Tasmania v Serpanos
[2007] TASSC 78
•3 September 2007
[2007] TASSC 78
CITATION: Tasmania v Serpanos [2007] TASSC 78
PARTIES: TASMANIA, STATE OF
v
SERPANOS, Harry
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 162/2007
DELIVERED ON: 3 September 2007
DELIVERED AT: Launceston
HEARING DATE: 20 July 2007
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Particular offences – Property offences – Forgery and uttering – Forgery – Particular acts – Signing donor's name on power of attorney – Authority from donor to do so – Whether a false document.
Criminal Code (Tas), s277(1).
Brott v R (1992) 173 CLR 426, distinguished.
Aust Dig Criminal Law [276]
Criminal Law – Particular offences – Property offences – Forgery and uttering – Forgery – Mens rea – Intent to deceive Recorder of Titles into thinking instrument valid and registering it – Whether "intent to defraud".
Criminal Code (Tas), ss277(1), 278, 279.
Welham v Director of Public Prosecutions [1961] AC 103, followed.
R v Franklin [1991] Tas R 54; R v Turner (No 4) (2001) 10 Tas R 81, applied.
Aust Dig Criminal Law [278]
Criminal Law – Particular offences – Property offences – Forgery and uttering – Uttering – Whether instrument forged – Whether document false – Signing of donor's name on power of attorney with donor's authority – Whether "intent to defraud" – Intent to deceive Recorder of Titles into thinking instrument valid and registering it.
Criminal Code (Tas), ss277(1), 278, 279.
Welham v Director of Public Prosecutions [1961] AC 103, followed.
R v Franklin [1991] Tas R 54; R v Turner (No 4) (2001) 10 Tas R 81, applied.
Brott v R (1992) 173 CLR 426, distinguished.
Aust Dig Criminal Law [281]
REPRESENTATION:
Counsel:
State: M P Shirley
Accused: A G Melick SC
Solicitors:
State: Director of Public Prosecutions
Accused: Michael Morehead & Associates
Judgment Number: [2007] TASSC 78
Number of paragraphs: 29
Serial No 78/2007
File No 162/2007
STATE OF TASMANIA v HARRY SERPANOS
REASONS FOR JUDGMENT CRAWFORD J
3 September 2007
The questions that arise under the Criminal Code concern, for the purposes of sections dealing with forgery and uttering, what is a forged document, and more particularly, what is a false document, and what amounts to an intent to defraud.
The accused pleaded not guilty to one count of uttering against s279. The particulars state that on 28 March 1996, with intent to defraud, he uttered to the Recorder of Titles a document that purported to record that a power of attorney had been lawfully executed by Victoria Damdounis and Nickolas Damdounis, as donors of the power, knowing that the signature of Nickolas Damdounis was a forgery.
Questions
A jury has not yet been empanelled for the trial. Pursuant to the power to do so under s361A, I agreed to determine two questions of law that are expected to arise at the trial. They are:
1On the agreed facts, will it be open to the jury to conclude that the power of attorney dated 26 March 1996 was a document that had been forged?
2On the agreed facts, will it be open to the jury to conclude that the accused had an intention to defraud when he sought to have the power of attorney lodged with and registered by the Recorder of Titles?
Agreed facts
The parties agreed on the facts that will be put before the jury. So far as they are material, I will state them.
