High Court Rejects Appeal in Forgery Case

OUTCOME: Refused

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Menzies JJ. [NAME] v The Queen [1959] HCA 70

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

[ADDRESS] delivered the following written judgment:—

Dec. 18 Dixon C.J., [NAME] and [NAME] JJ.

[NAME], [NAME] [NAME], applies for special leave to appeal from an order of the Supreme Court of South Australia confirming his conviction and sentence on four counts under s. 214 of the Criminal Law Consolidation Act, 1935-1956 S.A.. There was a count framed under s. 214 (a) (vi) charging him with having, on 5th December 1958, forged with intent to defraud, an order for the payment of money, namely a withdrawal voucher on the Commonwealth Savings Bank Adelaide Branch for the amount of £280. The document described as a withdrawal voucher is not expressed as an order for the payment of money. It is in fact expressed as a receipt and is in a form provided by the Commonwealth Savings Bank for the use of depositors. Section 156 of the Commonwealth Bank Act 1945-1953 says that before any money standing to the credit of an account is withdrawn the Savings Bank may require a withdrawal form to be presented to the Savings Bank signed by the [NAME] and may also require the passbook to be presented to the Savings Bank. The form bears the words "withdrawal" but is expressed as a receipt signed by the [NAME]. Probably the document would have been more correctly described as an accountable receipt, or more simply a receipt, falling within s. 214 (a) (viii) of the South Australian statute. However, no point of this kind was taken nor was any point taken as to the application of the State provision to this Commonwealth document: see s. 67 (b) of the Crimes Act 1914-1955 Cth.

The second count charged [NAME] under s. 214 with uttering the same document, that is the forged withdrawal form, knowing it to be forged. The third count charged him with having, on 9th December 1958, forged with intent to defraud another withdrawal voucher on the Commomwealth Savings Bank Adelaide Branch, one for £300. It is in the same form as that the subject of the first count. The fourth count charged him with uttering the same document on the same date.

[NAME] was tried before Abbott J. in March 1959 and found guilty upon all four counts. He was sentenced to four years imprisonment on each count, to be served concurrently. An appeal to the [ADDRESS] of the Supreme Court was dismissed on 30th April 1959. Under an extension of time, the present application for special leave to appeal was made to this Court.

At the trial the case for the Crown was simple. [NAME] [NAME], so the Crown said, had possessed himself of a passbook in the Adelaide Branch of the Commonwealth Savings Bank belonging to a customer or [NAME] named [NAME]. He had also possessed himself of [NAME] passport issued to him by the Italian Government. The passbook showed that [NAME] had lying to his credit £1230 1s. 3d. and that from 14th July 1954 up to 3rd December 1958, two days before the date mentioned in the first count there had been no withdrawals. Armed with the passbook and passport, so it was alleged, [NAME] [NAME] attended at the Branch of the Savings Bank on 5th December 1958 and there presented the withdrawal form (mentioned in the first and second counts) for £280 which he had forged. The practice of the Branch when a withdrawal form is presented is for the clerk to take the form and the passbook and to give the customer in exchange a numbered slip by way of receipt. The clerk then sends in the withdrawal form and pass book for checking by the Bank's officers. When on 5th December 1958 the withdrawal form for £280 came in this way before the signature clerk he made the usual comparison with the specimen signature of the [NAME] [NAME], but he was not altogether satisfied and called aloud in the banking chamber the number given to the person who had presented it. According to the evidence of the signature clerk whose name was [NAME], a [NAME] came forward whom he identified as [NAME] [NAME]. [NAME] addressed him as "[NAME]. [NAME]" and said that his signature was not correct and asked him to sign again on the back of the withdrawal form. The [NAME] whom he identified as [NAME] then signed the back of the form twice, once [NAME] and once [NAME]. [NAME]. [NAME] had the specimen signature of the [NAME] before him as he watched the [NAME] signing the back of the withdrawal form. He examined the result and was satisfied. He placed his name or initials on the form and took it as a matter of routine to another officer who after checking it countersigned the form.

