Ministry of Business Innovation and Employment v Le Roy [2022] NZDC 12855 (8 July 2022)

Last Updated: 8 June 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360349.html

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2020-009-009152 [2022] NZDC 12855

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Prosecutor

v

MICHAEL BENNY LE ROY Defendant

Date of Ruling:	8 July 2022
Appearances:	K Courteney for the Prosecutor J North for the Defendant
Judgment:	8 July 2022

ORAL JUDGMENT OF JUDGE R E NEAVE

Introduction

[1] I have before me allegations in relation to what started out as six but is now recognised to be five documents which it is alleged have been used by the defendant knowing that they were false documents. They are said to be false documents because the signatures of those purporting to make them have been forged and, furthermore,

MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v MICHAEL BENNY LE ROY [2022] NZDC 12855 [8 July 2022]

the prosecution alleges that the defendant knew that these documents were forged because he forged them. This is the crime that was once known as uttering.

[2] The defence says in opposition to the Crown allegation that the documents were not forged, that they were signed by the people purporting to make them and what is more, they were signed in his presence. As I said, in each case the documents are said to be false because the signatures of those purporting to make them are not in fact, the person named in the document.

[3] The elements of the crime in each case are first that there is a false document. The term false document is defined in s 255 of the Crimes Act 1961 and in this case the relevant part is that it is a document to which the whole or any material part of it purports to be made by any person who did not make it. The defendant will be guilty if he has used the document and there is no dispute about that in this case. The documents were either filed with the Companies Office to obtain registration of a company in four cases and were submitted to obtain credit in relation to the remaining document and the defendant must know that the documents are false, and as I said, that is proven the Crown says because he is the one responsible for creating them. The Crown must prove all of these allegations beyond reasonable doubt.

Factual background

[4] The defendant operated a business involving, amongst other things, the recovery and recycling of tyres. He seems to have experienced considerable financial difficulty – the exact details are not before me and do not appear to be particularly relevant to this case. It should also be noted that the defendant attributes a good deal of his difficulties to the proprietor of a rival business with whom he had been doing business himself, a Mr Shackleton. The relevance of this will emerge later. It seems also to be the case that at some point Mr Le Roy decided to expand or diversify his operations and required the purchase of other equipment and carrying out business in a different way.

[5] There are three sets of documents I have to consider. The first are documents purporting to have been made by the complainant’s [relative – witness A] recording

her consent to act as a director and shareholder in the company named Tyre Recycling Services New Zealand Limited. Secondly similar documents in relation to a company called DH Holdings 2001 Limited which are said to have been created by an employee of the defendant a Mr Dion Hamilton. Thirdly there is an application for credit and an agreement to guarantee that credit with a company called TP Bands Limited. This document purports to have been made by [witness A] on behalf of Tyre Recycling Services New Zealand Limited in her capacity as a director. In relation to that last category of documents originally two charges were laid, one in respect of the credit application and another in respect of the guarantee agreement.

[6] For the most part the prosecution appears to have been working from electronic copies of documents. This may have more relevance later to a limited extent in relation to the evidence of Ms James. However, this fact, I think, led the prosecution into error in thinking there were two separate documents. I considered it much more likely that the guarantee was simply part of the credit application and that is certainly in accordance with normal commercial practice. I raised this with Ms Courteney and after enquiries she confirmed that the prosecution now conceded there was only one document and not two. I, therefore, dismissed the charge numbering 1847 which related to the guarantee as essentially being duplicitous. This simply left the allegation in relation to the credit application as a whole.

Evidence: Crown

[7] In support of its case the Crown called the complainants [witness A] and Mr Hamilton, also evidence from Ms James, a document examiner, and the officer in charge who essentially only produced various documents. The substantive evidence came from the other witnesses and a s 9 statement of agreed facts. It seems that the prosecution which was conducted by the Ministry of Business, Innovation and Employment had taken over from a police complaint in relation to the same matters.

[8] [Witness A]’s evidence was that in 2015 she had been asked by the defendant to assist in terms of his companies. In particular she said he had asked if he could use her name temporarily so he could keep his business running. She did not understand the reason at the time. She thought it may have been because he was bankrupt although

I think the evidence established that he only became bankrupt at a later date. She agreed that he had asked to put the business in her name essentially and she thought this was just a temporary measure to enable Tyre Recycling Services to keep operating. She was asked what her role was to be in the company and she said she did not have a role, that she was not involved with operating the daily running of the business and that simply her name was used and occasionally she would be asked to do other things, and I think by this she meant completing forms or attending a meeting that was held with ECan about the business.

