R v Perrin

The main issue in this case was whether an appeal against conviction should be allowed on the ground that it was an error for the trial judge to not leave an exculpatory provision for the jury’s consideration, or direct them in similar terms. The provision provides that a person is not criminally responsible if they act in the exercise of “an honest claim of right”. The appeal was dismissed on the basis that proof of the offences in question precluded the application of the provision. 

Morrison and Philippides JJA and Atkinson J

5 September 2017

On 20 December 2016 the appellant, Mr Perrin, was convicted after trial of six counts of aggravated forgery (contrary to s 488(1)(a) of the Criminal Code) and three counts of aggravated fraud (contrary to s 408C(1)(d) of the Criminal Code). [1]. This case involved an appeal against conviction and an application for leave to appeal against sentence. [2]–[3].

The offences arose out of a series of transactions with the Commonwealth Bank of Australia (“CBA”). By about 4 August 2008 there was one loan of $10 million, and another of $3.5 million. [31]. The CBA gave these loans in exchange for, relevantly, a mortgage over a property in the sole name of the appellant’s wife, Nicole Perrin, and guarantees from Mrs Perrin and from companies of which the appellant and Mrs Perrin were the sole directors and shareholders. [8], [12]. Evidence was led that without the mortgages and guarantees, CBA would not have advanced the funds. [38].

The appellant admitted that the signatures purporting to be those of Nicole Perrin, on all of the relevant documents, were not in fact hers, but were instead written by the appellant. [17]–[33]. Further, the appellant admitted that documents which had purportedly been witnessed and signed by the appellant’s brother, Fraser Perrin, had not been witnessed or signed by him, and were instead signed by the appellant. [34]. It was not in question that the appellant did not have any authority, expressed or implied, to subscribe Fraser Perrin’s signature. [52]. However, the appellant contended that he did have Mrs Perrin’s authority to sign the documents, and that she had expressly stated that to him. [45].

The two appeal grounds pressed were: (1) that the trial judge wrongly decided that the exculpatory provision in s 22(2) of the Criminal Code would not be left for the jury to consider; (2), that a miscarriage of justice occurred because the jury were not directed that a verdict of guilty depended upon satisfaction beyond reasonable doubt that the appellant did not honestly believe he was entitled to put Mrs Perrin’s signature on the relevant documents, and did not honestly believe he was entitled to gain the relevant pecuniary benefits. [2].

With respect to the first ground, s 22(2) removes criminal responsibility for “an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud”. [59]. As Morrison JA explained “the one same act must satisfy all of the criteria”. [60].  The appellant submitted that a judge is obliged to leave an exculpatory provision for a jury’s consideration if there is some evidence of raising it, and that the appellant’s evidence raised the provision in that the appellant believed he had his wife’s authority to sign the documents. [48].

Morrison JA (Atkinson J agreeing) held that with respect to both s 488 (forgery) and s 408C (fraud), for the Crown to establish the offence it had to prove that the act was dishonest. [76]. However, for the Crown to establish the absence of an honest claim of right in s 22(2), it must prove that the act done under that belief is dishonest. [80]. As his Honour observed, “it is therefore apparent that proof of one eliminates proof of the other”. [76]. To reiterate, in his Honour’s words. [90]:

“The offence of forgery under s 488 has the element of intention to defraud. If that was proved it had the necessary quality of dishonesty inconsistent with an honest claim of right to do the act, i.e. the forgery. The offence of fraud under s 408C expressly has the element of dishonesty, which, if proved, was necessarily inconsistent with an honest claim of right to do the act. … a finding that the appellant acted dishonestly and thus had the necessary mens rea foreclosed a finding that the appellant lacked the necessary mens rea for dishonesty because he had acted under a bona fide belief that he was entitled to do as he did.”

It followed that ground 1 failed. [136].

With respect to ground 2, the relevant transcript passages revealed that the jury were directed that “they had to assess the appellant’s state of mind, not by reference to the standards of others, and if he honestly believed that he was entitled to do what he did then he was to be acquitted”. [143]. His Honour held the directions “were adequate to identify that which the jury required”. Accordingly, ground 2 also failed. [159]–[160].

In separate reasons for judgment, Philippides JA also dismissed both grounds of appeal for similar reasons.

W Isdale