R v Walsh Ca208/05
[2006] NZCA 140
•26 June 2006
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA208/05
THE QUEEN
v
PATRICIA LENINE MABEL WALSH
Hearing:2 March 2006
Court:William Young P, Glazebrook and O'Regan JJ
Counsel:J N Bioletti for Appellant
D P H Jones QC and M A Treleaven for Crown
Judgment:26 June 2006
JUDGMENT OF THE COURT
The appeals against conviction and sentence are both dismissed.
REASONS
O’Regan J [1]
Glazebrook J [31]
William Young P (dissenting) [44]
O’REGAN J
Introduction
[1] Mrs Walsh was convicted after a jury trial in the District Court at Auckland of 50 charges involving counts of false pretences, theft by misappropriation, forgery, altering a document, uttering a forged document and using a document. She was sentenced by the trial Judge, Judge J P Doogue, to imprisonment for a term of seven years. She now appeals against a number of the convictions, being convictions for forging a document in contravention of ss 264 and 265 of the Crimes Act 1961. She also appeals against sentence.
Separate judgments
[2] The members of the Court have determined under s 398(1) of the Crimes Act that the question of law raised in Mrs Walsh’s appeal against conviction is such that it is convenient that separate judgments should be pronounced by the members of the Court.
Description of the offences
[3] The sentencing Judge described the offences as follows:
[2] The case was concerned with two series of transactions which were separated in time. At your trial, the first was referred to as the Broomfields Road charges. That took place in or about February 1998 and throughout the rest of the year. The second series of transactions which were referred to as the Nigerian counts, took place starting from 2000 and continued right through to 2003.
[3] The Broomfields Road transaction amounted to you fraudulently presenting a transaction involving the purchase of a residence as being for a greater value than in truth it was. The reason why you wished to exaggerate the purchase price of the property that you were trying to purchase was so that you could persuade a lending institution (Countrywide Bank) to advance more money to you within its lending guidelines than it would if it knew what the true purchase price was. You accordingly devised a scheme to increase the apparent purchase price from $1.85 million to $2.35 million. You concocted a false agreement for sale and purchase which was sent to the bank together with a false loan application and you also put in train the obtaining of a valuation report. You altered the valuation report to show a higher value to get you up to the point where you needed to get in order to get the funds you required to complete the purchase. So you obtained a copy of a genuine valuer’s report and doctored it to show a higher valuation by some $50,000. You also removed from that report the paragraph in the report which contained the lending recommendation. Unsurprisingly the loan that was so obtained eventually went into default. The property was the subject of a mortgagee sale. The bank suffered a loss of $566,000 approximately (over a half a million dollars).
[4] In the next series of transactions which involved the Nigerian counts you became involved in what is described as a Nigerian Advanced Fee Fraud. Your motivation for entering into this seems to be that you were at the time an undischarged bankrupt. You had previously been involved in an unsuccessful property development which you promoted to various associates in Parnell, Auckland. You went back to quite a number of the people who were involved in the unsuccessful property development and who had lost money as a result of it to persuade them to become involved in some sort of investment scheme. You did not restrict your recruiting to those people. You went and called on old friends as well to get them involved.
[5] At the outset you apparently sensed that you would not be able to get people to subscribe to the scheme if they knew the truth about it. You were therefore at pains to present the transaction to them as not involving a Nigerian-type investment scheme. You told them that there was a trust which had been promoted by some benefactor from overseas. You sold it to the investors on the basis that, this trust existed to help people in the third world but it was not restricted to that and it was also intended that it would make money available to help those, who like yourself, had been involved in failed business ventures and had lost money.
[6] In the course of raising money for this scheme you obtained funds totalling a little over $2 million. As time went by and no return seemed to be forthcoming, a number of the people who had contributed to the scheme began to press you. You fobbed them off: you forged documents. These purported to come from such institutions as ABM Amro in Europe but you also forged letters from further afield including from a bank in Vanuatu. The forgeries of most of the documents took place at a time when you were yourself temporarily living in Amsterdam. You were apparently in Amsterdam to meet people who you understood were going to help you bring the scheme to a conclusion. I have no doubt that while you were there you met Nigerian people who were involved in the scheme but you continued to conceal from those who had put money into the proposal that it was a Nigerian investment that you were involved in. All too obviously it was. The money that was paid out was all lost.