[9] She was shown the documents which relate to the incorporation of Tyre Recycling Services and she said she did not write the signature that appears on it, purporting to be hers. She said she did not sign the document and it was not her signature. That was in relation to both those documents. She identified the other writing on the form where it was not typed as that of Mr Le Roy and that is not in dispute and I think it is accepted that in respect of all material matters apart from the signature, that the documents were completed by Mr Le Roy. He simply says that in each case the signature is correct. [Witness A] said that she had asked on numerous occasions to be removed as a director or shareholder but that nothing had happened.

[10] She was also asked about the TP Bands Limited agreement and asked whether she knew anything about the company. She said the first she became aware of it was when she was contacted by them in relation to the debt. It seems they commenced proceedings, the details of which she gave to Mr Le Roy, and unbeknownst to her a judgment was entered against her in respect of the debt incurred with TP Bands. Subsequent discussions she had with Mr Le Roy indicated that there was a dispute between Tyre Recycling Services and TP Bands and she left the matter to him. Subsequently she became aware that the default judgment that was entered was showing against her name in relation to her credit status and it remains there and she is justifiably concerned about that prospect although it was said by her that she had not actually been pressed for payment. She said that she asked Mr Le Roy about the TP Bands’ debt and the relevant passage is as follows:1

1 NOE, page 7 line 29 – page 8 line 9

Q Did you raise with him your concerns about having a debt against your name personally?

A I did yes, and I explained to him that it is against my own personal name asking him, like what is he doing? And then he said whoopdie flipping doo and he admitted to it, yeah. He admitted to, yeah, to it.

Q When you say: “Admitted to it,” what do you mean?

A He said: Yes, he used my name in my document and forged by signature and he said I can go to a loan shark if I want to get a loan.

Q So he didn't seem too worried about the fact that you now had a personal debt?

A No he didn't, yeah, I remember it very clearly.

[11] Again she was referred to the particular documents in relation to the TP Bands’ credit application and guarantee and she indicated that she did not sign the document where it says: [witness A]. The rest of that writing she recognised as being the defendant’s and that is not in dispute.

[12] She accepted that there were occasions on which she signed documents in her capacity as the director of Tyre Recycling Services. She accepted that the defendant may have provided some explanation or at least tried to about them but that she did not really understand what they were about, but the documents to which she was referring in that capacity do not relate to any of the documents before the Court. She noted that at least one of the documents misspelt her name and she considered it highly improbable that she would have signed a document where that was the case. I think she is referring to the consent to act as a director of Tyre Recycling Services Limited.

[13] She was asked by Ms Courteney if she knew Dion Hamilton, the other complainant. She said she did not know him personally but she knew of him. She had heard his name. She knew that he was working with the defendant as was her sister and so she had obviously heard about these charges but other than that she had not met him prior to meeting him outside court on Wednesday.

[14] When cross-examined [witness A] I think accepted that she was named in the documents as a director but she denied that she did in any way act as a director or essentially agreed to it. She did expand on a comment that she had made in her

evidence-in-chief about taking out a loan because the defendant had asked her to. It was what she said in response to that, that after there had been the meeting with ECan which I think was to do with the tyre business, she and [the defendant’s accountant] had a meeting to see whether, as a family, there could be assistance in relation to the bankruptcy of Mr Le Roy which was in place at that time. She said that she was encouraged to approach a bank for a personal loan in her personal name and she said she did that and gave the money to the defendant in the hope that that would clear up his bankruptcy. However, she said that that was a different kind of document from the ones in question. It was a personal document; it was a personal obligation she entered to assist Mr Le Roy and had been done obviously voluntarily and understanding what she was doing. She was asked whether or not she would help out with the business and she said at page 19, line 12:

A I wouldn’t say that I helped out at all. Mike would take me into his office and ask me to sign a document, like sign, like a document. It didn't happen that often at all though. I wouldn’t say that I was helping out with the business at all, no. I didn't understand, like the daily runs of it, who was employed, anything like that.

Q When you say you were taken into Mike’s office to sign some documents you signed those documents he asked didn't you?

A After discussions it wasn’t like – I was like, yeah, sure, absolutely. He would say that I really need you to sign this document for me. He would elaborate and then he would go on to say how this has really helped me, the family, that's what the whole - that's where it all sort of came down to. If you don’t help me we’re going to lose everything and your mum will be – mum and the kids won't have a roof over their heads, yeah.

