Legal Research
Cases
R v Walsh

R v Walsh

Case [2006] NZSC 111 19 December 2006

Legitimate Expectation

Criminal Law

No judgment structure available for this case.

Type to search within this case.

For a Court ready (fee required) version, follow this link

IN THE SUPREME COURT OF NEW ZEALAND
SC 54/2006
[2006] NZSC 111
PATRICIA LENINE MABEL WALSH
v
THE QUEEN
Hearing:8 November 2006

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:J N Bioletti for Appellant

M D Downs and M A Treleaven for Crown

Judgment:19 December 2006

JUDGMENT OF THE COURT

AThe 34 counts of forgery are amended, pursuant to s 335 of the Crimes Act 1961, to counts of uttering.

B The sentences on those counts are affirmed.

C The appeal is dismissed.

REASONS
Para No

Elias CJ, McGrath and Anderson JJ[1]
Blanchard J[33]
Tipping J [34]

ELIAS CJ, McGRATH AND ANDERSON JJ
(Given by Anderson J)
Introduction
[1]       Is the dishonest making of a copy of a forged document itself an act of forgery? That is the central issue in this appeal, where forged documents created overseas were recreated by facsimile machines in New Zealand.
[2]        Between April 2002 and February 2003 Mrs Walsh defrauded a number of people of large sums of money totalling several million dollars. With the intention of stalling or diverting inquiries which would bring her to account for her frauds, she forged many documents and faxed them from Amsterdam to victims in New Zealand. Her chosen method of forgery was to cut and paste combinations of false information and excerpts from genuine correspondence to create letters purporting, by reason of letterheads, other institutional data and signatures, to have been written by solicitors or banks. It is not known whether those creations were then photocopied to render a less obvious fake for faxing, or faxed without that intermediate step. Whatever the case, Mrs Walsh intended that the recipient of each faxed reproduction would take it to be a copy of a genuine letter.
Background to the forgery convictions
[3]       At all relevant times, forgery was, pursuant to s 264 of the Crimes Act 1961, the deliberate making of a false document with the intent that it should in any way be used or acted upon as genuine, or that some person should be induced by the belief that it is genuine to do or refrain from doing anything.[1] Section 264 specifically provides that the place where a forger intends the forgery to be treated as genuine need not be within New Zealand. However, forgery is complete upon the making of the forged document. This means that the creation of a false document overseas would not be a crime within the New Zealand jurisdiction.[2] It is that extra-territorial element in this case which has led to difficulty.
[1] Section 15 of the Crimes Amendment Act 2003 substituted a new Part 10, including forgery and analogous offences. Forgery is now dealt with in s 256.
[2] Sections 6 and 7 of the Crimes Act 1961.
[4]       In view of this difficulty, the Crown case was that the documents recreated in the New Zealand-based fax machines were themselves forgeries, and the trial Judge directed the jury that:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walsh

Details

AGLC: R v Walsh [2006] NZSC 111
Case: [2006] NZSC 111
Decision Date: 19 December 2006

CaseChat Overview and Summary

The case of R v Walsh involves Patricia Walsh, who was convicted of forgery for creating and faxing forged documents from Amsterdam to New Zealand. Walsh appealed against her convictions and sentences, arguing that the faxed copies were not forgeries. The appeal was dismissed by the Court of Appeal and subsequently brought before the Supreme Court of New Zealand. The central issue in the case was whether the act of creating a copy of a forged document in New Zealand constituted forgery.

The Supreme Court held that the faxed copies were not forgeries as they did not purport to be made by anyone other than Walsh. The essence of forgery, according to the Court, is that a document or a material part of it must purport to be made by a person who did not physically make it or authorise its making. In this case, the copies did not make such a representation, and therefore, were not forgeries.

However, the Court found that Walsh's conduct could be considered as "uttering" a forgery under the Crimes Act 1961. Uttering a forged document is defined as using, dealing with, or acting upon a forged document as if it were genuine, or causing any person to do so. The Court held that Walsh's intent in causing the recipients to act on the copies as if they were genuine documents amounted to uttering a forgery in New Zealand.

As a result, the Court amended the 34 counts of forgery to counts of uttering, and confirmed the sentences imposed on Walsh. The appeal was ultimately dismissed.

Orders