On 9th December 1958, that is to say on the date assigned in the third and fourth counts, [NAME] was again on duty. The withdrawal form the subject of those counts was presented. It was for a sum of £300 but [NAME] was not satisfied with the signature. The number was called and a [NAME] came forward whom again [NAME] identified as [NAME]. [NAME] requested him to sign on the back of the form and again he expressed his dissatisfaction with the signature. He asked for his passport to identify him. He handed him over to another officer of the Bank and, although not joining in the discussion between them, [NAME] had the [NAME] under his observation. Next day the [NAME] brought an Italian passport for "[NAME]" and, after comparing the photograph in the passport with the [NAME], [NAME] was satisfied with the identification. To explain this it is suggested that [NAME], having possessed himself of [NAME] passport, took the photograph of himself, possibly from his own passport, and substituted it for that of [NAME] in the latter's passport. The date upon the withdrawal form was altered from 9th to 10th December and it was signed and countersigned by the Bank officers.

[NAME] had of course been called as a witness. He swore that neither of the two withdrawal forms was in his handwriting nor were the signatures. He had neither made nor authorized any withdrawals from his account in the Commonwealth Savings Bank. His evidence showed how [NAME] might have obtained [NAME] passport and pass book. [NAME] shared a bedroom at [ADDRESS], Adelaide, with one [NAME]. He had meals next door at [ADDRESS]. A Greek family occupied another room at No. 16. [NAME] kept his passport and his pass book in a suitcase under his bed. The suitcase was locked but the key was in a pocket of his clothes hanging in a cupboard in the room. [NAME] lived at [ADDRESS]. Four persons altogether lived at the house. The room occupied by [NAME] and [NAME] had a lock and they had an arranged hiding place for the key. But there is some evidence that the lock might be opened by the key of the back door of No. 14.

[NAME] gave evidence on his own behalf and said that he had never signed [NAME] name to any withdrawal and had never cashed such a withdrawal at the Bank. In short his defence was a complete denial of the essential circumstances making up the Crown case. The identification of [NAME] by [NAME] was challenged and the procedure adopted as a result of which [NAME] came to pick out [NAME] was criticized. While the police on 31st December 1958 were questioning [NAME], they requested him to write various figures, words and phrases on a piece of paper. This was put in evidence at the trial as a piece of [NAME]'s genuine writing forming a standard of comparison. It was marked Exhibit N.

During the examination in chief of [NAME] and before he had gone further than describing the banking practice and giving an account of what he had done in relation to his ultimate approval of the signature of the withdrawal of 5th December 1958, another witness for the Crown was interposed. He was the assistant manager of the Branch and the purpose of calling him was to produce a certified copy of the account of [NAME] with the Bank. This was put in. It showed that there had been three other withdrawals and counsel for [NAME] cross-examined the witness to show that there was nothing to indicate that any of these withdrawals had been questioned at the time they were made and it appeared that it was so. The [NAME] presiding judge then questioned the witness about the other three withdrawal forms and on request counsel prosecuting produced them. In answer to [NAME] the witness identified them with the entries in the account he had produced. They were then successively marked as exhibits, counsel for [NAME] objecting as to each of them. His three objections are recorded,—"Dr. [NAME] objects as not evidence against his client." The first of them is a withdrawal form bearing the signature "[NAME]. [NAME]" and filled in as of 3rd December 1958 for £250. By the Bank markings it bears it appears that on 3rd December 1958 £250 was paid out, leaving £880 1s. 3d. (evidently a mistake for £980 1s. 3d.) at the [NAME]'s credit. The second is a like withdrawal form filled in as of 4th December 1958 for £300, bearing the signature "[NAME]" and indicating by the Bank markings that £300 had been withdrawn on that day, leaving at the [NAME]'s credit £680 1s. 3d. It is from this sum of £680 1s. 3d. that the two withdrawals were made which were effected by the forms the subject of the two counts in the information, that is to say those made on 5th and 10th December 1958. The Bank markings on the second of them, namely the withdrawal form dated 10th December 1958, shows that £100 1s. 3d. was left at the credit of the [NAME]. The last withdrawal form was for £95. It was made out as of 17th December 1958 and bore the purported signature of [NAME]. All of them had the correct number of the pass book written in ink.

