Roddan v The Queen
[2002] WASCA 69
•3 APRIL 2002
RODDAN -v- THE QUEEN [2002] WASCA 69
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 69 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:268/2000 | 2 NOVEMBER 2001 | |
| Coram: | WALLWORK J MURRAY J EINFELD AJ | 3/04/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY GORDON RODDAN THE QUEEN |
Catchwords: | Criminal law Forgery Elements of the offence Materiality of signature on mortgage document Mental element in offence Whether defence of mistake under Criminal Code (WA), s 24 available Turns on own facts |
Legislation: | Criminal Code (WA), s 470, s 471, s 472, s 473, s 474 |
Case References: | Brott v The Queen (1992) 173 CLR 426 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 R v Roddan [2000] WADC 302 Turquand's Case (1856) 6 El & Bl 327 Abalos v Australian Postal Commission (1990) 171 CLR 167 Gallagher v R (1986) 160 CLR 392 Houston v Crannage (1990) WAR 11 Leuschel v Police (SA) (1999) 75 SASR 231 Mickelberg v R (1989) 167 CLR 259 Oset v Webb, unreported; CCA SCt of WA; Library No 8734; 28 February 1991 Ratten v R (1974) 131 CLR 510 Registrar General v Northside Developments Pty Ltd (1989) 7 ACLC 52 Watt v Thomas [1947] AC 484 Whitehorn v R (1983) 152 CLR 657 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : RODDAN -v- THE QUEEN [2002] WASCA 69 CORAM : WALLWORK J
- MURRAY J
EINFELD AJ
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Forgery - Elements of the offence - Materiality of signature on mortgage document - Mental element in offence - Whether defence of mistake under Criminal Code (WA), s 24 available - Turns on own facts
Legislation:
Criminal Code (WA), s 470, s 471, s 472, s 473, s 474
Result:
Extension of time refused
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr T R Stephenson
Respondent : Mr S E Stone
Solicitors:
Appellant : Mr T R Stephenson
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brott v The Queen (1992) 173 CLR 426
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146
R v Roddan [2000] WADC 302
Turquand's Case (1856) 6 El & Bl 327
Case(s) also cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Gallagher v R (1986) 160 CLR 392
Houston v Crannage (1990) WAR 11
Leuschel v Police (SA) (1999) 75 SASR 231
Mickelberg v R (1989) 167 CLR 259
Oset v Webb, unreported; CCA SCt of WA; Library No 8734; 28 February 1991
Ratten v R (1974) 131 CLR 510
Registrar General v Northside Developments Pty Ltd (1989) 7 ACLC 52
Watt v Thomas [1947] AC 484
Whitehorn v R (1983) 152 CLR 657
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Murray J and to the orders proposed by his Honour.
2 I do not wish to add anything to his Honour's reasons.
3 MURRAY J: In June 1998 the appellant was indicted in the District Court on charges of two old offences. The first was that between 11 and 17 May 1990 he forged a mortgage purportedly granted by Marblon Park Pty Ltd in favour of the Rural and Industries Bank of WA and the second was that on or about 16 May 1990 he knowingly and fraudulently uttered the forged mortgage.
4 A new Chapter XLIX, dealing with forgery and uttering, containing one section only, s 473, was inserted into the Criminal Code (WA) by the Criminal Law Amendment Act 1990, Pt 2, s 41, which was operative from 14 February 1991. Therefore the law governing the offences of forgery and uttering charged in the indictment was that which previously existed, which was formerly found in Ch 48 and Ch 49 of the Criminal Code, particularly s 469 - s474.
5 The offences charged in the indictment were tried by Yeats DCJ without a jury, upon the election of the appellant, on 13 - 15 November 2000. On 21 November 2000 her Honour gave detailed written reasons (R v Roddan [2000] WADC 302) by which she convicted the appellant of the offences of forgery and uttering, following which her Honour imposed a fine of $2500 for each offence.
6 The appeal is brought as of right alleging errors of law, although the fourth and last ground of appeal complains that Yeats J should have regarded a note, Exhibit 10 (undated), of which a witness, a Ms Shore, was said to be the author and which is said in the ground to have been written at the time of the alleged dates of offence, to be "of such import as to render [Ms Shore's] evidence so inherently weak as to be incapable of supporting a conviction". That seems to me to be a ground concerned with a matter of credibility and to raise a question of fact for which an application for leave to appeal would be required.