[15] She said this happened only a few times, it was not regularly and she accepted the proposition it may have been perhaps once a year.

[16] She was asked whether there was a chance that she might have signed the documents in question but just forgotten about it, particularly given her concession that there were documents she signed from time to time without properly understanding what they were about. She did not accept there was a good chance of that and, in fact, in relation to the TP Bands’ documents she says she very clearly could say that she had not signed the document or seen it before.

[17] She was also asked at page 27 and I think this is important, in cross-examination:

Q Okay [witness A] so when Mr Le Roy gives his evidence he’s going to say that he did explain to you that he wanted you to become the director of the company. What do you say to that?

A I guess he explained to me that he wanted me to be a director, a figurehead, or look through figurehead he would say.

Q He’s also going to say that he actually took you to meet with his lawyer to discuss what it meant to be a director, that's the truth isn’t it?

A I don’t recall that.

Q You don’t recall that? A No.

Q So it’s possible that you could have met with his lawyer and discussed becoming a director?

A I'm trying to think of a time that that happened.

[18] So I do not think there is any acceptance there that she had met with Mr Le Roy’s lawyer to discuss matters.

[19] She was also asked about other documentation she had completed and indeed was referred to a specific agreement with a company run by a gentleman called [name deleted] and she accepted that she had entered that agreement and agreed to do so but she knew not what that was about.

[20] Towards the conclusion of the cross-examination I asked her why she thought that she had not signed the documents. At page 31 I asked:

Q So I'm just wondering what is it about this document that makes you think you didn't sign it?

A Well I don’t recognise my signature, yeah, and I didn't write my name below it or – and I recognise, yeah, Mike’s attempted my signature and, yeah.

Q So it’s primarily the fact that that just is not your signature that makes you think you didn't sign that document?

A That's right and I'd never seen this before as well. Q Okay, you don’t recall the document itself?

A No.

[21] And she repeated that she had not signed the documents.

[22] She was asked whether she knew Mr Hamilton. She said that she had never hung out with him or anything although she accepted he was an acquaintance of her sister’s. She said that Mr Le Roy would say that she did know him and that she did hang out with him and her sister and she denied that. In fact, she said: “It’s ridiculous,” and she rejected the proposition that she and Mr Hamilton were collaborating to get Mr Le Roy in trouble to which her response was:

That is not the truth at all. I'm just here to clear my name. I just want to be removed from being a director, from ever having my name involved with it. I don’t want a default against my credit check. I just, yeah, I don’t – there's nothing sinister about this at all. I'm not trying to put the blame on Mike. If anything he needs to stand up to what he’s done, really handy, yeah.

[23] She was also referred to interviews she has had firstly with Environment Canterbury. This was in 2019. I think at that stage ECan were trying to identify who was responsible for the management of the relevant company. There are certainly passages in that document which might indicate that she has signed some documents possibly including the consent to directorship and shareholding. However, closer examination I think reveals that it is by no means clear that the documents she is talking about relate to the consent to be a shareholder and director or indeed even relate to the time at which the company was incorporated. Furthermore, elsewhere in that interview she is equally clear that she did not sign the relevant documents. So to the extent that there is any inconsistent statement which I do not accept, there are clear contrasting consistent statements in that interview. But the same can be said in relation to the interview that she had with [the officer in charge]. She did accept that there were documents that she signed without necessarily knowing what they were, however, she was equally clear that whatever documents might fit into that category, the questioned documents did not come into that category.

[24] Mr Hamilton’s evidence was that he had a conversation about DH Holdings 2001 some eight to 10 months, I think, prior to him stopping work. According to Mr Hamilton the defendant offered him a business and that there was a conversation and he said what Mr Le Roy said sounded okay so he asked to see all the paperwork

so he could have a read through of things. He later found out that the company had already been made in his name and he said that this was a conversation which had taken place at the Lone Star Restaurant on his birthday which was [date 1].

[25] He clarified at page 39:

17. And you just said that, correct me if I'm wrong, that you were interested in the possibility of the business?
    

A Correct, yep.

17. But you'd asked him (Mr Le Roy) to sort out the paperwork and have a look at it?
    
1. Yes, supply me with the paperwork so I can read through things and what not.
   

Q Did Mr Le Roy ever show you any paperwork? A No.

