Brott v The Queen [1992] HCA 5

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ. Brott v The Queen [1992] HCA 5

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the decision and order of the Court of Criminal Appeal of Victoria and in lieu thereof order that the application of the applicant be granted, that his conviction of forgery be quashed and that a verdict of acquittal be entered in respect of the forgery count. Liberty to apply in respect of any consequential orders.

Cur. adv. vult.

The following written judgments were delivered:—

1992, Feb. 25 Brennan J.

The relevant facts are these: a lessor was willing to grant a lease provided the two directors of the lessee company guaranteed performance of the lessee's covenants. The directors were Daryl Leslie Hains and Brendon Alexander Wilson. A form of lease was engrossed for execution containing the guarantee. The guarantee was purportedly signed by the guarantors and their respective signatures were purportedly witnessed by the applicant on 31 May 1985. The form of execution was as follows:

SIGNED SEALED AND DELIVERED ) by the said DARYL LESLIE ) (Sgd) D. L. HAINS HAINS in the presence of: ) (Sgd) I. BROTT SIGNED SEALED AND DELIVERED ) by the said BRENDON ALEXANDER ) (Sgd) B. WILSON WILSON in the presence of: ) (Sgd) I. BROTT

The lessor required settlement by 31 May 1985. To meet this requirement, the form of lease containing the purportedly executed guarantee was returned to the solicitor for the lessor by the applicant, a solicitor, who had been retained to act for the lessee and for Hains and, perhaps, for Wilson. Hains' signature was genuine; Wilson's was not. Wilson was dead. He had been murdered earlier that day. The purported signature by Wilson was placed on the document by Hains who presented it to the applicant representing that Wilson had signed it. The applicant, believing Wilson's signature to be genuine, had then signed as witness.