The basis upon which the three additional withdrawal slips were admitted in evidence at the time does not appear. There was nothing to connect them with [NAME]. It does not seem that the judge compared the writing with any document which he was satisfied was the genuine writing of [NAME]. Indeed the only writings before him at that stage of the trial that were said to have been written by [NAME] were the two withdrawal forms the subject of the first and second counts and the third and fourth counts respectively of the information. These in fact were the disputed writings of the case and could not have supplied the requisite basis of comparison for the judge to let three slips in as documents in [NAME]'s writing. If it were assumed at that stage that in some way the three withdrawal slips were connected with [NAME] by some allowable medium of proof, it does not appear how their relevance to the issues was put. But it seems rather more probable that it was not assumed that the three documents were connected with [NAME] but that they were let in evidence simply because the [NAME] judge regarded them as facts inherently forming part of the circumstances out of which the case grew and upon which the counts in the information were founded.

During his cross-examination [NAME] had said that he had been told by the people living in Nos. 14 and [ADDRESS] that their pass books and passports were missing, that he had then looked in his suitcase for his own and had discovered they were missing and had then gone to the Bank and had found the state of his account. During his cross-examination [NAME] had also been asked to write on a piece of paper some words and figures, viz. [NAME]. [NAME], Adelaide, Two hundred and eighty pounds, and the figures making up in fact the number of his pass book. This had already become an exhibit and it was used as a standard of comparison for his writing. As the trial proceeded other writings were put in evidence, viz. [NAME] specimen signature taken by the Bank when he became a [NAME], his application for registration as an alien bearing his signature and, towards the end of the Crown case, Exhibit N.

When [NAME] gave evidence he said that he had never signed the name [NAME] to any withdrawal form on the Commonwealth Bank but he was not specifically asked about the three additional withdrawal forms. He said that he had found that his pass book and his passport were missing like those of the other inhabitants of Nos. 14 and [ADDRESS]. He had not had occasion to resort to them for some six months before the alarm about such papers was raised in [ADDRESS].

When the case for the defence was closed the Crown recalled [NAME] who said that the photograph he saw on 10th December 1958 in the passport was similar to that on [NAME] certificate of registration that had been put in, and not to that in [NAME] application for registration as an alien.

The [NAME] judge in his charge to the [NAME] presented an unfavourable view of the case against [NAME]. He discussed critically the account given by [NAME] of what occurred on 5th, 9th and 10th December, and suggested that a forger, if the [NAME] applying for the money were one, would be unlikely to persist as he did. He asked the [NAME] to take the three withdrawal forms of 3rd, 4th and 17th December 1958 and examine them. [NAME] suggested that [NAME] had handled all five and that there was a want of resemblance between the specimen signature which [NAME] had before him and the signatures of the first two withdrawal forms. Yet they were passed by [NAME] and the other officers of the Bank. He proceeded from that point to deal with the two withdrawal forms the subject of the counts in the information and then to that of 17th December, emphasizing the Bank's acceptance of the signatures, the request for the passport and the boldness of a forger, if he were one, who returned with a passport. At one point [NAME] said that the [NAME] would realize that the case stood or fell with the acceptance entirely of [NAME] evidence, an observation which showed the kind of doubt which the circumstances of the case had provoked in the [NAME] judge's mind. He referred to the liability of the Bank to [NAME] to pay again to him the amount withdrawn, if the withdrawal form was forged or unauthorized, a view which no doubt might increase the [NAME]'s misgiving but which perhaps took insufficient account of reg. 16 of the Commonwealth Savings Bank Regulations, S.R. 1945, No. 129. [NAME] dealt at length with the dangers inherent in the identification of people and illustrated his observations by references to cases in the past where it had been mistaken. The [NAME] judge invited the [NAME] to compare all five withdrawal forms with the paper on which [NAME] wrote in court as a witness to provide a standard of comparison of his writing (Exhibit No. 1). He told them to look especially at the three withdrawal forms upon which payments had been made without question and suggested that it might strike the [NAME] that the signature "[NAME]" looked more like the writing of [NAME] [NAME] of that word than that of [NAME]. [NAME] said that the Crown put it that it was strong evidence of forgery by [NAME] [NAME], but he asked did they think it a forgery passed on three occasions and approved by [NAME] and another officer (who had not been called as a witness). He said that [NAME] had said that there were two hands in the withdrawal forms the subject of the counts in the information and asked whether there were two hands in the three other forms, those passed without question, "or are they by the same writer?" [NAME] directed the [NAME]'s attention to them. Then the [NAME] judge returned to the question of identification and asked, "How does [NAME]'s description lead the police to [NAME]?" [NAME] implied that it was too vague and inadequate to do so. In the course of the cross-examination of a detective the judge had interposed and said: "You told [NAME] " (counsel for [NAME]) "that the description you had from [NAME] might fit any of the others in the premises at 14 and 16. I don't want you to say what the reason was, but did you have any particular reason for interviewing the accused?" The witness answered "Yes." The [NAME] judge in dealing with the question of the description given reminded the [NAME] of this occurrence and proceeded—"he said he did have some reason. I did not ask him what it was. It was not proper and the Crown could not ask. The only one who could ask was Dr. [NAME] and he did not want to because he might have some reason to feel it might prejudice your mind against the accused: we do not know because he did not ask." [NAME] now relies upon this passage as something highly prejudicial to him which should not have been said.