[26] He was referred to the signatures on the questioned documents and asked whether they were his signature and he said: “No.” He said he had never seen the documents before in either case. He said he did not sign his signature in the fashion that it appears on the documents.

[27] The witness accepted that Mr Le Roy was operating a warehouse in Leeds Street from where the business was run or at least to store the tyres but he rejected any suggestion that he had signed the documents at the office. He repeated at page 42:

I didn't sign any because our dinner was after work, and, yeah, that paperwork should have been there at the dinner but nothing was talked about at the warehouse, so the first I heard about this whole thing with the business was at the dinner and after that I went back to my friend’s house.

[28] He denied having any acquaintance with [witness A] other than meeting her outside the court and he denied that she ([witness A]) and her sister and Mr Hamilton had hung out socially, although he accepted he knew [witness A]’s sister.

[29] It was put to the defendant the document was signed the day after his birthday, and indeed it was stated that that was going to be the defendant’s evidence, and he

repeated that he did not see Mr Le Roy the next day. He also said that he would not have rushed into a decision that fast, although he accepted he eventually became aware of his status as a director. Initially he thought it was through [the officer in charge] but I think he accepted in cross-examination that he had, in fact, found out about it earlier as a result of some inquiries he had made.

[30] It was put to him that he had a criminal history and indeed he accepted quite frankly that he did. There was an extensive list of dishonesty convictions in 2015 including numerous acts of burglary as well as some using a document and receiving property charges. It was suggested to him that his stance that he had not signed the document was because he was scared of getting in trouble again and that he had spent some time in prison as a result of those convictions. His response to that was that that was due to his own actions but he denied that he did not want to go back to prison or get into trouble with anything in relation to anything to do with the company. And indeed had he signed the document he would in fact, have committed an offence because in agreeing to act as a director he would be acknowledging that he was not a prohibited person and that is defined on the face of the document as being someone convicted of a crime involving dishonesty in the last five years which is a category into which he would have fallen.

[31] It was put to him that he was now working for Mr Shackleton and who was Mr Le Roy’s business rival and that Mr Le Roy suspects that Mr Hamilton was only coming along at Mr Shackleton’s request, essentially to get Mr Le Roy into trouble. His response to that was that he came of his own free will. It was not suggested to him by the defence that he and [witness A] had put their heads together and I specifically raised that with him as a matter of fairness and he said: “I have never met [witness A] until today. I know her sister, her brother, her mum, all of them but I have never actually personally met her until today”.

[32] As I said, the officer in charge essentially produced the relevant documents including material he seems to have obtained from the police once he took control of the file.

[33] The next important witness insofar as the prosecution is concerned is the document examiner, Ms James. She is an extremely experienced document examiner and her expertise was not challenged. She was asked about the fact that she was working for the most part in relation to reproduced documents and did not have the original and indeed I think all documents that she examined were some form of reproduction. She accepted that there were some limitations on examining such documents, for example, you cannot measure the quality of the pressure and it is not possible, generally speaking, to put documents under a microscope because there can be difficulties with the reproduction and you have not got the original document in front of you. However, she says that the experience has shown that it makes relatively little difference to the assessment of documents whether they are being examined in their original form or in a qualified form. She says to some extent it depends upon the factors in respect of which you are relying. She said if a document is questioned because quite clearly the style of writing or the way the letters are constructed is different, it will not matter whether it is a photocopy or an original and I think it is fair to say that all the factors to which she refers fall into that category.

[34] In relation to [witness A], she looked at the various specimens provided by [witness A] and it has to be accepted that [witness A]’s signature did change over a period of time, however, she noted that there were a number of differences in relation to Companies Act documents and the specimen signatures. The differences are both gross and subtle. They include the apparent fluency of the signatures, the size relationships between the letters and the individual letter constructions. She says:

For instance, when I talk about the apparent fluency you can see on both of them that there's a very abrupt break or hesitation between at the end of the flourish line underneath and the beginning of the [first letter] in the name [witness A],

[35] And she said she was not able to microscopically examine that but she considered there was either a major hesitation in the formation of the letter or the pen has left the paper at that point rather than the fluent mark which is clear from the specimen signatures. She said that [two letters] did not really correspond with the fluency and writing features she saw in the signatures and she said based on the differences that she observed and the differences to the specimens she concluded that the two questioned signatures on the Companies Office documents had resulted from

attempts to copy or simulate the genuine signature style of [witness A] as seen in some of her specimens.