Relevant statutory provisions
[4] At the relevant time, s 264 provided:
264. Forgery
(1) Forgery is making a false document, knowing it to be false, with the intent that it shall in any way be used or acted upon as genuine, whether within New Zealand or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within New Zealand or not.
(2) For the purposes of this section, the expression “making a false document” includes making any material alteration in a genuine document, whether by addition, insertion, obliteration, erasure, removal, or otherwise.
(3) Forgery is complete as soon as the document is made with such knowledge and intent as aforesaid, although the offender may not have intended that any particular person should use or act upon it as genuine, or should be induced by the belief that it is genuine to do or refrain from doing anything.
(4) Forgery is complete although the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted on as genuine.
[5] The term “false document” was defined in s 263 as follows:
False document means a document—
(a) Of which the whole or any material part purports to be made by any person who did not make it or authorise its making; or
(b) Of which the whole or any material part purports to be made on behalf of any person who did not authorise its making; or
(c) In which, though it purports to be made by the person who did in fact make it or authorise its making, or purports to be made on behalf of the person who did in fact authorise its making, the time or place of its making, where either is material, or any number or distinguishing mark identifying the document, where either is material, is falsely stated; or
(d) Of which the whole or some material part purports to be made by a fictitious or deceased person, or purports to be made on behalf of any such person; or
(e) Which is made in the name of an existing person, either by him or by his authority, with the intention that it should pass as being made by some person, real or fictitious, other than the person who makes or authorises it.
[6] These provisions, with some amendment, are now found in ss 255 and 256. The significance of the amendment made in s 255(d) is discussed by Glazebrook J at [42] and by William Young P at [46].
Conviction appeal
[7] The documents to which the forgery charges related were documents produced as a result of the sending of facsimile transmissions by Mrs Walsh from overseas to investors in New Zealand. Thus, in each case, the document said to have been forged was the document emanating from the recipient facsimile machine, rather than the document entered into the sending facsimile machine by Mrs Walsh. The focus on the document emanating from the recipient facsimile machine arises from the fact that the action of sending the document entered in the sending facsimile machine occurred entirely outside New Zealand and arguably beyond the reach of New Zealand law.
[8] The Crown alleged that the documents entered into the sending facsimile machine by Mrs Walsh were concocted by Mrs Walsh by taking letters to her from legitimate organisations, such as banks and law firms, and replacing the bodies of such letters with new material typed by her husband in New Zealand and forwarded to her overseas. The end result was a letter on the letterhead of the bank or law firm that appeared to be signed by a genuine representative of the bank or law firm. The body of the letter was text concocted by Mrs Walsh for the purpose of misleading the person or persons to whom the letter was to be sent by facsimile transmission.
Submissions
[9] Both counsel referred to the principle stated in Kenny’s Outline of Criminal Law (17ed 1958) at 354-355 as follows:
A writing is not a forgery when it merely contains statements which are false, but only when it falsely purports to be itself that which it is not. The simplest and the most effective phrase by which to express this rule is to state that for the purposes of the law of forgery the writing must tell a lie about itself. (Emphasis in original.)
[10] On behalf of Mrs Walsh, Mr Bioletti said that the Crown was correct to identify the document emerging from the recipient facsimile machine as the document to which the charges related, because the original “cut and paste” document in Amsterdam could not, itself, have been intended to be acted upon as genuine as it was never intended to be physically conveyed to anyone. He said that the document which emerged from the recipient facsimile machine in New Zealand, which was the document intended to be read by the recipient, was a separate document from that which was alleged to have been made by the accused.
[11] Mr Bioletti argued that the document which emerged from the recipient facsimile machine in New Zealand was not a false document as it did not purport to be a document made by a person who did not make it. He said it was what it purported to be: a facsimile copy of a document. He said that, although it contained information which was not true, it did not tell a lie about itself. He relied on a comment made in the decision of this Court in R v Tait [1968] NZLR 126 in support of that submission.
[12] Mr Jones QC argued that there was no doubt that the document emerging from the recipient facsimile machine in this case was telling a lie about itself. He said the facsimile purported to be a duplicate of a genuine original document: the recipient acts upon the assumption that the facsimile document received is an exact replica of what is sent, and therefore that there is an original authentic document in existence at the sender’s facsimile machine. He argued that the observation made in Tait was obiter dicta, and ought not to be followed. Rather, he referred to the later decision of this Court in R v McGrath [1987] 1 NZLR 748.