Victoria and Nickolas Damdounis were married to each other. They had once lived in Tasmania, but in 1996 ordinarily lived in Greece. In early 1996, Mrs Damdounis returned to Tasmania for the sole purpose of settling her financial affairs, and those of her husband, including organising the sales of properties they owned at New Norfolk and Margate. She met the accused who agreed to act as her legal practitioner. She told him that she had to return to Greece and he prepared a power of attorney, by which Mr and Mrs Damdounis would appoint him to be their attorney. The document was what I would describe as a standard form of power of attorney, five pages in length, with very small font size and narrow line spaces, containing in all 55 clauses, which contained collectively extremely broad powers to be bestowed upon him. The donors were described as "nickolas damdounis and victoria damdounis of 38 Kolindroy Katerine Greece" and the donee as "our solicitor harry serpanos of harry serpanos & co 210 New Town Road New Town in Tasmania". The attestation clause was in these terms:
"signed sealed and delivered by the ]
said nicholas damdounis ]and victoria damdounis ]
in the presence of ]"
In the appropriate place for the signatures of the two donors, Mrs Damdounis appended her signature and she also signed the name of her husband, after informing the accused that she had her husband's authority to sign on his behalf. Purporting to have witnessed their signatures, the accused appended his signature, occupation and address. At all material times, Mr Damdounis was in Greece. In an affidavit sworn in September 1998, the accused said that "Mrs Damdounis told me not to worry about Mr Damdounis' signature as she was authorised to sign on his behalf" and that "I assumed she held a power of attorney from Nickolas Damdounis".
Having moved to Victoria, the accused applied to be admitted as a barrister and solicitor in Victoria in August 2006. In support of his application, he set out his version of events in a letter, dated 30 May 2006, that was addressed to the Chairperson of the Board of Examiners of Legal Practitioners in Melbourne. In that letter he disclosed that on 12 February 1999, the Supreme Court of Tasmania made consent orders that his name be struck from the roll of practitioners on four admitted grounds: (1) that he permitted and/or acquiesced in Mrs Damdounis forging her husband's signature on the power of attorney; (2) that he witnessed the power of attorney knowing that it had not been signed by Mr Damdounis; (3) that he registered the power of attorney on 28 March 1996 with the Recorder of Titles knowing that Mr Damdounis had not signed the power of attorney; and (4) that he represented on two occasions to two other legal practitioners and to Westpac Banking Corporation in the course of two conveyancing transactions that he had been given a valid power of attorney by Mr and Mrs Damdounis when he knew that was not the case. Notwithstanding that last mentioned admission that he knew, at the time he made the representations, that he had not been given a valid power of attorney by Mr and Mrs Damdounis, the accused asserted in the letter to the Chairperson of the Board of Examiners for Legal Practitioners that Mrs Damdounis had advised him that she held an authority to act on behalf of her husband and he had no grounds to disbelieve her; she was about to leave to go to Greece and was anxious that a contract of sale be signed immediately after the purchasers' solicitors had prepared it and furnished it to the accused; that it was anticipated that the contract of sale would not be available until after she left Australia; that he advised her that the power of attorney from Mr and Mrs Damdounis would be needed in order for the contract and transfer to be signed in their absence; that he furnished the power of attorney document and she signed her own name as donor and also signed her husband's name, explaining that she had his full authority to do so; that he then witnessed the document, even though Mr Damdounis had not signed it; that he knew that the power had not been validly executed but mistakenly believed that he could rectify that by both donors re-authorising him in correspondence from Greece (this did not occur until 20 January 1997); and that he acknowledged and understood that registering and acting upon an instrument that had not been witnessed properly was misconduct and for that reason he had consented to orders being made that his name be struck from the roll.
The document was dated 26 March 1996. On 28 March 1996, it was lodged for registration with the Recorder of Titles by the accused, or some person acting on his instructions or directions, and it was registered as if it was a lawfully executed power of attorney.
Included in the agreed facts is a statement that a power of attorney is normally only lawfully executed if the donor signs his or her own signature, such signature being an acknowledgement by the donor that the person named as donee of the power may act on behalf of the donor, and the donor's signing of his or her signature is appropriately witnessed. It is also agreed that prior to causing or directing the power of attorney to be registered, the accused spoke by telephone to Mr Damdounis, who confirmed that he had authorised Mrs Damdounis to sign the power of attorney on his behalf.
Also included in the agreed facts is a statement that the Recorder of Titles, without further inquiry, would not have accepted the power of attorney for lodgement and registration had the Recorder known that the instrument did not bear the true signature of Mr Damdounis.