[36] She expanded on this that when she looked at the specimen signatures, particularly in terms of the flourish which appears under the signature, and this is at page 87, line 25:

A: Also I have noticed that actually the specimen signatures, they start – the flourish starts and then goes back into the [first letter] whereas these questioned ones look like the [first letter] is made and then the flourish is put on underneath. Without the ability to examine that microscopically I cannot see the direction but it is not flowing into that initial letter in the same way.

[37] And I suggested to her from a layman’s point of view there was a distinct difference between the flourishes on the acknowledged signatures to those on the questioned signatures and she agreed with that. She said while she could not see it microscopically her pick was that they actually go in different directions so that the ones in the specimen side, they go from right to left and possibly the ones in question go left to right and are added on afterwards, whereas in the specimen they are an integral part of the signature. In fact, the beginning of where the writer is starting the signature.

[38] Moving on to Mr Hamilton’s signature, she had the specimen signatures for him. She said they were fluid, reasonably complex and that they were consistent with each other so the more they could clearly be read as reading D Hamilton and bore absolutely no resemblance to the two signatures on the Companies Office documents with Mr Hamilton’s name on them, and indeed you do not have to be a handwriting expert to see that there is just simply zero relationship between Mr Hamilton’s signature and the questioned signatures. She further noted that neither of the questioned signatures even seemed to read Hamilton and that they either looked like Hinton, Hunter or Hento and indeed I thought that they either looked like Hinton or Hunter to me. She said there was no attempt unlike with [witness A] to copy the genuine signature style and she offered no opinion about who might have completed them. I asked whether it suggested that it was completed by someone who had no familiarity with the actual signature and she said that is one possibility or the other

was that they simply did not know or care what the actual signature looked like because there would never be any comparison or they are simply a poor writer.

[39] She later on expanded on some of the differences in relation to [witness A], particularly in terms of the letter construction in relation to the lower case K on the Companies Act documents and indeed on at least one of them there appears to be an E at the end of [witness A’s last name]. She also I think was looking in terms of the TP Bands document given the way in which the signature was constructed there which is in a different form, one is bound to observe, from the Companies Act documents, that in those circumstances and given the acceptance of which Ms James was unaware at the time, that Mr Le Roy had completed everything else, she concluded that Mr Le Roy had completed the handwriting and signatures on the questioned document. She said she was giving that on the strongest opinion level that she could and it was not qualified in any way, and in relation to Mr Hamilton in response to the question from me she said his signature just did not follow any features of his natural signature.

[40] In relation to [witness A]’s signatures she accepts that there was some pictorial similarity between particularly the Companies Act documents and she has decided in relation to that that it is either that the signature is from another writer or what she called an auto-simulation. That was explained as meaning a situation where someone writes their signature on a document in such a way that they incorporate features which will allow them, later on, to deny it and say that it is not their signature. Essentially that the person has basically tried to disguise their own signature. However, she said that she did not consider that was a likely proposition. She noted [witness A] was quite a fluent writer and she could see that in the handwriting samples, that she had good pen control and rhythm and her signatures were fluent and that they had consistencies although the format did vary from time to time, for example, at one point [witness A] was clearly signing her signature just as [witness A]. She did not think that there was any suggestion of fluency and that even with auto-simulation you would expect to see some fluency in subtle details and that that just was not present. She accepted that people’s signatures can change over time. Particularly young people may experiment with their own signature style but I do not think there was any acceptance on that on her part that those factors altered her conclusions.

[41] In relation to Mr Hamilton she was not even able to stay that he was an auto-simulation because there were just simply no resemblances between the signatures. And I do not think she resiled from any of that under cross-examination.

[42] I should probably add in relation to the credit account application that one of the significant features as far as Ms James was concerned was the construction of the [letter deleted] in the signature of [witness A] which had a very marked similarity to the way in which Mr Le Roy writes his capital [letter deleted]s and indeed it is abundantly plain from even lay examination of the signature.

Evidence: Defence

[43] The only witness called for the defence was the defendant. He, of course, was under no obligation to give evidence or to provide any reason why prosecution witnesses might not be telling the truth, however, he did both. The defence, in essence, is that the documents are not false, that they were completed by [witness A] and Mr Hamilton respectively and by them signing the documents in their own name in his presence. He said he asked [witness A] to help out as a director in relation to the company he was setting up called Tyre Recycling Services, that she had been involved in discussions with her mother and furthermore, that she had talked with [the defendant’s solicitor] and [the defendant’s accountant] at their offices and he said that particularly once her mother asked her [witness A] seemed quite keen to help the family and she wanted to help them. I asked him to clarify and she said that she had been asked to be a director of the company and that whilst Marlene may have asked her to do that, he was present when that occurred.

