The Expert Handwriting Evidence
106To this factual picture on the issue of execution, there is to be added the expert handwriting evidence. The Court was much assisted by two experts, Mr Stephen Dubedat, whose expert evidence was adduced in Neil's case. The other expert, Mr Christopher Anderson, gave evidence in support of Carolyn's case. Their respective reports were tendered and they gave evidence in a joint experts' session.
107But before the expert evidence is considered, as the tribunal of fact, the Court is entitled to make its own comparison between the handwriting that is disputed and admitted; although of course, the Court should pay particular regard to any expert handwriting testimony: Jeans v Cleary [2006] NSWSC 647 at [157] and Tobaji v National Australia Bank [2009] NSWSC 41 at [116].
108The experts undertook the usual practice in a case such as this of comparing the disputed signature of the testator with his signature on other undisputed documents. Although to the Court the disputed signature looks quite different to the undisputed specimens I was certainly not confident to draw that conclusion on my own and have paid regard to the expert evidence on the subject. Attached to these reasons in Schedule A is a reproduced copy of the disputed signature and in Schedule B are two samples of the undisputed signatures. The first undisputed sample is Lyall's signature on the July 2010 Deed. And the second is taken from a credit card and was signed in December 2010. They are items 3 and 4 in Mr Anderson's Appendix C. The disputed signature and the undisputed signatures look quite different to the lay eye.
109Both experts agreed that their relevant judgments took place in accordance with the principles stated by William Harrison in "Suspect Documents and their Scientific Examination": "the rule is simple - whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting and whose presence is not capable of reasonable explanation." A number of dissimilar features fundamental to the structure of the handwriting appear between the questioned signature and the sample signatures. These dissimilarities in my view create a compelling inference that the questioned signature could not be said to be of common authorship with the specimen (undisputed) signatures.
110The specimen signatures that Mr Anderson used were written over a period between June 2010 and March 2011. They were signed on hospital medical records in January through March 2011. They include credit cards and the June 2010 will. Mr Anderson found and I accept that the specimen signature signed between June 2010 and December 2010 all appear to be written "with reasonable speed, fluency and pen control". But nevertheless exhibiting a range of natural variation, despite having consistent or habitual features forming their construction.
111Consistent with the medical evidence that Lyall was very ill especially in January 2011, the specimen signatures taken about mid-January 2011 show poor fluency and pen control. But the normal writing habits are still either fully or partially present in the mid-January 2011 specimen signatures. But then the specimen signatures signed between February 2011 and March 2011 are more like those signed in the second half of 2010, showing a reasonable degree of speed, fluency and pen control, but nevertheless with the same consistent writing habits.
112In summary, Mr Anderson's conclusion was that despite the variations within the specimen signatures which are in part accounted for by Lyall's health fluctuation, there was a consistency in the writing habits evident within them, with only understandable variations. Mr Anderson's opinion was that in contrast the questioned signature was inconsistent with many of the habitual features of the specimen signatures. He concluded that there was very strong support for the proposition that the author of the specimen signatures did not write the signature on the questioned documents, the second codicil. I accept his reasoning despite the criticisms that Mr Dubedat made of his work.
113On a number of measures of similarity/dissimilarity the questioned signature is inconsistent with the specimen signatures in ways that they are generally consistent with one another. It is not necessary to mention all of the features that Mr Anderson and Mr Dubedat debated. Some of the more notable ones were the following, and can be seen from the signatures in Schedules A and B.
(a)The staff of the "T" formation has a distinctive "s" like curve movement on all the specimen signatures, whereas on the questioned signature it is just a bowed movement. For example, both the specimen signatures in Schedule B show this feature.
(b)The habit on the specimen signatures is for the "T" formation to have an eyelet movement at the apex of theletter and a rounded to triangular-like movement to terminate the letter. Most of the specimen signatures have this feature but on the questioned signature there is an angular change in pen direction at the apex of the letter "T" and an angular and elongated movement to terminate the letter.
(c)The eyelet movement terminating the "f" formation which connects to the "er" formation tends to be a small or even a blind eyelet movement, whereas on the questioned signature it is a relatively large triangular-like movement.
(d)The "er" movement, where is it formed legibly is formed fairly close to the "f" formation on the specimen signatures, whereas on the questioned signature it is formed by a fairly long concave stroke some distance from the "f" formation. This difference is quite clear between the Schedule A and Schedule B signatures.