After the registration of the power of attorney, the accused purported to exercise powers contained in it by entering into a number of transactions on behalf of Mr and Mrs Damdounis, including the sale of land.
Powers of Attorney Act 1934
The 1934 Act operated at all material times. It has since been replaced by the Powers of Attorney Act 2000.
The final clause in the power of attorney was cl 56 and in these terms: "We declare that the authority conferred by this Power of Attorney is to be exercisable notwithstanding that we should subsequently become mentally incapacitated." The instrument was in the form of an enduring power of attorney for the purposes of the 1934 Act because, by reason of cl 56, it fell within s11A(1), which provided that: "A power of attorney is an enduring power of attorney for the purposes of this Act if it is created by deed containing words indicating an intention that the authority conferred is to be exercisable notwithstanding the donor's subsequent mental incapacity or in the event of the donor's subsequent mental incapacity." However, the document was not effective to create an enduring power of attorney for a combination of two reasons. There were not at least two attesting witnesses to the deed who witnessed it in the presence of the donors and each other, in conformity with s11A(2)(a), and the instrument did not have endorsed on it, or annexed to it, a statement of acceptance in the form set out in the Act, Sch1, or a form to the same effect, executed by the person appointed to be donee of the power, in conformity with s11A(2)(b).
By reason of s11H(1), the power of attorney was not validly executed because it was not executed personally by Mr Damdounis and it was not executed by Mrs Damdounis in the presence of Mr Damdounis, her signature was not made or acknowledged by Mr Damdounis in the presence of two or more witnesses present at the same time and such witnesses did not attest and subscribe the power of attorney in the presence of Mr Damdounis.
A false document
The provisions of the Criminal Code dealing with forgery and uttering are a considerable departure from the common law. By s277(1), the expression "'to forge' means to make a false document in order that it may be used as genuine, and in the case of a seal or die, to counterfeit such seal or die; and the doing of any such act is forgery". The first question that has arisen is whether it will be open to the jury to conclude that the power of attorney was a document that had been forged. The answer to that depends on whether the document was a false document, within the meaning of s277(2), which is in the following terms:
"(2) A document is false within the meaning of this section if the whole or any material part thereof purports to be made by or on behalf or on account of any person who did not make it nor authorize its making; or, if, though made by or on behalf or on account of the person by whom or by whose authority it purports to have been made, the time or place of making, if material, or, in the case of a document identified by number or mark, the number or any distinguishing mark identifying the document, is falsely stated therein; and, in particular, a document is false if ¾
(a)any material alteration, whether by addition, insertion, obliteration, erasure, removal, or otherwise has been made therein;
(b)if the whole or some material part purports to be made by or on behalf of a fictitious or deceased person; or
(c)though made in the name of an existing person it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorized it ¾
or if for any reason other than those hereinbefore enumerated the document is so made as to be calculated to mislead."
The relevant provisions of the Code were modelled on the Forgery Act 1913 of the United Kingdom. Apart from slight grammatical differences, s277(2), as originally enacted as part of the Code in 1924, was identical to s1(2) of the Act of the United Kingdom as it was originally enacted. However, at that time, words to the effect of the last two lines of subs(2) above, did not appear in either Act. Doubts must have arisen as to whether the subsection exclusively dealt with all possible cases of a false document, which led, in the United Kingdom, to the enactment of the Criminal Justice Act 1925, s35(1). It provided that "for the purpose of removing doubts it is hereby declared that a document may be a false document for the purposes of the Forgery Act 1913, notwithstanding that it is not false in such a manner as is described in subsection (2) of section 1 of that Act." The same result was achieved for this State when, in 1934, s277(2) was amended by the addition at the end of the words "or if for any reason other than those hereinbefore enumerated the document is so made as to be calculated to mislead".
Therefore, it is clear that the examples of a false document that are to be found in subs(2) are not exclusive, and that a document may be false for a reason other than those stated. Notwithstanding that Mr Damdounis may have authorised his wife to sign the document on his behalf, it was nevertheless a false document because it purported to have been signed by one of the donors, Mr Damdounis, when, in fact, it had not been signed by him.