Authorities
[13] In Tait, the appellant had gone to a car rental firm, and had produced a photostat copy of a document which purported to be a letter from a company to the rental car firm signed by the company secretary. In fact, the original of the letter had been prepared by the appellant himself without authorisation. He had then made a photostat copy of it, which was what he presented to the rental car company. He was charged with making a false document knowing it to be false with intent that it should be acted upon as genuine, in contravention of s 264. This Court noted that the document specified in the indictment was the original letter, not the photostat copy. This Court noted at 129 that counsel for the appellant had submitted at trial that the photostat copy of the letter was not a false document within the meaning of s 263 of the Crimes Act. This Court observed that that submission may well have been correct on the facts of the case, although the Court was not called upon to decide the point.
[14] It is this observation on which Mr Bioletti relied for his submission in this Court.
[15] Support for Mr Bioletti’s submission can also be derived from R v Sorich [1945] GLR 267 (discussed at [20]-[22] below) and the decision of Heron J in Harbott v Odell HC CHCH AP 46/86 15 July 1986. In Harbott, the person making the copy had also created the original false document. Heron J commented (at 4) that making a true copy of a false document does not constitute forgery. He cited (at 10) the following observation made by Glanville Williams in Textbook of Criminal Law (1ed 1978) at 876 about documents produced by a photocopying process:
If it is intended to confess that the photostat is a photostat, then the photostat is not itself a forged document because it is a genuine copy (and intended to be used as a genuine copy) of the original document however false the original was. If it is intended to pretend that the photostat is the original then the photostat is a forgery whether the original is a forgery or not.
[16] In McGrath, the appellant had been found guilty of forgery. He had made and sent a document to a golf club which purported to be a photostat of a letter sent by a Mr McManaway to the secretary of the New Zealand Golf Association making fabricated allegations of criminal conduct about the secretary/manager of the golf club. The argument was made in this Court that a copy of a document could not be a false document unless it was established that the accused intended that the copy be used to induce the belief that it was the original. Relying on the observation of Glanville Williams referred to at [15] above this Court observed at 751:
It is self-evident that the photostat was made by some person. The question is whether it purported to be made by a person who did not make it or authorise its making – that it tells a lie about itself. It will not meet that test unless it purports to have been made by Mr McManaway, who did not make it, or … it purports to have been made with his authority which he did not give.
[17] The Court held that the photostat copy of the letter sent to the golf club held itself out as Mr McManaway’s copy of his own original letter to the secretary of the New Zealand Golf Association, and that it therefore told a lie about itself and was a false document within the meaning of s 263 of the Crimes Act. The Court noted the observation made in Tait, which it described as a “guarded statement”, and expressed the view that that statement provided no bar to the conclusion reached by the Court on the document’s falsity. That could be taken to indicate a willingness not to be constrained by the obiter comment in Tait.
Discussion
[18] I am satisfied that, in the case of each forgery allegation in this case, the facsimile message emerging from the recipient facsimile machine was a false document as defined in s 263. The facsimile message included an image of the concocted letter which was inserted into the sending facsimile machine, which purported to be an exact duplicate of a genuine document authorised by the person whose signature appeared on the concocted letter. In fact, it was not. The facsimile message therefore told a lie about itself (see [9] above). It seems to me that to say a copy of a false document does not tell a lie about itself because it only tells a lie about the original is a “somewhat technical distinction” (Arlidge and Parry on Fraud (2ed 1996) at 219). In any event, as William Young P points out at [45](a) below, the “tell a lie” test is not part of the statutory test.
[19] In terms of s 263(a), a material part of the facsimile message purported to be made by the signatory of the concocted letter when that person did not in fact make it. Mrs Walsh made the document which emerged from the recipient facsimile machine by placing material including the concocted letter in the sending facsimile machine. She knew the facsimile message that would be received by the recipient facsimile machine was false (because it purported to include a duplicate of a genuine letter when it did not, in fact, do so) and intended it to be acted upon as genuine. In my view, those factors lead to the conclusion that the ingredients of the offence under s 264(1) are established.