[44] He went on to say that he had taken [witness A] to [the defendant’s solicitor] in his offices in Memorial Avenue and he explained there what the liabilities of the director were and she said she still seemed quite keen. He said [his solicitor] sent him all the papers. He printed them out and filled them out and then [witness A] signed them. It seems they used an independent company for the purpose of company formation which I think is fairly common practice. He was clear that any of the relevant documents that were signed by [witness A], that she knew what she was signing and that this was part of what she had agreed.

[45] In relation to Mr Hamilton, he said that Mr Hamilton was a good worker and that as a result he decided to get him involved in the formation of DH Holdings Limited. This, I think was in relation to a new business of importing tyres into New Zealand so that the tyre press that he had would be able to operate at an economic level. He said that he discussed the business opportunity with Mr Hamilton at the restaurant and he thought it was a Thursday night because he was usually out of town Monday to Wednesday and he worked in town on Thursday and Friday. According to Mr Le Roy after a discussion with Mr Hamilton at dinner, Mr Le Roy said: “Well I will go home, sort the papers out and have a look at it tomorrow,” and the next day when Mr Hamilton got paid he signed the papers.

[46] Ms Courteney in cross-examination put to Mr Le Roy a document which appeared to have been provided by the company engaged by the defendant to complete the incorporation of the company. The source of this document was not explored but there was no challenge to its provenance or authenticity. I infer it was obtained by either the investigating officer or from a search in the course of the investigation of Mr Le Roy’s records. Given the contents of the document I am a little surprised it was not part of the prosecution case. No application was made at any time under the hearsay provisions of the Evidence Act 2006. The document is clearly hearsay but also appears to be a business record. It may be that the prosecution considered it added little to the case although the timings revealed by the document are obviously important.

[47] The document gives every indication of reliability. The document reveals that DH Holdings 2001 Limited was incorporated on [date 1] 2019. This appears to be confirmation from the company formation business that the work that had been requested had been carried out in respect to DH Holdings. The advice of this was timed at 4.34 pm. This indicates that the documents to support incorporation which must have included the questioned documents had been provided to the incorporating company prior to 4.34 pm.

[48] The significance of this I suspect is already immediately apparent. As I said the document gives every indication of reliability. It seems to have been generated clearly in the course of normal business work. Furthermore, as a matter of logic it

must have been sent to the defendant. There was no suggestion that the defendant had been misled, ambushed or prejudiced by this document nor was any objection raised to its admission. In those circumstances I am satisfied it is appropriate to waive the notice requirements in s 22 and permit the document’s admission and I can detect no prejudice to the defendant in that respect.

Analysis

[49] I shall deal first with the issue of the company formation documents in respect of [witness A]. The defendant admits that he completed those documents apart from the signature. As for the signature, [witness A] says she did not sign the documents. Further an examination of the signature from the layman’s perspective reveals a distinct lack of similarity between the various specimen signatures provided by [witness A] and the questioned signature. Apart from anything else at least one of the signatures appears to spell [witness A’s last name] with an E. Even allowing for the evidence that showed a degree of experimentation with her signature by [witness A] at this time, for example the use of [witness A], it is highly improbable that she would misspell her own name. To be fair it is possible that what looks like an E on the consent to act as a director may just be a flourish on the letter K, as is more probably the case in relation to the shareholder consent. This was a point made by the defendant. However, on none of the specimens provided by [witness A], albeit it at a later time, or on any documentation at the time is there anything resembling this flourish. [Witness A] said that she had not signed the document because (a) it was not her signature; and (b) she had no recollection of the document. I think she had to accept that there were documents she had signed which she did not recall including those with greater potential adverse consequences than the questioned documents and I refer in particular to the loan agreements.

[50] She also accepted there was another loan agreement which she entered to provide financial support to the company. There cannot be any argument that [witness A] agreed, probably reluctantly, to assist in the running of Mr Le Roy’s business even if it was not clear exactly what it was she agreed to do. She obviously accepted that she had a role to play although there is no clear evidence that she ever fully understood what that role was, how it occurred, and what her obligations might be.