Counsel for the accused sought to rely on Brott v R (1992) 173 CLR 426 in support of an argument that appending to an instrument a signature of a person purporting to have witnessed the signing of the instrument by a party to it, when in fact the witness did not observe the party sign the instrument, did not make a purported witness guilty of forgery. There are two major reasons why that case should not be applied in this case. The first is that it was a case at common law, whereas the resolution of this matter concerns the interpretation of detailed statutory provisions. The second is that the accused is not charged with forgery by appending his signature. He is charged with uttering a document that had been forged, that is to say, with using a document that was false, with intent to defraud.
I hold that on the agreed facts, it will be reasonably open to the jury to conclude that the power of attorney was a document that had been forged.
Intent to defraud
The accused is charged with uttering a forged document. By s277(1), "'to utter' means to use, offer, publish, deliver, dispose of, tender in payment or in exchange, expose for sale or exchange, exchange, tender in evidence or put off any forged document, seal, or die, with intent to defraud, knowing the same to be forged wheresoever the same may have been forged." It is not the State's case that the accused's intent to defraud lay in an anticipated misuse of the power of attorney following its registration, with a consequent loss suffered by another or his own gain. For an intent to defraud, the State relies solely on the use of the instrument by the accused, or by some person acting on his instructions or directions, by lodging it with the Recorder of Titles for the purpose of having the Recorder register it, as if it was a valid power of attorney, when the accused knew that it had not been validly executed by one of the donors. The intent to defraud that is asserted by the State is an intent to mislead or deceive the Recorder into thinking that it had been validly executed and thereby cause the Recorder to register it under the 1934 Act.
The State relies on Welham v Director of Public Prosecutions [1961] AC 103. In that case, the sales manager of a car dealer witnessed forged hire purchase documents on the strength of which finance companies made loans of money to the dealer. The finance companies were prohibited from acting merely as money lenders. The sales manager's defence to two counts of uttering a forged document, contrary to the Forgery Act 1913 (UK), was that the purpose of the forged hire purchase agreements was to make it appear that the finance companies were advancing money in the way of their business as finance companies, and that he had no intention to defraud the finance companies, for they were aware that the documents were bogus, and that he was merely uttering the documents to mislead an authority, called the Capital Issues Committee, which, in the performance of its duties, might have taken steps to prevent what was happening if, had there been an inquiry, it had ascertained that the finance companies were making the advances without valid hire purchase agreements in place. The House of Lords considered the use of the words "intent to defraud" in the legislation. At 125, Lord Radcliffe held:
"In my opinion it is clear that in connection with this offence the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done. Correspondingly, to put such a document forward with knowledge of its falsity and with a similar intent was to commit the crime of uttering it."
All of their Lordships were of that view. The Forgery Act (UK) required for forgery and uttering of a private document an "intent to defraud", but for forgery and uttering of a public document an "intent to defraud or deceive". When considering the difference between an intent to deceive and an intent to defraud, Lord Radcliffe, at 127, made the point that the essence of deceiving is to bring about a state of mind and the essence of defrauding is to bring about a course of action, whether doing something or refraining from doing something. The provisions of the Criminal Code concerning forgery and uttering require only an intent to defraud, but I do not see that makes any difference as to the meaning of that expression in the Code. Some provisions of the Code refer to an intent to deceive, some refer to an intent to defraud and some refer to both forms of intent. See ss255A, 256, 262, 266A, 284 and 325.