[20] Only one authority appears to have considered the phrase “material part” with respect to s 263: the decision of the then Supreme Court in Sorich. In that case, the accused printed a paper purporting to be a copy of a chemist’s report. In fact, the accused had obliterated some parts of the original, altered others, and included new parts. The Court considered the copy was not a false document. Fair J reasoned (at 267-8):
It is clear that this printed paper is a “document”… but according to my view it is not a “false document… because it is the document (i.e. the paper itself), which must be a false document, and it is only false when the whole or some material part of such document (i.e. the printed paper) purports to be made by or on behalf of a person who did not make it or authorise its making. It is true… that there was clear evidence that some of the material statements contained in the pamphlet were not made by, or authorised to be made, on behalf of [the chemist]. But it is not the statements that the Act is directed against, but the document – the pamphlet – itself….[I]t appears that there is no sufficient ground for the inference that the document – the printed pamphlet – purported to be made by or on behalf of [the chemist]. In the absence of any other evidence, the only reasonable inference that could be drawn from the form of pamphlet is that it was issued by or on behalf of [the accused]. (Emphasis in original.)
[21] With respect, I think this reasoning is flawed. It restricts “material part” to meaning a material part of a physical (paper) document, rather than a material part of the contents (the words) comprising the document. It may be, as Glazebrook J says at [38] below, that the printing process adopted in that case makes it difficult to draw anything from Sorich that assists in the present case involving the use of facsimile machines creating an exact replica of the transmitted document.
[22] But if one applies Sorich literally to the modern situations involving the use of technology producing exact duplicates of paper documents, it does not appear to allow for any possibility of a “material part” of a document being altered. The only way a photocopy, for example, could be a false document for the purposes of s 263 (now s 255) would be if the physical document itself (i.e. the whole photocopy), purported to be made by someone other than the person who actually made it. I do not consider that on a fair and purposive reading of s 263(a), such a restrictive construction can be sustained. If that is what Sorich decided, it is no longer good law. Sorich was referred to in the judgment of this Court in McGrath at 752 but was distinguished on the facts. The Court did not express a view on its correctness. In Tait at 127 this Court said a statement based on Sorich may be correct but added that it was not required to decide the point. So this is the first time that this Court has had to determine whether Sorich was correctly decided.
[23] Further, I do not accept that McGrath restricts the ambit of the definition of “false document” in s 263. In McGrath, the copy purported to be made (or authorised) by Mr McManaway. The “whole” of the document purported to be made by someone who did not make it. Thus the Court had no trouble in holding the letter to be a false document. However what is important is that, in McGrath, there was no need for the Court to consider the ambit of the phrase “material part”. Accordingly, I do not see McGrath as assisting the analysis one way or the other.
[24] If the proposition put to us by Mr Bioletti were accepted at face value, the preparation of a concocted document would amount to forgery if the concocted document itself were handed or sent to the recipient, but not if a photocopy was made and the photocopy was handed or sent to the recipient, or if the original document was entered into a facsimile machine and transmitted to the intended recipient. When the proposition is reduced to those terms, it becomes obvious how untenable it is. I do not see the obiter comment in Tait or the decisions in Sorich or Harbott as compelling the adoption of that untenable interpretation. Nor do I see my interpretation of s 263 as involving illegitimate retrospectivity, for the reason given by Glazebrook J at [41] below.
Result
[25] I reject the argument made on the appellant’s behalf. I would therefore dismiss the appeal against the convictions on the forgery charges.
Sentence appeal
[26] At the time of sentencing, counsel for Mrs Walsh made a submission to the sentencing Judge that Mrs Walsh was a victim in relation to the Nigerian counts. The Judge rejected the submission “emphatically”. In this Court, Mr Bioletti renewed that submission, arguing that Mrs Walsh, while not a victim in the financial sense, was deceived by sophisticated international fraudsters into giving them other people’s money. He suggested that the imposition of a deterrent sentence on Mrs Walsh would deter others who are involved in Nigerian frauds from coming forward to the authorities.
[27] We are unanimous in rejecting that submission. Mr Bioletti’s submission was made on the basis that Mrs Walsh was sentenced to seven years imprisonment for each of the offences. In fact, the sentence for the Nigerian counts was four years imprisonment, the seven year term being for the first three counts in the indictment which the sentencing Judge called the Broomfields Road charges.