[51] The defendant alleged that she had full advice from [his solicitor] prior to signing these documents. [Witness A] rejected this proposition. This seems to me to be significant. Had she been given full advice from a lawyer as to her rights and obligations prior to the alleged completion of the documents it makes it much more likely that she did, in fact, complete it and her protestations of ignorance are that much less likely to be true.

[52] In these circumstances the fact the defendant chose not to call [his solicitor] has some relevance. Clearly this issue is one that requires explanation or resolution. The person best able to confirm that case is the solicitor. Even if the solicitor had no specific recollection of the meeting or advice, any vaguely competent solicitor would have had some record of the meeting. No explanation is forthcoming as to this lack of evidence from [the defendant’s solicitor].

[53] When I raised this matter with Ms North out of fairness, so she had an opportunity to consider the position, she indicated it was not thought that [the defendant’s solicitor]’s evidence would assist. This absence, to my mind clearly supports [witness A]’s assertion that such advice was never given. It not only strengthens her credibility, it weakens the weight I can give to Mr Le Roy’s assertion that such advice was provided. Indeed, it weakens his credibility generally. I reject any suggestion that [witness A] received independent advice.

[54] It is also necessary to consider the evidence of Ms James. In essence, she provides two possible scenarios in relation to the Companies Act documents. [Witness A] did not complete, as the prosecution alleges, or [witness A] did complete in a fashion designed to throw future doubt on the genuineness of her signature. That was never suggested to her nor is there any conceivable reason for her to do so, particularly when we recall that she completed other more onerous documents which she acknowledged. Furthermore, if the defence is correct, she was quite happy to do as she was asked so why would she auto-simulate?

[55] The defendant, of course, is under no obligation to provide any motive or explanation as to why a witness has done what he or she has done or has said what he or she has said but the absence of any obvious reason for fabrication or untruthfulness

is a matter I may take into account. [Witness A], moreover, gave her evidence in a measured, reasonable fashion. She displayed no real animus against the defendant although it is obvious she did not like him, given the difficulties he has caused her. She was open that she was not being pressed by creditors and, except to the extent that there was the judgment against her, she accepted that she had been repaid in some cases and that TP Bands were not pressing her for payment.

[56] The defendant on the other hand tended to give over-elaborate answers even in relation to simple questions. His testimony in at least one respect contrasted with his own acceptance of agreed facts. Even with an understandable allowance for a failure to grasp all the thrust of Ms Courteney’s questioning, he seemed reluctant to come to grips with propositions put to him, these factors must be put together with other credibility factors which I have mentioned before and which I will mention later in this judgment.

[57] Where there is a conflict between the evidence of [witness A] or Mr Hamilton and Mr Le Roy, I reject Mr Le Roy’s evidence and accept firstly [witness A]’s and secondly Mr Hamilton’s. [Witness A]’s evidence moreover was supported by the document examiner who is independent as well as propensity factors which I will discuss later.

[58] There is also the fact that there is a certain illogicality about the proposition that the defence advances in respect of her evidence, namely that she should sign the documents at the stage she did when she had no reason to do so and be laying down some kind of false trail for future reference, particularly when later on she had signed more onerous documents without any indication of trying to protect her own position. I am, therefore, satisfied [witness A] did not sign the director or shareholder consents. If she did not sign them the only person who could have signed them was the defendant. He witnessed the documents apart from anything else. The document is, therefore, false and must, therefore, have been known to be false by the defendant. Charges 1679 and 1680 are proved beyond reasonable doubt.

[59] In relation to the credit application including the guarantees, not only does [witness A] deny the questioned signature which once again does not match her own

signature, on this occasion Ms James make the positive assertion that Mr Le Roy actually completed the document. Her assessment is borne out even by a layman’s examination of the documentation and I refer to the matters I have raised above as to why she thought this was the case. Furthermore, as I have already noted, [witness A] gave evidence that the defendant admitted to her that he had forged the document. Once again, I reject the defendant’s evidence and accept [witness A]’s and Ms James’ evidence. That evidence clearly establishes that this document was fraudulent and false and used by the defendant knowing it was a false document. It was false because he had signed [witness A]’s signature. He had forged it. Similarly, charge 1671 is proved.

