Brott v The Queen

The applicant is a solicitor. Centrepoint Custodian Pty. Ltd. ("Centrepoint") let a shop in Bourke Street, Melbourne to Pratosti Pty. Ltd., a company controlled by two men named Hains and Stanley. The lessee fell into arrears with rent and eventually it was arranged that the lease be surrendered and a fresh lease granted to Haison Investments Pty. Ltd. ("Haison"), a company controlled by Hains and another man, Wilson. To give effect to the arrangement, a surrender of lease was prepared together with a new lease, to which was attached a guarantee to be executed by Hains and Wilson.

The guarantee was in the form of a deed which contained the usual attestation clause for each of the two sureties. One of the clauses reads:

SIGNED SEALED AND DELIVERED ) by the said BRENDON ALEXANDER ) WILSON in the presence of: )

Centrepoint was insisting that the new arrangement be finalized and it required settlement by 31 May 1985. Its solicitors sent the new lease and guarantee to the applicant who was acting for Haison and for Hains and, it seems likely, also for Wilson. On the afternoon of 31 May the applicant returned the lease and guarantee to Centrepoint's solicitors, the lease purporting to have been executed by Haison and the guarantee by Hains and Wilson. The document bore what purported to be Wilson's signature and the relevant attestation clause carried the applicant's signature as witness. Wilson did not sign the guarantee in the presence of the applicant; in fact he had been murdered earlier that day. Hains forged Wilson's signature on the document and told the applicant that it was Wilson's signature.

It should be noted that the primary way in which the case against the applicant was presented to the jury, namely, that the applicant was a party to the forging of Wilson's signature, was withdrawn from the jury by the trial judge. The case went to the jury on the Crown's alternative argument, namely, that even if Wilson's signature had been genuine, the applicant had committed forgery by signing as an attesting witness when Wilson's signature had not been affixed in his presence.

One other matter should be noted at this stage. Intent to defraud is an essential element of forgery at common law [36] . The presentment alleged intent to defraud in general terms. The question of intent to defraud was not before the Court of Criminal Appeal of Victoria nor was it argued before this Court. The application must therefore be dealt with on the footing that the applicant does not challenge that what he did was done with intent to defraud. Intent to deceive is not necessarily intent to defraud. The letters written by Cyrano de Bergerac to Roxanne were intended to deceive as to their authorship; they were not intended to defraud the recipient [37] .

1. Intent to defraud is not generally an element of forgery under the Criminal Codes although the offence is not committed unless the accused made the false document with intent that it be used or acted upon to the prejudice of another. But the Criminal Code W.A., s. 473 now provides that a person who forges a record "with intent to defraud" commits an offence. 2. In any event, such letters may not be capable of giving rise to a forgery on the ground that they serve an aesthetic, emotional or personal purpose rather than mere "symbolic utility": see Glanville Williams, What is a Document?, Modern Law Review, vol. 11 (1948) at p. 150.

The application for special leave to appeal concerns one basic question, a question which is not free from difficulty. It is whether it can be forgery for an attesting witness to sign as such when the instrument has not been executed in the presence of that person. In essence, the applicant's case was that he had done no more than make a false representation in the instrument about an extrinsic matter, namely, that Wilson had executed the guarantee in his presence. This, he argued, could not constitute forging the guarantee.

Discussions of the concept of forgery at common law usually begin with Blackstone who defined forgery as "the fraudulent making or alteration of a writing to the prejudice of another man's right" [38] . While the etymology of the word suggests no more than the shaping of something by heating in a forge and hammering [39] , in law it took on "an evil sense" and "at common law denotes a false making (which includes every alteration of or addition to a true instrument)" [40] .

1. Commentaries , (1769), Bk 4, p. 245. 2. See, for instance, Shorter Oxford English Dictionary (1978), vol. 1, p. 791. 3. Lord Denning in Welham v. Director of Public Prosecutions, [1961] A.C. 103, at p. 133, quoting from East, Pleas of the Crown (1803), vol. 2, p. 852.