[28] The sentencing Judge referred to the decision in R v Rutherfurd HC AK T.992325 16 August 2000. In that case, the offender had obtained money from investors on the basis that funds would be invested in European or United States-based investment funds. In fact, the money was invested in Nigeria in similar circumstances to the present case. In that case a total sentence of imprisonment for six and a half years was imposed, compared to the sentence of four years for the comparable charges in this case. The difference is attributable to the greater amount involved in Rutherfurd. We can see no basis for taking a different approach to the sentencing in this case, and accept Mr Jones’ submission that the sentence imposed in this case was an appropriate response to the appellant’s serious offending.
[29] We therefore dismiss the appeal against sentence.
Result
[30] The appeal against conviction is, by majority, dismissed. The appeal against sentence is dismissed by unanimous decision.
GLAZEBROOK J
[31] Mrs Walsh’s contention is that a facsimile of a forged document is not itself a forgery. At first blush this is a startling proposition but, as pointed out by William Young P and O’Regan J, there is support for it. Comments in both cases and texts have suggested that a photocopy can only be a forgery if it purports falsely to be an original document or if the copy itself purports to have been made or authorised by a person who did not make or authorise it. I am not, however, aware of any similar comments specifically about facsimiles and the comments in relation to photocopies by this Court in R v Tait [1968] NZLR 126 were obiter. They were also described by this Court in R v McGrath [1987] 1 NZLR 748 at 752 as “guarded”.
[32] I recognise that the eminent criminal law academic, Professor Glanville Williams, in Textbook of Criminal Law (1ed 1978) at 876 states that a photocopy is not itself a forged document because it is a genuine copy of the original document, however false the original was. However, he goes on to say (referring to R v Harris [1966] 1 QB 184) that, if the photocopy is then uttered (used), by uttering the copy the forger is deemed to utter the original. He or she is thus guilty of forgery on that account. With respect, the two positions seem difficult to reconcile.
[33] I thus do not consider myself constrained by authority in analysing the definition of false document afresh.
[34] Central to Mrs Walsh’s argument is a view that a facsimile of a document is a different document from the document that is placed in a facsimile machine for transmission. In my view the proper way of seeing a facsimile as it goes into the sender’s machine and as it comes out of the recipient’s machine is as different physical manifestations of the same document. I consider it impossible in this digital age to sustain an interpretation of the definition of false document that sees each physical manifestation of a document as a different document.
[35] In common parlance we speak of a computer document without making any distinction between the document as it is stored in the computer, as it manifests itself on the screen and as it comes off the printer. If that document is sent by e-mail we make no distinction between the document in the hands of the sender and that in the hands of the recipient. It is seen as the same document. The same applies to faxed documents. It is the document itself which is seen as being transmitted and received and not a different document.
[36] It follows therefore that, if a document fed into the facsimile machine is a forgery, then the other physical manifestation of that document (the one received) must also be a forgery and one made by the person who made the original document and fed it into the machine. This is in effect what the Judge directed the jury. By its verdicts the jury must have concluded that the documents fed into the facsimile machine by Mrs Walsh purported to be made by financial institutions (and other institutions) which, to her knowledge, neither made the letters nor authorised their making.
[37] It is not necessary for the purpose of this appeal to decide whether photocopies are different from e-mailed documents and facsimiles. The Court of Appeal of England and Wales has certainly made a distinction between a copy and a facsimile. In R v Ondhia [1998] 2 Cr App R 150, the Court said (at 155) that
although in general sense the description “copy” can be applied to a facsimile, it is more precise to call it a duplicate, and it is on the basis that facsimiles duplicate originals that recipients act on them.
[38] For myself, I would have thought the description “duplicate” applied equally to photocopies as photocopied documents are an exact replica of the original. I comment, however, that R v Sorich [1945] GLR 267 involved a printed document which was not and did not purport to be an exact replica (both in form and substance) of the original document. It purported only to be a copy of the content (substance) of the original document. Thus, even if the same principles apply to photocopies as to facsimiles, this would not necessarily lead to Sorich being overruled.
[39] In coming to the above conclusion I do not consider myself straying from the judicial role of interpretation. The interpretation of the definition of false document to include what happened in this case is merely applying standard interpretation principles to the words of the statute. Statutes (including criminal statutes) must be given a purposive interpretation – see s 5 of the Interpretation Act 1999 and R v Karpavicius [2004] 1 NZLR 156. In addition, s 6 of the Interpretation Act requires statutes to be applied to circumstances as they arise. This means that the definition of false document must be interpreted in light of modern conditions. In the digital age it is likely that the very act of forgery would in many cases involve some kind of imaging. Any interpretation that sees each physical manifestation of a document as a different document may thus, as recognised by William Young P, limit the scope for successful prosecutions for forgery. Forgers these days do not work with quill and parchment.