7 Putting that to one side, it is clear that this witness, who at one time was in a relationship with the appellant and whose signature, which the appellant admitted had been written, appeared on the mortgage, was a principal witness for the Crown. One defence raised to the charge of forgery was that she had authorised the appellant to sign her name. That defence only emerged from statements made by the appellant in an
(Page 4)
- interview with a police officer, because the appellant declined to give evidence at the trial. So in this regard the defence was based on a self-serving out-of-court statement made admissible by the fact that it appeared in an interview in which the appellant made statements against his interest.
8 Putting to one side the question of the weight of the evidence raised by that circumstance, Yeats J formulated the first question for her attention in the trial as being whether she was satisfied beyond reasonable doubt that Ms Shore did not authorise the appellant to sign her name on the mortgage. She found Ms Shore to be an impressive witness, whose evidence she accepted. And her Honour said of Exhibit 10 that there was nothing in it which compromised Ms Shore's credibility in any way. The document was clearly written in a sarcastic tone after the breakup of the relationship and after Ms Shore became aware that the appellant had signed her name. In it she asks:
"Why bother requesting my signature on the dog transfer, you could of just done it yourself!! No doubt you would of, had there been any money involved."
- As I understand it, the appellant's argument is that this statement constitutes an admission by Ms Shore that even after the breakup of their relationship the appellant was in the habit of asking her to sign documents where that appeared to be necessary and that where she declined, she authorised him to do so on her behalf.
9 It is very understandable, I think, why in the circumstances in which the letter was written and having regard to its evident tone, Yeats J was not impressed with the proposition so advanced. It was, in my opinion, clearly open to her Honour to rely upon the evidence of Ms Shore as against the self-serving material contained in the answers given by the appellant in the police interview and to find herself satisfied beyond reasonable doubt that the appellant did not have Ms Shore's authority to sign her name on the mortgage.
10 I shall return shortly to the other grounds of appeal which, although in some respects difficult to understand, do appear to raise matters of law, but before doing so, I note that the appellant, having been convicted on 21 November 2000, instituted the appeal by a notice filed on 11 June 2001, nearly seven months after the conviction. The Code, s 695 allows 21 days from the conviction to file a notice of appeal. This notice was six months out of time. There appears to be no application for an extension
(Page 5)
- of time and there was no affidavit material before the Court to explain the delay.
11 For that reason alone the appeal should be dismissed, but I do not propose that the Court take that course and think that, as the appellant acted in person to institute the appeal, he might be given the benefit of the doubt as to his understanding of the procedural requirements. I propose to examine the merits of the appeal. If it appears that the convictions should be quashed because of errors of law made by the trial Judge, it would no doubt be proper to invite an application for extension of time to enable the established miscarriage of justice to be addressed.
12 Turning then to the remaining grounds of appeal, the first two deal with the question of the falsity of the mortgage and with the question of the intent with which the document was executed. It is contended that on the facts of the case the addition of Ms Shore's signature did not render the mortgage invalid or cause it to operate to the prejudice of the rights of the bank. The contention is that a banking authority form lodged with the bank was properly to be interpreted as authority for the appellant to sign "either solely or on behalf of the directors in the conduct of the company's affairs with its bankers".
13 The basic facts as found by Yeats J are as follows. For a period of about 9-1/2 years from about 1980, the appellant and Ms Shore had a relationship, effectively as man and wife. She became a director with him in a number of companies, including Marblon Park Pty Ltd. Her role was as a signatory of documents which required the signature of two directors, including documents required to be executed under the company's seal which, her Honour found, under the company's articles could only be affixed to documents bearing the signatures of two directors or a director and secretary of the company.
14 On 11 November 1988 the appellant and Ms Shore opened a bank account in the name of Marblon Park Pty Ltd with the R & I Bank in Osborne Park. They signed a letter of request and a standard form of banking authority. The letter is the document relied upon by the appellant in the grounds of appeal as giving authority to him to sign company documents, including the mortgage given by Marblon Park Pty Ltd to the R & I Bank, either solely himself "or on behalf of the directors". I take it that in that way he asserts that the banking authority gave him the authority to sign Ms Shore's name when fixing the company seal to execute the mortgage as mortgagor. Although the banking authority clearly only operates in respect of the signature of banking accounts or
(Page 6)
- services, it provides that either the appellant or Ms Shore could be the sole signatory.