In the Court of Criminal Appeal Young C.J. approached the matter by asking simply whether the applicant made or altered the guarantee. The Chief Justice then observed that the applicant could hardly be said to have "made" the guarantee. Although he thought that the next question was "the difficult part of the case", he concluded that the applicant did not "alter" the guarantee. He observed of the applicant:

He added a false statement to it but I should not have thought that he could be said to have altered it. It had no different operation or effect after he had appended his signature than it did before. This was much the approach taken by the Supreme Court of North Carolina in State v. Gherkin [41] when the question was whether the defendant could be guilty of forgery by adding the name of a witness to a genuine bond that required no subscribing witness. In a short judgment delivered by Daniel J., the Court said [42] : A subscribing witness is not material to the due making of a bond. The putting of the name of Stubbs to the instrument, as a subscribing witness, did not vitiate the bond, after it was subsequently delivered by the obligors to the obligee. The bond could have been established (if denied by the obligors) by proof of their hand-writing. Blackwell v. Lane, 4 Dev. & Bat. 113. It was not an alteration in a material part of a true document, by which the obligee was or could be defrauded of the money mentioned in the face of the bond. We think the judgment was right. 1. (1847) 29 N.C. 163. 2. ibid., at p. 165.

The approach taken by Young C.J. was not shared by the other members of the Court of Criminal Appeal, Brooking and Murphy JJ. Their Honours' conclusion that the applicant had forged the guarantee was dictated by a line of authority which answers the question whether a document is a forgery by asking the question - does this document tell a lie about itself as opposed to a lie about something extrinsic? This approach goes back at least to Ex parte Charles Windsor [43] and has been used where forgery, both as a common law and as a statutory offence, has been involved [44] . In Windsor Blackburn J. said [45] :

Forgery is the false making of an instrument purporting to be that which it is not; it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery, because it is reduced into writing. In amplification of this test, Murphy J. said in the present case: Accordingly, the issue appears to be whether what the appellant did was simply to make a false statement in and concerning the deed of guarantee or whether by falsely attesting, he gave the document an appearance that it would otherwise not have had, so that, to use the common expression "it tells a lie about itself". His Honour concluded: the document, because of the falsity of the appellant's entry, told a lie about itself and amounted to more than simply a false statement in the document. Although not necessary to make the document a guarantee, it was not simply a valid guarantee that the lessor wanted, but a document executed in the form provided and as set out in it. 1. (1865) 10 Cox C.C. 118. 2. See, for instance, Reg. v. Dodge, [1972] 1 Q.B. 416; Reg. v. Haskett, [1975] 1 N.Z.L.R. 30. 3. (1865) 10 Cox C.C., at p. 123.

Brooking J. considered that, in the circumstances of the case, it was helpful to look at the "tell a lie about itself" test "in terms of materiality". He thought that in the present case:

Attestation was material, not because it went to validity, but because of its practical or commercial significance as affording both a safeguard against forgery and a means of proof in the event of litigation.

The test postulated in the authorities referred to may, in many cases, admit of ready application and provide a satisfactory answer to the question whether there has been a forgery. But it has its difficulties and tends to distract attention from the basic issue whether the accused "made" or "altered" the document in question.

Counsel for the applicant argued that the charge of forging "a guarantee of lease" referred, not just to a piece of paper containing his signature, but to a piece of paper having a certain character and legal effect. The next step in the argument was that the applicant could not be said to have forged the guarantee unless what he did altered the character or legal effect of the document and that nothing he did constituted such an alteration. There are decisions supporting the view that it is not essential that the forger should have altered the character or legal effect of the document [46] . But the question was not considered in any depth in those cases and in any event arose in circumstances where the instrument was, apart from the accused's conduct, a nullity or where the character of the document was not such as to create legal relations.

1. See, for instance, Reg. v. Toshack (1849), 4 Cox C.C. 38; Reg. v. Sharman (1854), Dears. 285 [169 E.R. 729]; R. v. Hawkeswood (1783), 1 Leach 257 [168 E.R. 231]; Reg. v. Roberts (1886), 12 V.L.R. 135.

It is not in dispute that, if what the applicant did altered the character or effect of the guarantee, he forged the document (the other elements of the offence having been made out or conceded). But, what if his action had no more than practical or commercial significance for another party to the guarantee or for someone concerned in the transaction of which the guarantee was part? Brooking J. observed of the argument before the Court of Criminal Appeal:

The argument might have been, but was not, put in terms of the law's requirement of materiality. It might have been put that, because the actual absence of attestation did not affect the validity of the deed, the document was not, or could not have been found by the jury to be, false in a material particular. But that argument was put to us and so must be dealt with. By placing his signature on the guarantee, the applicant attested his role as a witness. He was asserting that Wilson had executed the guarantee in his presence. That assertion was false. While the witnessing of the guarantee was not vital to its efficacy, it no doubt had some commercial significance. It was on its face evidence that Wilson had executed the guarantee. But, "[t]elling a lie does not become a forgery, because it is reduced into writing". The signature of the applicant did not tell a lie about itself and did not have the effect of making the guarantee lie; it was the signature of the person (the applicant) by whom it purported to have been made. This was a lie about the circumstances in which the guarantee was executed rather than a lie about the guarantee itself. It is not enough that what the applicant did may have had commercial significance.