[40] Adaptations to modern conditions have already been made by this Court in this area. For example, even before the definition of document was amended to include a computer document, this Court, in R v Misic [2001] 3 NZLR 1, held that computer programs and disks were documents because they were “material things which record and provide information” (at [34]).
[41] Neither do I consider that there is any concern about the retrospective creation of an offence. While judicial development of rules of criminal liability can infringe the principle against retrospectivity, this has been held to be limited to such developments as are not “reasonably foreseeable”. The European Court of Human Rights said in CR v United Kingdom (1996) 21 EHRR 363 at [34]:
However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances…[The prohibition regarding retrospectivity] cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.
[42] I also find limited assistance in the fact that overseas jurisdictions have enacted provisions dealing explicitly with photocopies and other reproductions. I am interpreting the New Zealand definition. It is true that in 2003 changes were made to the New Zealand statute. On one view these merely enacted the rule in McGrath.Alternatively they were wider than that and were designed to cover the situation in this case. On the first view, it does not seem to me that it is right to infer a specific parliamentary endorsement of the Tait obiter comments. Even on the second view, the amendment is not necessarily to be seen as changing existing law. It could merely be clarifying the law for the avoidance of doubt. There are in any event issues with the use of later amendments in interpreting the earlier form of the statute – see Burrows Statute Law in New Zealand (3ed 2003) at 170.
[43] For the above reasons (and those set out in his reasons) I agree with O’Regan J that the appeals against conviction and sentence should be dismissed.
WILLIAM YOUNG P
Introduction
[44] The question raised by the appeal is whether the facsimile copies of the false documents created by the appellant are themselves false documents. It is tempting to say that they are. Each undoubtedly tells a lie about itself (as each purports to be the copy of a genuine document). On this point, I agree with what is said by O’Regan J at [18]. Further, given the ubiquity in commerce of imaged documents and the usual ways in which forgers operate, a negative answer to this question might be thought to limit the scope for successful prosecutions for forgery, a point made in [24].
[45] I would nonetheless answer the question just posed in the negative.
(a)The definition of “false document” in s 263 does not provide that a document is necessarily false if it “tells a lie about itself”. Rather a document is false if it tells about itself one or more of the lies specified in s 263.
(b)The Crown is driven to rely on s 263(a). But this is an extremely awkward fit for the facts of the present case. Recognising that I risk being thought over-literal, I nonetheless consider that each facsimile purported to be made by whoever put the original in the other facsimile machine.
(c)Although this is a literal approach, it is well supported by the authorities, in particular, R v Sorich [1945] GLR 267, R v Tait [1968] NZLR 126 and Harbott v Odell HC CHCH AP46/86 15 July 1986. It is also has the not inconsequential support of Glanville Williams, Textbook of Criminal Law (1ed, 1978), at 876. In R v McGrath [1987] 1 NZLR 748, the copy in question purported to have been made by someone other than the appellant and the case is thus not inconsistent with the literal approach.
[46] In 2003, the former s 263 of the Crimes Act was replaced with a new s 255, subsection (d) of which defines a “false document” as including a document:
that is, in whole or in part, a reproduction of any other document, and that purports to have been made by or on behalf of a person who did not make it or authorise its making, or by or on behalf of a fictitious person.
A precursor to this definition appeared in cl 202 of the Crimes Bill 1989. In that context, s 255(d) would appear to have been intended to be a legislative endorsement of McGrath. Interestingly, the legislature did not, in 2003, take the opportunity to repudiate Sorich and Tait despite there being a number of legislative models for such repudiation in overseas jurisdictions, for instance s 2 of the Forgery and Counterfeiting Act 1981 (UK), s 344(3) of the Criminal Code 2002 (ACT), s 140(2) of the Criminal Law Consolidation Act 1935 (SA), s 83A(3) of the Crimes Act 1958 (Vic) and s 301(1) Crimes Act 1900 (NSW). In this context, I see acceptance of the Crown argument as involving inappropriate judicial legislation.
[47] For those reasons, I would set aside the forgery convictions.
[48] I agree that the sentence appeal should be dismissed.
Solicitors:
Jeremy Bioletti, Auckland for Appellant
Crown Law Office, Wellington
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