15 The principal document is in the form of a standard letter opening the company account, directed to the Rural & Industries Bank and containing the following paragraph upon which the appellant specifically places reliance:
"Authority has been given to either director to sign solely to do all or any of the following acts and things in the name of the Company and on behalf of the Company namely:
(a) Sign draw make accept endorse discount or make arrangements with you regarding cheques bills of exchange promissory notes and other instruments and to overdraw or increase the overdraft on the account."
- As I understand it, the following subpar (b) to subpar (d), which relate to specific documents, not including mortgages, are not relied upon.
16 The argument is that the proper interpretation of the letter to the bank to which has been applied the common seal of Marblon Park Pty Ltd under the signatures of both the appellant and Ms Shore, when read with an accompanying authority card, allowed either director to execute a mortgage by signing it, because a mortgage would fall within the term "other instruments" contained in subpar (a).
17 The same argument was put to Yeats J. Her Honour responded:
"I do not accept as a matter of law that a mortgage falls within the term 'other instrument' in exhibit 4. When those words are used as they are here following on from a series of named instruments they need to be interpreted within that context as 'other instruments of a like nature'. A mortgage providing security is not in any way like a cheque, a bill of exchange or a promissory note. I do not accept that it falls within exhibit 4."
18 In my respectful opinion, this is clearly the proper interpretation of the letter and the accompanying banking authority. Subparagraph (a) is clearly concerned with documents related to the operation of the bank account which the letter requests the bank to open in the company name. Further, the banking authority given by the bank to either director to be a sole signatory is given by the form of authority itself, directed to the bank and commencing with a request that the bank open the account. The two documents are clearly related and to my mind that reinforces the proper
(Page 7)
- interpretation of subpar (a) in the letter seeking to have the account opened.
19 It is convenient at this stage to consider the ground of appeal which asserts that Yeats J erred by failing to consider whether the prosecution had negatived a defence of mistake under the Code, s 24. This defence was not raised at trial and certainly Yeats J does not mention it in her Honour's reasons. The appellant was represented by counsel at the trial and during his closing submissions, when various matters of defence or affecting criminal responsibility were being discussed between her Honour and counsel, he conceded, after concluding submissions with respect to the Code, s 22, that, "your Honour has no evidence about mistake". If that was meant as a concession that the evidence did not raise any issue concerned with the application of s 24, then in my opinion counsel was right.
20 However that may be, the argument now put, as I understand it, relates back to the documents I have been discussing. The contention is that the Crown has failed to negative that the appellant honestly and reasonably but mistakenly believed from the terms of the letter seeking to open the bank account that he was authorised to sign the mortgage for both himself and for Ms Shore.
21 In my opinion, the proposition only has to be stated for it to be apparent that it is without merit. In the first place, whether the appellant was authorised to sign the mortgage "solely" is not, in my opinion, a matter of fact, a "state of things" within s 24, but is a matter dependent upon the proper interpretation of the document and hence a matter of law. In any event, there is no evidence to suggest that the appellant had in fact any belief as to the way in which the mortgage could be executed derived from his interpretation of the letter opening the account. Indeed the evidence upon which he relied was that Ms Shore, not the bank, had authorised him to sign her name.
22 Further, the authority given by the bank in respect of documents to which it applied was for those documents to be executed on behalf of Marblon Park Pty Ltd by being signed by one or the other of the appellant or Ms Shore. No reasonable reading of the authority given could support the conclusion that the appellant could sign Ms Shore's name to a document where the purpose was to witness the proper execution of the document by fixing the company seal thereto.
(Page 8)
23 Finally, I cannot see how s 24 would be available as the appellant suggests. Forgery was the act of making a false document knowing it to be false. An honest belief that the document was not false would simply represent an absence of the element of the offence of knowledge of falsity.
24 In my opinion, had Yeats J been called upon to consider the question of the application of s 24, the conclusion to which she must have come would be that there was, as a matter of law, no evidence capable of raising this issue and requiring a decision upon it.