The applicant signed his name to a document in circumstances where a reader of the document would conclude that the party whose signature was attested had signed in the presence of the applicant. Perhaps more accurately, the reader would conclude that at least someone purporting to be the party had appeared before the witness because, unless required to do so, for example on a passport application, a witness does not warrant by his or her signature that the party to the document was personally known to the witness. On the face of the document in this case there was an assertion by the applicant that Wilson had signed the guarantee in his presence. Was that forging the document?

The answer to that question must be "no". Nothing the applicant did made or altered the character or legal effect of the guarantee. A decision which is helpful in this regard is Reg. v. Hartshorn [47] . A statute providing for the election of members of local boards of health directed that votes be given by means of voting papers and provided that, if any voter could not write, "he shall affix his mark at the foot of the voting paper in the presence of a witness, who shall attest and write the name of the voter against the same, as well as the initials of such voter against the name of every candidate for whom the voter intends to vote" [48] . The defendants went to the homes of certain voters to assist in completing voting papers and, having obtained the voters' consent, filled in the papers with the names and marks of the voters and put their own names as attesting witnesses without obtaining the actual signatures or marks of those persons. Crompton J. stopped the case, saying that although the procedure was irregular it did not amount to forgery. He said [49] :

It is possible that the irregularity committed may be indictable, as it is clear the statute intended that the voter should affix his mark propria manu, but the attestation in the mode adopted in this case is not forgery. There is no false statement implied, and the essence of the crime of forgery is making a false entry or signature, knowing it to be without authority and with intent to defraud. 1. (1853) 6 Cox C.C. 395. 2. Public Health Act 1848 U.K. (11 & 12 Vict. c. 63), s. 25. 3. (1853) 6 Cox C.C., at p. 402.

In the present case we are not concerned with whether the applicant committed some other offence or the consequences of his conduct for his professional career. The question is whether he forged the guarantee. In our view he did not; the character and effect of the document remained unchanged. There should be special leave to appeal, the appeal allowed and the conviction quashed.

The question in this application for special leave to appeal against a conviction of forgery is whether a person is guilty of forging a guarantee when he or she signs an attestation clause that falsely asserts that the signature of the guarantor was made in his or her presence. It is common ground that this question has to be determined by reference to the common law doctrine of forgery.

The applicant, a solicitor, was convicted of forging "a guarantee of lease". The guarantee bore what purported to be, but was not in fact, the signature of Brendon Alexander Wilson. Under the words "SIGNED SEALED AND DELIVERED by the said BRENDON ALEXANDER WILSON in the presence of:" was the applicant's signature. Wilson was dead. His signature had been forged by a client of the applicant. The client, who was a co-guarantor of the lease, represented to the applicant that Wilson had signed the document. The applicant later signed the attestation clause and returned the lease and guarantee to the solicitors acting for the lessor.

At common law, forgery is the false making or alteration of a written instrument with intent to defraud [50] . In Parkes [51] , Grose J. giving the judgment of the Court said:

the definition of forgery is, "the false making a note or other instrument with intent to defraud": A note or other instrument may be falsely made, either by putting on it the name of a person who does not exist, as in the case of Rex v. Taft [52] , or by putting on it the name of a person who does exist, without the consent of such person, as in the case of Rex v. Bolland [53] . In Reg. v. Ritson [54] , Blackburn J. said that it was not forgery to make an instrument containing that which was false; forgery consisted in "making an instrument which purports to be that which it is not". It is commonly said, therefore, that to be a forgery an instrument must tell a lie about itself. That statement is helpful in distinguishing between documents which are forgeries and documents which merely contain false statements about matters extrinsic to the document. But, in my opinion, it is not the decisive test of forgery. To constitute forgery, the making or alteration of an instrument must falsely attribute a statement or representation to the person purporting to have signed or acknowledged that part of the instrument which contains the statement or representation. As Crompton J. said in Reg. v. Hartshorn [55] , "the essence of the crime of forgery is making a false entry or signature, knowing it to be without authority and with intent to defraud". 1. R. v. Parkes and Brown (1797), 2 Leach 775, at p. 785 [168 E.R. 488, at p. 492]; East, Pleas of the Crown (1803), vol. 2, p. 852; Ex parte Windsor (1865), 10 Cox C.C. 118, at p. 123. 2. (1797) 2 Leach, at p. 785 [168 E.R., at p. 492]. 3. (1777) 1 Leach 172 [168 E.R. 189]. 4. (1772) 1 Leach 83 [168 E.R. 144]. 5. (1869) L.R. 1 C.C.R. 200, at p. 204. 6. (1853) 6 Cox C.C. 395, at p. 402.