At the conclusion of the judge's charge [NAME] referred to the three additional withdrawal forms and reminded the judge that he had submitted that they could not be evidence against [NAME]: "I think you have admitted them subject to some reservation". [NAME] then told the [NAME] that these three withdrawal forms were not charged as forgeries and therefore they are not evidence against [NAME] but they might be evidence in his favour. "And that is what I am putting them to you for, not as implicating the accused in this forgery" (charged by the information) "but as evidence that shows that either they are not forgeries because they were passed and approved by the [NAME] [NAME] now, on the evidence of [NAME] they are all forgeries. He has never drawn out of his bank account; that is what he tells you on his oath. They are all forgeries. The Crown did not say that [NAME] forged" the three "of 3rd, 4th and 17th December. They do not say that: They only say [NAME] forged" (the two the subject of the information). "You don't have to find him guilty of forging five withdrawal slips, but only guilty of forging two, but when you look at the other three, does that help you to come to a verdict against him, or for him? All I suggest is, if you find they are all forgeries, it only helps you to say the Bank was not prepared to charge him with having forged" (the additional three) "then they are pretty bold in charging him with forging" (the two of 5th and 10th December). "That is what I would suggest. However, that is for you to consider."

The [NAME] took a view of the case quite opposed to that suggested to them by the [NAME] judge and convicted [NAME] on all four counts.

The first position taken up by his counsel in support of this application is that the [NAME] may well have used the three forms of withdrawal dated 3rd, 4th and 17th December 1958 against [NAME] in support of the conclusion that the two withdrawal forms the subject of the information were forged, and yet neither upon the question of medium of proof nor upon that of relevancy was there any proper ruling or any proper direction to the [NAME].