Counsel for the accused submitted that notwithstanding what was said in Welham's case, an intent to defraud requires an intention on the part of the alleged offender to gain an advantage for the offender or another to which he or she is not entitled or an intention to cause some other person to act to his or her detriment. Counsel for the accused referred to no authority for that proposition, but it was a statement that is close to established authority, although not in the sense intended by counsel. It was also submitted by counsel for the accused that for an intent to defraud, the accused must have acted evilly. That submission was based on a quotation in Welham at 132, 133 from East's Pleas of the Crown (1803), vol2, 852, in which it was pointed out that the word "forge" meant, properly speaking, no more than to make or form, "but in our law it is always taken in an evil sense; and therefore Forgery at common law denotes a false making." That is not an authority for the elements of forgery and uttering under the Code, nor for the meaning of "intent to defraud".
There is a substantial body of authority supporting what was said by Lord Radcliffe in Welham's case. As is stated in Professor Williams' Property Offences (LBC) 3rd ed at 323, the cases of Scott v Metropolitan Police Commissioner [1975] AC 819 and DPP v Withers [1975] AC 842 established that a conspiracy to defraud may have as its object the interference with the discharge of a public duty by either a public officer or a private person, even though no question of economic loss is involved. See also Connor v Sankey [1976] 2 NSWLR 570 and the other cases cited by Professor Williams.
When considering "intent to defraud" for the purposes of the Code, s264, in R v Fitzgerald [1980] Tas R 257, Crawford J, at 261, said:
"I hold that it means an intent to defraud anyone. Those are the plain words of the Code: 'with intent to defraud'. Nothing else appears and that is how it should be interpreted, literally. As to 'defraud', it is not necessary that there should be any intent to cause financial loss or detriment. And I hold, as was submitted by Mr Shott, that it is sufficient if the intent was that anyone was to be hindered or prevented in taking action by the fraud, if there was one."
The meaning of the expression was considered by me in R v Franklin [1991] Tas R 54, which also concerned charges of fraud as a clerk or servant against s264. At 60 I held that for there to be an intent to defraud, it is not sufficient merely to induce a course of action by deception and that some prejudice must at least be intended to be caused. I gave as examples an intention to cause another to act to his injury or detriment. In the circumstances of Welham's case, Lord Denning, at 134, considered it was sufficient for an intent to defraud if the intention was that a public officer might be prejudiced in an investigation. The respective references to detriment and prejudice concern the same concept.
The meaning of the expression also came to be considered by Blow J in R v Turner (No 4) (2001) 10 Tas R 81 in a case of conspiracy to defraud against the Crimes Act 1914 (Cth), s86A. After reviewing a great number of authorities since Welham's case, in this country as well as the United Kingdom, his Honour concluded at 93:
"Clearly there is a substantial and highly authoritative body of Australian case law that supports the proposition that the deflection of a public officer from the performance of his or her public duty is a species of fraud. As far as I am aware, there is no reported Australian case that says the opposite.
I do not see any reason to distinguish any of the cases that I have referred to on the basis that they relate to the nature of fraud in other contexts, such as fraud for the purposes of forgery, common law conspiracies to defraud, and so forth. There is nothing in the authorities to justify a different approach being taken in relation to the meaning of 'defraud' in s86a, nor is there any logical reason for a different approach to be taken."
With respect, I agree. There will be evidence before the jury in this case that the accused knew that Mr Damdounis had not signed the instrument and that his wife had purported to sign his signature; that he had the instrument lodged for registration with that knowledge; and that when he did so he knew that the power of attorney had not been validly executed. The jury will be faced with strong evidence that, in his capacity as a legal practitioner, the accused lodged the instrument for the purpose of seeking its registration as a power of attorney at a time when he knew that the instrument had not been validly executed. The evidence will justify a finding by the jury that the accused had the intention of deceiving the Recorder of Titles, who was responsible for a public duty, into doing something that the Recorder would not have done but for the deceit, that is, into registering the instrument as a valid power of attorney.
Conclusion
I make the following ruling:
1On the agreed facts, it will be open to the jury to conclude that the power of attorney dated 26 March 1996 was a document that had been forged.
2On the agreed facts, it will be open to the jury to conclude that the accused had an intention to defraud when he sought to have the power of attorney lodged with, and registered by, the Recorder of Titles.
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