In the paradigm case of forgery, the offence consists in signing another person's name, real or fictitious, to an instrument with intent to defraud [56] . However, it is forgery for a person to sign his or her own name to an instrument with intent to defraud if the surrounding circumstances show that the document would be understood as being the instrument of another person of the same name [57] . It is also forgery to add to or alter material in a document with intent to defraud if the effect of the addition or alteration is to represent that the person who signed or acknowledged the original had signed or acknowledged the addition or alteration [58] . Furthermore, it is forgery for a person to complete a document in an unauthorised manner [59] .

1. R. v. Marshall (1804), Russ. & Ry. 75 [168 E.R. 691]; Reg. v. Toshack (1849), 4 Cox C.C. 38; Reg. v. Parkinson (1896), 22 V.L.R. 73. 2. Reg. v. Mitchell (1847), 1 Den. 282 [169 E.R. 246]; Reg. v. Blenkinsop (1848), 1 Den. 276 [169 E.R. 244]. 3. Reg. v. Griffiths (1858), Dears. & Bell 548 [169 E.R. 1114]; Reg. v. Milton (1866), 10 Cox C.C. 364. 4. Reg. v. Bateman (1845), 1 Cox C.C. 186.

However, if a person signs an instrument in a name other than his or her own, there will be no forgery if he or she intended to assume that name for the purpose of signing the instrument. In Reg. v. Martin [60] , the defendant, Robert Martin, had signed a cheque in the name "William Martin", but the Court of Crown Cases Reserved concluded that the defendant had given the cheque "entirely as his own" and that this did not constitute forgery. The Court applied the resolution of the judges in R. v. Dunn [61] that "the instrument supposed to be forged must be a false instrument in itself; and that if a person give a note entirely as his own, his subscribing it by a fictitious name will not make it a forgery". In Reg. v. Reardon [62] , the New Zealand Court of Appeal held that no forgery had occurred where two persons had stayed at a hotel under false names and one of them had given a cheque in the false name in which he had registered. In R. v. Clark [63] , that Court held that it was not conclusive evidence of forgery that a person authorized to issue a licence had issued the licence in a name other than his own. It was a matter for the jury to determine whether in all the circumstances of the case the use of the other name constituted forgery.

1. (1879) 5 Q.B.D. 34. 2. (1765) 1 Leach 57, at p. 59 [168 E.R. 131, at p. 132]. 3. [1965] N.Z.L.R. 473. 4. [1946] N.Z.L.R. 522.

Furthermore, a document is not a forgery merely because it contains a false representation by its maker. In Reg. v. Dodge [64] , the English Court of Appeal held that the offences of forgery and uttering were not made out where the second defendant had shown a creditor two bonds signed by the first defendant for the purpose of assuring the creditor that the second defendant was in a sound financial position. The bonds falsely acknowledged that the first defendant was indebted to the second defendant. Phillimore L.J., who gave the judgment of the Court of Appeal, said that the words "making a false document" which occur in the statutory definition of forgery in the Forgery Act 1913 U.K. had "always been interpreted in a restricted sense - the phrase that is used is that the document must tell a lie about itself" [65] . The false statements of indebtedness did not involve any lie about the documents.

The foregoing discussion shows that the general rule of the common law was that forgery consisted in a person, with intent to defraud, making, altering or adding to an instrument so that the instrument contained a false representation that another person had signed or acknowledged the instrument, or some part of its contents. If the document contained no more than a false representation by the person who signed or acknowledged the instrument or part of its contents, no forgery occurred. But this general rule has a notable exception: inserting or acknowledging a false date or time in an instrument with intent to defraud is forgery if the date or time is material [66] .

1. Reg. v. Ritson (1869), L.R. 1 C.C.R., at p. 203; Reg. v. Wells (1939), 27 Cr. App. R. 72; Reg. v. Riley, [1896] 1 Q.B. 309.