[60] In relation to Mr Hamilton there are two documents, the director’s consent and the shareholder’s consent. In respect of those documents the signatures bear absolutely no resemblance to Mr Hamilton’s signature. Again, it would either have to be something like auto-simulation or someone else signing the documents and indeed this cannot even be an auto-simulation because Ms James said that it is just not possible to form that conclusion because there is absolutely no resemblance between the signatures. Furthermore, at the time that Mr Hamilton signed them there was no conceivable reason for him to try and do something false with the signature or to sign his signature in such a bizarre fashion. It looks clearly as if the signature was completed by someone who did not know what his signature looked like. It does not even appear to be his name. Furthermore, if Mr Hamilton had completed the director’s consent he would have committed a criminal offence as I have noted before. That might give him the motive for dissembling now but does not explain the document in the first place. He said he wanted to see the documents first and he was not challenged on that and whilst he presented as not a particularly sophisticated individual, he seemed to be, nonetheless, a relatively level-headed young man which is in accordance with Mr Le Roy’s own assessment of him.

[61] It was suggested to him he was being put up to his evidence because of the fact he was now working for Mr Shackleton, Mr Le Roy’s business rival and to some extent nemesis. Even then that was at best surmised on Mr Le Roy’s part, denied by Mr Hamilton and there was not a shred of evidence from any source to back it up. In

addition the case in respect to Mr Hamilton is supported by the propensity reasoning which I will discuss in a moment.

[62] Finally, and I think definitively, Mr Le Roy’s case is completely undone by the timing of the documents. The narrative from both points of view is that Mr Le Roy took Mr Hamilton out for his dinner on his birthday, that is [date 1]. Mr Le Roy said he agreed on that day that he would sign the documents and he did so [the next day]. It seemed he filled these documents out the day before, presumably after the dinner, perhaps in expectation of agreement, however, it is clear that the documents to form DH Holdings 2001 Limited had clearly been submitted prior to 4.34 pm on [date 1] which is before Mr Hamilton and Mr Le Roy had even gone to dinner. Thus, Mr Hamilton would have had to have signed the documents before he was even asked about it on the defendant’s version of events. When confronted about this the defendant simply had no explanation. He attempted to say he must have got his days wrong but when it was pointed out to him it was not the day of the week that was the issue, but rather the date, he then proceeded to say: “Well the dinner must have been on a different date,” however, that fails to take into account the statement of agreed facts which records the dinner occurred on [date 1]. The defendant had no answer to this proposition.

[63] It is finally appropriate to deal with the issue of the propensity reasoning. There has been no application in this respect although it obviously arises from the facts and Ms North quite properly accepted this did not take her by surprise.

[64] The Crown relies on the highly unusual circumstances that in relation to two companies associated with the defendant, two people, independently of one another should claim, in relation to documents, establishing the company and the same documents in each case, that they did not sign them. Furthermore, in each case, there is independent evidence supporting the inference that the signatures are forgeries and of course in Mr Hamilton’s case there is clear evidence that he simply could not have signed the documents.

[65] The issue is in each case whether the defendant has forged these documents. The evidence shows a tendency to forge documents on behalf of people with whom

he is in a relationship – family or employment, but the circumstances are unusual and there is no evidence of collusion. The circumstances are extremely similar in relation to each of the charges and in each case the documents are said to be witnessed by the defendant in relation to a company he has tried to set up. Although the offences are separated in time by such difference and there are only two such cases, nonetheless, the circumstances are highly unusual. Essentially it would be a remarkable coincidence if two people independently made up the same allegation about the defendant behaving in respect of them in exactly the same way and in the absence of any collusion which even the defendant accepted was merely speculation on his part.

[66] As Ms Courtney put it to Mr Le Roy in cross-examination he would be extremely unfortunate if this were not as the prosecution alleged. In my view that coincidence and a remarkable one at that is a piece of circumstantial evidence which I can take into account in weighing up the defendant’s denials and his credibility and the credibility of the complainants. It strikes me as highly improbable that two people could have been mistaken or lying about this issue independently. As I say, that is not determinative but as a piece of circumstantial evidence which supports a favourable view of the complainant’s evidence and justifies rejection of the defendant’s.

[67] It follows from all of the above and as I have said before, I think where there is any conflict between the complainants and the defendant I reject the defendant’s evidence and prefer the complainant’s. Putting aside the defendant’s evidence I am satisfied there is ample evidence to support all these charges and that each of these charges are proven beyond reasonable doubt. So for the sake of completion in relation to [witness A], I find the charge on TP Bands proved and I find the charge in respect of Mr Hamilton proved.

R E Neave

District Court Judge