(e)Lyall Telfer's habit was to have a full stop to complete his signature. Not all the specimen signatures have a full-stop, but for those that do the full stop is a separate movement and tends to be spaced some distance away from the end of the 'r' formation of the specimen signature. But on the questioned signature the full stop appears to be connected to the "r" formation and sits very close to it.
114Apart from these individual features there were four more general characteristics that of the specimen and questioned signatures that deserve comment. First, I accept Mr Anderson's conclusion that there is little pictorial similarity between the questioned signature and the specimen signatures. "Pictorially similar" means that the questioned and specimen signatures have some level of pictorial resemblance that is observable and cannot be attributed to coincidence or chance. The lack of pictorial similarity raises the hypothesis that the specimen and questioned signatures either had different authors or that the questioned signature was written in a different manner to the normal manner of signing. Of course the latter hypothesis could be supported in Lyall's case by his illness. But I accept Mr Anderson's logic in this case that many of the specimen signatures, which were written during the more severe stages of Lyall's illness in January 2011 still show the habitual features of the other specimen signature which are not present in the questioned signatures. This tends to displace the second hypothesis that because he was ill Lyall wrote the questioned signature differently. And there is no basis to support a conclusion that Lyall would have deliberately written his signature on the second codicil differently from his normal signature.
115Secondly, the questioned signature exhibits some evidence of the indicia of forgery. In this instance, a number of pen lifts were observed in unusual places in the letter formations: after the kick-like formation at the commencement of the "T" formation; in the apex of the eyelet movement forming the cross bar of the "f" formation; at the apex of the "f" formation; and in the eyelet of the "r" formation. Mr Dubedat in contrast admitted it was difficult to determine whether or not a pen lift had occurred on a particular signature but in this case could not see clear evidence of pen lift and thought that a faulty pen may be responsible. But in my view a faulty pen making some of the stray marks on the second codicil is purely speculation and I prefer Mr Anderson's evidence that the pen lift was located at places that one might expect to find it in a forged signature.
116Moreover the pen lifts in unusual places create a rather implausible hypothesis. Given Lyall's illness, the pen lift could perhaps be accounted for logically by his illness and poor pen control. But he nevertheless was able to place his pen back on the paper in the exact location where it had been lifted from the page leaving no visual evidence of the pen lift. I agree with Mr Anderson's conclusion that considering all the features of the pen lifts in this case they are more consistent with forgery than the product of illness. If they were the latter, one would expect to find a much messier signature where the pen lifts were more obvious.
117Thirdly, the questioned signature overall is notably smaller in size to any of the specimen signatures, whether the specimen signatures were signed in good health or in poor health or whether the specimen signatures were signed in awkward situations such as on a credit card or more comfortable situations such as with the July 2010 deed. The specimen signatures are generally notably larger. This too is not readily accounted for by Lyall's illness because the three signatures on 12 January, close to the height of his illness when he was having the most difficulty in writing, were all of a normal size. Mr Dubedat did not regard the issue of the size of the signatures as being particularly significant. But again on this I prefer Mr Anderson's evidence.
118Fourthly, the questioned signature is above the base line for signatures on the page. This is another signing habit in which in for the specimen signatures the signature is generally on the base line. This is another habit which Lyall adhered to during times of good health and ill health, but which is different in the questioned signature. I accept Mr Anderson's conclusion that it is another indicator of the questioned signature not being Lyall's - that the questioned signature was not written by the same person as the specimen signatures.
119In summary the handwriting evidence supports the conclusion that the signature on the second codicil purporting to be that of Lyall Telfer was not his signature and I so find. The authorities do not require me to find that there was a forgery or who was responsible for the forgery. But, it is difficult to escape the inference that if this was not Lyall Telfer's signature that the plaintiff who propounds it as Lyall's signature, Neil Telfer, must have been aware that it as not and I find that he was so aware. If Lyall's purported signature on the second codicil was not his actual signature and the only account advanced of Lyall's signature being appended to the document has Neil and Sandra as the witnesses there as no room to conclude that somehow by accident and without their knowledge the document was signed by someone other than Lyall.
120There are other criticisms of Mr Anderson's evidence advanced by Neil, who asked the Court to prefer Mr Dubadet's evidence. But these were issues of peripheral detail that do not displace Mr Anderson's hypothesis above which I accept.