In Ritson , a man falsely backdated a deed purporting to convey land to his son. He did so with the intention of giving that conveyance priority over a deed by which he had conveyed the land to a creditor. Blackburn J. said that ordinarily "the date of a deed is not material" [67] . But he went on to hold that "it is here shewn by extrinsic evidence that the date of the deed was material" [67] . In Riley , the Court of Crown Cases Reserved applied Ritson and held that a postal clerk was guilty of forgery in inserting a false time of lodgment in a telegram so as to make it appear that the telegram, which contained a bet on the winner of a horse race, had been lodged before the race had been run.

1. (1869) L.R. 1 C.C.R., at p. 204. 2. (1869) L.R. 1 C.C.R., at p. 204.

It is not easy to see any real distinction, however, between a person making a false representation in a document as to the date or time on which it was made and a person making a false representation in a document that, on a certain date, he or she became indebted to another person [68] . It is true that a document which bears a false date tells a lie about the date of its execution and, in that sense, about itself. But that means no more than that the document is false evidence of the date of its execution. Equally, a document which contains a false acknowledgment of a debt is false evidence of the existence of the debt. In each case, the writing conveys and would be understood as conveying exactly what its author intended. Yet at common law one document is a forgery and the other is not. It is difficult to escape the conclusion that cases such as Ritson and Riley are wrong in principle because they hold that a document may be a forgery even though it attributes to a person the very representation which he or she intended to make. That is not to say the accused in Ritson and Riley were not guilty of any crimes. In Ritson , the offence of conspiracy to defraud would seem to have been made out; in Riley , the offence of obtaining or attempting to obtain money by false pretences would seem to have been made out.

Nevertheless, the decisions in Ritson and Riley can be defended on historical grounds. The judges in Ritson relied heavily on the ancient writers in reaching their conclusion that the insertion of a false date could constitute forgery. Thus, Blackburn J. applied the statement in Bacon's Abridgment [69] that forgery included making "a man's own act appear to have been done at a time when it was not done" [70] : see also the judgments of Kelly C.B. [71] and Martin B. [71] .

1. (1813), vol. 3, tit. Forgery, p. 277. 2. (1869) L.R. 1 C.C.R., at p. 204. 3. ibid., at p. 203. 4. ibid., at p. 203.

Nevertheless, if it was generally true that a document may be a forgery even though it attributes to a person the very representation which that person intended to make, many documents which hitherto had not been regarded as forgeries would be so classified. Indeed, if an intent to defraud was present, any document which untruly recorded an underlying transaction would seem to be a forgery. That would mean, contrary to the decision in Windsor [72] , that falsely recording a transaction in a book of account was forgery. It would also mean that a person who prepared a document falsely recording an indebtedness or a payment would be guilty of forgery if an intent to defraud was present. If that is so, Dodge , as well as Windsor , was wrongly decided.

1. See also In re Arton [No. 2], [1896] 1 Q.B. 509.

The rule that it is forgery to insert a false date or time in an instrument with intent to defraud is now too firmly established to be removed by judicial decision. But it is, in my opinion, contrary to principle. It is a rule, therefore, which ought not to be extended or used as an analogy if, to do so, would mean that a person was guilty of forgery even though the instrument in question attributed to that person the very representation which he or she intended to make.

In the present case, the applicant was charged with forging "a guarantee of lease". The form of the charge presents considerable difficulties for the Crown case. The applicant did not make or alter the "guarantee of lease". He filled in some blanks in the attestation clause and he subscribed his signature to that clause. But what he did did not affect the guarantee itself. He did not add to or alter the effect of the guarantee which Wilson and his co-guarantor had given or appeared to give. It is not to the point that what he did made the "guarantee" seem authentic. He might equally have done that by a representation contained in a letter annexed to the guarantee. In my opinion, Young C.J. was correct in holding in his dissenting judgment that the applicant had not forged the "guarantee of lease".

However, even if the applicant had been charged with forging the attestation clause, the charge would not have been made out. True it is that the attestation clause contains a false representation by the applicant. But the clause does no more than attribute to the applicant the very representation which he intended to make. It was, therefore, not a forgery. It is noteworthy that in Welham v. Director of Public Prosecutions [73] the appellant was charged with uttering, and not forgery, in circumstances where he sent a hire-purchase document forged by others to a finance company although he himself had signed the document as a witness before the signature of the hirer was inserted.

I agree with the orders proposed by Deane, Toohey and Gaudron JJ.