25 At the end of 1989 and the beginning of 1990, the relationship between the appellant and Ms Shore broke down and on 27 March 1990 she left him. Yeats J found that this was "an acrimonious departure". In April 1990 the bank manager with whom they had been dealing, a Mr Tyers, wrote to the appellant saying that the account of Marblon Park Pty Ltd was so far overdrawn that the Bank required full security for its "current exposure". He required the security of a mortgage and asked both the appellant and Ms Shore (presumably not knowing of the breakup) to bring the company seal of Marblon Park Pty Ltd to the Bank's office "so that the mortgage document can be executed and subsequently registered". As would already be clear from these reasons, that did not occur.
26 The mortgage is dated 11 May 1990. Tyers' evidence was that after he wrote, the appellant contacted him and said that Ms Shore was overseas. Later the appellant called into the Bank to collect the mortgage, saying that he wished to take it to the office of his accountant so that it could be executed by affixing the common seal. When the appellant returned with the document, on about 16 May 1990, it was duly executed by Marblon Park Pty Ltd as mortgagor by the fixing of the common seal attested by two signatories. They appeared to Mr Tyers to be the signatures of the appellant and Ms Shore. The evidence is that Mr Tyers attended to the registration of the mortgage on 18 May 1990. It was his understanding, on behalf of the Bank, that the security would not effectively commit Marblon Park Pty Ltd unless under the seal of the company, properly affixed, and that he would not be able to secure its registration at the Land Titles Office unless that was so.
27 Yeats J found the mortgage to be a false document. The grounds of appeal assert that in so doing her Honour erred in law. In my opinion she did not. At the relevant time, by the Code, s 471, the act by which a document was forged was, as I have said, the act of making a false document knowing it to be false. In this case the Crown asserted that the
(Page 9)
- document was false within the meaning of the Code, s 470(b) in that a material part of the document (the signature of Ms Shore) "purports to be made by or on behalf of some person who did not make it, or authorise it to be made". In this case, Ms Shore's signature purported to be made by her and the finding of the trial Judge was, beyond reasonable doubt, that she did not make it. It was made by the appellant, as he well knew. The document was therefore false if Ms Shore's signature was a material part of it.
28 Yeats J thought it was. Her Honour relied upon the approach to the question of materiality on a charge of forgery expounded by the High Court in Brott v The Queen (1992) 173 CLR 426. The case concerned an instrument of guarantee. The attestation clause was signed as a witness by a solicitor. The surety's signature already appeared on the document. It had not been made in the solicitor's presence. Unknown to him, the surety was dead and the signature had been forged. Under the law, the guarantee would be effective even if the guarantor's execution of it had not been witnessed. By a majority, Brennan J dissenting, the High Court held that the solicitor had not forged the guarantee as, at law and in fact, the witnessing of the guarantor's signature was not material because it did not make the guarantee out to be anything other than what it was, and it did not alter the character or legal effect of the guarantee.
29 Although Brennan J dissented, it is convenient for present purposes merely to refer to a passage from his Honour's judgment at 432, although similar statements appear in the judgments of the members of the Bench who constituted the majority. Brennan J said:
"To ascertain whether the falsehood is immaterial, it is legitimate to consider whether the document containing the falsehood would have the same effect if it did not contain the falsehood. In adopting this approach, it is necessary to identify precisely the effect which the falsehood could possibly have and the effect which the insertion of the falsehood was intended to have."
30 Yeats J considered, and in my respectful opinion, correctly, that Ms Shore's signature as having witnessed the affixation of the company seal by way of execution of the mortgage, was a material part of the document because it did alter the document's legal effect. In the first place there was the evidence of Mr Tyers that the Land Titles Office would not accept the mortgage for registration as an encumbrance upon the title of the company as the registered proprietor of the land in question
(Page 10)
- unless the mortgage was apparently given under the seal of the company. It would not, if unregistered, have the legal effect of a registered mortgage, although it might constitute an equitable mortgage and provide the Bank with security for the advances made to that extent. But more fundamentally, the due execution of the document by the company evidenced by the fixing of the company seal authenticated by the signatures of two directors as required by the articles, provided the Bank with the assurance that the mortgage was duly granted by the company without any need to go behind the face of the document.