At the conclusion of the Crown case it was, one may think, open to the [NAME] judge to hold that so far as medium of proof might go as distinguished from relevancy, a foundation had been laid for treating the document as admissible against [NAME]. Section 30 of the Evidence Act, 1929-1957, which is founded on s. 8 of [NAME], i.e. Criminal Procedure Act, 1865 (28 and 29 Vict. c. 18) and on s. 27 of the Common Law Procedure Act, 1854 (17 and 18 Vict. c. 125) provides that a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings and the evidence of the witnesses respecting the same may be submitted to the Court as evidence of the genuineness or otherwise of the writing in dispute. Blackburn J. seems at one time to have considered that the provision could not be used without the assistance of witnesses, expert or otherwise, as to the handwriting (Reg. v. [NAME] [1] ) but this is not now regarded as correct. What the provision made possible was the use of a writing inadmissible in evidence except for the sole purpose of providing a standard of comparison of handwriting. That formerly could not be done. [NAME] d. [NAME] v. [NAME] [2] ; Doe d. [NAME] v. [NAME] [3] ; [NAME] v. [NAME] [4] ; Doe d. [NAME] v. [NAME] [5] . But after the adoption of these provisions, in a case of a disputed writing or writings, a writing not otherwise relevant to the issue became admissible for the purpose of providing a standard of comparison of handwriting. It was necessary that the writing so to be used as a standard should be properly proved to the satisfaction of the judge to be the handwriting of the party concerned. Clearly enough Exhibit N was admissible under the section as a standard of comparison for the purpose of determining whether the writing upon the two forms in respect of which [NAME] was charged was or was not his. So much was not disputed. It was, however, suggested that the three additional forms were not writings in dispute within the rule expressed by the provision and their authorship could not be established by comparison with Exhibit N; still less could a comparison be instituted between the five documents. But it is an error to treat the three additional documents as not writings in dispute. [NAME] by no means admitted them to be his and indeed he expressly denied that he had signed the name of [NAME] to any withdrawal form. As to the comparison of the five forms one with another, that would establish nothing against [NAME] if each and every one of the five were not brought into comparison with Exhibit N. A careful comparison of the three withdrawal forms of 3rd, 4th and 17th December respectively with Exhibit N, the document admitted as the genuine writing of [NAME] and for the purpose of supplying a standard of comparison suggests that it is a reasonable conclusion that they are all in the same handwriting. But that comparison the [NAME] presiding judge never made for the purpose of admitting them in evidence against [NAME]. Suppose, however, that [NAME] had made this comparison and had decided that he was warranted in treating the documents as sufficiently appearing to be connected with [NAME] to enable him to admit them in evidence against him, leaving it to the [NAME] to decide the question whether they came from [NAME]. On that assumption, on what grounds of relevance were they admissible against [NAME]? The admission of the evidence as relevant is not dependent necessarily upon its probative force on the central issue, namely the issue whether [NAME] was the [NAME] who wrote and presented the two withdrawal forms dated 5th December and 10th December respectively, those the subject of the counts in the information. But it is plain that on the assumption that [NAME] denial that he withdrew the money was accepted, and obviously the [NAME] did accept it, the crimes charged in the information formed two steps in a course of conduct on the part of the guilty person which could only be understood properly if the connected steps by which the transaction was made up were laid before the [NAME]. Those steps were the theft of a pass book and passport and the withdrawal of the amount at deposit by the use of the passbook and withdrawal slips covering the whole amount. The withdrawals all took place between 3rd and 17th December 1958 and comprised the whole sum deposited. That means that the withdrawals covering the amount at credit within a period of fourteen days were obviously interconnected. Assuming that it was open to the judge to treat all five withdrawal forms as presumptively attributable to [NAME] because of the [NAME] judge's view of the similarity of all five withdrawal forms or perhaps more precisely of the three the admissibility of which is now in question, it seems to have been open to the [NAME] judge to admit them in evidence on this footing and submit them to the [NAME]. The difficulty is, however, that it is not the way the matter was dealt with at the trial by [NAME]. Of the logical hypotheses by which the five withdrawals might be explained, no doubt one is that [NAME] himself was the [NAME] who made them and it would seem that it is this hypothesis that struck [NAME]'s mind as a real possibility and led him to present the case to the [NAME] as he did in his charge to them. The hypothesis which the [NAME] found to be the truth was simply that the identification of [NAME] was correct and the person was [NAME]. There were of course other hypotheses open, as for example that it was some other denizen of Nos. 14 and [ADDRESS] or someone who did not reside there but knew all about those who did. Looking at the documents and comparing them with Exhibit N it does seem that the comparison affords prima facie reason for admitting them in evidence against [NAME], it being for the [NAME] to decide on the whole evidence whether their authorship should be ascribed to him. But except to give coherence and intelligence to what really was an entire transaction in relation to [NAME] bank account the additional three withdrawals were not really of probative strength in showing that he was the [NAME].

1. (1869) 11 [NAME]. 546. 2. (1836) 5 Ad. & El. 703 [111 E.R. 1331]. 3. (1836) 5 Ad. & El. 514 [111 E.R. 260]. 4. (1841) 8 M. & W. 123 [151 E.R. 975]. 5. (1855) 10 [NAME]. 502, at p. 530 [14 E.R. 581, at p. 592].

When the whole circumstances are considered it appears that they might properly have been admitted in evidence and it does not seem that the course actually taken at the trial, irregular as it apparently was, is a sufficient reason for this Court intervening and reversing the conviction.

The observations made by the [NAME] judge as to the possible reason why [NAME] did not ask the detective why he sought out [NAME] [NAME] have troubled us not a little. It is evident that to a juryman alive to what such a reference might imply, the inference might be highly prejudicial to [NAME]. There is little doubt that the [NAME] judge did not intend to convey to the [NAME] that [NAME] had knowledge of some fact concerning [NAME] too damaging to make the question possible. But it was clearly a very unfortunate observation from which [NAME] might suffer. However, having considered the whole case we do not think it is a ground on which we should in all the circumstances grant special leave to appeal.

It may be added that the recalling of [NAME] after [NAME]'s case had been closed was within the judge's discretion.

For the foregoing reasons the application for special leave should be refused.