legal validity or enforceability of ex 3 as a guarantee. As a matter of law, a document is ordinarily binding on a person if signed in his name by someone else provided the person who signed it has his authority to do so. A guarantee required by s.56(1) of the Property Law Act 1974 to be in writing is enforceable if signed either by the party to be charged or by some other person authorised to do so on his behalf. In Queensland, it is not necessary, as it is in some other Australian States, that the signatory also be authorised in writing to sign the guarantee on behalf of the guarantor.

It may be that the jury had something like that in mind when they asked the questions referred to. In a sense, some such inquiry was invited by the terms of count 4 of the indictment. As already mentioned, it charged the appellant with falsely pretending that a personal guarantee given by van Draanen was "valid". What exactly was meant by "valid" in this context was not elucidated by any particulars given at or before the trial; but it was certainly capable of raising issues of law about the validity, as a guarantee, of the document ex 3. Even on a most cursory reading of it, there might well be a doubt whether ex 3 constituted a guarantee by van Draanen of the partnership indebtedness to Mr Friend's company Davtine Pty. Ltd. for the goods to be delivered. According to its literal terms, ex 3 purported to do little more than provide personal details or particulars relating to van Draanen intended perhaps for inclusion in a formal guarantee to be given by him. Whether or not it was capable of being construed as a valid guarantee was a question not of fact, but of law, which was not a matter for the jury to decide.

This ought to have been explained to them by the learned trial judge in the course of the summing up. Instead, the summing up at one point digressed to a discussion of the circumstances in which a document may be executed under power of attorney, and referred to the requisites for its validity if that were done. At a later point in the summing up, his Honour's directions to the jury seem clearly enough to have assumed that ex 3 was represented by the appellant to be a valid guarantee when "in fact", as the judge told them, " it was not". On this aspect, the directions concluded with the intimation that, in order to reach a verdict of guilty, it would be necessary for the jury to be satisfied that the appellant had put to Mr Friend "a guarantee that he knew was false, and that was, in fact, false". This had the effect of compressing issues of law and fact into a single question and of depriving the jury of the function of deciding the factual issue involved in it.

On appeal, it was not strenuously sought to retain the verdict of guilty on count 4. On behalf of the Crown, Mr Byrne Q.C. adopted the course of arguing for a new trial in the event that the conviction on that count was set aside. But a new trial on count 4, in the form in which it now stands, is capable of leading only to further problems. If the appellant did indeed represent to Friend that ex 3 was a "valid guarantee" he could only have been giving an opinion to that effect. It is, of course, possible for someone to commit the offence of obtaining by false pretences by misrepresenting the state of his opinion. To adapt the well-known aphorism of Bowen L.J., the state of a man's opinion is as much a matter of fact as the state of his digestion. But to secure a conviction on such a charge, it would have to be abundantly clear that, at the very least, the accused was representing the state of his opinion at a time when he in fact held a different opinion or held no opinion at all, and, in addition, that it was that misrepresentation of his opinion that induced his victim to part with the property alleged to have been fraudulently obtained.

In this instance the evidence for the prosecution fell well short of establishing against the appellant anything resembling a case of that character. If what the appellant in fact did was to present ex 3 to Mr Friend as a guarantee, there is nothing at all to suggest that he also offered the opinion that, as a matter of mixed fact and law, it was a valid instrument. At most, it may be inferred that his words and conduct conveyed the impression that the document was one that the appellant was authorised by van Draanen to present as an "authentic" instrument. This comes close to saying that, before a jury could find the appellant guilty of obtaining by false pretences, they would need to be satisfied beyond reasonable doubt that the appellant placed van Draanen's signature on ex 3 without his authority. A conclusion to that effect would be practically, if not directly, inconsistent with the verdict on count 2 that the appellant was not guilty of forging van Draanen's signature on that document.

It follows that if, as the appellant had asserted in evidence, he had subscribed the signature on ex 3 with van Draanen's authority, he could not have been guilty either of the forgery of which he was acquitted, or of falsely representing that ex 3 was a document which he was authorised to present to Friend as the authentic instrument of van Draanen. Since by their verdict on count 2 the jury showed that they entertained a reasonable doubt about that question, it would scarcely be open to another jury to arrive at a different verdict on the same question under count 4. The difficulty can, therefore, not be solved by reformulating count 4 to charge the appellant with obtaining a quantity of flavourings or essences by falsely pretending that the document dated 6 August 1993 (meaning ex 3) was an instrument which van Draanen had authorised him to present to Mr Friend or his company as amounting to a guarantee.

The appeal should be allowed. The conviction on count 4 should be set aside, and a verdict of acquittal should be entered on that count.