31 Her Honour summed up her views about materiality by saying that the appellant's fixing of the seal and his signing of the name of Ms Shore (particularly, I would add, in circumstances where according to the evidence of Mr Tyers an effort was made to make Ms Shore's signature appear authentic), "altered the legal effect of the document by making the mortgage the company's mortgage when it was not". In my opinion her Honour's views are correct. No error of law was made in drawing the conclusion that the appellant had made a false document within the meaning of the Code, s 470 and s 471.
32 The point is that made by the High Court in Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146. Although the context in which the decision was given in that case was different from this, the question nonetheless arose, in respect of a mortgage granted over the company's property, of the effect of the fact that the company seal had not been affixed by the authority of the directors attested by their signatures. The mortgage was given to secure a loan made to entities owned and controlled by the director who had affixed the seal, in which entities the company had no interest. The mortgage was registered, there was a default, the land was sold by the mortgagee and the question was the company's capacity to recover from the Registrar-General on the ground that loss had been sustained by the company as a result of the improper registration of the mortgage.
33 The question arose whether the company was prevented from relying upon the fact that the mortgage was executed without its authority by the rule in Turquand's Case (1856) 6 El & Bl 327, [119 ER 886] or by the law of estoppel. Their Honours held that there was no bar to the company making this point for either reason. In the course of his judgment, Mason CJ, at 160, made a statement of assistance in this case when his Honour said:
(Page 11)
- "The affixing of the seal to an instrument makes the instrument that of the company itself; the affixing of the seal is in that sense a corporate act, having effect similar to a signature by an individual, as I noted earlier. Thus, it may be said that a contract executed under the common seal evidences the assent of the corporation itself and such a contract is to be distinguished from one made by a director or officer on behalf of the company, that being a contract made by an agent on behalf of the company as principal."
- Reliance may be placed upon the presence of the seal, apparently regularly affixed on an instrument executed for the purposes of the company's business. If the situation is otherwise, then the person in the position of the Bank in this case dealing with the company would at least be put on enquiry as to its capacity to rely upon the grant of the mortgage as the company's act.
34 If, as I would hold, her Honour made no error of law in concluding that the appellant had made a false document by signing Ms Shore's name to it, knowing of the falsity of the document, then he would commit the offence of forgery under s 471 if he did that:
"… with intent that it may in any way be used or acted upon as genuine, … to the prejudice of any person or with the intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act".
- The appellant's argument, as I understand it, is that the Bank in fact suffered no prejudice to its rights and he had no intent that it should be caused any loss in the way of diminution of the effectiveness of its security.
35 However, that, I think, is not to the point. Yeats J considered whether she found proved to the required degree the intent, not that any person would be prejudiced by acting on the document, but that the Bank would be induced to do or refrain from doing any act in the belief that it was genuine. Yeats J found that intent to be established. Her Honour relied upon the history given in evidence that the company's overdraft with the Bank had, by the time in question, well and truly exceeded the amount secured by an existing mortgage. Mr Tyers therefore made the demand for fresh security by way of mortgage to cover the advances made by the bank. If that was not done, he advised that the Bank would have no alternative but to foreclose on the existing mortgage and to the extent possible, attempt to recover the company's debt.
(Page 12)
36 In those circumstances her Honour was persuaded that the only reasonable inference open was that the appellant sought to provide the false mortgage with the intent that the Bank, believing it to be genuine, would rely on it to secure the debt and so would refrain from foreclosing on the existing mortgage. The intent was that the Bank would do the act of registering the new mortgage and that it would refrain from foreclosing upon the old. I can discern no error of law in her Honour's reasoning upon this aspect of the case. It follows, in my respectful opinion, that no error of law can be discerned in the conviction for forgery and in the conviction for uttering the document on about 16 May when, in apparently duly executed form, it was provided to Mr Tyers, the bank manager.
37 In my opinion an extension of time to appeal should be refused because there is no merit in the grounds of appeal which would be argued, to which I have given consideration above. The proceeding before the Court, the appeal itself, should therefore also be dismissed.
38 EINFELD AJ: For the reasons given by his Honour, I agree with the view of Justice Murray that the appeal should be dismissed.
0
9
1